Can we do this? Help

cselib · December 2003

An employee in a direct care position recently brought a note from her Dr. indicating that she needed to be light duty due to pregnancy. We attempted to accomodate her by giving her a shift that required minimal lifting. She feels that this is still too much for her, and threatened to "go out on disability" if the situation is not rectified to her satisfaction. We would not mind modifying her duties if this is acutally a need as prescribed by her Doctor. If she agrees to let us have a conversation with her doctor about this, is it legally ok to proceed and have direct contact with the doctor?

SDDCHR · December 2003

This is not an issue of a disability. If you have been given restrictions and have tried to accommodate based upon those restrictions, then you have done your part. If she feels that she cannot do the tasks within her restrictions then I would have her go back to her physician and bring you a new statement. You may want to give her an outline of the essential functions of her position so her doctor can identify what she can or can't do. Is she eligible for FMLA? If so, start her on intermittent FMLA.

martman99 · December 2003

Exactly!

Marty

janeS · December 2003

C:

What did the note say? Didn't the doctor already spell out the light duty requirements in the note?(type and duration?)
If not, I would direct the ee to her doctor for clarification and take her off the schedule until you are clear on what is allowed per the physician.

js

cselib · December 2003

i did not have access to this note, it is strictly in the hands of upper management- they want to actually call her doctor and have a conversation about the employee in question, and they had left it in my hands to find documentation that indicates whether or not this is legally plausible- i have yet to find anything in regards to that.

Whatever · December 2003

First of all, never contact a doctor without the written authorization of the ee. I prefer to do all of these communications in writing. I find it saves a lot of misunderstandings.
What scares me is the upper management doesn't know if it is legit to contact the doctor. Does upper management know what questions they can and cannot ask?

ray a · December 2003

I always require the doctor to define light duty, amount of lifting, standing, sitting, etc. I have contacted the doctor's office for clarification, or some cases the doctor's office has contacted me. Disability is not decided by the ee, the doctor must justify disability based on her medical condition.

System · December 2003

Under ADA, certain pregnancies are protected, but you would be able to contact the doctor as long as it is job related and consistent with business necessity.

However, under Privacy, an employee's rights are protected and the doctor needs the patient's permission to release information specifically to you.

Then again under Title VII, the Pregnancy Discrimination Act holds other sanctions.

Personally, I think if the employee says that it's still too much for her and no accommodations can be made, why not let her go out on disability? She'll probably become injured on the job if she has to continue working.

Beave · December 2003

I don't know the answer to your question, if you can contact the employees doctor. My gut feeling is that you can't. We very recently had a situation that had the Dr. himself call an employees department manager and discuss the situation about the employees job. You might ask the employee to have the doctor (with the employees authorization) contact management. That way YOU are not initiating the contact. Other Forum readers might be better able to let us know if that would work for you.

Don D · December 2003

You aren't at liberty to directly contact the physician, nor will one typically discuss a patient with anyone on the phone. There are several reasons why this is not a good idea: (1)The doctor is not going to come to the phone anyway. (2) In the rare event that he might come to the phone, he will not freely discuss a patient. (3) You're likely going to talk to a nurse which is not what you want. (4) Even if the phone call were successful, you would have nothing in writing to back up a decision to accommodate or assign light duty. Remember; FMLA doesn't require that you accommodate and normal pregnancies are not ADA covered, so there's no obligation to accommodate. Any decision to offer light duty (an accommodation) is the company's right to make. No light duty or job restructuring due to physical incapacity should take place without your having furnished the physician (through the patient) a written job description which includes the physical demands of the job. You may also wish to include a brief note on letterhead advising him that you will review his request for accommodation after he furnishes it based on his thorough review of the enclosed job description. Don't negotiate light duty with the employee. Direct care conjures notions of patients which makes me wonder what type patients or clients she is interracting with. You may have more liability facing you with her on the job than you hoped for.

Pork · December 2003

In addition to "Dandy Don's" words, I would send her back with the certification form for FMLA & a detailed job description and a verbal discussion of the provisions of FMLA and personal leave w/out pay, after she has used up her vacation and sick time. Once she understands she may be using up her FMLA days and may not be able to make it back to work within the 12 week period which pushes the company into a termination action regardless of the expected child's arrival. Last week I had to terminate two (2) employees who went beyond their 12 week FMLA. Both were good guys, but still sick, what a horrible Christmas gift from the employer! The Christmas Ham will not extend their love and loyality to the company!

Good luck!

PORK

LindaS · December 2003

You should not contact the doctor directly. Your best bet would be to do as Don suggested and provide the employee with a written job description and instruct them to have the physician review it to determine what can and cannot be done. Don't make any guarantees regarding accomodations but tell the employee you will review it when she brings it in and make a determination at that time what, if anything, she can do. If the physician has any questions regarding the information you have given the employee they can call you to ask for clarification. I would also remove her from work completely until she receives this documentation.

pecohr · December 2003

As usual Don is right on the money on this one.

Beave · December 2003

Yea, why is Don always on the money & RIGHT. Bet he hears that a lot from his wife.

Can we do this? Help

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