Legal Question in Employment Law in New Mexico

Return to work after surgery denied by employer

I had surgery for a herniated disc. During recovery, the disc reherniated requiring a 2nd surgery.I have been off work for 5 mnths. The hospital I work for will not accept my neurosurgeons clearance for work at restricted activity (reduced hours) because this was not deemed a workplace injury. I had my surgeries in the hospital that I work for by a neusurgeon who provides services there. I could be recovering for a year and then may still require a fusion. My supervisor says that policy states I cannot be allowed to return to work unless I am released for a full 8 hour workday/40 hour week by my neurosurgeon and the hospitals occupational health dept. The occupational health dept had nothing to do with the determination of my condition or the neurosurgery to correct the condition. My neurosurgeon states that with this type of problem I need to be allowed to determine the length of my work day and increase hours as I can tolerate. I am anxious to get back to work and put in a 40 hour week but gradually as my neurosurgeon and I work together on this. I have been an employee there for 10 years and my records will show no abuse of any leave. Isn't this in violation of ADA?

Thank you


Asked on 1/08/07, 3:41 pm

1 Answer from Attorneys
James R. Becker, Jr. Becker Law Firm

Re: Return to work after surgery denied by employer

It is difficult to say if this is an ADA violation. Under the ADA, an employer has the right to expect you to be able to perform the essential functions of your position, with or without a reasonable accommodation. Sometimes restructuring the job in some manner (including hours of work or break times) is a reasonable accommodation. Sometimes it is not. This is an area that is very fact intensive and depends largely upon what is deemed reasonable.

The ADA envisions an interactive process between the employee, the employer and the health care provider to figure out what a reasonable accommodation is so that the employee can return to work. It sounds like you may need to try and get this process working instead of the "take it or leave it" approach that seems to have been used to date.

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Answered on 1/09/07, 1:00 pm


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