required to lift 80# concrete, despite job description

[exhausted all options]

Jurisdiction

California

Been working at Home Depot as Lot Attendant since October 2020.

Here is my job description: Home Depot Lot Associate Job Description, Key Duties and Responsibilities – Job Description And Resume Examples

Under "

Home Depot Lot Associate Job Description Example/Sample/Template

", the fourth from the lowest one, it says

"Physically fit to lift 50 pounds".

(There was no "lifting test". During the job interview, nobody asked if I could lift 50 pounds (or any other amount). Furthermore, it is much harder to lift 50 pounds of concrete, than a 50 pound barbell.)

July 2021, Assistant Manager JS told me to get a doctor's note that I could not lift *over* fifty pounds, due to back pain.

I got the doctor's note and turned it into Human Resources. Later, Human Resources said that Corporate was fine with the work accommodation that I not lift over fifty pounds, and that if a customer wants me to lift something over fifty pounds, I was supposed to tell the Head Cashier.

June 2024, Human Resources called me into the office. She told me that, in order to keep working @ Home Depot, I had to get a physician to fill out a form that said what kind of work restrictions I needed. The form asked how long the work restrictions would last for. The physician wrote that the work restriction lasted for one year. I got the physician to fill out the form, and then faxed it to the specified address. Later, Assistant Manager JS arranged my work restrictions with me.

March 2025, Assistant Manager JS called me into the office and told me that, within three days, I would receive an email from (a certain company), about my work restrictions, because Home Depot is updating its computer system. JS told me that after I got the email, I was supposed to fill out a form (which JS gave me a copy of). (Attached, please find "working"). On the form, I was supposed to write about the fifty pound lifting limit. During the meeting, I pulled out a copy of the job description (cited in the second paragraph of this post). I pointed out that the Lot Attendants' job description said "lift 50 pounds". I asked, why I had to get a physician's note in the first place, since I have been lifting fifty pound merchandise throughout my entire time working at Home Depot. JS said that the building has 80# concrete bags, and when a customer wants me to lift them, (if I do not have a Physician's Note), Home Depot was supposed to give me a "write up" for being "unwilling" to lift 80 pounds of concrete (even though my job description only says "lift 50 pounds".) I then pointed out that Home Depot did *not* have a "lifting test" during the job interview, and the job interviewer did not even ask me if I could lift 80 pounds of concrete. I asked JS if I had to get a physician's signature on the form, and he said "you might or you might not". After over three days, I still had not gotten the email, so I asked Human Resources. She said that the company would email me later. One week later, I still had not gotten the email, so I asked Human Resources again. She said the company would email me later.

https://www.osha.gov/workers/right-to-refuse

says "

Workers' Right to Refuse Dangerous Work​

"

"Your right to refuse to do a task is protected if all of the following conditions are met:

• Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and
• You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and
• A reasonable person would agree that there is a real danger of death or serious injury; and
• There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection."

However, it says, "If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention, if possible."

It is not a "working condition" (per se) that I lift 80 pound bags of concrete, and it would not be "unsafe" to lift eighty pound bags of concrete if I were physically strong enough to do so. Does the OSHA's "Worker's Right to Refuse Dangerous Work" apply to my situation?

California is an "at will" employer. Is it legal for Home Depot to write me up or make me redundant, when it tells me to lift 80 pound bags of concrete (even though my job description only says "lift fifty pounds"? Home Depot has its own lawyers, and I think they are good at their job and earn a lot of $$$. Furthermore, there are many Home Depots in California, and plenty of Lot Attendants. If Home Depot was doing something illegal, wouldn't another employee already have won a lawsuit against Home Depot? Lawsuits take a lot of time, $$$ and energy. Also, the result is not guaranteed to the party with the moral high road.

Short of spending a lot of time, $$$ and energy on a lawsuit that I might lose, what else could I do in my situation?

Thank you very much for your advice.

 

[adjusterjack]

We have an employment expert here. She'll be along any time now.

@cbg

 

[Tax Counsel]

It is not a "working condition" (per se) that I lift 80 pound bags of concrete, and it would not be "unsafe" to lift eighty pound bags of concrete if I were physically strong enough to do so. Does the OSHA's "Worker's Right to Refuse Dangerous Work" apply to my situation?

There is a difference between an unsafe working condition and a job duty that you are just physically unable to do. However, there are more things involved in determining whether the statutes OSHA enforces would apply to a situation in which an employee is called upon to do heavy lifting. The employer does have a general duty to make sure the work can be done safely and to take reasonable steps to make it as safe as possible. See an explanation provided by OSHA on this subject in response to a letter it received. There is also the possibility that the Americans with Disabilties Act (ADA) would apply if the reason for your inability to lift the weight is connected to some disability. Bear in mind that for the purposes of the ADA a lot of things may be considered a disability that many people would not initally think was a difficulty.

You should also know that lawyers that represent employees in lawsuits based either on OSHA or the ADA typically take those cases on a contingent fee basis, meaning the attorney's fee is a cut of what the employee wins for the employee. Contingent fees of one-third are pretty common. If you don't get any award or settlement the lawyer does not get paid that fee. A contingent fee does not necessarily mean that you won't have to pay some expenses in the course the litigation. That's something you'd want to ask the lawyers you consult about as the expenses you pay can vary from one attorney to the next.

California is an "at will" employer.

You mean that California is a state that has at will employment for private employment. Every state but one is an "at will" state, and even in that one state the extra protection provided by the requirement to have cause for termination is not all that strong. In the common law "at will" employment meant that both the employee and employer were free to end the employment arrangement at time for any reason. Today federal and state laws do impose some limits on the reasons an employer may use for termination, like terminating you because of characteristics like race, sex, national origin, etc. As a result true "at will" employment no longer exists in this country as the employer no longer can fire employees for any reason it wants.

You might want to consult a couple of attorneys who handle worker's rights cases to see if you might have a good case to pursue. The initial consultation is usually free so you have little to lose by doing that aside from some of your time.

 

[cbg]

Tax has pretty much summed it up.