January 2014, TruckingInfo.com - Department
Under ADA, even short-term conditions can be considered disabling if they are severe enough.
Drivers and other employees who get injured at work may be temporarily unable to perform their jobs. If an injury prevents an employee from working, you might wonder what steps you need to take to get the employee back on the job, or how much time must pass before you can hire a replacement.
State workers’ compensation laws expect you to help injured employees return to work, but don’t require holding a job for a specified time. This raises the question: How much time off should the injured employee get?
Some laws, like the Family and Medical Leave Act, require covered employers to provide up to 12 weeks of job-protected leave for an employee’s serious health condition, which could result from a work-related injury. However, if the employee doesn’t qualify for FMLA or needs more than 12 weeks off, the question again arises about when the employee can be released.
Other laws, like the Americans with Disabilities Act, apply to employers with 15 or more employees. Similar state laws may apply to smaller organizations. The ADA places some restrictions on medical inquiries and examinations, but does not supersede the Federal Motor Carrier Safety Regulations, where §391.45(c) states that “any driver whose ability to perform his/her normal duties has been impaired” by an injury must be medically examined and certified before operating a CMV. You can also require a driver to inform you of certain drug use under §382.213.
What is a disability?
Although the term “disability” might suggest a condition such as blindness or the loss of a limb, the ADA definition is much broader.
Even short-term conditions can be disabling if they are sufficiently severe. The Equal Employment Opportunity Commission, which enforces the ADA, gave an example of an employee with a work-related back injury that resulted in a lifting restriction of no more than 20 pounds. Under ADA, this employee has a disability even if the condition lasts only a few months.
The ADA requires covered employers to offer reasonable accommodations to help disabled employees perform the essential functions of the job. A reasonable accommodation is one that does not create undue hardship on the employer – but “undue hardship” isn’t easy to establish. It means a significant difficulty or expense based on the resources available to the organization.
For example, an injured employee might need a few days off to recover. A minor injury usually isn’t a disability under the ADA, but granting this time off is essentially an accommodation. The problem isn’t whether to grant a few days off, but rather identifying when the injury becomes severe enough to qualify as a disability. As the amount of time off needed increases, so does the likelihood that the injury will qualify as a disability.
Your rights and responsibilities
If an employee needs weeks or months off, you may wonder when you can terminate the individual and hire a replacement. An accommodation should help the employee perform the essential job functions, not merely provide whatever time off is needed for recovery, but reasonable time off can still be a required accommodation.
If an injured employee cannot provide even an estimated date of return, you do not have to grant unlimited time off. However, accommodations such as providing lifting aids or making other adjustments might allow the injured employee to return.
Another possible accommodation involves a transfer to an alternative position that is available or soon to become available, and for which the employee is qualified. A driver with a back injury might be unable to drive or perform related duties, but if another position is available and the employee is qualified, consider a transfer rather than releasing the employee.
Normally, employers are not required to select a disabled individual over a more qualified individual. However, some courts have held that employers cannot require a disabled employee to compete with other applicants for a transfer. Instead, a qualified disabled employee must be given the position.
In some jurisdictions, an accommodation transfer can be denied only if granting the transfer would cause undue hardship.
As noted, this isn’t easy to establish, particularly when the disabled employeeis qualified. Many states have never addressed a transfer case, but the trend seems to be toward granting the transfer rather than simply allowing the disabled employee to compete with other applicants.
Before deciding that a few weeks off is excessive and replacing an injured employee, make sure you understand the crossover between workers’ compensation and the ADA. If the injured employee offers an estimated date of return, evaluate how much time off can reasonably be granted, consider adjustments that might allow him or her to perform the job, and evaluate the potential for transferring the employee to an available position.
Termination should be considered only after determining that these options are not reasonable.