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Employee was hurt on the job in November. (Spine related due to lifting)
Has been seeking and receiving treatment the entire time to resolve issue.

Employer tells them to resign because they can't do their job and aren't reliable.

They can't do their job because they were injured on it.
They aren't reliable because they have to take off to go to doctor's appointment.
Job involves lifting 50 lbs. Other staff have been doing the lifting for the employee.

All documented.

Legal or not? I say not.

Jersey Girl, just curious - can the employee fulfill a larger share of other job duties that do not require lifting, or is lifting heavy things the primary job requirement and an essential part of his employment?

Under the Americans with Disabilities Act (ADA), the employer has to make reasonable efforts to accomodate an employee with a disability, like the case you relate, unless doing so would be an undue hardship. Canpakes is asking the right question along these lines. Anyway, this employee should seek an employment lawyer's advice or talk to the union rep if the job is unionized

canpakes wrote:Jersey Girl, just curious - can the employee fulfill a larger share of other job duties that do not require lifting, or is lifting heavy things the primary job requirement and an essential part of his employment?

Yes and that's exactly what they've been doing. This is a veterinary nurse. Lifting is lifting veterinary patients up to and including large breed dogs who are sedated. With large breeds they use a two person lift. The rest of the job is labs, radiography, dental cleanings, running anesthesia, IV's, assisting in surgery, doing triage, that sort of thing. Lifting is primarily lifting of surgical patients after surgery. All of the above requires expertise and education. The lifting is secondary if you ask me.

It'd be like a surgical RN who can't lift the patient.

Lifting is what caused the spine problem to begin with. There are no mechanical hoists in the practice as you may have seen used with human patients. Hoists exists. This private practice doesn't have one.

So what we're looking at here is someone who was injured on the job, sought treatment starting with meds, to injections, now had a (pay attention to the timing here) surgical consult yesterday where the surgeon (genius surgeon, trust me) says he sees nothing in the images that warrants surgery.

The nurse told the employer that today and THAT'S when the employer said put in your 2 weeks notice.

See what's going on, cp?

There are other avenues to explore insofar as solutions to the disk problem. The nurse has the expertise and education, to do every part of the job except for the lifting of large patients.

Other staff have been doing the lifting. Other staff are now ostracizing the nurse.

And the employer knows it.

Exiled wrote:Under the Americans with Disabilities Act (ADA), the employer has to make reasonable efforts to accomodate an employee with a disability, like the case you relate, unless doing so would be an undue hardship. Canpakes is asking the right question along these lines. Anyway, this employee should seek an employment lawyer's advice or talk to the union rep if the job is unionized

You both are seeing this the way I am. I haven't dealt with staff or worker's comp in more than 15 years.

I see what the employer is trying to do and why they are doing it. I understand why they are trying to do it and that they are trying to do this under the radar, and shove the employee out without a dispute.

That much I know.

My advice was to start with the state or county labor board, worker's comp department, tell the story and find out what the employees rights are, and go from there.

The employer is going to get a dispute. I guarantee you that. I just wanted to see what you guys had to say on first read of the situation.

This is a family member. Our whole family is in and out of hospitals right now. If I told you all what has been going on, you'd think I was making it up. I was doing a hospital visit today and ended up in the ER myself when yet another family member arrived at the ER! One family member in the hospital, another one being admitted for surgery on Thursday. And now this job threatening is going on for another one of our own who has dealt with increasing pain and suffering for 8 months, trying their best to resolve the situation, get some relief, and now this threat of losing their job.

If they are going to consult an attorney, that is going to mean another day off work. What happens if the family member gets fired?

They'd have to come up with something nefarious for a reason (unless the contract is at-will I guess, which I believe they all are in this state) for that because the medical case and treatments are well documented right up to yesterday.

Where do you think they might stand with an at-will contract in this situation?

I've use at-will contracts but I've never tried to withdraw from a contract with someone who was injured on the job.

Regarding dispute in general. I recommended seeking information regarding rights. Let the employer put their request in writing--knowing they won't do that. If the employee cannot do the job that would be one thing, but lifting isn't central to the job because other staff can perform that duty.

The environment feels like it's becoming increasingly hostile and the employer is well aware of this. Instead of supporting the accommodations that have been made, the employer is essentially letting the staff cave in on itself. Probably hoping the employee will run.

That is not going to happen.

While your friend is on the job, anytime the boss talks about their job, write it down. Don't count on memory. Even if you can go to the bathroom and quickly dictate some notes on your cell phone. They should have a timeline of where and when things started happening.

There should be a ton of information online about disability. Computers are the coffee shops of the homebound. I'm sure there are a lot of groups where people have had similar experiences where they could provide guidance.

MeDotOrg wrote:While your friend is on the job, anytime the boss talks about their job, write it down. Don't count on memory. Even if you can go to the bathroom and quickly dictate some notes on your cell phone. They should have a timeline of where and when things started happening.

I told them to document months ago. I'm hoping they've kept up with it. Conversations were on the run today.

There should be a ton of information online about disability. Computers are the coffee shops of the homebound. I'm sure there are a lot of groups where people have had similar experiences where they could provide guidance.

I think you're exactly right!

a forced resignation, or coerced resignation, is the same "legally" as a termination. The options at that point are several. It I worth asking the employer "if I resign..." what severance package? will unemployment claimed be fought? will benefits transfer/be extended? etc...
with regards to the injury...the employment, resignation, etc are irrelevant except the injury cannot be used to "force resignation"...one never HAS to resign unless it is part of a workers comp settlement (which means effectively choosing to resign).
A lot relies on the State laws so likely best to consult a local lawyer.

Subby, I don't often agree with you, and often find you irrational, disrespectful and lacking in compassion for others, but your above response was well reasoned, and, I think, well intentioned and helpful. Though I don't like much of what you stand for, I believe in giving credit when credit is due. Your most recent post here was one of those occasions. Thank you for your remarks!