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Brandon M.
Brandon M., Counselor at Law
Category: Employment Law
Satisfied Customers: 12495
Experience:  Licensed attorney
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On Saturday, Feb 18, I fell and sprained/ bruised my right

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On Saturday, Feb 18, I fell and sprained/ bruised my right arm - it was not a work injury. I kept my arm in a sling for 9 days as per my orthopedic doctor prescribed. As of yesterday, I no longer needed the sling. My doctor gave me a note saying that I could fully perform my duties but that I was not to do any lifting for 4-6 weeks.

My job is as an executive assistant and the bulk of the work that I do is typing and being on the phone - the heaviest thing that I lift is a ream of paper, which I can use my other hand. The HR department at work has said that I can not come back to work for the 4-6 weeks even though my job description does not include lifting of any sort.

We only have 3 sick days a year, which I have used up. I have been informed that I could use my vacation time which has rolled over from last year or go on disability.

I mentioned to them that I had heard of a law, I believe that it is personal accommodations, however, they said that that only applied to workman comp cases.

I feel uncomfortable taking disability payments when I am able to do my job fully and would like to know if my employer is legally correct in not allowing me to return to work at this time.

Thank you for your assistance with this question.

B. T. Meyer :

Hello there.

Customer:

Hi

Customer:

Do you have any questions to ask me?

B. T. Meyer :

Actually, I think that I am about ready to give an answer because it appears to be pretty straightforward.

Customer:

Okay - thank you

B. T. Meyer :

The employer is obligated to permit you to work if you can perform the tasks of your job with reasonable accommodation.

B. T. Meyer :

Since heavy lifting is not a normal part of your job, would you agree that you can do the work?

Customer:

Does this fall under the personal accommodations law or is there another law that I can quote since the head of the HR department is a lawyer (tax lawyer)

Customer:

Yes, I agree that I can do the work that is outline in my job description

B. T. Meyer :

Certainly. One moment.

B. T. Meyer :

I should start by saying that this is the very crux of the Americans with Disabilities Act. That is literally the primary, if not the entire, function of that piece of legislation.

B. T. Meyer :

The Equal Employment Opportunity Commission (EEOC) has an excellent discussion on the subject, including statutory and case law citations: http://www.eeoc.gov/policy/docs/accommodation.html

B. T. Meyer :

It is a bit thick, but it will answer most any question about what is required and what constitutes reasonable accommodations.

Customer:

Thank you for the referral - is there such a law titled "personal accommodations"?

B. T. Meyer :

"Personal accommodations" is not a legal term of art, no.

Customer:

There is another part to my question, can my employer say that I have to be 100% healthy before returning to work? And, if they are holding to this are they legally responsible to pay my salary since they are the ones that are preventing my return to work?

B. T. Meyer :

An employer can say that an employee cannot return to work until they are 100% able to perform their job with reasonable accommodations.

B. T. Meyer :

But if the employee can do the work, unless there is a rational basis for the discrimination (e.g. you have the flu and you work in a cancer ward), the employee can't refuse the employee from working based on their disability.

Customer:

Thank you - are they able to say that it is office policy when it is not in writing in any of the staff handbooks?

B. T. Meyer :

It really would not matter if it is office policy. If it is against the law, they cannot do it. Hypothetically, if they did have an office policy, there is no requirement that the policy be in writing.

Customer:

Great! I really appreciate your assistance and the clarification that you have shared with me. Is it possible to print our chat?

Customer:

Thanks - I will copy and paste and of course will click the accept button! You have made gathering the legal info in such a quick and efficient way

B. T. Meyer :

That is great to hear. Thanks, XXXXX XXXXX me know if further clarification is needed. Best of luck to you folks.

Customer:

Thanks again.

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