Tag Archives: Reasonable Accommodation

Requiring a “Full Recovery” May Violate Disability Law

Discrimination, Employee Rights, Medical, , , , ,

Have you ever asked an employee for a doctor’s note confirming that the employee is “fully” recovered from an injury or illness as a condition to returning to work? If so, you may be violating the Americans with Disabilities Act (“ADA”).

I have often talked employers off the ledge of demanding that an employee present a “full release”. Ever since George H.W. Bush signed the ADA into law in 1990, it has been risky to assume that an employee must return to “full” duty after surgery, a serious illness or an injury. The employer must try hard to put the disabled employee back to work, but job duties may have to be modified, reassigned or eliminated to reasonably accommodate the worker.

The Equal Employment Opportunity Commission’s guidance, “Employer-Provided Leave and the Americans with Disabilities Act”, released last year, states that an employer is in violation of the ADA “if it requires an employee with a disability to have no medical restrictions—that is, be 100% healed or recovered—if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.”

Whole Foods was recently sued for not putting Yolanda Toolie back to work when she returned from a spinal fusion with a 10-pound lifting restriction. She says that Whole Foods made her stay on unpaid leave for almost six months until she was fully cleared by her doctor, instead of finding a way to accommodate her restricted ability. After a second surgery, she alleges that Whole Foods fired her because she wasn’t eligible for Family and Medical Leave (which she would have qualified for if she had been allowed to work after the first surgery without the requirement of a “full recovery”).

If these allegations have any merit, Whole Foods could have avoided this suit if it had gone through the reasonable accommodation process with Toolie, a deli clerk, and found a way to put her back to work despite her lifting restriction. Maybe someone else could have lifted the product boxes while she operated the slicer, for example, or maybe she could have transferred to the Whole Foods bakery, where the heaviest thing she would have lifted was a loaf of gluten-free organic brown rice bread.

Putting an employee on indefinite unpaid leave is the accommodation of last resort, since the employee will not receive a salary while not working. Instead of telling an employee to stay home until he is back to 100%, the following reasonable accommodation process should be followed: Continue reading Requiring a “Full Recovery” May Violate Disability Law →

Pot Smoking Still Grounds for Termination

Drug Testing, Medical, Personnel Policies, Termination, , , , , ,

Can an employer in Texas still fire someone for smoking pot? For once, my lawyerly answer does not have to be “maybe”. Yes, you can fire an employee for testing positive for marijuana.

Unlike Colorado, Washington state, Oregon, Alaska and Washington, D.C., the Lone Star State still treats the recreational use of marijuana as illegal. It is also illegal to buy, sell, grow or even possess pot in Texas, so going to Colorado to buy it and then bringing it back to Texas is not an option.

If your written substance abuse policy tells your employees that you prohibit “illegal drugs”, then you have the right to enforce that policy regardless of whether the pot is illegal under federal, state or local laws.

Therefore, a Texas employer can still require a drug test of an applicant, a current employee, an employee involved in an accident or when the employer has a reasonable suspicion of drug use. If the test shows that the employee has used marijuana, the employer can discipline or fire the employee for violation of the company substance abuse policy.

But what if the employee claims that he is smoking pot for medicinal reasons? Continue reading Pot Smoking Still Grounds for Termination →

Accommodating Pregnant Employees

Discrimination, Forms and Policies, Medical, , , ,

Employers often face the question of how to reasonably accommodate pregnant employees. Many of my male (and some of my female) clients panic when they discover that one of their employees is pregnant. They fear that the pregnant employee won’t be able to do the work, that the employee will have some kind of workplace injury or that the employee won’t return to work after maternity leave.

Most employers walk on eggshells around their pregnant employees, even afraid to ask when the baby is due so that the employer can plan for work to get done while the employee is out on maternity leave. Overall, employers are just scared that they will inadvertently do something that will get them sued for pregnancy discrimination.

Their fear is not unfounded. The Equal Employment Opportunity Commission and the courts are taking a careful look at pregnancy discrimination. They want employers to reasonably accommodate the pregnant employee just as you would a disabled employee. You would do this anyway if the expectant mother had any pregnancy complications, such as gestational diabetes.

The only change is that now you would be wise to accommodate an employee who is having a normal, healthy pregnancy, if the employee asks for a reasonable accommodation.

A recent U.S. Supreme Court case held that a plaintiff can establish an initial case of pregnancy discrimination by showing that she is pregnant, that she sought some sort of reasonable accommodation for her condition, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

In other words, if you let other employees work light duty jobs from time to time, you need to allow your pregnant employee the same privilege. If you would allow an employee who has severe back problems to skip the duty of lifting heavy boxes, do the same for a pregnant employee is she asks for that accommodation. If standing at a cash register all day is hard on an expectant mother, offer a stool for her to sit on, just as you would an elderly employee.

Don’t be patronizing and assume that a pregnant employee can’t work or needs an accommodation. Allow her the dignity of working without help if she chooses. But if an accommodation is requested, you should engage the employee in a discussion (“the interactive process”) to determine what help she needs. You can decide together if her request is reasonable or if there are other equally effective options. Work willingly with your employee to help her out for a few months and she will most likely be glad to return after her maternity leave to be a very productive employee.

Here are a few other quick tips for dealing with pregnant employees: Continue reading Accommodating Pregnant Employees →