Ask The Lawyer By: Daniel A. Gwinn, Esq.

LIFTING REQUIREMENT IN JOB DESCRIPTION MAY NEED TO BE MODIFIED

QUESTION: The job description for a worker in the warehouse section of our business states he or she must be able to lift 40 pounds. However, we encourage workers to avoid lifting more than 30 pounds, if possible, and provide equipment to help workers lift anything really heavy. One of our employees, injured his shoulder and had a doctor’s note stating he could not lift 40 pounds. I placed him on leave, so he could recover. After four months, he said he wanted to return to work, but would be unable to lift more than 25 pounds. We gave him two weeks’ severance, and terminated him because it was clear he would not be able to do the job. Now he’s suing us, claiming we violated his rights.

ANSWER: Under the Americans with Disabilities Amendments Act an employer is required to provide a reasonable accommodation that will enable a disabled employee perform the essential functions of his job.

If lifting 40 pounds is not just part of the job description for the injured worker, but is an unavoidable and necessary part of his job (even with the availability of the equipment), he may not have a case against you.

However, if, as you seem to indicate, the equipment enabled workers to avoid lifting heavy weights, you might be in trouble. If the discharged worker could have consistently used lifting equipment, and completed all the essential functions of his job without violating lifting restriction and without causing any undue hardship to your operations, you should have explored this possibility.

A recent case in the Sixth Circuit found an employer liable under the ADA where the fired employee was able to perform all the essential functions of his job, despite a lifting and reaching restriction, if allowed to use a readily-available lifting device and a ladder. Significant to the court’s finding against the employer was the fact that the lifting device and ladder were used by other employees, doing the same job as the plaintiff.

Under the ADA, you are not required to let a disabled worker take a pass on essential duties, or to ask other employees to pick up the slack, but if there are reasonable accommodations you could make that would enable to worker to do the essential functions of his job, you are required to offer to make those accommodations.

Because it sounds like you did not even offer the worker an accommodation, you may be in ever deeper trouble. The ADA not only requires employer to provide reasonable accommodations to disabled workers, but also to engage in an “interactive process” with the employee to discover what accommodations might be available that would assist the worker to do his job while posing no undue hardship on the employer.

If he is already talking about suing, you may wish to talk to a lawyer.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER

By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law

GWINN LEGAL PLLC

901 Wilshire Drive, Suite 550

Troy, MI 48084

(248) 247-3300

(248) 247-3310 facsimile

daniel@gwinnlegal.com

www.gwinnlegal.com

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