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Accommodation of a disability

An employer may not make a unilateral decision to instruct an employee who claims a disability to return to work without any prior communication with his doctor or with him.

The Massachusetts Commission Against Discrimination (MCAD) found in favor of an employer who, after suffering a work related injury, refused to return to light duty work because he had not yet received medical clearance.  He was capable of performing the essential functions of his job as a plumber, but only after he underwent physical therapy and a work hardening program that would allow him to fully recuperate from his injury.

The employer argued that it terminated the employee because he refused the light duty work offered him and never gave a return to work date.  The law requires an employer to engage in a meaningful, interactive dialogue with a disabled employee about possible reasonable accommodations to help the employee to return to work.

The MCAD concluded that if the employer had engaged in a real interactive dialogue with the the employee, it would have fully understood his condition.  This would have prevented the employer from incorrectly concluding that the employee was being dishonest about his limitations and his ability to work.  The employer should have explored with the employee and his doctor whether he required additional leave time and if there was a prognosis for a return to work within a reasonable time.  MCAD v. J.C. Cannistraro.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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