ADA employee with frequent accidents

Jarrett · September 2001

An employee has approximately one fall per month and occassionally has an injury related to accident that requires the employee to go home for the rest of the day. We worry about the employee's safety, but want to be accomodating as possible. We have met accommodations, but cannot prevent the medical condition leading to the falls. When is the threat of injury considered severe enough to terminate under ADA?

Down_the_Middle · September 2001

I don't think any "threat of injury" will protect you from discharging that person. ADA may be applicable if the medical condition substantially limits 1 or more major life activites,,,,,,,,and this is probably not the case. Presumably, these injuries are work-related, so I'd be cautious about creating exposure for retaliation for filing a w/comp claim(s). Seems to me the frequent falls are a symptom of something else that may warrant a closer examination.

Hatchetman · September 2001

Notwithstanding a federal appellate court ruling that held that being a risk to oneself is not a basis for terminating an employee, under ADA, "threat" considerations must be "real" and the threat or risk must be significant, based upon specific information, and not on speculation or generalities or stereotpye or on some possibility of incapacitation in the future. You don't say how she is a threat or risk to herself or others merely by falling. You may need to look the way she is doing the job, or the equipment she uses, and take steps under occupational safety regulations. She may not be the "threat" you think.

System · September 2001

Assuming that the employee has an ADA disability, you've stepped into an unsettled area of the law. The U.S. Court of Appeals for the Ninth Circuit (nine western states) said the ADA's "direct threat" defense won't protect you if you fire a disabled employee who poses a threat only to himself. Other courts disagree. The U.S. Supreme Court has asked the Department of Labor for the Bush administration's view on this issue, according to the Kentucky Employment Law Letter, although the court isn't obligated to rule on this case.

Here's a good article on this topic from New Mexico Employment Law Letter:
[url]http://www.hrhero.com/q&a/heartattack.shtml[/url]

James Sokolowski
Senior Editor
M. Lee Smith Publishers

dhnyct · September 2001

We have an employee who has occasional seizures. Her manager is concerned about our Workers Comp liability if she were to be injured by a fall. She is in an office environment with no "dangerous equipment".

We have her on intermittent FMLA for time missed relative to a seizure. At what point could she also come under ADA? I'm not sure what accommodation(s)might be appropriate.

Margaret Morford · September 2001

I think he/she probably is protected under ADA (ADA specifically covers epilepsy), but it sounds to me as though you are reasonably accomodating him/her by given them time off when the have seizures. The only other thing you might want to consider is giving them time off when they need to go to the doctor to have their medicine adjusted.

Margaret Morford
theHRedge

Hatchetman · September 2001

[font size="1" color="#FF0000"]LAST EDITED ON 09-11-01 AT 02:46PM (CST)[/font][p]I will assume for the purposes of this post that either you have established that she is disabled under ADA or you regard her as disabled (even though she may not be) or she has a record of a qualifying disability. The mere fact that she has epilepsy (assuming that's the medical condition at issue), by itself, doesn't automatically qualify her under ADA. You would need to make the assessment to establish that fact -- whether the epilepsy significantly imapirs one or more major life activities; remember the assessment is based upon the specific facts of the individual at that point, not upon what epilepsy may cause in general.

If you determine she is ADA qualified and needs reasonable accommodation either in place of the time off or as a supplement to it, contact the Job Accommodation Network in Virginia. They have a website. Also, ask the employee what she would recommend that would allow her to perofrm the essential duties of the job; contact her doctor and get some ideas--send him/her a job description so that he/she knows what is reqired of the employee. You may want to try some support organizations for people with epilepsy, in addition.

ADA employee with frequent accidents

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