Bill Resnick, a newly hired loader with Dockyards Shipping Inc., has asked for ADA accommodations after sustaining a severely herniated disk while moving a heavy load. Shel Noonan, his manager, calls Patricia Roberts, an HR manager, asking what can be done to get Bill back to work.
"How long will Bill be unable to do the job?" Shel asks.
"I am trying to get a definite read on that," Patricia answers.
"I asked him what his lifting restrictions are and he told me they are 20 pounds. I don''t think he''ll ever be able to return to the job with restrictions like that," Shel remarks.
How should Patricia respond?
Limited manager involvement
First, she should advise Shel not to make any more inquiries, according to Charles Goldman, a Washington, D.C., a disability rights attorney in Washington, D.C. The HR professional should field any disability-related questions with the employee, not the manager, he said.
The ADA generally prohibits disability-related questions and medical documentation. However, there are narrow exceptions such as to identify whether someone requesting an accommodation has a disability if it is not obvious.
While a simple back strain may not be a covered disability, back injuries that substantially limit major life activities generally are. For example, a General Electric employee with a back injury and a 20-pound lifting restriction was found to be a qualified individual with a disability by an appeals court.
Many companies designate HR professionals rather than managers as the ones to ask for the medical information, Goldman noted. This is the best way to make sure there is uniformity in how ADA accommodations requests are handled, as well as preserving the confidentiality of the medical information as required by the law.
Questions about lifting restrictions
When HR professionals seek information about lifting restrictions, it is important to ask how long they will last and whether the restrictions really will prevent the person from performing the essential functions of the job, Goldman said. In addition, the restrictions themselves may indicate whether the person has a covered disability.
For example, if a lifting restriction is as high as 75 pounds, the person should be ready to return to most jobs, but may not be able to return to a loading position on the docks, he observed. However, an individual with such a high lifting restriction probably does not have a disability covered by the ADA, as most people have difficulty lifting heavy amounts.
An injury may be too recent for a doctor to be able to ascertain what the employee''s lifting restrictions are. An employer might have to wait a week or two after an injury for a doctor to be able to tell whether the restrictions might last indefinitely or a shorter period, Goldman said.
If the person has a disability covered by the ADA, the employer should consider whether the accommodation requested is reasonable. When a doctor says that a worker who has a disability may be restricted indefinitely from heavy lifting that is essential to a position, the employer may reasonably wonder if that person still is qualified for the job. If not, the employer may consider the last-resort accommodation of reassignment, according to the EEOC.
Privacy concerns
Sometimes, an employee hesitates to give HR permission for any medical information to be disclosed. When this happens, HR might inform the worker that, although it respects the worker''s privacy, it is entitled to know what the worker can and cannot do before it provides an accommodation, Goldman said.
HR also can help ensure compliance with the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA) by seeking the medical information from the right source.
If medical documentation is sought from the employee rather than the employer''s health plan, the HIPAA privacy rules do not apply because the information is an employment record rather than a health care record. A firewall should be in place between employment records that are not covered by HIPAA and health care records that are, according to Terry Humo, a benefits consulting attorney with Marsh Advantage America.
Specify job functions
While employers have the right to ask an employee to provide medical information about an underlying accommodation request, the smart approach is for employers to ask doctors about workers'' ability to do specific job functions, said David Fram, director of ADA and equal employment opportunity training at the National Employment Law Institute.
The ADA does not prohibit general inquiries about lifting restrictions in response to an accommodation request from someone who has a back injury, but it is a better practice to make inquiries more specific, he said. Instead of asking what lifting restrictions an employee has, an employer might note that job tasks include lifting 20 pounds of materials, if this is true, and then ask if the worker can perform that function.
As much as possible, managers should be insulated from knowledge about an employee''s disability such as a back impairment, he said. An HR professional can help insulate managers by making the medical inquiries for them.
[This article originally appeared in the November issue of Thompson Publishing Group´s ADA Compliance Guide Monthly Bulletin. Information about the ADA Compliance Guide is available at http://www.thompson.com/libraries/leave/able/index.html.]