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  • Conner Lantz
    Post count: 4836


    We have an employee who does physically demanding work (lifting, carrying) on a regular basis (2-4 times a week). He has said the work is becoming difficult for him to perform and he takes time off work to recuperate. He has never suffered a workplace injury doing these tasks but he will not be able to perform them as regularly as we may need him to.
    What is our duty to accommodate given that he physically has trouble doing the job but is not disabled in any way from doing it? Are we open to a wrongful dismissal charge if we terminate?
    The employee has been with us for 4 years and has performed adequately. There have been times when we’ve needed to pull employees from other departments to help with the physically demanding work.

    Conner Lantz
    Post count: 4836

    If he’s not disabled in any way, the employee would not be entitled to accommodations and termination would not be disability discrimination.
    How do you KNOW he’s not disabled? Have you asked him? Has he undergone a medical exam? As employer, you need to make such a determination–and document that you did so–before firing an employee, especially when the grounds for termination is failure to perform the physical demands of the job. You can bet that this will be the first thing his lawyer will ask him if he seeks counsel after getting his pink slip.
    Another discrimination risk is that he may be protected on a grounds other than disability, e.g., race, religion, age, sexual orientation, etc.
    Bottom Line: While it looks on the surface like you can proceed with the termination, there are definitely risks that you need to address. Above all, talk to counsel. While I hope this response helps, keep in mind that  it’s just a general opinion based on a limited knowledge of the facts and is in no way substitute for the advice of counsel. Hope this helps. Glenn Demby, 203 354-4532

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