ADA Accomodation

MIHR

Situation: we require employees on a production line to rotate among positions primarily to avoid injuries. If an injured employee has a disability under the ADA we are not required to create a light duty position to accomodate them. However, we are required to look at restructuring the job - i.e., removing non-essential duties.

Can we consider the rotation as an essential function? If we don't, we de facto create a light duty job that didn't exist, plus we burden the other employees with the more physical tasks and increase their risk of injury.

marc

It is up to the company to determine the essential funtions of the job. As you have described this, rotation might fall under that umbrella.

The benefits of light duty have been proven to be an aid to getting the injured worker back into the workforce quicker than not doing light duty. That said, some companies just do not have enough work to accomodate light duty and do not offer it.

It becomes a company philosophy and policy as to how you want to view these situations.

HRLASS

If rotation is an essential function (and I believe it can be), then to eliminate or limit the rotation (which will impact the jobs of others) would not be a required accommodation. You should look at light duty carefully also, when working with an ADA employee as disabilities that fall under the ADA are long term or permanent and light duty is generally a limited time modification or placement. If eliminating the non-essential duties is not enough and there is no other accommodation you can make for the current position, then you need to look at reassignment to another position that is vacant, with similar pay and benefits, that the employee is qualified to perform. Interaction with the employee is key. You need not give them whatever they want, but you are required to interact in good faith, which will put you in good stead in case of later litigation.

pork1

MIHR: Maybe I'm having a senior citizen moment, but why is this coming up as an ADA issue. Are you going to treat this person as ADA protected? Did the physician attach a full and permanent disability rating? By treating this person as a disabled person, then he/she is disabled and ADA applies.

If this is a W/C temporary disability? Simply keeping the individual off of work until the physician returns the person to the work force is how I would handle the ee.

We have 5 light duty jobs and can place w/c ees in them and pay the reduced wage, which is supplemented by our carrier to ensure the ee is paid up to the level of disability to which he/she is entitled. This gets the injured party back to the working world.

If the individual is permanently disable due to W/C injury we place the individual into a utility position. (Janitorial/utilities technician a dust control person, which is a safety position due to the fire hazard that dust material like feed becomes a fire hazard.)

PORK

MIHR

The medical is too complicated to go into here, but the person may have a disability as defined under the ADA, however it is an arguable question. I'm just preparing our options.

We don't have permanent light duty jobs, but create/modify as necessary for short term situations, in part to avoid this issue. However, some of our jobs on a line are light in nature if considered in isolation and the employee/employee's attorney may lobby for assignment to a narrow range of jobs within the plant. However, as noted, we have a rotation and while not every employe is expected to be able to perform each job (physically or skill wise), it would set a dangerous precedent if we begin carving out the light jobs. Conversely, it is also possible that the attorney will say that the employee is precluded from any factory position, which is where the ADA liability comes in.

SMace

Conversely,
>it is also possible that the attorney will say
>that the employee is precluded from any factory
>position, which is where the ADA liability comes
>in.

I thought the Toyota case shot this down. Not being able to work in a factory is not a major life activity and not covered by ADA.

MIHR

You could very well be right. I haven't looked at the Toyota case in a while, so I'll have to haul it out and look at it. However, there may still be liability if the effects spill over into other aspects of the employee's life. Remote, but this employee has tried some pretty unusual things.

SMace

You can never be too careful, unless you are so careful you can't get anything done. x:D

MIHR

So true...

I'm still researching, but the Toyota decision passed on the question of substantially limited in the performance of the life activity of work. Their decision only concerned the performance of manual tasks. Specifically, the court said "[w]e express no opinion on the working, lifting, or other arguments for disability status that were preserved below, but which were not ruled upon by the Court of Appeals."

The court went on to say that "[b]ecause of the conceptual difficulties inherent in the argument that working could be a major life activity, we have been hesitant to hold as much...even assuming that working is a major life activity, a claimant would be required to show an inability to work in a broad range of jobs, rather than a specific job."

There may be lower court decisions that have addressed the issue, but I haven't had time to look those up yet.

LivindonSouth

To answer you initial question, job rotation can be an essential requirement of employment. In our situation it certainly is. The only time an employee temporarily has that requirement suspended is in the case of Workers' Compensation return to restricted duty (we never call it light duty, which carries a multitude of connotations). If an employee cannot rotate among the assigned functions of work cells, they cannot perform the essential functions of the job, and are therefore not "a qualified individual with a disability".

In the past two years, our facility has 'leaned out' all but a few chairs/stools in the machining and assembly areas. If we were to now allow an employee to use one and not 'job rotate', that would create more havoc and uneasiness than we could bear. And the ADA would not require that as a reasonable accommodation.

A major emphasis of our corporation addresses reduction of workers' compensation costs; and, ergonomics is priority number one. Job rotation in production jobs is the first cousin of friendly ergonomics.