Don't revoke job offer due to existing sports injury

Question: What is the proper way to handle temporary injuries that are found during preplacement physicals? We recently encountered a patient who had been offered a manufacturing position with one of our clients, contingent upon passing a routine examination to determine if he could do the necessary lifting. He informed us that he had injured his shoulder while playing tennis the day before, and as expected, he could not perform the required lift.

We told him to come back three days later and try again, and we reported to the employer that the injury seemed temporary. But before the man could come back and try the test again, the client decided to rescind the job offer. Did we handle the case appropriately?

Answer: Perhaps you did your best as the occupational health provider, but the employer handled the case very poorly. That's the opinion of Lilly Ramphal-Naley, MD, MPH, occupational medicine specialist with the Legacy Medical Clinic at JC Penney in Plano, TX.

She says the employer acted much too hastily in rescinding the job offer, and in doing so, left itself wide open for a charge that it violated the Americans with Disabilities Act (ADA).

"This really wasn't an issue before the ADA. Companies did it all the time," she says. "If someone couldn't perform the essential functions of the job, they wouldn't bother to try to accommodate. But with the ADA, now you have to be very careful how you handle these situations."

The ADA clearly applies in this situation, Ramphal-Naley says. The job offer had been made, and the temporary sports injury qualified as a disability. That being the case, the company was obligated to make a reasonable accommodation if possible. Whether a reasonable accommodation was possible may never be known because there wasn't enough information.

She says she is not surprised that the company reacted hastily and made no effort to accommodate the new hire, but she says it was a big mistake.

"With the ADA, you have to be careful about taking the attitude that there are plenty of people waiting to take this job and you don't want to hire someone who's injured," she says. "The employer may not be happy to see him show up with a sports injury, but once you're made the job offer, you have to work with that situation."

It does not help the employer in any way that the injury was sports-related, probably temporary, and occurred after the job offer was made. If anything, the temporary nature of the injury only makes the company look worse if the new hire charges the company with an ADA violation. With a temporary muscle injury, the "reasonable accommodation" required by the ADA could have been just a short delay before completing the pre-placement exam, or a short period with an alternate job assignment.

"I'd say the temporary nature of the injury just makes the company more vulnerable if they are ever taken to court," Ramphal-Naley says. "It's a frank violation of the ADA if it didn't give him the opportunity to demonstrate that he can perform the essential job functions. [The company] could have avoided a lot of legal risk if it had not been so abrupt."

Those decisions ultimately are made by the employer, but she says the occupational health provider should offer advice on how to deal with such situations without violating the ADA. Ramphal-Naley says she would have advised the employer not to withdraw the job offer and, instead, seek a diagnosis and prognosis from the man's personal physician. If that information confirmed that the injury was temporary, it might have been proper to give the new hire two weeks to heal. Another option would be to place the employee in an alternate job with less physical stress for that period.

There is another possible outcome: Further information on the injury might have revealed that it prevented the new hire from performing the essential functions of the job, was not temporary, and that a reasonable accommodation was not possible. That would have satisfied the ADA requirements while allowing the employer to hire a more capable worker. It is the occupational health professional's job to seek that crucial information and counsel the employer about the best response.

If a reasonable accommodation is necessary and possible, don't expect the employer to be happy about having to make such accommodations for a new hire who seemed perfectly healthy when the job offer was made. But with the ADA, there isn't much choice.

"Otherwise, they just have to hope the new hire doesn't sue because the company wouldn't have much of a defense," she says.

Editor's Note: You can contact Lilly Ramphal-Naley at: JC Penney, Mail Stop 96, 6501 Legacy Drive, Plano, TX 75024. Telephone: (972) 431-2345.