If my employer is not making “reasonable accommodations”, can I sue if I continue working there and my condition is made worse?

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If my employer is not making “reasonable accommodations”, can I sue if I continue working there and my condition is made worse?

I broke my lumbar vertebrae L5 – L1 last year and am still in a lot of pain. I have a burst fracture at L5 with herniated discs at L4-5 and L5-S1. I work at a restaurant as a server and have requested that I be placed in the section closest to the kitchen so that I can do the least amount of walking possible. I have also requested that I be assigned side work that does not include heavy lifting. Every time I get to work these accommodations are not met. I am in a section that is far away from the kitchen and requires walking up and down a ramp, and am given side work that requires heavy lifting.

Asked on March 16, 2011 under Employment Labor Law, Maryland

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You *may* have an employment discrimination case. First, not all medical conditions qualify as a "disability," though this may, since it appears that it is a condition that cannot necessarily be easily remediated or dealt with. Second, you have to request the accomodation, which apparently you have. Assuming that this would qualify as a disability, then the third issue is this: is the accomodation you ask for reasonable? Here's where they may be a problem; if either--

--the layout of the restaurant and the apportionment of tables is such that they cannot accomodate your location request without significantly disrupting their business (for example: if they give you the tables you want, can they staff and cover the other tables in a reasonable way?)

--it[s impossible to give you only "side work that does not include heavy lifting," because there is no job for a server that does not involve this (the employer does not have to create a new position or job definition, one it does not need, to accomodate an employee)

--then it may be the case that there is no "reasonable accomodation." This is a case-by-case inquiry, and depends on the specific facts (the injury, the job, etc.).  If you feel that they could accomodate you, it would be worthwhile for you to take the next step and either contact the EEOC (which is federal; or the state agency which monitors workplace discrimination) and/or speak with an employment attorney who can evaluate your sitaution in depth.


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