ada/fmla

Nick Ogden · April 2003

We are a construction firm in Washington state. All employees are required to wear hardhats on the job site. An employee was told to wear the hardhat because of regulations; they said that gave them a headache and that they didn't need to wear the hat. Question, should we be concerned with ADA or FMLA or do we have the right to demand that they wear the hardhat?
Thanks for the input(s).

Hatchetman · April 2003

[font size="1" color="#FF0000"]LAST EDITED ON 04-01-03 AT 03:10PM (CST)[/font][p]At worst, the employee may have a medical condition that could be a disability under federal ADA (or any similar Washington State law). A qualified ADA empl0yee with a disability must be able to perform the essential duties of the job without being an undue risk to himself or others with or without reasonable accommodation.

You may need to evaluate whether there is a reasonable accommodation that would allow the employee to perform the job a safe manner as required by the law (whiat I assume to be the "regulations").

You would not be required to allow the employee on the job if the regulations did in fact actually REQUIRE ONLY a hardhat unless the employee wears the hardhat. Now, whether that particular hard is the problem or hardhats in general is what you would need to find out as part of the ADA process. If it turns out that the law requires that specific type of hardhat to be worn and he is unable to wear it as a result of a medical condition, then you would not be required to retain him in that position. ADA does not excuse non-compliance with bona fide legal requirements, such as safety regulations requiring the use of hardhats.

If you had a vacant position that he qualified for and could perform the essential duties, that didn't require the use of a hardhat, you could transfer him to that. It could be a lower paid positon. Under ADA you would not be required to pay him at the rate of his old job. This transfer isn't really required under ADA but is a possible accommodation if the conditions and "fit" is right (I wouldn't give it to him unless he agreed and wouldnt' fight the transfer).

So back to square one.

If he is saying he has headaches that prevent him from wearing the required hardhat that you provide, talk to him and establish whether or not he can wear any other hardhat. Look at the possibility of evaluating under ADA. Even if you find that he isn't disabled, at least you would have met your obligations should he ever claim that you terminated him on a claim that he was disabled.

Don D · April 2003

All that aside, yes, you can require that he wear the hardhat. A couple of written disciplinary writeups, maybe even just one, then terminate him. He's a definite safety risk.

Cindy Hanna · April 2003

I agree with Don. I would also explain the hazards of not wearing a hard hat in these areas. If this is your company's policy you should start the discipliary process.

Nick Ogden · April 2003

Thanks, folks, for the guidance. Talked with the ee, told that they must follow safety requirements. Put initial note to file; we'll see where it goes.
Nick

Hatchetman · April 2003

And what did th eemplyee say about his migraines and his compliance with wearing the hardhat?

Nick Ogden · April 2003

Supervisor suggested that the EE drink more water and loosen the band in the hardhat; guess what, no more headaces!

ada/fmla

Comments