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Don’t push for exam if employee can do job

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in Firing,Human Resources

Never automatically assume an employee who is performing well is disabled—even if you observe what you think are signs of a disability. It could mean losing big if the employee sues.

Recent case: Ricky Shaw unloaded trucks for Cumberland Truck Equipment. He got excellent performance reviews and was described as strong enough to “lift a house.” He did, however, have arthritis in his knee. That sometimes caused him to walk slowly with a limp.

When a supervisor saw Shaw’s painful gait, he reported the observation to headquarters. After watching Shaw for several weeks, the supervisor concluded he might be a danger to himself or others and ordered Shaw to have a medical exam.

Armed with an out-of-date job description, an independent medical examiner tested Shaw. The examiner concluded Shaw could not safely do his job, and Shaw was placed on FMLA leave despite his protestations that he could do his work, and in fact had been doing it.

He asked Cumberland to change the job description to reflect only the essential functions he actually performed. His request was denied. Shaw was terminated when his leave expired.

He sued, alleging that his employer had regarded him as disabled when it ordered the medical examination.

A jury agreed and concluded that Cumberland discriminated based on disability when it ordered the exam, refused to consider which job tasks Shaw actually performed, fired him and essentially treated him as if he were unable to perform a job he had successfully performed until forced out on leave.

The jury awarded Shaw almost $400,000. (Shaw v. Cumberland Truck Equipment, No. 1:09-CV-359, MD PA, 2012)

Final note: Remember, under the ADA, employees don’t have to reveal a disability if they believe they can perform their jobs without accommodation.

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