Employer will not let my husband back to work with a cervical collar

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Employer will not let my husband back to work with a cervical collar

My husband sustained a fracture in his neck in August. His FMLA is expiring. He works for the Town of Marblehead, Massachusetts. The doctors have cleared him to go back to work, however, he still has to wear his neck brace. The Town of Marblehead stated that he cannot wear the brace to work, and in order to perform his duties he has to be ‘100’. They feel that wearing this does not make him able to perform all duties. We have a doctors note from the head of Massachusetts General Hospital stating that he is able to go back to work. They also stated that they would terminate his employment due to this brace. Is this legal in the state of Massachusetts?

Asked on November 13, 2017 under Employment Labor Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

It depends on whether it is safe for him to do his work with the brace. The doctor's note is evidence that it would be, but does not control the employer (the town), and the employer may use their reasonable judgment. The law does not require employers to accept enhanced risk of liability, such as from an employee injuring himself further at work, which is something that could result in a legal claim against them. Much depends on what your husband does for the town. If he is an accounts receivables or payable clerk or some other "office" workers, then he should be able to safely do his job, and a refusal to let him work may be illegal disability-based discrimination: a person can work at a desk or in an office with a neck brace. In this case, if he is terminated or simply not put back to work, your husband should contact the federal EEOC or the state equal/civil rights agency about filing a complaint.
But say your husband works in a more physical capacity, such as for the dept. of public works or recreation in a job where he has to move objects, perform maintenance, lift & carry things, push a mower or wheelbarrow, etc. If your husband had a cervical fracture that is not 100% resolved or healed--and if he's wearing a neck brace, it's not 100% healed--it could easily be reinjured by doing physical labor. In that case, it would be reasonable for the town to not re-employ him: the law again does not make the town run such an enhanced risk of liability.


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