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Employee returning from injury leave? Don’t treat her with ‘kid gloves’

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in Employment Law,Firing,Human Resources

You may know that the ADA entitles disabled people to reasonable accommodations to allow them to perform their job's essential functions. But what about employees who have minor medical ailments that don't rise to the level of a "disability" under the ADA? In some cases, if you treat, or regard, the person's condition as if it is disabling, you must accommodate the condition whether it truly is a "disability" or not. (This is the ADA's "regarded as" clause.)

Our advice: Don't create a problem where none exists. Your best course of action is to treat employees returning from injury or illness as you would any other employee. Assume that he or she can do the job. Don't treat the employee with kid gloves. If you treat employees as if they're disabled, you may be required to provide them with reasonable accommodations.

One common mistake: supervisors giving unsolicited advice. Avoid suggesting accommodations that aren't requested. And don't change job duties based on your assumptions about a person's ability. Finally, don't suggest disability retirement.

Recent case: Customer service supervisor Beverly Kelly took leave after a pulmonary embolism. She recovered and wanted to return to work but needed to bring along a small oxygen tank. The company refused to let her bring the tank, and her supervisor suggested that she apply for disability payments, saying he didn't want to be responsible if she "fell over dead" at work. She filed an ADA suit.

The court concluded that Kelly wasn't disabled because she could do everything with the oxygen tank that she could do before. Just as eyeglasses aid vision, the tank aided her breathing. But because the company treated her as disabled, she was covered under the ADA, and the company violated the law by firing her based on its (mistaken) belief that she was disabled. (Kelly v. Metallics West, No. 04-1051, 10th Cir. 2005)

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