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OK to terminate disabled employee if effort to accommodate is unsuccessful

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in Discrimination and Harassment,Human Resources

Employers are supposed to reasonably accommodate an employee’s disability so he or she can perform the essential functions of the job. Some workers take that as a guarantee that—should they develop a disability—their employer must find a position the employee can do. That’s simply not the case.

Of course, employers do have an obligation to gather the relevant medical information, review job descriptions and determine whether reasonable changes would allow the employee to continue working.

If, however, the employer does all that and still concludes it can’t help, there’s no reason to keep the worker on the payroll. Just make sure you carefully document the entire process.

Recent case: Janet began working for Mercy Medical Center in 1979 as a registered nurse. She rose steadily through the ranks, moving from scrub nurse to head nurse in the operating room and into management. Through­out her career, she was viewed as a valued and talented employee.

Then the medical center experienced financial problems. Janet was informed she would be downsized, but could return to a nursing position. Rather than lose her livelihood entirely, she accepted the offer and began working as a circulating nurse.

The morning after her first full shift, Janet awoke with severe hives and had to be rushed to the emergency room. Tests revealed that she was allergic to latex, which is commonly found in hospitals. She returned to work but had another allergic reaction a few days later.

Shortly after, she stopped working and applied for workers’ compensation benefits based on her latex allergy. Meanwhile, she asked the medical center to find her another position that would not expose her to latex as a reasonable accommodation.

The allergy, however, got worse. She could not even eat foods handled by latex-gloved cooks. One of her doctors even suggested that the allergy was so severe that she essentially was housebound and unemployable in a regular workplace, much less a hospital. After six months of leave, the medical center terminated Janet.

She sued, alleging failure to accommodate her disability. She insisted that there had to be some job that she could do with­­in the facility.

The medical center told the court all it had done to try to accommodate Janet. For example, it had considered a visiting nurse opening, but concluded that there was no way to ensure that patients’ homes were latex-free.

The court said Janet had no case. The employer had tried to find an accommodation, but could not because of the severity of her latex allergy. Her case was dismissed. (Ander­­son v. Catholic Healthcare West, No. A127934, Court of Appeal of Cali­­fornia, 1st Appellate District, 2013)

Final note: This employer did everything right. It provided Janet with additional time off, processed her workers’ compensation claim and cooperated with the insurance carrier. It kept the lines of communication open. It also reviewed all open positions at the facility and looked for a possible match of skills, education and limitations. Only after it became clear that Janet’s disability was so severe that there was no practical way to ensure her safety did it give up the search and tell her that it simply could not make any accommodations.

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