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Call lawyer about worker’s perceived disability

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It may seem like the obvious move: If an employee has a medical condition that makes it impossible to do her job safely, then it makes sense to terminate her.

Not so fast! Consult your attorney before you fire her. You don’t want to say or do the wrong thing and end up having to defend against an ADA lawsuit.

Recent case: Barbara Winborne worked as a licensed practical nurse in a nursing home. She learned that she suffered from transient ischemic attacks (TIAs), which cause temporary attention gaps and difficulty concentrating. She took medication to control the condition and claimed she could safely perform her job.

Then on Winborne’s watch, an elderly patient with dementia fell from her bed because the side rails had been left down. Winborne was the last nurse to check on the patient.

The incident was reported to the state nursing home administration. Winborne’s supervisor expressed concerns that she was unable to care for patients alone, and she was eventually fired for patient neglect.

Winborne sued, alleging she was terminated because her boss perceived her as disabled. A jury agreed and awarded her a modest amount of back pay, since she quickly got another job.

The nursing home appealed, arguing that it merely believed she was incapable of performing her specific nursing tasks, not a whole range of jobs.

The 5th Circuit Court of Appeals agreed with the nursing home and overturned the original verdict. The court said that to win a perceived-as-disabled suit, Winborne had to prove the employer believed she was incapable of performing a wide variety of jobs due to a perceived disability, not just her particular job. (Winborne v. Sunshine Healthcare, No. 09-60765, 5th Cir., 2010)

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