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  1. #1

    Default Job Offer Rescinded After Physical

    My question involves labor and employment law for the state of: Ohio
    Employer: GOV
    Job Title: Painter

    I applied for a job on an air force base and after my physical they resended the job offer. Here is what happened in chronological order:

    Physical report states that I am in good health, passed all aspects of physical tests; however, patient is on such and such medication for PTSD that can cause dizziness as a side effect and as such is advised not to be able to operate a vehicle, climb ladders, be around moving objects, or walk on uneven surfaces. Patient sent to primary doctor at Dayton VA Medical Center.

    I returned with letter from doctor stating I am 100% good to work.

    One week later I get a letter stating: Due to physical limitations put on you the job offer of painter has been resended and we encourage you to apply for other job openings through www.usajobs.gov

    Had mediation which went good. I presented all my information, medical reports, ADA law, pass EEO cases involving similar situation, , and then employer asked if we could agree to come back to mediation to wrap everything up and so they could go over everything I laid out for them.

    a letter from a lawyer stating "Dear Mrs. Smith, we highly encourage you to decline any resolution and to contact us after the investigation. At such a time we will represent you.

    Present: I go to mediation in roughly 10 days. What should I expect to get out of this? I have no intentions of using a lawyer but if they try to severely low ball me I will pull it out and go that route. Is asking for 1yr pay (36k roughly) unreasonable? The employer has already made it clear they can't give me the job because it isn't open anymore and they are under a hiring freeze.

  2. #2

    Default Re: Job Offer Rescinded After Physical

    If you have a case worth over $35K, it behooves you to retain a lawyer to represent your interests.

    As a layperson, you will find it extremely difficult, if not impossible, to assess adequately the parties’ respective strengths and weaknesses on the issues of potential liability and damages. Similarly, you cannot estimate how much similarly situated plaintiffs have recovered in analogous cases in your jurisdiction.

    In summary, you will likely fare far better with private counsel representing you throughout the mediation and, if necessary, during later stages of this litigation.

  3. #3
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    Default Re: Job Offer Rescinded After Physical

    While your doctor may have said you are "100% good to work", what happened with the meds that can cause dizziness and as such, would make the job of a painter highly unsafe? Due to that and there being no means to provide reasonable accommodations, I'm not seeing the rescission as being illegal.

    Did you quit taking the meds?

  4. #4

    Default Re: Job Offer Rescinded After Physical

    Quote Quoting jk
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    While your doctor may have said you are "100% good to work", what happened with the meds that can cause dizziness and as such, would make the job of a painter highly unsafe? Due to that and there being no means to provide reasonable accommodations, I'm not seeing the rescission as being illegal.

    Did you quit taking the meds?
    The dizziness is a possible side effect of the medications which I don't have. It is the employer's belief that the medication makes me unsafe just because it can cause dizziness. This is shown in the physical notations that the doctor didn't find anything wrong with me. The medication which the doctor had concern with is "lorazepam" and the doctor only put in her notes, "caution is advised for driving, climbing, ect, ect due to possible side effects."

    Now it is true it may take me longer to learn something, take breaks, loose focus, or need unscheduled time off due to ptsd. This to me is why they used my medication as the reason not to hire me. From what I read and gathered a lot of employers have a misconception of mental disabilities making people unsafe to work.

    I might also add that the primary job task they used to not hire me is driving; however, in their detailed, lengthy job description ( both public posting, and offical) driving was never listed as an essential task or even listed period. I only needed a valid DL (which I have) to be able to drive. ( Have to have a DL to get on base)

    Quote Quoting ESteele
    View Post
    If you have a case worth over $35K, it behooves you to retain a lawyer to represent your interests.

    As a layperson, you will find it extremely difficult, if not impossible, to assess adequately the parties’ respective strengths and weaknesses on the issues of potential liability and damages. Similarly, you cannot estimate how much similarly situated plaintiffs have recovered in analogous cases in your jurisdiction.

    In summary, you will likely fare far better with private counsel representing you throughout the mediation and, if necessary, during later stages of this litigation.
    I don't think I can mentally hold up on a lengthy case. Even now my anxiety is hard to cope with. On the other side I don't want to be walked over either.

  5. #5
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    Default Re: Job Offer Rescinded After Physical

    I agree with jk.

    You are taking a medication that - even if you've never had a particular issue with dizziness - can result in dizziness at any given point in time.

    There is the issue of liability, for one thing.

    Also, I would practice due diligence and find out what, if anything, the attorney wants up front.
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  6. #6
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    Default Re: Job Offer Rescinded After Physical

    I expect that the attorney won't want anything "up front" - the attorney will want a percentage of the recovery. It sounds like this was an unsolicited contact from the lawyer - if so I would consider starting with a different plaintiff-side employment lawyer, or at least investigating the firm before contacting them.

    It isn't clear that there's a strong case for liability, as Ativan use does create potential safety issues in a workplace. It isn't clear that the letter from the doctor who apparently wrote something the effect of, "She can drive and climb ladders while taking Ativan", was enough to overcome those concerns. You've not given us any indication of what, if any, effort you've made to find alternative employment or whether that job search has been successful. You've not told us how long ago any of this occurred. As such, we're nowhere close to being in a position to comment on damages.

  7. #7
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    Default Re: Job Offer Rescinded After Physical

    Quote Quoting Dogmatique
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    You are taking a medication that - even if you've never had a particular issue with dizziness - can result in dizziness at any given point in time.
    Concur. Side effects can come and go, and some may manifest after years of not having any side effects at all.
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  8. #8

    Default Re: Job Offer Rescinded After Physical

    Job resended on May 22, 2011. Best job I have found since is fast food or temp work that doesn't even come close to the 19.16 an hour I would have made at this government job.

    Also I would like to point out that they can't base me being a direct threat just with my medication(s) side effects. I have no history of accidents, or anything else to suggest I have side effects.

    33. Does an individual pose a direct threat in operating machinery solely
    because s/he takes medication that may as a side effect diminish
    concentration and/or coordination for some people?

    No. An individual does not pose a direct threat solely because s/he takes
    a medication that may diminish coordination or concentration for some
    people as a side effect. Whether such an individual poses a direct threat
    must be determined on a case-by-case basis, based on a reasonable medical
    judgment relying on the most current medical knowledge and/or on the best
    available objective evidence. Therefore, an employer must determine the
    nature and severity of this individual's side effects, how those side
    effects influence his/her ability to safely operate the machinery, and
    whether s/he has had safety problems in the past when operating the same
    or similar machinery while taking the medication. If a significant risk
    of substantial harm exists, then an employer must determine if there is a
    reasonable accommodation that will reduce or eliminate the risk.

    Source: http://www.eeoc.gov/policy/docs/psych.html

  9. #9
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    Default Re: Job Offer Rescinded After Physical

    "Whether such an individual poses a direct threat must be determined on a case-by-case basis, based on a reasonable medical judgment" - Apparently I need to repeat myself:

    It isn't clear that there's a strong case for liability, as Ativan use does create potential safety issues in a workplace. It isn't clear that the letter from the doctor who apparently wrote something the effect of, "She can drive and climb ladders while taking Ativan", was enough to overcome those concerns.

    Perhaps you can establish a "reasonable accommodation" that allows painters to avoid using ladders, or believe that you could always be reasonably be sent on jobs with other painters who could do all of the driving and high work and, if so, good luck with that argument.

  10. #10

    Default Re: Job Offer Rescinded After Physical

    Quote Quoting Mr. Knowitall
    View Post
    "Whether such an individual poses a direct threat must be determined on a case-by-case basis, based on a reasonable medical judgment" - Apparently I need to repeat myself:

    It isn't clear that there's a strong case for liability, as Ativan use does create potential safety issues in a workplace. It isn't clear that the letter from the doctor who apparently wrote something the effect of, "She can drive and climb ladders while taking Ativan", was enough to overcome those concerns.

    Perhaps you can establish a "reasonable accommodation" that allows painters to avoid using ladders, or believe that you could always be reasonably be sent on jobs with other painters who could do all of the driving and high work and, if so, good luck with that argument.
    If you read the link I supplied it clearly states that they can't use the medication or it's side effects against me. I don't have a history of injury, I never fell off a latter while on this medication, and apparently I need to reiterate myself.... An employer can not deny employment based solely on concerns without proper evidence.

    So please tell me how them denying me the job is justified when all the evidence is in my favor or than possible side effects.

    EDIT:

    This example from the EEOC is very similar to my situation.

    Example: An individual receives an offer for a job in which
    she will operate an electric saw, conditioned on a post-offer medical
    examination. In response to questions at this medical examination, the
    individual discloses her psychiatric disability and states that she takes
    a medication to control it. This medication is known to sometimes affect
    coordination and concentration. The company doctor determines that the
    individual experiences negligible side effects from the medication because
    she takes a relatively low dosage. She also had an excellent safety
    record at a previous job, where she operated similar machinery while
    taking the same medication. This individual does not pose a direct
    threat.

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