Can employers legally refuse to allow temporary light duty?

[susancook]

"my employer and it's HR department says it does not allow workers to return to work on any type of light duty--they want me to return with no restrictions"

Gayle: I would ask the HR dept to show you the their written rule that says the above. Is it written? When was it written?
Susan

[susancook]

"my employer and it's HR department says it does not allow workers to return to work on any type of light duty--"

Gayle: I would ask for a copy of the policy that states the above.
I would also ask if they have ever made any other exceptions to the policy. Get that in writing. Anything that they say, ask them to put in writing. Be pleasant about it, but say, "I hear what you just said, but I would appreciate it if you would send me a note with that policy and your answer to my question in writing." That sort of nails it down. Then if you find other employees that they have made exceptions for....well, they have a problem...huh?
Also, if you do ever need to go further with this, keep a notebook with the dates, time, and name of the person that you talked to and exact quotes of what they said.

Susan

[leahdragonfly]

Well, I had a very frustrating meeting with the director of HR and the director of my department yesterday. They started out by telling me that my restrictions made it so that I could not perform even 50% of the required activities of my job. The HR director remembered that I had successfully been allowed back after my original surgery in a limited role, seated in the control room monitoring and recording cases on a computer. I reminded her that this had worked out very well and caused no problems for anyone. Then she went on to say that my new restrictions were "so much more restrictive" than last time, that they couldn't possibly allow me back with them in place. She told me she went to my department and observed someone seated in the recorder position, and she saw them twist, so therefore she said I couldn't even do the recording position. I pointed out that just because she saw someone do a certain movement, didn't mean it was ergonomically correct. I told her no one seated at a computer should twist, they should turn the chair, which is why it has a swivel on it (duh). She went on to say that if my note said "no lifting" that she took that to mean I couldn't even lift a pen, and if I can't even lift a pen I can't possibly come to work (really?-you're killing me here). I can't even believe she said this, and I pointed out that that was a very literal assumption that was completely false. I told her I was allowed to lift up to 20 lbs. She seem surprised and said "but my note said no lifting" whatsoever. So literal and rigid! Then I went on to say that I have been trained to move my body in an ergonomically correct way, so maybe I can't twist in the strictest sense of the word, but I can pivot, for instance. I explained this is "the new norm" for me, and that I don't even think about having to make accommodations in how I move. Of course they mentioned they didn't want me to get hurt or them to have any inability, blah blah blah.

After awhile in the meeting it occurred to me that they really thought these restrictions were far more restrictive than last time, even though they are really identical, which I pointed out. I asked her to read to me what my restrictions said last time, when I was allowed back in the recording position. It said nothing specific about "no bending, lifting, twisting", and incredibly that is what they are objecting to. Seems that last time Dr Hart filled out a pre-printed HR light duty release, on which he checked the boxes for "sedentary desk work preferred" as well as wrote "no lead and no patient transport". I pointed out to them that the restrictions were written to mean exactly the same thing, but due to semantics they are thinking they are far more restrictive. So I told them I would "discuss my job requirements with my surgeon" and ask him to write a clarification of my work release. Fortunately Dr Hart knows I will protect yourself and is happy to help me however I need it. And best of all, my immediate co-workers will protect me. So yesterday afternoon I sent his office a fax asking for specific text to be used for the note, and I sure hope it will be acceptable. Here's what I wrote:

-No lifting over 20 lbs
-No lead
-No pt transport
-Sedentary desk work preferred
-Pt has been trained in ergonomically correct body movements. Pt may use ergonomically correct alternatives to bending and twisting.

I am so angry at what a load of crap this whole thing has turned into, with no one using any common sense, including my immediate supervisor. So now I have to wait to get the note back from Dr Hart, which his office said could take a week, then I have to have another meeting with HR.

I have a lawyer acquaintance who would gladly write me a letter, but I hate to pull the lawyer card out just yet, because as someone said I think it sets up a really adversarial situation that I don't need. But on Monday I will call the hospital's confidential compliance line and make an inquiry about ADA accommodations.

Thanks all for listening and all the good suggestions, and please let me know what you think.

[jrnyc]

hi Gayle
i think you did the right thing...
it may be wisest to save the lawyer card for when you really need it...like if the new note
doesn't do the trick...
i figured they would talk about injury and liabiltiy...
i did not foresee the narrow and rigid interpretation of the note..
i guess your doctor has to spell it out for them...
i hope the doctor's office gets to it quickly...

are you ready to return to work right away if they agree to the temporary limits...????
did anyone at the meeting mention the ADA...???

jess

[Pooka1]

Gayle,

I think you handled that well. I also think you found the heart of the problem... they think your restrictions are different this time. I think they are afraid you will hurt yourself and come after them. I hope once you clear that up, it will be okay.

I am not sure why it would take a week for Hart to write that clarification but whatever. You wrote it for him and he just has to read it and sign off which it sounds like he will do.

Good work and good luck.

Sharon

[Elisa]

It sounds as though you did handle it all well and I bet Dr. Hart's office gets that new letter to you before a week. I think they just say a week so that people don't expect it the next day, at least that's been my experience. I sure hope this new letter spelling things out for them does the trick for you.

[titaniumed]

They certainly do not want this to happen again, and possibly have you point a finger. This is exactly what’s going on here. They are afraid.

The lawyer card would hamper your relationship with them......Negotiating without pulling for you gun is the best way for right now. I truly hope that you can convince them that sitting at a desk and your work movements will be no different than what you will be doing at home.

Non-unions happen and they don’t know why.....explain that this was not their fault. These things happen. You need to convince them that they are not at fault and will not be at fault if this happens again.

Doctors and surgeons are usually pretty careful with statements and will avoid a case at all cost....you cant blame them. Court is a pain, and can last forever........

Ed

[susancook]

Gayle: Dr. Hart did you a disservice initially by his vague restrictions. He did need to be more specific. The hospital is afraid that you will get hurt and sue them and your supervisor is being an ass and being non-supportive. Sounds like you organized them and handle the whole thing very well. Call Dr. Hart's office on Monday and make sure that he can get to it soon as he is in clinic on Tuesday, so could get back to you.

You might also want to suck it up a little bit and write a note to the board or the group that is working with you and say thing like: your past evals have been outstanding [right?]...or whatever, you've worked there for XX# of years and have made a valuable contribution to the unit and anticipate that you will continue to do such. That you value the teamwork. That you value the relationship that you have had w/ the hospital and the patients that you have served, and that you have passion and enthusiasm to continue to make this unit a top notch.... whatever unit.....whatever....maybe selling yourself. If the opportunity arises, maybe do something like this. I know that you love your work and they need to understand that passion. Emphasize that you really want to work WITH them to make this work out best for all concerned. "I believe that I have valuable skills that I have contributed to make this unit a great unit and I want to continue to work with the staff and patients to provide excellence in patient care....whatever....."

How long did Dr. Hart want you to have those restrictions?

Do check out the ADA and how that might fit in with you. As I said before, the lawyer card should be a last resort in my mind having been in a similar situation. It sets up an adversarial situation that might make discussions difficult. Also, lawyers are expensive and once you hire one, they will not talk to you, the need to talk through your lawyer and that gets into billable minutes. It shouldn't be that way, but that's reality.

Best of luck and hang in there. If you can think of anything that I can do to assist you, let me know. As I said, I sent your situation to a friend in hospital admin here in Portland for her suggestions, and will get back to you when I hear from her. I just thought of another friend at Shriners in Admin that I will email your situation to her also for her input.

Keep us posted. I'm pulling for you. Susan

[susancook]

My friend who works at Shriners wrote: From what I understand about the ADA, the employer has to let her work with “reasonable accommodation.” The best thing to do is to contact “Disability Rights OR” (free lawyers specializing in Disability Issues). I have more info at work, but this will get her started. Here is their contact info: Disability Rights OR (formally OR Advocacy Center): (503) 243-2081 or (1-800) 452-1694

Hope this helps.

Susan

[jerseyot]

Wow, I'm so sorry you're going thru all of this! It seems you've covered all you're bases though - diyoud have a copy of you formal job description? It may help too if it came down to having to get a lawyer knowing exactly what your specific job requirements are. I'm debating now whether to just throw in the towel (ie:'resign) or have them keep me on until I'm able to work even a few hours a day. But like you being in the healthcare field, it's really hard to give light duty to rehab therapists - it just doesn't exist unless my colleagues take all the hoyer-loft really medically complicated patients and I take all the "easy" ones. I'm not sure yet- this whole broken back thing really complicated things!

Good luck and please keep us posted. It's so stressful enough bet now to have to deal with literal idiots like you're describing must be exhausting!

[mariaf]

Gayle,

I think you handled the meeting with your employer perfectly - let's hope the letter from the doctor does the trick.

I really can't believe that woman said that she thought 'no lifting' meant you couldn't even lift a pen. Let's hope someone with so few working brain cells is not involved in patient care on any level.

That statement is really one for the record books - and not in a good way!

[leahdragonfly]

Thanks everyone for all the support and good suggestions! I sort of made up the phrase about "ergonomically correct alternatives" but it makes sense to me because really, once you're fused, you do use "ergonomically correct alternatives" to common body movements--you have no choice! I know that HR people live in a very black and white world, but truly, the HR director's statement about not being allowed to lift a pen was just asinine. And shame on my supervisor who know perfectly well that I managed just fine last time under the same restrictions. That is the really annoying thing, there is a position already identified within the lab that I can fully perform, that nobody minds if I just do that, where I will be able to mostly sit. This is the position I did when I returned from my original fusion surgery. I did make sure to explain why my rods broke, that it is a known surgical complication of around 1-2%, basically just tough luck, not because of anything I did at work or otherwise.

Dr Hart wants me on the restrictions for 3 months, which HR said they thought was "just so long" to allow accommodations. I will go check out the ADA site that Susan listed to find out more about this. Thanks Susan so much for checking with your nursing admin friends, I really appreciate it.

[JenniferG]

I'm with Susan when she says that if they make a statement negating something you feel they should do/allow, then ask for a copy of that particular rule. Years ago, a friend was having problems with an insurance payout which she felt was legitimate. The Ins. co. repeatedly stated that they weren't liable because....I told her to write to them asking for a copy of the small print with that particular rule highlighted. The next communication was that they had decided to pay out.

I have since used the same idea in another situation, again successfully. Not everyone is honest and if they think they can get away with something and think you know no better, they will.

Good luck!

[mariaf]

Not everyone is honest and if they think they can get away with something and think you know no better, they will.

Isn't that the truth!

[leahdragonfly]

Well Dr Hart's office pulled through and got my revised work release faxed to my employer this afternoon, written exactly as I had asked. Within an hour HR had called to say I was approved to return with the revised restrictions in place. Amazing! So I will be able to mainly sit at a computer all day, although I can easily move around when I need to and take walks between cases.

I am so relieved! I followed up with the suggestions here and on Susan's advice, spoke to someone from the ADA hotline, who gave me some very useful info that hopefully I will never need to use. I should be back at work Wednesday.