Fired for a bad back...
A little over a year ago, I was involved in an auto accident that left me with a lower back injury.
I got a job in a factory as what they term a "secondary." Basically, I am supposed to learn all of the jobs in the plant. This was fine until I was placed in a position that aggravated my back condition. I informed my supervisor of my condition and asked to be moved to a position less strenuous on my back. I was suspended based on this alone. It was termed "FAILURE TO PERFORM." I immediately obtained a work order from my chiropractor enstating a lifting restriction. I am perfectly capable of performing almost every other job in the plant, but was told if I could not do that one job, I could not work there. I am awaiting final word on my pending termination. Should I lose my job due to this reason, am I covered by the ADA? I was also told in my termination hearing, that if I had listed my back injury on my application, I would not have been hired.
Answers (1)
Did you file a workers compensation claim when your job aggravated your back? If so, you may have a claim under Code section 4112.90 for retaliation. To prevail, you must prove that the company fired you because you filed a claim. If you did not file a WC claim, however, you cannot pursue a retalaition claim.
The fact that your back prevents you from doing a portion of your job hurts that claim more than helps it. Your employer could defend a 4112.90 claim by arguing that you were not qualified to perform your job. Unless you are covered by the ADA (i.e., you are a "qualified individual with a disability,") you need to be able to perform all of the actual functions of your job. Since you can perform all but a small portion of your job, you probably do not have a disability, as defined by the ADA, and are not covered by the ADA. In other words, if you cannot perform an actual function of your job, your employer does not have to keep you in it. As such, a work restriction from your doctor does not necessarily protect your job.
If you filed a workers compensation claim and pursue a retaliation claim, it will be important to find out if your employer required employees who did not file WC claims to perform every aspect of the job. If not, then your employer's reason for terminating you may be phony. Evidence that the employer's stated reason for terminating you is not the real reason is evidence of retaliation, as is the comment that this employer refuses to hire employees with prior back injuries.
Best regards,
Neil.
posted by Neil Klingshirn | Mar 12, 2003 08:20 AM [EST]
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