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How to handle physical limitaions of employee after they are hired.

I manage a cleaning company with 14 employees. During the interview process it is explained that the job is hot, and that it involves a lot of physical work. Specifically climbing, bending, crawling around standing for a long time, reach high. We also ask if they take any medications that would impair driving (we provide vehicles)or cause fumbles (breaking customer property is serious)
Often after an employee is hired we discover that they have back problems, they have vertigo, that they physically cannot do the job required. Other times it is revealed that they take methadone and thus cannot focus on the job, fall asleep on the job or request that another employee take them to the methadone clinic. Can we let these individuals go for lying on their application? Can we let an individual go for drug use, even if the drug is legal, because it hinders the job performance?

If you have 15 or more employee Americans with Disabilities Act (ADA) makes it unlawful for an employer to discriminate against a qualified individual with a disability. Under ADA, a person who has a physical or mental impairment that substantially limits one or more major life activates (walking, standing or breathing) is covered under the act. Examples include: epilepsy’s, diabetes, severe forms of arthritis, hypertension, or carpal tunnel syndrome, as well as individuals with mental impairments such as major depression, bipolar disorder and mental retardation.

ADA states that an individual with a disability’s must be able to perform the essential functions of the job, with or without an accommodation, in order to be protected by the ADA.  This means that an individual must be able to satisfy the job requirement for educational background, employment experience, skills, licenses and other job related qualification standard.

ADA makes it unlawful to discriminate in all employment practices, including recruitment, hiring, firing, pay, promotions, job assignments, training, leave, layoffs, and benefits. Employers cannot retaliate against an applicant or employee for asserting his or rights under ADA.

I am discussing ADA because you are close to the threshold of 15 employees, and you may also qualify as an employee even if you own the business.

In regards to drug use, if an employee is using illegal drugs they do not qualify for any entitlements under ADA. However, for those individuals who have a history of addiction, (using meth and going to clinic), may be covered under ADA. Your company should develop a no tolerance drug policy (prescription medication is legal but can affect someone’s performance on the job). And make drug testing part of your hiring policy. Prescription drugs will show on a drug test, you can have their physician then complete a form stating they can or cannot meet the job requirements using that prescription medication. Your company is not a physician so always base your decisions on what a physician will conclude.

In addition, you can require a physical be done; however, you would need to make a job offer contingent upon successful completion of a drug test and physical. This would also protect your company if they are driving company vehicles.   You can contact a physician office or clinic to work out a price for sending new applicants for pre-employment physical’s and drug testing. The pre-employment physical will also helps with prior back injuries and vertigo. In addition if you put in your ads for employment that a pre-employment physical and drug test is required you may eliminate some people who cannot perform the job.

For terminations, you should develop a set of rule or infractions in which an employee will be immediately terminated. Some suggestions are, sleeping on the job, not being able to successfully complete job related required duties, breaking customer property, theft of customer property, and accidents with company provided vehicle, falsification of job application. Have the written in a policy each employee, current and new hires, must be given the policy and sign a sheet that state “they have read the policy and understand the rules and regulations”.

And finally, yes you can terminate an employee for poor work performance. Make sure you document the issues. You should also develop a disciplinary action plan.

This entry was posted on Sunday, March 10th, 2013 at 2:18 pm and is filed under
Human Resources Management.
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