Q: “One of our general managers in Oklahoma hired an individual to lift metal parts off a cutting table to place on pallets. We found out that the new hire is suing his former employee for an alleged back injury. Can we terminate the employee for not letting us know he had a back injury? He said that he was qualified to perform the work and has been lifting the parts for a week." – Vincent, Louisiana
A: I’d advise against taking adverse employment action against an employee in the circumstances you describe. First, you can’t ask job applicants about their medical history until after they have been extended a conditional offer of employment without violating the Americans with Disabilities Act, and once you have that information (assuming he volunteered it or you ask the same questions of all new hires), you can act upon it only to the extent job-related and consistent with business necessity. At this point it sounds as though he was asked if he is able to perform the job and he has responded that he can, and that he doesn’t need an accommodation, and in fact he has performed the job for a week without a problem. It’s certainly possible that he has an open workers’ compensation claim for a back injury with a former employer that has healed or that doesn’t impact his current work.
Now, if you have reason to believe that the employee has a current back injury and that he may pose a direct threat to himself (or others) based upon the work assigned, then you can reach out to his physician and ask if he can work safely, or is in need of an accommodation. Absent some reason to believe that he is currently struggling with an existing injury, however, I would proceed cautiously.
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