off from work for Surgery, but work not accepting limitation

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Latest post 04-07-2012 2:53 AM by Taxagent. 8 replies.
  • 04-06-2012 10:43 AM

    off from work for Surgery, but work not accepting limitation

    Hello, I took 3 months of from work to have surgery, now i am cleared to return to work by my doctor with 1 limitation, my work say their HR reviewed my return to work certification and can not work with that, now i'm forced to continual being on short term disability which is 50% of my pay and now i'm stuck not being able to pay bills and my morgage.

    Details about my work history, I work for a big retail company for 10yrs and i am in Management, I'm a good worker that has never had any issues, I work in Florida, and apond speaking with my work, they never tried to reason with me, just said that all the stores now have very little payroll and that "everybody" has to be fully active with no limitations, now being in management and even doing hiring, my company has never asked us (management) to ask possible employees if they can do certain functions like "climb ladders, life 50lbs and ect" during interviews, and nowhere in the application does if say "required functions" not even when i was hired.

    So my question is because my company is enforcing a unwritten policy that stopping me from returning to work, have i been discrimnated based on my disability???

  • 04-06-2012 11:09 AM In reply to

    Re: off from work for Surgery, but work not accepting limitation

    marcos1026:
    So my question is because my company is enforcing a unwritten policy that stopping me from returning to work, have i been discrimnated based on my disability?

    No.  You are not disabled under ADA requiring a reasonable accommodation.  Disabled under ADA is not for temporary conditions which yours is.  The policy does not have to be written for your employer to enforce it nor does the application you filled out have to say "required functions" for them to be a requirement.  Nor is it required that you be asked that in an interview.  Your employer can change the duties of your job at any time and that is legal.

    You are only allowed 12 weeks absence under FMLA and your employer can legally terminate you at that point.  They are not required to take you back with work restrictions.  It is not uncommon for employers to require employees to be at 100% with no restrictions before returning to the job. 

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 04-06-2012 11:14 AM In reply to

    Re: off from work for Surgery, but work not accepting limita...

    how do you know this? have you been in this situation? are you a Lawyer?

  • 04-06-2012 11:17 AM In reply to

    Re: off from work for Surgery, but work not accepting limita...

    also how do you know i'm not disabled?, my limitation is perminate

  • 04-06-2012 11:55 AM In reply to

    Re: off from work for Surgery, but work not accepting limita...

    marcos1026:
    how do you know this? have you been in this situation? are you a Lawyer?

     I have been in management and the medical field for 25+ years.  If you want a lawyer's opinion you will need to make an appointment with one to discuss the specifics of your case.  An intial consultation is typically $200-300 for the first hour.

    marcos1026:
    also how do you know i'm not disabled?, my limitation is perminate

    You did not state that your doctor had diagnosed you as permanently disabled.  You said you had surgery and were released back to work with restrictions.  Even if you are permanently disabled, if the accommodation you asked for does not allow you to perform ALL the essential functions of the job (even if they were not mentioned in the hiring process) the employer does not have to grant the accommodation and is in compliance with ADA. 

    If you can show that the employer did not grant you a reasonable accommodation that would allow you to do all the essential functions of your job then you would have an ADA claim.  Restrictions are not accommodations:  they restrict the activity not allow you to do it.  What restrictions did your doctor place on your working?

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 04-06-2012 12:03 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,510

    Re: off from work for Surgery, but work not accepting limita...

    You may have a basis to request a modest accomodation under ADA given its a likley long term situation--but firm isNOT required to accomodate everything --or much of anything  if inconsistent with job needs.

    You probably need somebody with more up to date skills and a legal/ADA understanding to comment.

    Many a place may expect folks to life up to 50 lbs or go up a small ladder --and offically there is"light duty" but at least by observation in a large retail operation--some females and some males seem never to be found when there is lifting or ladders -just seems to work out --key is to get back in w/o makeing big waves---. 

    Somebody in HR needs to have something that says its safe for  you to work and/or they may be worried about making condition worse at work and being stuck for added medica/disability/WC

     



  • 04-06-2012 12:05 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,510

    Re: off from work for Surgery, but work not accepting limita...

    I ment to say many a place officially has NO light duty--but by observation there sure are folks not doing any heavy stuff--but they got back on payroll first... !



  • 04-06-2012 12:21 PM In reply to

    Re: off from work for Surgery, but work not accepting limita...

    Also, a limitation does not automatically equate to an ADA disability.  There are many people with "limitations" that are not disabled.  The ADA judges each case on its own merits.  The only condition that ADA automatically defines as a disability is HIV.  Outside of that, each case has its own unique facts and circumstances which determine if it is a disability requiring ADA compliance.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 04-07-2012 2:53 AM In reply to

    Re: off from work for Surgery, but work not accepting limita...

    ClydesMom:
    Also, a limitation does not automatically equate to an ADA disability.  There are many people with "limitations" that are not disabled. 

    It is true that a "limitation" does not equate to a disability in every case, but many limitations do indeed amount to a disability. Specifically, 42 U.S.C. § 12102(1) and (2) provide the core definition of a disability under the ADA as follows:

    _____________________________________

    As used in this chapter:

    (1) Disability

    The term "disability" means, with respect to an individual

          (A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

          (B) a record of such an impairment; or

          (C) being regarded as having such an impairment (as described in paragraph (3)).

    (2) Major Life Activities

          (A) In general. For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

          (B) Major bodily functions. For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

    _________________________________

    So the key here is whether you have an impairment that limits one or more major life activities. Note, too, that amendments to the ADA in 2008 broadened the scope of what is considered a disability and specifically what is a "major life activity" under the ADA. The Congress specificallly stated that it favors a broad interpretation of disability and that it rejected the court decisions of the Act pre-amendment that the Congress viewed as far too limiting in what qualifies as a disability.

    So, as ClydesMom indicated, the details of your specific condition matter. What is the injury or condition you have, what limitations does it place on you, and what effect does it have on the essential functions of your particular job? If you are unable to do the essential job functions with this limitation, is there some reasonable accommodation that might assist you?

    Note that in some cases, reassignment to other work in the company (if there is a job opening and you are qualified for it) can be a reasonable accommodation. Relieving you of NON essential functions of your job may also be a reasonable accommodation. I suggest you read the EEOC guidance on reasonable accommodation to get an idea of what kind of options you might have if your condition is indeed a disability.

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