Q. An employee told us he has a bad hernia. He wants to wait a couple months to have the operation, since it requires six weeks’ recovery. He does some lifting in his job. Yesterday, he had to go home early because he was in pain. Now that we are aware of his condition, what’s our liability? And what should we do? —D.C., New Jersey
A. Under the ADA’s “direct threat” provision, if you believe, based on objective evidence, that an employee can’t safely perform his job because of a medical condition, you can require the employee to take a medical exam. That’s true whether the employee’s condition poses a threat to the safety of others or just to himself.
Advise the doctor performing the exam of the employee’s essential job functions. And ask the doctor to report whether the employee can safely perform such functions with or without reasonable accommodation.
If you simply allow the injured employee to continue working, you could face a significant workers’ comp claim. Remember, workers’ comp laws in many states cover pre-existing conditions that are aggravated during the course of employment.
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