Do I Have To Allow An Employee To Return To Work?
Question: We have a service technician who is one of the highest paid employees in the company. He previously was in a car wreck in his personal vehicle that broke his neck a couple of years ago. Since his return to work he has been unable to perform many of the tasks that are required for someone in his position and seems to think we should pay another employee to ride around with him to be his “helper” to do the lifting overhead work etc. Recently he was riding in a vehicle that an 18- wheeler tire blew out and hit the windshield, which according to him created a whiplash effect to his neck. He called the owner that Sunday to tell him he would be out Monday and since then has only had contact with myself, the office manager, to collect the balance his vacation and sick pay. When that ran out we haven’t heard from him.
He also happens to be the owner’s brother who ran into the owner’s wife today and told her he was on “permanent disability” until the 18th of this month.
Are we required by law to let him return to work although he has produced no paperwork to the effect of any of this and if so according to him he will be even more limited in his ability to perform his job, and if we do allow him to come back are we required to do so at the rate of pay that he left at? By his own admission he is still taking medication that would not be conducive with someone who needs to be thinking straight and he has yet to contact the owner since the day after the “accident”. What are our rights in this situation?
Answer: A variety of issues are presented in this question-not the least of which is the interesting dynamic of the family relationship! Leaving that aside, the question falls under the heading of whether the ADA requires us to consider a reasonable accommodation for the employee’s condition. To begin with, however, do we have 15 employees? The ADA only applies to employers of 15 or more employees. If not, we should then ask whether state law might apply. We’ll assume ADA or a similar statute applies. Reasonable accommodation does not mean we must make wholesale changes in our operations, or create a new job, or even offer light duty if we have not previously provided light duty to employees. We can, if we choose, create a new job, and at a lower rate of pay if that would be commensurate with the duties of the new job. If we doubt his medical history or prognosis, we can require proof. Finally, if he is taking medication which would seem to interfere with his work, you can limit his work accordingly.
This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with ACCA’s LegalTools Counsel, Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at firstname.lastname@example.org.
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