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Don’t guess about a worker’s condition; test and inquire

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in Employment Law,Human Resources

Issue: The legal dangers of making assumptions about employees' medical conditions.

Risk: If you treat employees as if they're disabled, they'll garner ADA protections even if they're healthy as horses.

Action: Wait for skills testing and medical results to determine an employee's condition; don't make snap judgments.

You and your supervisors shouldn't jump to conclusions about an employee's ability to perform a job until you have all the facts. And whatever you do, don't speculate about employees' health conditions in e-mail or other written documents.

That's because the ADA's "perceived as" provision says that if your organization perceives certain employees as disabled, and treats them as such, those employees are eligible for ADA protections, including reasonable accommodations. That's true even if the employee doesn't have a true disability.

Instead, it's wise to wait for skills testing or medical results to make a more educated decision on the person's ability to do the job's essential functions.

Case in point: A New York City sanitation worker had vision troubles when he was switched to the night shift. It turned out that he had night-blindness, which meant he couldn't see well at night.

A personnel director wrote a memo recommending the worker's termination, saying that if his "disease continued to degenerate, why are we waiting to terminate him?" So, the city fired him. He, of course, fired off an ADA lawsuit.

The personnel director's "diagnosis" was wrong. The worker was perfectly capable of working the day shift. The memo was evidence that the city perceived the employee as disabled and wrongly terminated him. (Capobianco v. City of New York, No. 04-3230, 2005)

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