Question from an employer: We have an employee who is receiving treatment for an injured rotator cuff. She has seen an orthopedic specialist and has had physical therapy. On her second visit to the orthopedic specialist, he determined that her therapy helped. The employee didn’t need surgery but did require more time to heal the tear. Her work duties required limited lifting.
This employee works in a very physically demanding department and we have been able to keep her in the department by having her assume the lightest job duty. Prior to her injury, all employees in the department rotated so they were able to experience the lightest and heaviest jobs throughout each day. The injured employee’s situation has put a strain on the others pulling her slack. We have not transferred her to a totally different department because she would have to take a cut in pay and we thought there would be consequences to us for doing that.
Can we require her to move to another department to accommodate her need for light duties even though she would receive a cut in pay?
Answer: This is one of those employer situations where there is no simple, black and white response.
Start with the employer’s obligations under the Americans with Disabilities Act (ADA): A private employer with 15 or more employees must reasonably accommodate disabled applicants and employees who are covered by the ADA. Your state law may require similar obligations on employers in your state.
But before trying to figure out how to reasonably accommodate the employee you are inquiring about, you first must decide: Does this employee qualify for protection under ADA and/or your state law? The ADA (and your state law may be similar) says protected employees are those who have a disability which limits one or more major life activity. What are “major life activities?” They are functions like being able to care for oneself, perform manual tasks, walk, see, hear, speak, breathe, learn, sit, stand, lift and work.
The ADA (as amended by the 2008 ADA Amendments Act) broadly defines disability to include – not just a current, obvious disability – but also an “impairment that is episodic or in remission… if it would substantially limit a major life activity when active.” The term disability also extends to persons regarded as having such an impairment. An applicant or employee is regarded as having such an impairment if the “individual establishes that he or she has been subjected to an action prohibited under this Act [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
Major Life Activities
The amended ADA defines major life activities to include such activities as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, learning, reading, reaching, interacting with others. Major life activities also include such major bodily functions as breathing, immune system function, digestive and bowel function, and bladder, musculo-skeletal, and brain functions.
Examples of disabilities covered under the expanded disability and major life activities definitions include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.
Does your employee’s injury limit one or more major life activities? A Supreme Court decision may help you decide. The decision involved a Toyota assembly line employee with carpal tunnel syndrome and tendonitis. The Court ruled the employee was covered by ADA only if her impairments also affected activities of daily living and not just her ability to perform a specific job. The Court defined “disabled” (as it applies to employees who perform manual tasks) to mean people who are affected in both their personal and their work lives.
The Supreme Court stated: “When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her particular job.” And the Court continued: “…manual tasks unique to any particular job are not necessarily important parts of most people’s lives” and therefore “occupational-specific tasks may have only limited relevance to the manual task inquiry.”
Not ADA Covered
Next, if your employee is not a covered employee for purposes of ADA (and/or under your state law) protection, and if your employee’s injury is not work-related (and therefore not covered by Workers’ Compensation), you might be able to move her to other work — even at lower pay — without violating any law.
Suppose you determine the employee is covered by ADA (and/or your state law) protections. Then, what is your obligation? You must reasonably accommodate the employee’s disability.
The crux of your situation becomes: What is a reasonable accommodation for this employee? And this raises another question stemming from your specific situation: Is it unreasonable and a burden on your business to put this employee in a position (the limited lifting position) which requires other employees in the department to increase the physical stress on them? Does this create a real risk the increased stress on the other employees will reasonably lead to injuries to one or ore of them?
If you can answer the above two questions with a “yes” and if you feel you could prove to a court and jury the present accommodation is unreasonable and a burden or risk to your business and other employees, then you could offer to accommodate her with light duty in another department at lower pay.
But be prepared for the possibility of a discrimination action by her, arguing violation of her ADA rights.
Because the questions of whether the employee is a covered employee under ADA and/or state law, and what is reasonable accommodation if she is covered, have no clear-cut answers, employers need to get guidance on these decisions from an attorney familiar with employment law.