ADA and Return-to-Work – Avoiding Litigation

 Employers need to accommodate employees in order to protect themselves from violating ADA legislation. Since the signing of the ADA in 1990, court cases led by activists have been consistently related to Title I employment issues. The interpretation of what constitutes a “qualified individual with disabilities”, a reasonable accommodation, or an undue hardship to the employer to provide those accommodations has been repeatedly challenged in the court system. Today, employees who choose to sue are much more successful getting their claims before a jury as opposed to having their claims dismissed by a judge. Professionals managing workers’ compensation claims must recognize the increased potential for ADA claims filed in conjunction with a workers’ compensation claim. Understanding employer obligations relative to return-to-work under workers’ compensation and fulfilling the obligations of the ADA are mandatory if employers are to protect themselves from costly litigation.

Job Descriptions

The ADA does not have a requirement that job descriptions must include essential job functions. However, employers who wish to protect themselves from potentially costly litigation should insure a description is completed for every position. Job descriptions must clearly identify essential job functions and the physical/mental requirements of each function. The essential functions should be described in terms of the results or outcome of a function, not solely on the way it is customarily performed.

Accurate job descriptions help employers make fair and objective decisions regarding employment issues and they are fundamental to legal compliance. Much broader protection is offered to the employer in both circumventing and defending potential litigation related to ADA compliance when clear unambiguous documentation is maintained. The ADA has clearly established it is difficult for an employer to justify employment decisions if details are not clearly documented.   

Determining Essential Functions

An individual with a disability must be qualified to perform the essential function of the job with or without reasonable accommodation to be protected by the ADA. The applicant or employee must:

  • Satisfy your job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related
  • Be able to perform those tasks that are essential to the job, with or without reasonable accommodation

Essential functions of a job are determined by asking the following questions and considering the following factors:

  • Were previous employees required to perform the duty?
  • Would removing the duty fundamentally alter the position?
  • What is the overall purpose of the job?
  • Is the duty an integral component necessary to perform the job?  
  • How many other employees can perform this duty?
  • Is the duty so specialized that it requires a high degree of expertise?
  • Percent of time spent performing the duty?  

Reasonable Accommodation

What is considered an acceptable reasonable accommodation? According to the U. S Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is any modification or adjustment to a job or the work environment that enables a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.

Employers faced with the necessity to provide reasonable accommodation for a qualified applicant or employee immediately become concerned with cost. It has been well documented that the average cost of work station modification to accommodate a disabled individual is $500 or less.

Many accommodations do not involve expense. A disabled individual may require job restructuring or a modified work schedule. Typically, the injured worker continues working at their original position with changes that accommodate restrictions provided by the treating physician. Employers may remove physically challenging tasks, reassign those tasks to other employees or provide assistance to the injured worker. Modified work can also take the form of alternate duties with the department or part time work if medically indicated. Many employers restrict the length of time an injured worker can be provided modified work. It is important to remember that modified work is intended to provide a temporary accommodation of medical restrictions until the injured worker is able to return to full duty.

Accommodation Resources

There are many resources available to help employers find practical solutions to accommodate the disabled. The Job Accommodation Network (JAN) is a service provided by the U.S. Department of Labor’s Office of Disability Employment Policy. The agency provides free, expert, and confidential guidance to employers of any size on workplace accommodations and disability employment issues. JAN also provides education to the disabled to help them demonstrate their employability. And, they show employers the value of working with the disabled and the value and talent the disabled add to the workplace. JAN provides free consulting services for employers on all aspects of job accommodations including the accommodation process, accommodation ideas, vendors, resources and ADA compliance assistance.

The Interactive Process

Employers must provide reasonable accommodation to employees. According to ADA regulations, reasonable accommodations are determined through the interactive process. The interactive process involves a number of steps and requires communication and good-faith exploration of possible accommodations between employers and individual employees.  The process begins immediately upon notification of an issue or situation that may require a reasonable accommodation. When also linked with a workers’ compensation claim, many employers miss the mark by waiting until the injured worker has achieved maximum medical improvement or the claim is in the settlement process to begin the process. This timeframe would signify to the courts that the employer did not in “good faith” initiate the interactive process with the injured worker.

Six basic steps constitute best practices to help an employee with a work related injury or illness return-to-work safely, while ensuring that the employer remains in compliance with the requirements of the ADA.

1. Contact the injured worker to initiate the interactive process. Discuss workers’ compensation benefits and other issues related to the claim. Initiate discussion related to return-to-work. Address potential barriers to return-to-work and begin to discuss ways to address the barriers.  

2. Describe essential functions and usual duties of jobs. The essential functions of the job include the fundamental reasons a job exists. An employer is not required to remove essential functions of a job to accommodate the injured worker. Non-essential functions may need to be removed or modified in order to create a reasonable accommodation and enable the injured worker to perform the job’s essential functions. Discuss all the requirements of the job with the injured worker. Discuss all activities, the physical demands, environmental conditions, frequency of activities and hours per day required for each activity. Reach an agreement with the injured worker about the essential functions of their job. Document the conversation immediately. Repeat this process for other jobs the injured worker may be able to perform with or without accommodation.

3. Obtain work capacities and restrictions. Work capacities are the tasks an injured worker can perform safely. Work restrictions describe the tasks the injured worker is limited in doing or can not perform because of the residual effects of the injury. Obtain this information from the physician. Keep the injured worker informed when you receive this information to preserve the openness of the process. The response from the physician is occasionally unclear and clarification may be required. Involve the injured worker in the request for clarification from the physician. The injured worker must be involved in the interactive return-to-work process at all times.

4. Research and evaluate possible accommodations. Once work capacities and restrictions are clarified, begin to explore possible accommodations with the injured worker. The employee frequently has useful ideas for accommodation within his own job. Explore alternate jobs and evaluate whether the injured worker can perform the essential functions of the jobs presented with or without accommodation. Involve outside resources if necessary to evaluate them fairly.

5. Select a reasonable accommodation and make an offer of work. Accommodate the injured worker in the following order unless there is an alternative agreement in place.

  • Provide accommodations that enable the injured worker to remain in their original job
  • Reassign the injured worker to an equivalent vacant position for a job the injured worker is qualified to perform, and provide reasonable accommodations as needed
  • Reassign the injured worker to a lower-grade vacant position in a job the injured worker is qualified to perform, and provide reasonable accommodation as needed.
  • Temporarily assign tasks the injured worker is able to perform while recovering
  • Make an offer based on the accommodation you select

6. Implement and monitor the accommodation. Coordinate the injured worker’s return-to-work and address any concerns or questions in order to ensure the return is successful. If the injured worker continues to recover from the injury, adjust accommodations according to changing work capacities and restrictions outlined by the physician. Continue to communicate with the injured worker in an ongoing, interactive process to ensure the accommodation has been successful. Document all communication with the injured worker.  

Ergonomic Assessment, Workstation Design and Training

Ergonomics, the science of designing work to be compatible with human capabilities and limitations, is probably the most underutilized source of injury prevention and job accommodation in the workplace. Underutilization is likely due to a lack of understanding of the benefits of ergonomic assessment, workstation design and worker training.  

Many employers are reluctant to expend the upfront financial resources necessary to address poorly designed workplaces. Smart employers know they will receive their return on investment by limiting injuries. These employers enjoy lower insurance premiums, improved productivity and increased profitability. Employers who embrace ergonomic intervention as a means to accommodate injured or ill workers avoid ADA litigation and reduce disability costs and lost work days. These same employers also achieve the unexpected benefit of improved employee morale, performance optimization and continuous improvement in the quality of work product delivered by their workers.

The Benefit of ADA

The Americans with Disabilities Act (ADA) ensures that employers address return-to-work for every injured or ill employee. The ADA has spurred innovation and creativity in employers and professionals. Return-to-work best practices have been developed to ensure injured or ill employees return-to-work successfully. Employers who embrace diversity and flexibility within their corporate culture readily create return-to-work programs and provide accommodations to disabled workers. These employers understand that employing the disabled is challenging but rewarding. Employees who have been provided job accommodation are more likely to stay long term and perform for their employer. The employer recognizes disability does not equate to poor job performance.

Employers who control work absence by providing reasonable accommodations achieve dramatic cost savings in all disability related programs. The greatest cost savings to the employer is avoiding costly litigation by insuring programs are in place to drive compliance with ADA legislation.

Note: Parts of this article were excerpted from Occupational Injuries and Illnesses (Matthew Bender), © Copyright 2010. All rights reserved.