His work restrictions are "no lifting greater then 25lbs, no bending or twisting and a break from walking every hour until 7/19/05" Is this restriction proctected under the ADA or any other law????
Thanks!

ADA requires substantial impairment of a major life activity, such as lifting. The assessment of the degree of impairment is made in comparison to what the average person in society can do under that life activity. And the impairment has to be either permanent or long term.

Being unable to lift over 25 pounds by oneself may not be that unusual in the population nor even a significant impairment to the life activity of lifting. You'd probably need to get more information about that. What in everyday life that people regularly lift by themselves weighs more than 25 pounds? How often do people lift something that heavy in their daily lives?

And the limitation on bending, twisting or walking until 7/19/05 would tend to make this a temporary impairment, not long term. Although, I do have to say that ADA/EEOC do not specifically identify how long "long term" is but leave it up to the individual situation. Court cases where the issue has been looked at have gone with about a year, although some rulings do imply a shorter period of time. But I suspect that 2 1/2 months probably wouldn't be considered long term in most circumstances.

Thus, ADA does not appear to be applicable.

But don't reject it out of hand unless you talk to your legal advisor, who gives the okay. EEOC, if it comes aknockin', is going to want to see what you did and why you rejected doing accommodations. If you can show you made a determination based upon the actual facts of the case, after getting the important information about the medical condition and the limitations, you'd be in better shape to prove your denial was correct. This process includes getting information about the medical condition to see if there is an underlying qualifying condition that is creating the temporary restricitons.

Let's say that the employee is disabled under ADA for argument sake. The reasonable accommodation is to permit the employee to perform the essential duties of the job. If the employee still can't perform the essential duties of the job after reasonable accommodations are provided, then the emplyee is NOT considered ADA disabled.

When you say "you can't let him work at two of the sites" you will need to explain that. Again, just for the sake of argument that he is ADA disabled, what in his essential job duties require him to lift more than 25 pounds or to bend or twist or walk more than an hour? And what type of accommodaitons would be needed? You would need to find out how the disability does impact the job.

If working at all 4 sites is an essential function of the job (in other words, if not working at all 4 sites is removed, it becomes a totally different job than it was originally), then the employee has to be able to do that even with reasonable accommodation (again, assuming he is ADA disabled). But is the "4-site requiremnet" really an essential duty?

If working at all for sites is not an essential requirement, then you could remove two of those sites and replace those duties with other non-essential duties.

A reasonable accommodation under ADA is to remove any non-essential duties that the emplyee cannot perform because of an ADA disability (even if reasonable accommodaitons were provided). And the employer may then replace any such duties with other non-essential duties that the employee could perform with or without reasonable accommodation. This is called job restructuring. You could switch NON-essential duties between two employees so that the disabled employee gets the ones he or she can perform with or without reasonable accommodations and the other employee gets the ones the disabled employee used to have.

Another reasonable accommdation, but one that shouldn't be used unless other accommdations won't or haven't worked, is reassignment to an equivalent position or even a lower position.

Under EEOC's policy, as stated it its "Technical Assistance Manual for ADA Title I":

"Reassignment should be made to a position equivalent to the one presently held in terms of pay and other job status, if the individual is qualified for the position and if such a position is vacant or will be vacant within a reasonable amount of time.

A 'reasonable amount of time' should be determined on a case-by-case basis, considering relevant factors such as the types of jobs for which the employee with a disability would be qualified; the frequency with which such jobs become available; the employer's general policies regarding reassignments of employees; and any specific policies regarding sick or injured employees.

For example: If there is no vacant position available at the time that an individual with a disability requires a reassignment, but the employer knows that an equivalent position for which this person is qualified will become vacant within one or two weeks, the employer should reassign the individual to the position when it becomes available.

An employer may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no positions vacant or soon to be vacant for which the employee is qualified (with or without an accommodation). In such a situation, the employer does not have to maintain the individual's salary at the level of the higher graded position, unless it does so for other employees who are reassigned to lower graded positions."

Under ADA, "an employer cannot reduce pay to an employee with a disability because of the elimination of a marginal job function [non-essential]or because it has provided a reasonable accommodation, such as specialized or modified equipment. The employer can give the employee with a disability other marginal functions that s/he can perform.

An employee who is reassigned to a lower paying job or provided a part-time job as an accommodation may be paid the lower amount that would apply to such positions, consistent with the employer's regular compensation practices."

But again, to bring us back to the begining, your first hurdle is to evaluate or determine if in fact this individual's sitaution does rise a the level of a disability as contemplated by ADA.

Also, check any similar state law that you may fall under.

Thank you so much for your reply.

One more question. This employee is a TAC security officer. His job is to fill in as a security officer at at least 5 sites. TAC officers are paid more then regular officers because they have to be "on call" right now, the employee has been stationary at 2 sites for at least 6 months. The two sites he is working at pay $7.00/hour. He is working them making $10/hour as a TAC. This $3 difference is killing our Load cost, and we NEED to stop paying him $10/hour.

Our two options
1. Keep him there and pay him $7/hour (this is out, as the EE refuses to take a cut in pay)
2. Take him out of the two sites and make him "on call" which would result in him not working at the moment because we do not have any open positions for him to fill.

I agree with Beth. Offer him a permanent position at one site and reduce his pay accordingly. ADA allows that (again, assuming that he is even disabled).

The second option, as you explained it, may also be viable, but I'm a little confused on how his medical condiiton would affect that option.

As I note above, you would not be required, even under ADA, to create, as a reasonable accommodation, a position for an employee that does not exist. And, under ADA (again, assuming the employee is ADA eligible), pay can be reduced to meet any placement on a vacant "lower level" position (but this as I note above is one of the last options to look at in the list of reasonable accommdations).

From this aspect, the medical issue doesn't seem to be the heart of the problem. Basically, you seem to be saying either he takes a cut in pay because he really can't be transferred to other facilities as an "on call security officer" since there is no need for on call officers to fill in a vacant position. But if that's the case, wouldn't you then be reducing all of the on call officers' rates of pay since none of them would be moving about?

We are concerned, though that in the future, this condition can continue to have exacerbations, causing her to continue to be out, though probably on a more intermittent and unplanned basis.

her position, though not "key" is a required, exempt, licensed professional position in our operation and we really can't do without consistent coverage. We are, however, doubtful, because of the employee's history of attendance issues, that she will really be able to fulfill her 40/week obligations.

Once her medical provider indicates that she is able to once again work her full time hours despite the condition, what are our options if she starts having attendance problems and blaming the condition?

I would be cautious of making plans based on your assumptions of what her future medical condition will require. You run the risk of "regarding" her as disabled. Act on what you know to be true at the time only.

Her condition does fall under an ADA accomodation, but the request she made basically only pertains to extending her leave to allow for total recuperation.

The condition also is chronic so we are almost certain that future incidents will present themselves. If she continues to be out after the initial accomodation has been made, do we again ask her for what she would like as an accomodation? Do we treat the absences as simply protected under ADA? Do we request DR's supporting documentation that they were related to the Disability? Do we take her word that she was out the day before because of the disabiity? She has no FMLA so I'm guessing that is she says she's having an "attack" and has to leave the office, she would get paid for the full day as an exempt employee.

In anticipation of problems that I see hitting us in the future based on past attendance issues, at what point does being at work become an essential function of a position?

The issues that need to be looked at in regard to what this emplyee may wnat ot do in the furute are 1)whether further absences beyond FMLA would be reasonable as an accommmdation; 2) whether further absneces are causing an undue hardship.

Usually aleaves or absences can be cosnidered an accommdoation, but usually they wouldbe sene as one fo the last ones to consider -- other accommodations could and shold be looked at before the leave accommodation is evlauated.

One accommodaiton may in fact may be "restructure her job" so that some of the non-essential duties are eliminated or replaced or switched (with other emplyees) or to place her on a position or job that isn't as deanding on the absence/attendance rate as the curent position is

For some ideas on how to handle this go to EEOC's Guidance on ADA, Reasonable Accommodations, and Undue Hardships, at
http://www.eeoc.gov/policy/docs/accommodation.html

And remember, wdo speculate that she will have poor attendance in the future becuase of her disablility. Deal with the absence- attendance issue as it develops as you would with any other employee but then consider what other accommodations may be used for her disability to alleviate the problem.

If in the end there are no other accommodations or you can't place her on vacant position that will accommodate her need to be off dut to her disability, or her absences due in fact cause undue hardship, then of course, you would have to cosinder terminating her. Consult your legal advisor before doing so.

I always thought that poor attendance is demonstrated not onoy by numbrers but also by demonstrating the incidents or examples of incidents of problems that have occurred because of absences -- e.g., other emplyees having to stop their work to do hers; missed deadlines; unserved clients; loss of billing; etc. You don't necessarily need to document each and every incident, but you do want to show enough incidents to be representative of the total time period and the seriousness of the problem that has gone on for a significant period of time (of ocurse docuenting and discussing the problem with her is also required).

quote:

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Originally posted by Sue M:
Elle,

The condition also is chronic so we are almost certain that future incidents will present themselves. If she continues to be out after the initial accomodation has been made, do we again ask her for what she would like as an accomodation? Do we treat the absences as simply protected under ADA? Do we request DR's supporting documentation that they were related to the Disability? Do we take her word that she was out the day before because of the disabiity? She has no FMLA so I'm guessing that is she says she's having an "attack" and has to leave the office, she would get paid for the full day as an exempt employee.

In anticipation of problems that I see hitting us in the future based on past attendance issues, at what point does being at work become an essential function of a position?

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1. No. If she continues to be out without a reason, treat it as you would for anyone else. If she uses her condition as a reason, get her doctor's back up on that. If any accomodations appear to be necessary, then you don't necessarily just ask her what she wants but you should sit down and discuss what is feasible. If ADA is applicable, you aren't required to give her the accomodation she wants, just one that will work. Time off should be toward the end of that list. The goal of ADA is to keep the employee working. Sometimes small amounts of time off faciliatate that, but it is by no means an automatic. I'd consider allowing her to take breaks as needed or adjust her working environment in some way that would allow her to keep working first.

2. You treat the absences as you would for anyone else unless they are under ADA, in which case you can't hold them against her. You can stil insist she follow your regular procedures for being out and that she provide appropriate documentation though. She should also be expected to let you know exactly why she is out. You don't have to guess if it is her condition or to go on vacation.

3/4. You can ask for documentation if that is a reasonable thing to do. Is this something that would require active medical care each time she needs to be off? If not, I don't see how you are going to get notes worth the paper they are written on.

5. yes. If she is exempt and leaves part day, she can't be docked pay. She may be docked from her sick leave allotment.

6. Attendance is essenial if there is a buisness reason for it to be. Your receptionist may very well have attendance as an essential function. It would be much harder to justify mandatory attendance during regular hours for a file clerk. Not knowing what she does and how your organization is structured it is hard to say what is reasonable. On some level all jobs are essential.

Since this is a chronic condition, unless there is some sort of documentation, how would we know that her absence really is a result of the condition and not because it was a sunny day yesterday?

If she is out for the whole day, then we don't have to pay, correct?

While the new Fair Pay regulation, 541.602(b) replaces 541.118, what .118(a)(3) says is essentially the same as what .602(b)(2) now states.

http://www.dol.gov/esa/regs/compliance/whd/fairpay/regulations.pdf

The Department of Labor is providing this information as a public service. These regulations and related materials are maintained on this Web site to enhance public access to information on Department of Labor programs. This is a service that is continually under development. The user should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publication of the materials and their appearance or modification of these pages. The information posted is also not always intended to be the definitive authority. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department. We will make every effort to correct errors brought to our attention.
And besides, it's all Bill Clinton's fault anyway.

Just like the Republican Administrtion -- blame Bill Clinton for not updating the webpage -- well actually I added that last statement on the disclaimer about Bill clinton myself.

Personally, I like using the official GPO website to lok at the FLSA regulations inthe Code of Federal Regualtions rather than DOL's eLaw Advisor (also true for EEOC regs).
Unfortunately, even though th eGPO has renumbered Part 541 of the FLSA regualtiins in Voume 29 to match the new Fair Pay regulation designations, for some reason the actual wording of the new regulations hasn't been included.

I've bookmarked your site and will use it from now on.

Was the EE asked about restrictions during the screening / hiring process?

If "no" then nothing further to ask.

If "yes" then it would seem you could do whatever (well, almost "whatever") without regard to ADA. If the EE was asked and failed to disclose relevant information concerning issues important to the performance of the job, it would seem he could be dealt without outside of concern for ADA.
In essence, if he was asked, and he lied, couldn't your reassign (or even terminate) without too much worry?

Correct or not?
(I try to learn from others experiences)
Thanks,
Brian

Unless there was an obviosu or voluntairly disclosed disability, there would be no reason for th eemplyer to ask about work restrictions as related to a disaibliy or medicla condition. Under ADA, such inqiries are not permitted prior to the offer of hire unless the candidate's disability is obvious or disclosed by the candidate. Suc an inquiry may be done under these ccircumstances even though an inquiry is not made of other candiates owho are not obviosly disabled nor have disclosed the disability. By the way, when I say inquiry into a disclosed or obvious disability, it has to be one that is related to the successful performance of the job. If the disclosed or obvious disability isn't related, then an inquiry may not be done.