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  • Employee Problem California

    I've been having some problems with a particular employee and wanted to ask for some advice on how to handle this situation.

    This employee went on temporary permanent disability leave from an event prior to my taking over the store and came to the store today with a release note from her doctor.

    The note restricts her working with no prolonged standing, heavy lifting, squatting and other physical tasks.

    This is a fast food store and that basically leaves her with no work to do.

    What can I do legally? Could I fire her?

    She seems like the type that wouldn't hesitate to make a lawsuit out of such a matter.

    Thanks for any advice in advance.

  • #2
    May we assume this is the same employee as in your other posts?

    I don't recall; how many employees total do you have?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      Yes the same employee...

      About 17 employees total at the moment.

      Comment


      • #4
        If you have 17 employees, the ADA applies.

        Are there any open positions within her restrictions, for which she is qualified, that you can transfer her to?

        Are there any reasonable accomodations that will allow her to fulfill the essential functions of her position?

        If the answer to either question is yes, then that is the next step you need to take.

        If the answer to both questions is no, and you are secure enough in those answers to defend them to the EEOC if need be, then yes, you can fire her.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          At my store there are either front line (cashier) workers or back line (cook's).

          Due to her limited physical abilities set forth by her doctor, working back line is out of the question.

          As for front line I am a bit weary as in the note it says she is to do no heavy lifting, squatting, prolonged standing and pretty much anything that puts strain on her knees.

          There are no chairs for when they're working cashier so I have no idea how long this "prolonged standing" is in terms of hours.

          Also our bank for change is on the floor so it requires you to squat down to get change.

          Another issue would be kneeling down to get food for the fryer station, lifting ice cream mix bags (~25-30 lb's) and maybe even cleaning the dining room as you have to bend over to clean the tables and sweep.

          Any advice on what would be my best option?

          For now I am only going to give her about 1 - 3 hour day a week as that is the minimum hours for a shift...

          Any advice would be appreciated, thanks.

          Comment


          • #6
            It sounds like you need to evaluate whether or not reasonable accomodations can be made in the cashier position. Although there are no chairs currently at the cashier position, it would be a reasonable accomodation to let her sit in one. As far as lifting, squatting, etc., you need to make an accurate determination as to whether these are truly functions of that position. If you know that the employee would rarely have to perform these functions, and others would be available when they were necessary, you may not be able to justify firing the employee.

            I understand that bad knees do not mesh well with normal fast food operations. However, the criteria is whether or not it is unreasonable to accomodate the employee's disability. With what you described, I wouldn't want to risk firing her without the security in your answers that cbg describes.
            Last edited by tdpass1; 01-03-2008, 12:16 PM. Reason: grammar fix

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            • #7
              One thing I just want to make certain you understand.

              You are NOT required to create a position for her, even under the ADA.

              If you have an OPEN position, for which she is qualified, and which she could do with her restrictions, that's one thing.

              If you would have to make up a new position within her restrictions to put her into, that is NOT required under the ADA or any other law.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

              Comment


              • #8
                Due to the height of most fast food counters and the placement of the cash registers, a chair that would allow the employee to operate the register would likely be sort of tall, like a bar stool, thus requiring the employee to climb up onto it and get down from it frequently. That would probably not be a good thing for a person with bad knees.

                If you do try to make accomodations for this employee, I would suggest that you give a description of the physical requirements of the modified position to the employee and have her doctor approve it before you let her start working. You might also check with your workers comp carrier to see whether they have any suggestions on dealing with light duty accomodations. (I haven't seen your other posts, so I don't know whether this started as a WC injury, the employee would surely file a WC claim should she be re-injured while working.)

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                • #9
                  ADA concerns aside, if this is a work related injury, it will be to the financial advantage of the company to create a position for the person to fill rather than have her draw indeminty payments.
                  Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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                  • #10
                    How about putting her on a bar stool at the drive thru cash register?
                    Not everything that makes you mad, sad or uncomfortable is legally actionable.

                    I am not now nor ever was an attorney.

                    Any statements I make are based purely upon my personal experiences and research which may or may not be accurate in a court of law.

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                    • #11
                      Originally posted by cbg View Post
                      One thing I just want to make certain you understand.

                      You are NOT required to create a position for her, even under the ADA.

                      If you have an OPEN position, for which she is qualified, and which she could do with her restrictions, that's one thing.

                      If you would have to make up a new position within her restrictions to put her into, that is NOT required under the ADA or any other law.

                      Since she has been gone, over a month, I have hired 6 new employees.

                      Right now I really have no need for her even if she was in full working condition so could I just tell her that I have no room for her?

                      Since giving her a "new position" which would be one with very strict limitations and to be sitting on a high chair could I tell her that is the reason for her not being able to work at the store?


                      Originally posted by las365
                      Due to the height of most fast food counters and the placement of the cash registers, a chair that would allow the employee to operate the register would likely be sort of tall, like a bar stool, thus requiring the employee to climb up onto it and get down from it frequently. That would probably not be a good thing for a person with bad knees.

                      If you do try to make accomodations for this employee, I would suggest that you give a description of the physical requirements of the modified position to the employee and have her doctor approve it before you let her start working. You might also check with your workers comp carrier to see whether they have any suggestions on dealing with light duty accomodations. (I haven't seen your other posts, so I don't know whether this started as a WC injury, the employee would surely file a WC claim should she be re-injured while working.)
                      You make a good point as the chair for her to sit on would require her to climb up/off frequently in order to perform her job.

                      Is it legal for me to make a description of the physical requirements of the modified position to the employee and have her doctor approve it before she starts or am I not allowed to ask for that?

                      I have talked to my worker comp carrier and they have told me that they will not give me any advice until something actually happens.

                      The employee was not injured while I was in ownership of the store, it happened a year prior and I was not aware until months later by other employees. Then a few days later she claimed she was "too injured" to continue working and this is when she was placed on a 1 month temporary permanent disability.


                      Originally posted by cyjeff
                      How about putting her on a bar stool at the drive thru cash register?
                      That would mean that instead of having 1 worker taking orders, charging cars, getting drinks, getting food and stocking I would have to have 2 workers so that this employee wouldn't have to get off of her chair.



                      This whole thing is just one big headache and I would really like to get rid of her but given her past actions I am 100% sure she wouldn't hesitate to take legal action or contact ADA/Unemployment.


                      As for now I am going to ask for her to get a letter from her doctor stating how long a "prolonged" period of time standing is and also what his recommendation for her working hours and duties be.

                      Comment


                      • #12
                        1. Is WC still involved at this point?

                        2. Are these restrictions temporary or permanent? If temporary, is there an anticipated duration?
                        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                        Comment


                        • #13
                          Originally posted by ElleMD View Post
                          1. Is WC still involved at this point?

                          2. Are these restrictions temporary or permanent? If temporary, is there an anticipated duration?
                          1. No wc is not involved at this point in time.

                          2. I have no idea whether these restrictions are temporary or permanent, I'm pretty sure they might be permanent though.

                          Comment


                          • #14
                            If this is no longer a WC claim, then there is no need to scramble to find her a position. Simply tell her that she will remain on leave until she is able to return to a position that already exists. The only reason I'd bring her back is if she still had a running claim and you were going to be on the hook for Temporary Total Disability (there is no such thing as temporary permanent disability). If you were subject to paying TTD, then I'd create something for her to do until she reached maximum medical improvement (also known in CA as permanent and stationary). And yes, as part of a WC claim, you are entitled to that information. WC claims are specifically exempt from HIPAA.

                            If this is not longer a WC claim, then I'd only accommodate her if it could be done easily. You still are entitled to know whether these are short term or long term restrictions. If they are just short term, ADA does not apply. If long term, then it may. However, if she can not perform her former job, even with a reasonable accommodation and there are no other vacant jobs that she can safely perform the essential functions of either, then you don't need to bring her back.
                            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                            Comment


                            • #15
                              Originally posted by ElleMD View Post
                              If this is no longer a WC claim, then there is no need to scramble to find her a position. Simply tell her that she will remain on leave until she is able to return to a position that already exists. The only reason I'd bring her back is if she still had a running claim and you were going to be on the hook for Temporary Total Disability (there is no such thing as temporary permanent disability). If you were subject to paying TTD, then I'd create something for her to do until she reached maximum medical improvement (also known in CA as permanent and stationary). And yes, as part of a WC claim, you are entitled to that information. WC claims are specifically exempt from HIPAA.

                              If this is not longer a WC claim, then I'd only accommodate her if it could be done easily. You still are entitled to know whether these are short term or long term restrictions. If they are just short term, ADA does not apply. If long term, then it may. However, if she can not perform her former job, even with a reasonable accommodation and there are no other vacant jobs that she can safely perform the essential functions of either, then you don't need to bring her back.

                              So should I tell her this verbally or in paper that I would like for her doctor to write a note stating whether her injury related restrictions are short term or long term??

                              Since she has been gone I have hired many new people so could I say that I no longer have any room for her?

                              Or would it be wiser for me to state that with the physical restrictions made by her doctor so far I have no position for her which already exists?

                              Also, what is a "reasonable" accommodation?
                              If brought back, she would be a cashier but would be unable to stand for long periods of time so I would have to get a stool or some sort which she would have to climb on/off of.
                              She wouldn't be able to squat or lift anything so I wouldn't want her to move from the stool at all...

                              In your opinions if she tried to make this into a problem if I fired her would I be on the winning or losing side?

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