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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38911
Experience:  Retired (mostly)
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Employee is under medical care for new onset of epileptic seizures,amnesiac

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Employee is under medical care for new onset of epileptic seizures,amnesiac episodes (9/25) Employee had a seizure on 9/29 causing a 10 car accident; drivers license is being possibly being revoked by DMV. Employee has told management of all incidents I am repeating. Employee has had 1 MRI, having a follow up on Monday Oct 7 to make a determination of brain white matter, lesion or ?. Employee is an licensed CAT Scan technologist; administers venapuncture to patients as well as drawing up contrast injections or any other medications needed by the radiologist to perform an exam. The treating Neurologist has sent a 'return' to work notice that states: 'Can return to work on Oct 9th unless otherwise noted'. This is an ambiguous note, our Administrator has left approximately 3 messages for the practice administrator of the Neurologist asking to clarify- does 'unless otherwise noted mean if she doesn't have a seizure in the next few days?' Can the company request a definite return to work note from the employees physician and NOT allow the employee to return until the note is received? Patient care can be jeopardized by allowing this employee to return if not medically cleared.

1. There is nothing in either California or federal law that prohibits an employer from requesting further clarification from an employee's health care provider concerning the employee's condition. The employee can refuse to cooperate, and the employer will be restricted to making any employment decisions based upon the information available.

2. Given whatever information is available to the employer, its decision is always the same: (1) can the reasonably accommodate an employee's disability so that the employee can perform the essential functions of the job; or (2) will the employer suffer an undue hardship if it is required to accommodate the employee's disability.

3. The health and safety of the employer's patients is the primary concern. If the employer can ensure that patients are not harmed, by having someone other than the employee perform any invasive procedures, and doing so is not an undue hardship -- for example, because there is always someone on staff who could step in to handle these procedures, then that would be a reasonable accommodation, and the employer is not yet in a position to terminate the employee for undue hardhip.

Or, if the radiological equipment can be set to complete a procedure automatically, so that if the employee has a seziure, the patient will not be irradiated beyond the required safety limits, then this too, would permit a reasonable accommodation.

But, if there is no one who can step in for the employee, or, for example, the employee must perform invasive procedures, routinely, for practically every patient, such that having another employee step in would unreasonably interfere with the other employee's work schedule, then the employer has an undue hardship, and assuming that it has good proof of the hardship, then the employer can terminate the employee.

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