About six months ago, Acme's plant just north of town committed itself to abandoning the traditional push-based assembly line concept in favor of more contemporary ways to get product out the door. And now the employees can't wait to put it to the test in the real world. The general idea is to take advantage of the current lull in the economy, sales and staffing levels to reconfigure the plant, one department at a time. By now, everyone still on the payroll is quite conversant on relevant topicscellular manufacturing, Kanban, just-in-time and other related ideals.
This is nowhere more true than in the facilities engineering department, where just-in-time is an apt description of the way Acme's three hearty CAD operators are cranking out drawings and plans. The workload has been a lot more intense than normal, but a lot more interesting, too. The three draftsmen share a lot of mutual respect and have been functioning like a self-directed team. They've done it allmade measurements, produced conceptual and general arrangement drawings; plans, sections and elevations; utility relocations and every other conceivable sort of depiction of how Acme is going to appear after it reinvents itself. The team has everything down in black and whiteand it's rightan accomplishment for which they're proud. And for which everyone else is thankful.
Except the lead draftsman, Mel Encollia, who had been suffering for the last six weeks. When his once invincible mousing hand started cramping and aching, he thought the problem would go away by itself. In the meantime, his work output dropped by 80 percent. To get back on track, Mel tried warmth, he tried ice, total rest at home, and any other remedy anyone could suggest. When he found himself nearly unable to hold the car's steering wheel with any degree of certainty, he finally sought medical help, a move that netted him a preliminary diagnosis of carpal tunnel syndrome.
Unfortunately, the usual wrist surgery didn't solve his problem. That's when Mel learned he might have some chronic degenerative condition attacking his nerves. As a desperate measure to relieve the pain, he took an unpaid, 12-week leave of absence under the provisions of the Family and Medical Leave Act. On his way out the door, everyone wished him luck and his boss told him his drafting job would be waiting for him when he returned.
On his first day back at work three months later, all went welluntil lunch. Then, Mel's wrist pain became so intense he was unable to operate the mouse. Even if some sort of job accommodation was possible, it was clear to him and everyone else that Mel wouldn't be producing Acme's drawings any longer. And with Acme's business climate being what it was, his boss made it clear that Mel wouldn't be doing anything else for Acme. That afternoon, when he was terminated, Mel's parting words were, "I'm going to see you in court."
Does an employer have any responsibility to carry a worker who can't do the job? Does Mel have any rights in this case? What would you have done if Mel reported to you?
An academician's response:
I don't pretend to be a legal expert in this area, and would defer to an attorney, particularly because there have been some recent changes in the Americans with Disabilities Act (ADA). Having said that my take on the case is that a company doesn't have to employ a person who cannot perform the job. So, in that respect, Acme is okay.
However, I have an issue with how the termination was conducted. Acme was too quick to pull the plug. The case should have gone to HR and the legal people to both determine the extent of Mel's disability as well as to determine whether there was a possibility that Mel could return to his job or, for that manner, any job at Acme. In my mind, Acme probably violated its own rules on terminating employees, that being that the employees have a right to a hearing.
Could there have been any way to provide a reasonable accommodation to Mel such that he could perform his CAD duties? I think the courts have ruled that a company must make a reasonable accommodation, but that doesn't mean that it has to restructure the job. It appears Acme didn't bother to explore this. The question most problematic in my mind is whether Acme has an obligation to find (or at least, offer) Mel another job at Acmeone he can perform successfully. Certainly from an employee relations standpoint, I think they should try. From a legal (ADA) standpoint, I am not sure.
Homer H. Johnson, Ph.D.
Director - Graduate Programs in Human Resources, Industrial Relations and Organization Development
Loyola University Chicago
Chicago, Ill.
312-915-6682
A corporate consultant's response:
Unless Acme is a non-profit organization, why should it function like a charity? Although we can feel sorry for Mel, the fact is that he can't do the job. It's unfortunate, it's sad, it's going to be tough on Mel, but his disability doesn't require Acme to keep him on the payroll. Numerous legal remedies exist to fund Mel's disabilityworkmen's comp, disability, and others. Beyond this, Acme has no further responsibility.
If Mel had reported to me, I'd make sure he knew the details about accessing any legitimate funds. I'd probably even seek some kind of special monetary gift from the company. I'd try to help him find suitable work. But I would not keep someone on who isn't able to do the work.
Francie Dalton
Dalton Alliances, Inc.
Columbia, Maryland
410-715-0484
fax: 410-715-8593
http://www.daltonalliances.com
An attorney's response:
Acme should have handled this difficult situation somewhat differently. One point is clear, however. Acme had no further obligation to Mel under the Family and Medical Leave Act. When an employee seeks to return to work at the conclusion of 12 weeks of leave, the employer's only duty under the FMLA is to return the employee to his prior position. If the employee is not able to perform the duties of that position, the employer has no further obligation to the employee under that law.
However, if the employee is protected as a "disabled" person under the Americans With Disabilities Act, the employer has an obligation to reasonably "accommodate" the employee. Who is protected under the Act as "disabled" has been the subject of a great deal of litigation. Generally, an employee must have a serious non-temporary condition that substantially limits them from performing a major life activity. One major life activity, of course, is working. If a court were to find that Mel is a disabled person under the ADA, Acme's obligation to reasonably accommodate him would come into play.
Types of accommodation that would apply under these circumstances include modifications to his job, a transfer to a different job or even additional leave time, even though it is not required under the FMLA. But there is a huge piece of the puzzle missing here. Neither Mel nor Acme knows what Mel's physical limitations may be. For example, can Mel use his wrist to perform drafting work if he takes a five-minute break every hour? Can he do the work for four hours each day, interspersed with an hour of other work that does not require the use of his wrist?
Acme's first step should have been to ask Mel to return to his doctor with a copy of his job description detailing the precise physical requirements of the job. Mel's doctor should have been asked to provide Acme with specific information on Mel's work restrictions.
Based on the information from the doctor, Acme should have determined whether it was possible to restructure the duties of Mel's existing job so he could perform that job. If not, Acme should have looked at its existing open positions to determine if Mel was able to perform any of those jobs, based both on his work skills and experience and on his physical limitations. If a suitable opening existed for Mel, Acme would have an obligation to transfer him to that job, assuming he was protected as a "disabled" employee. This is true even if it were a lower paying job.
Shooting from the hip seldom is the best approach for an employer to take when confronted with an employee with a medical problem. At the very least, Mel's boss should have consulted the human resources department before taking action to terminate him.
Julie Badel, Partner
Epstein Becker & Green, P.C.
Chicago, Ill.
312-499-1418
Our "In the Trenches" stories are created as a learning tool; the names of the companies and the people described within them are fictional.