Accomodation
Tammy
14 Posts
Here is a scenario:
An employee who is working a 9 hour a day schedule with every other Friday off, has been seriously ill off and on for a number of years. We received a note from her physician allowing her to work only 6 hours a day indefinitely. We know that by telling her that and asking her to reduce the number of hours she works, will create a very strong response. The employee may:
1.Approach the physician who may change her mind and allow her to work full days. If that's the case, should we send her for another opinion to assure we are not liable if anything happens to her because the physician changed her mind so swiftly?
2. Physician refuses to change her mind, and the employee offers to sign a waiver that the organization will not be liable if anything happens to her. Is that acceptable and does it take the liability away?
3. If both of the above is not an option, employee will, more than likely, file a discrimination charge.
I would appreciate an opinion of whether assuring that the employee goes to a 6 hour day per Doctor's orders, does not place the organization in any position of liability. There are all sorts of personal circumstances with the employee where the loss of income will be devastating to her family, etc. but to protect the employee and the organization we must implement it, correct? Your input is greatly appreciated, thanks a lot
An employee who is working a 9 hour a day schedule with every other Friday off, has been seriously ill off and on for a number of years. We received a note from her physician allowing her to work only 6 hours a day indefinitely. We know that by telling her that and asking her to reduce the number of hours she works, will create a very strong response. The employee may:
1.Approach the physician who may change her mind and allow her to work full days. If that's the case, should we send her for another opinion to assure we are not liable if anything happens to her because the physician changed her mind so swiftly?
2. Physician refuses to change her mind, and the employee offers to sign a waiver that the organization will not be liable if anything happens to her. Is that acceptable and does it take the liability away?
3. If both of the above is not an option, employee will, more than likely, file a discrimination charge.
I would appreciate an opinion of whether assuring that the employee goes to a 6 hour day per Doctor's orders, does not place the organization in any position of liability. There are all sorts of personal circumstances with the employee where the loss of income will be devastating to her family, etc. but to protect the employee and the organization we must implement it, correct? Your input is greatly appreciated, thanks a lot
Comments
Here are my thoughts on this one. It's tough, but for now, you must reduce the employee's hours to conform with doctor's orders.
Personally, I don't see this so much as a "liability" issue - although I don't know the illness involved, generally if the work causes the employee to be injured further, you might be looking at a workers' compensation claim, but there is no other "liability" beyond that, that you would need to worry about. (One exception I could think of is if the employee could potentially injure others - such as an epileptic who does not have the condition under control, or is prone to have seizures if they work long hours.) On the flip side, if you do not "accommodate" the employee, you could have liability under the ADA, and that carries with it far greater consequences than a worker's compensation claim.
So - given your hypothetical, I would say that you must tell the employee that you must follow her doctor's orders. I would not bother with the "waiver" idea because it would be worthless. If her injury was worsened because you let her work 9 hours a day against doctor's orders, you would still have a workers comp claim and her "waiver" would not likely be deemed enforceable.
Now, if she gets her doctor to change her mind, you no longer have the ADA problem. If you want to let her work the 9 hours, that's fine. Again, you might wind up with a comp claim if she further injures herself, so if you want to avoid that you could get a "second opinion" because you have "reason to doubt" the new diagnosis, given the first one you just got. But you would not be required to do so.
This is a good example of how the ADA and Worker's Comp and the FMLA intersect and can cause conflicts between the various laws. Hope my comments help!
Jane Reddin
Lewis and Roca Lawyers LLP
Phoenix - Tucson - Las Vegas
>Here is a scenario:
>
>An employee who is working a 9 hour a day schedule with every other
>Friday off, has been seriously ill off and on for a number of years.
>We received a note from her physician allowing her to work only 6
>hours a day indefinitely. We know that by telling her that and asking
>her to reduce the number of hours she works, will create a very strong
>response. The employee may:
>
>1.Approach the physician who may change her mind and allow her to work
>full days. If that's the case, should we send her for another opinion
>to assure we are not liable if anything happens to her because the
>physician changed her mind so swiftly?
>
>2. Physician refuses to change her mind, and the employee offers to
>sign a waiver that the organization will not be liable if anything
>happens to her. Is that acceptable and does it take the liability
>away?
>
>3. If both of the above is not an option, employee will, more than
>likely, file a discrimination charge.
>
>I would appreciate an opinion of whether assuring that the employee
>goes to a 6 hour day per Doctor's orders, does not place the
>organization in any position of liability. There are all sorts of
>personal circumstances with the employee where the loss of income will
>be devastating to her family, etc. but to protect the employee and the
>organization we must implement it, correct? Your input is greatly
>appreciated, thanks a lot