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Disability leave: Best intentions may backfire

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in Discrimination and Harassment,Human Resources

Here’s something to consider before you place an employee on disability leave following an em­­ployer-ordered medical exam. That employee may end up being considered disabled—even if the exam revealed no real medical problems.

Essentially, by examining him and placing him on leave, you are regarding him as disabled. He can then sue for disability discrimination.

Recent case: Ronnie was hired as a warehouse cable stripper at ACS, a company in the business of processing recyclable copper and lead from telecommunications cable. Almost immediately, he began complaining about headaches, fatigue, diarrhea, nausea, vomiting, stomach aches, physical weakness, flu-like symptoms and lack of sex drive.

A company doctor examined him and reported that Ronnie’s lead level was high, probably because of “lead toxicity.” The doctor’s prescription: “remove from lead exposure.” Ronnie was placed on paid leave. When the levels dropped, he went back to work.

However, he was terminated shortly after. Ronnie sued, alleging disability discrimination.

ACS countered that Ronnie never had lead poisoning because his levels were far lower than allowed by regulations.

The court didn’t care. It reasoned that ACS regarded him as disabled when its doctor diagnosed him with toxicity and recommended avoiding lead exposure. (Owens v. American Cable Services, B246566, Court of Appeal of California, 2nd Appellate District, 2014)

Final note: Before sending an employee home on disability leave after a medical exam, consider the consequences. Double-check that any on-the-job exposure is consistent with industry and government standards. Otherwise, you may accidentally create disability discrimination liability.

The same isn’t true if it’s the employee’s doctor who is making the recommendation. If that’s the case, you can still challenge disability later because it isn’t the employer assuming he’s disabled and unable to work.

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