Can we refuse to rehire an employee who might injure himself on the job? 12-03-2009

We have an employee in shipping, which requires lifting and being on your feet all day. He has had hip surgery and medication issues stemming from a work injury from a prior company. All expenses to date from this has been covered from prior company's Worker's Comp Claim.

I am concerned that if we re-employ him, his job could place stress on a defective back/hip, and cause a future worker's comp and/or disability claim and hurt our company financially. What do I do to protect myself but still provide employment?

Ann Kiernan replies:

From what you have written, I assume that the employee has a disability and would be covered under the Americans with Disabilities Act. The EEOC Enforcement Guidance: Workers' Compensation and the ADA, Point #11 provides the following Q&A on this subject:

May an employer refuse to hire a person with a disability simply because it assumes, correctly or incorrectly, that s/he poses some increased risk of occupational injury and increased workers' compensation costs?

No, unless the employer can show that employment of the person in the position poses a "direct threat." In enacting the ADA, Congress sought to address stereotypes regarding disability, including assumptions about workers' compensation costs. Where an employer refuses to hire a person because it assumes, correctly or incorrectly, that, because of a disability, s/he poses merely some increased risk of occupational injury (and, therefore, increased workers' compensation costs), the employer discriminates against that person on the basis of disability.

The ADA requires employers to make reasonable accommodations to enable an employee with a disability to do his job. However, if no accommodation can eliminate or lower the significant risk of substantial harm to the employee or others, it is not reasonable to accommodate a "direct threat". In Point #12 of the Guidance, EEOC gives an example, which is fairly close to your situation:

Example B: CP, who has a shoulder disability, applies to R restaurant for the position of bus person which requires frequent carrying of basins full of dirty dishes weighing 40-45 pounds. After a conditional job offer, R discovers that CP has had five serious injuries to his left shoulder while carrying basins full of dirty dishes in other bussing jobs over the past four years. The objective medical and other evidence (the number, frequency, nature, and severity of the prior injuries; the similarity of the position at issue to the positions in which the injuries occurred; the progressive deterioration of CP's shoulder with each injury; and the evidence that a further injury will render CP's arm useless) supports a finding that CP's employment in the position of bus person poses a significant risk of substantial harm. The evidence further shows that the risk cannot be lowered or eliminated through a reasonable accommodation. Therefore, CP's employment in the position of bus person poses a direct threat.

If the employee can no longer perform the essential functions of the shipping position, with or without a reasonable accommodation, then you must reassign him to an equivalent vacant position for which he is qualified. If no equivalent vacant position (in terms of pay, status, etc.) exists, then he must be reassigned to a vacant lower graded position for which he is qualified. But the ADA does not require you to create a new job or to bump another employee from his/her position in order to reassign a disabled worker.

Workers comp, however, depending on your state, may either require or encourage you to find that person another job within the company. This could be a job in a totally different vocation. If you train the employee in a new vocation, you may be entitled to some credits on your workers comp payments, tax breaks for hiring people with disabilities, etc.

I hope this has been helpful, but I do suggest you hire a local employment attorney to advise you on the in's and out's of the laws in your state. Good luck.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.