Worker's Compensation & Essential Functions
We have an employee who was exposed to a contaminant while at work. He is currently off work on worker's comp.
What he was exposed to is a chemical that is used daily in his job. The exposure has created a sensitization to the chemical which will remain with him, meaning he will ALWAYS have a reaction if exposed to this. An exposure can be as little as the container being opened in the same room.
The employee has no other skills that would fit any other positions, nor are we recruiting for any positions currently. He has been with our company for less than 90 days and did not follow proper procedure when he had his exposure (PPE use and reporting the injury). He also has had verbal and written warnings for attendance.
The manager wants to release him from employment, while continuing the worker's compensation claim as it did happen at work. I'm hesitant on if that's allowed, even though he would not be physically able to complete the essential function of his job upon release to full duty.
Subsequent questions include: if we keep him employed through the worker's comp claim and release to full duty, is there any reason that we cannot recruit to replace him? He is not eligible for FMLA with his short tenure, which is the only thing I can think of that would protect his job.
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I would definitely consult an attorney on this one. ADA may apply in this situation too because ADA applies in almost every situation, right?! It sounds like he will not meet the job requirements for chemical exposure to return to work in his position in your company, but I would definitely participate in a documented interactive dialog about accommodations before taking any actions.
Although finding another job in the company feels like the right thing to do if possible, you are not required to make up a job for him. Many worker's compensation programs have vocational rehab programs that will retrain an injured employee for another job, but it just may be that he cannot work in your specific work conditions and he may not need or be eligible for a Voc Rehab program.
As the attorney about how long to wait before reposting his position. I would wait until an interactive dialog is "complete". Good luck!
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I agree with Bonnie that you should without question consult an attorney on the possible termination issue. Has a physician documented that permanent restriction due to the sensitization or is that only what the employee is relating to you? Proper documentation from the physician may open the door for you regarding his future employment; without it you are walking a dangerous road. Again, back it all up with your employment policy and solid legal advice to defend against any counteraction.
