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Demand concrete evidence of employee’s disability

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

Sometimes employees look for ways to get out of performing work they find unpleasant. Some play the disability card—asking for tasks to be removed from their job descriptions as reasonable ADA accommodations.

Before you give in and assign duties to more cooperative employees, decide whether the employee in question really is disabled. You may have to call her bluff and demand proof that the condition substantially impairs a major life function like working, breathing, walking or caring for oneself. Most minor problems won’t meet those strict standards.

Recent case: Shirley Storey worked as a file clerk for a police department. She didn’t mind typing and filing large index cards containing juvenile-offender information. Then the department computerized some of its operations, eliminating the need to type and file the cards.

Instead, the department tasked Storey with filing smaller cards holding missing persons’ information. She complained that the filing caused her finger and neck pain. The police department placed her on medical leave.

When Storey returned to work, she simply sat at her desk wearing dark sunglasses and headphones. Her supervisor put some cards on her desk for filing. At that point, Storey placed a note on top of the cards. It said she was disabled and couldn’t file the cards. The department fired her.

Storey sued, claiming she was disabled. As proof, she testified that the pain in her fingers kept her from being able to cook. Therefore, she argued, she was substantially impaired in her ability to care for herself.

The 7th Circuit Court of Appeals didn’t buy it. The court said cooking is not a major life activity, and therefore Storey wasn’t disabled. (Storey v. City of Chicago, No. 07-1815, 7th Cir., 2008)

Final note: This employer did everything right. It offered time off under the FMLA since her doctor said the pain was a serious health condition. When she returned, the department waited to act until she refused to perform a duty it believed was essential to her job.

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