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I do. My husband has a broken neck and needs to wear a

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I do. My husband...

I do. My husband has a broken neck and needs to wear a cervical collar. The Head of Neurosurgery has cleared him to go back to work, however, the Town of Marblehead, Massachusetts School System states that he cannot go to work with the collar on. Can they do this?

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Massachusetts. He works for the School System as a custodian.

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Full time

Submitted: 8 months ago.Category: Employment Law
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11/13/2017
Employment Lawyer: Patrick, Esq., Lawyer replied 8 months ago
Patrick, Esq.
Category: Employment Law
Satisfied Customers: 14,387
Experience: Significant experience in all areas of employment law.
Verified

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

What is their reasoning exactly? Are they claiming that he is unable to safely or effectively do his job with the collar on? I very much look forward to helping you on this matter.

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Customer reply replied 8 months ago
no. They simply said he cannot wear the collar. We have a note from the head of Nuerosugery at Massachusetts General Hospital stating that he can perform his duties safely and effectively with no issues as long as he wears the collar.
Customer reply replied 8 months ago
they said that wearing any type of brace, cast, collar means you are not 100% able to do your job. However, the Head of Nuerosurgery states that he is.
Customer reply replied 8 months ago
Do you need any more information
Employment Lawyer: Patrick, Esq., Lawyer replied 8 months ago

Thank you.

In general, an employer can only refuse an employee's return to work if the employer has legitimate reason to believe the employee is unable to safely or effectively perform their job. Here, your husband's doctor has cleared him to work, which generally means the doctor does not believe there would be any effect on how safely or effectively your husband can do his job. His employer's bald face assertion to the contrary ("The collar means you can't do your job because you can't do your job with a collar") does not overcome the physician's assessment. Now, if the employer could point to something SPECIFIC, beyond simply a general opinion that collars make it impossible to do the job, the employer would be able to refuse your husband's return with the collar. But they definitely need something more specific.

So, the next step would be to ask the employer to explain in writing how SPECIFICALLY the collar makes him less than 100% able to do the job. If they provide something specific, your husband can go back to his doctor and ask the doctor to respond. For example, if the employer responds by saying that the collar makes it impossible for your husband to safely lift objects of 20 pounds and that is part of his job, your husband could go back to his doctor and get a more specific note clarifying that he CAN in fact lift objects of that weight.

So again just to summarize, it comes down to whether your husband's employer has a legitimate reason to doubt your husband's ability to safely and effectively do his job. The doctor's note creates a presumption that he can, but if your husband's employer can point to something specific, then it would be up to his doctor to specifically state to the contrary.

If your husband is not returned to his job and believes that he should be, given the above, his recourse is to file a complaint with the EEOC for disability discrimination.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

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Customer reply replied 8 months ago
Patrick, someone stated that there is also something called "perceived liability" that his employer can state that will not let him go back to work? Is this true?
Employment Lawyer: Patrick, Esq., Lawyer replied 8 months ago

"Perceived" liability does not matter. All that matters is whether there is an ACTUAL safety risk, or whether the employee's condition ACTUALLY impairs their ability to do the job. Perceived liability basically means "liability that doesn't exist, but it looks bad." That's exactly what disability discrimination is. Judging a disabled person by how they look and not by how they do their job.

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Employment Lawyer: Patrick, Esq., Lawyer replied 8 months ago

If I have answered your questions, please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the attorneys here are not employees of the site and otherwise do not receive credit for spending time with customers.

Best wishes to you as you move forward here.

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