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This blog post is based on a question from a participant in a recent webinar.

“I have a situation where I performed an FCE (a one-day worker evaluation) on an individual who is a municipal worker.  He has been on light duty for a biceps tendon repair, and also has a non-work-related injury co-morbidity of degenerative disc disease in the lumbar spine. The municipality is not aware of this condition to my knowledge.  My clinic has treated him for both, one through worker’s compensation and the other on his private insurance.  He is 59 y/o and has been with the municipality for 25+ years.  He wants to work for 3 more years before he retires.  He did not pass his FCE due to his biceps repair and low back issue.

I have not yet contacted the case manager or the municipality with the results of his FCE. My dilemma is this: We have a good relationship with the municipality and this individual.  However, I do believe there is some friction between this individual and the municipality.  What I would like to do is to recommend to the municipality that he find a light duty position for this individual for the remainder of his time until he retires or suggest that he medically retire now.

Given the results of the FCE, he would be able to return to his full duty position with some work conditioning and strengthening for his biceps tendon. I would recommend this course of action if he did not have a low back issue condition and had a long work future ahead of him.  I can almost guarantee that he would end up with a claim for his low back issue in the future if this is the route he would take, which would cost the municipality a lot more money, and would not be good for the individual as well.

My question is this: What am I legally allowed to tell the case manager and municipality human resource contact regarding his low back issue condition as this is not being treated as a work related injury and I do not believe he are aware of this condition?  I am trying to keep both parties best interest in mind.”

The issue of a disclosed and non-disclosed impairment leading to separate disabilities intrigues me. I reached out to a colleague for her input:

One issue is that the employee seems to have disclosed only one of his disabilities to his employer – his bicep injury, not his lower back injury. When the webinar participant says that he wants to recommend light duty, perhaps the question he should ask first is: would he be justified in doing so based on solely the bicep injury? If so, then he should recommend it. If he is recommending it based on both conditions, however, it gets more complicated because the employee has not disclosed and has not requested accommodation based on the back injury.

I don’t know all the facts, but I often find that the sort of “friction” he mentions can stem from that situation – the city likely knows there’s another more serious problem besides the injury and wants to know what it is and can’t ask, and the employee doesn’t want to disclose for fear of losing his job, and gets defensive and suspicious with supervisors.

The writer is between a rock and hard place, but may be able to address this in an informal discussion with the employee. He should definitely not bring up the back injury to the employer; I know it places him in a tenuous position, but I think the alternative is worse. What he can do, however, is clearly explain to the employee his right to reasonable accommodation under the ADA, and encourage him to disclose sooner rather than later. The employee faces risk of back injury, and – assuming this is severe, as it sounds – has rights under the ADA. He can ask for reasonable accommodation and receive some protection under the ADA; the employee, like most people, might not be aware that he has such rights. The employee might not be receptive to this because of his (justified) fear of losing his job, but could decide to voluntarily disclose and ask for accommodation, which would be the best case scenario.

The way forward will depend on the nature of the employee’s job and the city’s policy towards “light duty”. I’m assuming that it is a very physical job in the way it is described. If the employee discloses the back injury and requests accommodation, he will start the interactive process. It is entirely possible that he will find an accommodation that makes the risk of further back injury moot (this will of course depend on the nature of his job and the severity of the impairment and how it affects his work).

However, in that process, he also may determine that he can no longer perform the essential functions (particularly if safety – his or others – is at issue). Then, he will need to consider transfer as a reasonable accommodation. There is no obligation to create a “light duty” position for this person under the ADA UNLESS it is a part of the city’s policy to do so in such situations, or if it offers long-term light duty in other situations (at which point also offering light duty here could be a reasonable accommodation, but that is entirely dependent on their policies). Light duty is an old fashioned concept, but I’ve found that it’s still a part of policies in many city governments. In that scenario, his best bet may be to ask for a transfer as a reasonable accommodation, but there is inherent risk there – one might not be open in a “foreseeable time period” (3 months) and then he would lose his job right before retirement.

Either way, this employee faces a lot of uncertainty. My suggestion is that the webinar participant inform the employee of his rights under the ADA and encourage him to disclose. If the writer worries about later trouble from the city, he should include a note in his files saying that he did so. He is under no obligation to disclose the back injury to the city, but he should not disclose for the employee unless he has the employee’s direct consent.