A jury ruled in favor of a nurse claiming she was unfairly fired by a medical center after her doctor cleared her to return to work at the end of her medical leave but also instructed her to wear a back brace for a few weeks. A person may have an ADA disability claim if subjected to an adverse employment action (e.g., demotion or firing) because of an actual or perceived impairment. The impairment does not have to substantially limit a major life activity to meet the definition of a regarded disability.
Compliance Perspective – Disability Suit:
The Compliance Officer should review with the Human Resource Director the facility’s policies and procedures to ensure compliance with federal and state laws (Americans With Disabilities Act (ADA) and Family and Medical Leave Act (FMLA)) covering employee disability and reasonable accommodation to allow an employee to continue working or to return to work. The Compliance Officer and the Human Resource Director will ensure that staff are apprised of federal and state disability and FMLA laws through their employee handbooks, paycheck stuffers, etc. and updated posters placed in locations visible to employees throughout the facility. An audit using an anonymous survey will be conducted periodically to ensure that staff understands these laws and to discover any unreported discriminatory issues.
A Delaware registered nurse (RN) was recently awarded damages totaling nearly $300,000 by a jury against the medical center where she had worked for 27 years and was currently working in the neonatal intensive care unit. The suit was argued under the Delaware Persons with Disabilities Employment Act and the damages awarded included lost wages and mental and emotional suffering.
The RN, after back surgery, was cleared to return to work without restrictions by the physician who performed her surgery. However, the doctor gave the RN verbal instructions to wear a back brace for lumbar support.
At the end of her approved leave around Jan. 6, 2017, the medical center required the RN to undergo a “return to work” examination through its employee health department. The results of that examination were that the RN could not return to work due to “physical limitations” from wearing a back brace.
The medical center asserted that the RN was not cleared to return to work because her wearing the back brace violated the center’s policy that restricted the use of assistive devices “outside of an American’s With Disabilities Act accommodation.”
The RN’s attorney argued that “she wore the back brace because her physician instructed her to do so, but she had no physical limitations that would have precluded her from doing her job.”
The R
N wrote a letter on January 6, 2017, to the center’s human resources department stating that she could perform her job appropriately even though it was necessary for her to wear the
brace for a few more weeks. The human resources department officials would not allow an exception.
On January 10, 2017, the medical center terminated the RN based on the center’s “official determination that she could not perform her job wearing a back brace at the end of her approved Family Medical and Disability leave.”
