ADA = Applicant Concern

System

Hey Folks,

We have a gentleman who used to work for one of the facilities we manage. He began working in Aug08, but quit in Jan09 due to personal illness. At the time he would not have been eligible for FMLA.

This employee has come back now, though, to reapply for a position, with a letter in hand from a local hospital. Turns out his illness was life-threatening cancer that was in his leg, and to stop the spread of the disease the doctors had to amputate the leg below the knee.

The letter from the hospital, written on his behalf, is one requesting support for this individual stating that he is now considered disabled, but he is able to do limited work. Unfortunately, the letter states that they have not be able to determine his limitations as it relates to lifting or work in general. It also states that he would still experience episodes of tiredness due to chemotherapy side effects.

The employer is an Intermediate Care Facility for those with a Mental Retardation diagnosis in the state of Texas. His request is that he be given a direct care position at a house with residents who are more independent.

Here are our concerns:

1. There has been no limitations set by a physician.
2. Even if we were to hire him in our most independent setting, our clients are still prone to aggressive behaviors, and we have serious concerns about his ability to cope with these aggressions.
3 Even with our self-insured work injury program, we do not allow employees to return to work without a 100% full release as we do not have restricted duties due to the nature of our clients (a key essential function is a two-person lift assist).
4. If an employee has a personal illness/injury w/restrictions in most cases we don't let them work without a 100% full release to keep the company from becoming liable in the case they aggravate their personal injury at our workplace.
5. We are concerned that bringing someone in with these restrictions will be a catalyst for those that have had restrictions (due to injury or personal illness) and they will cry discrimination.

I know this much, if this applicant were actually sitting in front of me, I would describe the job duties and ask can they perform the essential functions of the job with or without reasonable accommodation? I would also ask (because of the white elephant in the room) how would you perform a two-person transfer (which again is an essential function of the job, as well as containment for aggressive behavior)?

I'm trying to avoid a potential ADA discrimination case here, but these concerns are valid and I don't think we have a reasonable accommodation that works in this situation.

Any advice? Thanks

Still Need Coffee

Well, if you do not have an accommodation, then there is no discrimination. The ADA only requires you to provide a disabled employee with accommodation IF it does not place an undue burden on the employer, and IF that accommodation allows the employee to perform the essential job functions.

It sounds like you cannot find an accommodation that would allow the applicant to perform the job functions, therefore, you are unable to hire this applicant, and no discrimination has taken place.

Would you consider asking the applicant what accommodation they would suggest? If you make it an interactive process, there's less chance of crying foul.

davids

Your concern is valid, but you might be getting ahead of yourself. First, since he quit, you have no obligation to just give him a job. If you have an opening, he can apply. You would then consider him among all other applicants.

What is not clear from your posting is whether he has a prosthetic leg or is on crutches or in a wheelchair. Also, how do you know if any applicant can perform the physical parts of the job? Do you conduct a test that includes lifting patients? Do you require applicants to take a physical exam? Do applicants just self-certify that they are able to perform the duties? I suppose, that since he presented you with medical documentation that says he has limitations, you would have valid reasons to explore further with him. But, hopefully, you have some objective standards against which you can measure his abilities.

NaeNae55

IF you have a job he is otherwise qualified for, AND you know he would have been your first choice (likely since he has experience there), then based on the documentation he brought in I would send the job description to his doctor. Let the applicant know that when he provides a medical release, with or without accomodation, that you will consider him. If there are accomodations, then consider them, just like you would do for an employee who was on medical leave. Don't put yourself in the position of deciding what the applicant can handle. That is up to his/her doctor. You just have to decide if you can reasonably accomodate where needed.

System

Thanks for the response. He did ask for an accommodation by asking if he could be considered for work at one of our locations where the clients were more mobile. That particular home, though, has some of our most aggressive clients.

What we are doing is having the applicant take the Job Description, as well as our SAMA containment training and are having the physician review and make a determination as to whether or not the individual can perform the essential functions of the job with or without reasonable accommodation.

Thanks again, folks!!! Blessings.