Personal Injury & Employment Laws...Need Advice

I currently live in Southern California. I've been with my current employer since June 2004. In early Oct. 2004 I was promoted from Admin. Assist. to Executive Assistant and would take affect early Nov. Between that time I injured my lower back (at home, not on the job). I had to use all my sick time and vacation time and finally had to get on disabilty and have been on it since 10/21/04. Since I've been with my company for less than a year, I was told by the HR dept that they could only give me 30 days disability, in which time I had to get better or I would lose my job.

By last friday 10/29/04, nothing had been done to fix this problem. Being out of work is & will become a finacial burden (espcially w/ the holidays approaching) so I asked my physician if he could write me a release form returning to work. My doctor did not want to since I had not had my MRI done yet (was still waiting for approval from insurance @ this time), but did so anyway so long as I wore a back brace. Plus being an Admin. Assist, its not extreamly strenous to my back. However, on the release form my doctor stated I was to return with "light duties". When I faxed this to my employer, the called me stating that this was unacceptable, stating that since I did not injure myself on the job, returning to work with "light duties" did not apply to me and would not let me go to work.

I had my MRI done on 10/30/04, and today I seen the doctor. The MD stated I herinated 2 discs and I have a pinched nerve in my back, but signed yet another release form stating I could return to "regular duties" when I told him I was able to function when wearing my back brace. (I have also been referred to a neuro-surgeon.) Again, I faxed the 2nd release form from my doctor to my employer. Again, they said this was unacceptable. This time stating that my MD failed to state "return to regular duties WITHOUT restrictions." (Since I didnt have restrictions w/ my regular duties, this should be a given, in my view.) Still I am unable to return to work. HR told me they would take the release form I faxed them + a copy of their polices regarding injured employees & fax it to my MD. The idea is that the MD will review these documents, sign another release form for me and fax it to my employer, so I can return to work ASAP.

My employer works with individuals with spinal cord injuries; quadraplegic & paraplegic people. They have physical therapist on hand for these clients and HR told me when I do come back I have to see their physical therapists @ different times during my work schedule. My insurance has already approved me to go to physical therapy in my own community and dont see the need to do this @ my work. Again, they say its their own policy.

I have to go back to work because I have to support myself, so it is a finacial burden on me. I know this situation with my back will not resolve itself in the time they gave me, which is another reason I need to go back to work. I have to have money and medical insurance. I am clueless on employment laws and things of that nature, so I dont know if all these things are legal or not. Please help. Thank you.

[djohnson]

Not only legal, but more than fair considering the amount of time you have been on the job.

[cbg]

Considering the fact that you had been with the company for such a short time, they did not HAVE to return you to work at all. You did not qualify for any statutory medical leave, and no employer is required to offer light duty even if the injury IS work related, let alone if it is not.

IF it should eventually be established that you are left with a permanent or long-lasting (generally meaning a year or more) disability that impacts a major life activity (the standard in your state is somewhat lower than in the rest of the country, where there must be a SIGNIFICANT impact) you can ask for an accomodation under the ADA, if such an accomodation would allow you to perform the essential functions of your position. It is up to you to make them aware that you need an accomodation (it is not enough for them to know that you have the condition - it can be considered discriminatory for them to assume you need an accomodation without being asked) but once you have made them aware of your need (and it's best to be clear about it: "I am formally requesting an accomodation under the Americans with Disabilities Act") they are responsible for (a) establishing whether or not you qualify and (b) entering into an interactive process with you to determine what would be the most appropriate accomodation. Note that if you go this route, they are entitled to sufficient medical information to determine if you qualify for an accomodation, and the best way for them to accomplish this is to send a copy of your job description to your doctor and asking what you can and cannot do. This also may include transfering you into any legitimately open position that you are qualified for and suits your restrictions.

However, here are a few things they are NOT required to do:

1.) Give you the accomodation you want or the doctor recommends
2.) Create a new job for you
3.) Put you into a position for which you are not qualified
4.) In an environment with a bona fide seniority system, put you into a position that would normally have gone to someone else
5.) Remove any of the essential functions from your job description (though they may remove non-essential functions)
6.) Accept a lower standard of work than they would from a non-disabled employee; if a non-disabled employee has to produce 60 widgets a day, you have to produce 60 widgets a day unless your previously-agreed-to accomodation SPECIFICALLY says you only have to produce 50
7.) Allow you more absences or tardies than a non-disabled employee would receive, again unless your accomodation SPECIFICALLY says otherwise.

Any other questions, let me know. You might do better posting any subsequent questions on the employment law forums; I only found this one by accident.