I am 61 years old...
I am 61 years old and have worked for my employer for 35 years. I went on Short Term Disability
leave on 12/8/15 to have shoulder surgery. My employer requires a return-to-work physical and drug
test to return to work. Note: I could have returned to work much sooner, however, my employer stated that I was not allowed to return with any restrictions. The shoulder surgeon had lifting restrictions of 20 lbs or less in place, until the end of April. The return-to-work physical requires that I lift 30-50 lbs, so my return was delayed until after the surgeon lifted the restrictions.
After rehabbing my shoulder and being released by my surgeon, I took the drug test and the physical on 5/2/16, and a week later, was told my return to work was “on hold”, because I failed 2 parts of the return-to-work physical. One part was a kneeling task. I later found out, from talking to the head physical therapy technician, that I was given incorrect instructions on how to perform the movement from the tech who administered the test at the clinic. The 2nd task I failed was climbing a ladder. I was not allowed to attempt that part of the physical because because I weigh 370 lbs and the ladder is only rated for 300 lbs maximum. I have personally taken 2 other return-to-work physicals at this same clinic, in years past - following both back and neck surgery - and have been allowed to use the same ladder, while weighing over 300 lbs. I have been able to do my job, for the past 25 years at over 300 lbs., with no problems.
The HR person at work has informed me that I have until 12/8/16 (one year from when I first took leave) to retake and pass the entire return-to-work physical in order to return to work. If I have not done so, by then, I will be terminated. The clinic and my employer are refusing to provide a higher-rated ladder for me to even attempt the ladder climbing portion of the test. I even offered to provide a comparable ladder, myself, with a higher weight safety
rating but was told no. When speaking with the HR rep by phone, I asked her if the company was expecting me to lose over 70 lbs. to even be allowed on the ladder to take the test? Her reply was “I need to be able to pass the physical”. She did not directly address the weight issue, but I do feel like I am being discriminated against, by the company, for my weight. In addition to all of this, I also have a documented disability, on file, with the company. I have severe osteoarthritis in both knees, with no cartilage and am a candidate for double knee replacement. I have had this condition for approximately 8 years and have been able to continue to perform my job.
The company has told me, in no uncertain terms, that the physical I was given is a standardized physical, given to all new-hires and employees returning to work after an absence longer than 7 days. I have been informed by several co-workers, who have had to take the supposed standardized physical that they did not have to perform the kneeling part at all and have been given a passing score. I have been given this physical twice in the past following neck and back surgery, and have never had to perform the kneeling test and have been allowed to take the ladder test, while weighing well over 300 lbs. I feel as though the company is holding me to a stricter standard, than my fellow employees, on this physical exam. The HR rep cited HIPPA laws as the reason she could not discuss any of those cases with me.
During my first attempt at the physical, the clinic had other equipment not rated for persons over 300 lbs., however, had alternate accommodations in place so I could take the entire physical. I was not allowed to use the treadmills, so they had me walk laps inside the clinic as well as taking me outside and across the parking lot to a curb outside a Starbucks to step up and down for 3 minutes for that part of the physical. I guess their step was rated for 300 lbs or below, as well. If they have already made other ways of performing the physical available to accommodate larger persons, then why are they not doing the same with the ladder? I don’t know if I’m being discriminated against because of my weight, age or knees, but I do feel as though something fishy is going on. This just doesn’t feel right to me, that I am possibly going to lose my job of 35 years +, because of a ladder. I need advice on how to proceed with this, and whether or not you think I have a valid discrimination
case to file with the EEOC