Working with the ADA
EMPLOYERS NEED TO BUILD a team of workers who can do the job while also making sure that they comply with laws that prohibit discrimination of those with disabilities or other medical conditions. Doing so requires attention to hiring and also attention to how employees will be treated if they become injured, ill, or disabled once they have the job. The first step is to ensure that the job description draws capable candidates. Many employers draft job postings based on job descriptions that are outdated or incomplete. Before posting a job, managers should consult the supervisor for the position and any other employee holding the same job, to edit the description so that the physical demands of the job are accurate and comprehensive.
Then, employers should take steps to ensure that all candidates are physically capable of performing the duties of the job. The Americans with Disabilities Act (ADA) limits employers’ ability to fully assess whether candidates are physically capable. Generally employers cannot ask a candidate about his or her health or about any medical condition until a conditional job offer has been extended. Consequently, any preemployment examination or medical questionnaire must be the last step in the application process.
Once it is permissible for an employer to require a preemployment physical or to ask medical questions, the ADA also limits the scope of those inquiries. Preemployment examinations can evaluate only whether the candidate is capable of doing the job he or she has been offered. For example, if an applicant fails an examination because he or she cannot lift 50 pounds, lifting that weight must be a necessary part of the job. Again, detailed, comprehensive, and current job descriptions will help to justify the scope of any preemployment examinations.
Employers also may need to verify that the applicant is in shape to assume their duties immediately. Workplace injuries are common in the first 90 days in a new job. Some of these injuries happen because an employee is out of shape. Preemployment examinations should include such an evaluation.
Even when employers hire or transfer employees who are physically capable of doing every aspect of a job, those employees may still suffer illnesses or injuries in the future. These incidents can take the form of short-term injuries or long-term limitations.
These conditions can make employees temporarily unable to do one or more of their job duties. If an employer has 50 or more employees, any employee with more than 12 months of service may be eligible for Family and Medical Leave (FMLA) for temporary periods of incapacity. The FMLA generally allows eligible employees to take up to 12 weeks of leave in a 12-month period for a variety of reasons, including when an injury, illness, or condition prevents the employee from performing one or more of their job duties. Employers can offer a temporary light duty assignment to those employees. However, if an employee qualifies for FMLA leave, they have the right to reject the offer of light duty assignments and take leave instead.
At the conclusion of an FMLA leave, employees are entitled to return to their prior position or to a position that is equivalent in terms, conditions, benefits, and opportunities for advancement. Before returning an employee to work, employers should require a doctor’s note stating that the employee no longer has any limitations on his or her ability to do the job. If an employee cannot provide this certification, the employee may lose his or her right to reinstatement under the FMLA.
Even when employees are released to work, they may not be ready to assume all of their job duties. If the leave lasts for several weeks, employees may become out of shape. Employers may want to require a return-to-work examination to confirm that an employee is physically fit to resume the job. Such a requirement should be limited to employees in physically demanding positions who are returning from a leave that is long enough to affect their physical abilities. Employees who are capable of doing the job but have become out of shape should be subject to the same regimen.
Employers may want to consider a reduced work schedule or a temporary assignment to lighter duties as a means of working employees who have been on leave back into shape. However, these assignments truly must be temporary. Some employers place employees in “temporary” light-duty assignments for years. Once an employee has been in such an assignment for that long, it no longer is a temporary assignment. Instead, the employer has created a new job for this employee. It would be difficult for the employer to argue that it is too burdensome to continue employing the worker in this job.
Temporary light-duty assignments should be limited to people who have not yet fully healed or who need to be allowed to get back into shape to avoid injury. Employers should consider requiring periodic medical certifications verifying that employees continue to need the light-duty assignment and that they are still healing. Once an employee has reached the point that his or her limitations are judged to be permanent, that employee should become ineligible for these temporary light-duty assignments.
Some illnesses, injuries, and conditions will result in long-term or permanent limitations. Some of these restrictions may affect an employee’s ability to meet quality, productivity, or attendance requirements. Other restrictions can create a safety hazard. In these cases, the ADA governs how employers can respond.
Any safety concerns should be based on observable behavior that demonstrates that the employees in question pose a safety risk to themselves or others. Depending on the nature of the risk, the employees may be moved to different positions or sent home while the risk is assessed.
Many employers have become reluctant to discuss any medical condition with employees. While this reluctance is understandable, it is often misplaced. Any time an employer has legitimate safety concerns, one of the first steps should be a conversation with the employee. Employers should explain what they have seen and why they are concerned. The employee should be given a chance to respond. If the employee’s response suggests a medical basis for the problem, the next step will be a medical evaluation by a physician selected by the employer.
If an employer confirms that a medical condition may be the reason an employee is having difficulty on the job, the employer must evaluate possible accommodations. The first step in the accommodation process is obtaining a clear understanding of the employee’s restrictions or symptoms. Employers can rely on healthcare providers they select to provide this information.
The next step in the process is to list any and every workplace adjustment that would be needed for the employee to stay in his or her present job.
The list of possible accommodations may include one or more options that would allow the employee to remain in his or her current position without undue disruption to the employer’s operations. In that case, the employer is free to select the accommodation it prefers, even if the employee prefers a different accommodation.
Employers face a bigger challenge when none of the possible accommodations are palatable. Employers must be able to articulate why these accommodations negatively affect safety, productivity, profitability, ergonomics, or some other key component of their operation. Ideally, there will be some objective support for the employer’s position. For example, an employer may be able to show that workplace injuries dropped dramatically once it began an ergonomically-based job rotation. The disabled employee can only do two of the five jobs in this rotation. Allowing the employee to do only these two jobs would force other employees to spend more time on certain physically demanding tasks. That, in turn, is likely to lead to an increase in workplace injuries for those employees.
If an employer is able to demonstrate that there is no reasonable accommodation that allows the employee to stay in his or her current position, the employer and employee must determine if there are other vacant positions for the employee. Disabled employees normally will not have the right to displace other employees from their positions. If an employee decides not to apply for any vacant position, there is no further obligation on the employer. If the employee applies for a vacancy that would be a lateral move or a demotion, the employer should assess the employee’s qualifications for that job.
There is no obligation to place a disabled employee in a position when that reassignment would violate the seniority provisions of a labor agreement or an employer’s established seniority policies. However, a disabled employee should not be rejected simply because the employer deems another candidate to be more qualified. When a disabled employee meets the minimum qualifications for a vacant position, that employee is entitled to the position, even if another candidate is more qualified.
There is no “one size fits all” blueprint for managing ill, injured, or disabled employees. However, following these procedures can help businesses understand their rights and obligations and make decisions that support both workers and the company.
John E. Murray is a shareholder with Lindner & Marsack, located in Milwaukee, Wisconsin. Lindner & Marsack represents employers in all aspects of employment and labor law. Murray has counseled and defended employers for more than 20 years.