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Employees’ temporary disabilities don’t trigger ADA protections

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in Employment Law,FMLA Guidelines,Human Resources

Sometimes injured employees need more time off than the 12 weeks allowed under the FMLA. In such cases, they often ask their employers to allow them to return to their jobs with reasonable accommodations to their duties.

Their presumption: They are disabled under the ADA and therefore entitled to accommodations. That may be true if their conditions are permanent, but not if their conditions are merely temporary. Employers can deny requests without violating the ADA.

Recent case: Robert Hershgordon, a night manager at a Pathmark grocery store, hurt his back while at work. He underwent several back surgeries. While the time off was covered by workers’ comp, he still wanted to return full time.

Hershgordon asked Pathmark’s ADA committee to let him return to work even though he had not fully recovered. The committee denied his request three times even though each request was accompanied by a new medical report showing steady improvement.

Hershgordon sued, alleging he was being denied a reasonable accommodation. But the court said that his ailment was temporary, and therefore he wasn’t covered by the ADA or entitled to any accommodations. (Hershgordon v. Pathmark Stores, No. 07-2731, 3rd Cir., 2008)

Final note: Warn anyone who is making the accommodations decision not to make statements indicating the condition is permanent. That could lead to a “regarded as disabled” lawsuit.

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