Americans with Disabilities Act – ADA
I was asked to do an evaluation for an employee returning to work following a CVA. He operates a tow motor and the employer wants to ensure he will be safe. ADA concerns?
The process for these type of evaluations is always the same, and yes, there are always ADA(Americans with Disability Act) concerns.
For safety-sensitive positions, realize that there is a 42% chance that a male will have a recurrent stroke within 5 years (Natl Stroke Assoc), so loss of consciousness and control of a vehicle is a concern. In the DOT world, a driver is generally not medically certified after a stroke and has a one-year waiting period after a TIA because of the stroke risk. For Tow motor/Forklift, there should generally be a one-month waiting period after hospital discharge for a stroke/CVA with full or near full recovery of muscular and neurological function.
Essential Elements of the Job vs Ability to Perform Those Functions
In a non-safety-sensitive position, you are basically always looking at the essential elements of the job vs. the worker’s ability to perform those functions. Get the functional job description and if it is not clear on the exam if the worker is able to perform those functions, do a functional capacity evaluation matched to those essential functions. I always also get a statement from the treating physician, and in this case, probably both the neurologist and cardiologist/vascular surgeon, that they have reviewed the functional job description, understand the essential elements of the job and from their perspective release the worker to perform those functions, with or without a reasonable accommodation.
Remember that the decision must be based on the individual’s current abilities, and any IMMINENT risk of harm, not a theoretical risk–e.g. he had weakness and numbness of his L arm during his hospital stay, which resolved. His essential functions call for specific lift strength of the L arm — if he can do it now, don’t restrict him or disqualify him because his arm MAY become weak again in the future.
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