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Best practices for complying with the spirit and law of the Americans with Disabilities Act as amended in 2009
Roger Rabb, J.D., Special Correspondent for the LexisNexis Workers’ Compensation eNewsletter
Employers dealing with injured workers are often preoccupied in the early stages of the injury period with workers’ compensation issues, sometimes to the exclusion of other overlapping legal issues. One such issue, compliance with the Americans with Disabilities Act (ADA), is often overlooked until the employee’s injury stabilizes, which is often the first point at which the issue of whether the employee has a “disability” under the ADA is considered.
However, the protections of the ADA may require earlier action on the part of employers and employees both, as “the ADA actually kicks in as soon as somebody’s health condition is having a substantial impact on their ability to earn a living, which may start immediately if the condition is expected to last awhile or be significant.” This was the observation of Jennifer Christian, M.D., the President of Webility Corp., during a recent webinar hosted by Advisen Ltd. on ADA return-to-work best practices.
An Interactive Search for Reasonable Accommodation
Under the ADA, an employer is generally required to provide a reasonable accommodation for an employee with a disability so that the employee can perform his or her job, unless doing so would cause undue hardship for the employer in the form of a significant difficulty or expense. As noted by webinar participant Aaron Konopasky, a Senior Attorney Advisor with the Equal Employment Opportunity Commission, “the ADA is a civil rights statute,” and “the primary purpose of reasonable accommodation in ADA is to allow people with disabilities to do their work, to allow them to participate fully in the workforce and to stay employed.”
However, it’s not always clear what accommodation for an injured employee is “reasonable,” nor when the right to seek, or obligation to provide, an accommodation kicks in. Under 2009 amendments to the ADA, the definition of a disability has expanded to the point where it may be more prudent for an employer with an injured employee to engage in a dialogue with the employee sooner rather than later about whether a reasonable workplace accommodation may be necessary to allow the employee to continue performing the essential functions of the job, without worrying about whether or not the injury is covered by workers’ compensation or even if it actually constitutes a disability under the ADA.
Often in workers’ compensation cases, the issue of whether an injured employee can return to work is decided by the claims adjuster in consultation with the work supervisor, in accordance with any work restrictions noted by the treating physician. Under the “interactive process” of the ADA, however, Konopasky suggests a more flexible approach that involves a more open dialogue between the injured employee and the employer, one in which “the employer and employee . . . work together to problem solve to see whether there is a way that the person can come back to work and do the normal duties with a reasonable accommodation, if one is necessary.” While the treating physician might be involved as well, Konopasky notes that the employee will often “know best what would help or what wouldn’t help to come back on the job.”
As noted, the employee’s right to a reasonable accommodation under the ADA is balanced by the employer’s right to avoid undue hardship in making that accommodation. An employer should listen to the disabled employee’s suggestions and might be required to accommodate, for example, an altered schedule or even telecommuting for the employee. However, as Konopasky describes, “if what the employee needs is just way too difficult, given the resources of the employer, then the employer does not have to provide it . . . The employer is expected to provide something that is an effective way to get the person productive again, but it does not have to just acquiesce to demands of the employee who has some particular ideas about what that should be.”
This interactive approach differs from the more one-sided approach often taken in workers’ compensation cases, under which workers often feel, as Dr. Christian describes, “powerless and like they don’t have a voice.” She also notes, however, that the one-sided nature of the workers’ compensation process is not inherently part of the normal employment relationship, and that “in a normal employer-employee relationship they are working together.” To that extent, the process envisioned in the ADA is an attempt to get back to that normal level of problem-solving cooperation.
Light-Duty, Leave, and Return-to-Work Issues
The goal of “reasonable accommodation” under the ADA is to get the employee back to work at 100 percent of the productivity that he or she had before the disability with no loss of essential functions. However, under both workers’ compensation and the ADA, an injured worker may not be able to return right away to his or her former position, even with a reasonable accommodation, and perform all essential functions of that job. In those instances, a transitional work position might be the next step, with lighter physical requirements and reduced productivity expectations. While not required under the ADA, these types of transitional positions may be considered at least in part therapeutic in nature and are consistent with the ADA’s mission to keep the disabled employee working. Nothing in the ADA, however, would prevent the employer from reducing the employee’s pay to reflect the new, lighter-duty position. Similarly, an employee may seek extra leave after all normal earned leave time has been exhausted, hoping that this will enable the employee to return eventually to their original position at full productivity, and the employer may agree to provide this as an accommodation under the ADA, although nothing in the ADA would require the employer to provide paid leave.
It is common for employers dealing with workers’ compensation claimants to impose a fixed limit, for example, a 90-day limit, on the length of light-duty transitional work. While such a fixed limit might not run afoul of the requirements of the ADA, Konopasky cautions that when the fixed light-duty period ends, just as when an employee’s leave is exhausted, the employer and employee would be required under that statute to reengage in the interactive process described above to try to discover those reasonable conditions under which the employee can return to his or her old position and perform at full productivity.
Under most workers’ compensation schemes, an employee’s refusal to return to work that meets the capabilities of the employee and any physical restrictions listed by the physician can result in termination of workers’ compensation benefits. Similarly under the ADA, while an employer cannot require an employee to do something that is inconsistent with restrictions listed by the employee’s doctor, an employer can require an employee to return to work if the employee can perform the work required with or without a reasonable accommodation. In this respect, the ADA does not provide an employee with a legal tool allowing the employee to escape work that he or she is capable of performing.
[Publisher’s Note: Although not discussed at the webinar, it should be noted that the employee also has rights under the Family and Medical Leave Act (FMLA). Under FMLA, the employee has the right to decline work based on their rights under this law for up to 12 weeks. An employee that cannot return to his original work after FMLA leave expires, however, is not entitled to an alternate position. See 29 C.F.R. § 825.207(e).]
Under the ADA, if it becomes apparent that a disabled employee will never be able to return to work at his or her previous position and perform the essential functions of that job even with a reasonable accommodation, that person becomes unqualified for the position and the ADA does not prevent the employer from terminating the employment (although other legal protections might come into play under the appropriate circumstances). Similarly, if the employee seeks to extend his or her leave as an accommodation, but that leave has become an undue hardship for the employer, perhaps because the business requires a full-time employee in that position in order to function properly, the ADA would not prevent termination of employment. Conversely, many workers’ compensation statutes provide employees who suffer compensable work-related injuries with a right to reinstatement, at least if the employee is ready to return to work within a statutorily-prescribed period of time.
Employees who will never be physically able to return to their previous positions may ask for reassignment to a different position as a “reasonable accommodation of last resort” under the ADA. Under those circumstances, an employer is only obligated to try and accommodate the employee with an existing, vacant position. The employer is not required under the ADA to create a new position or a new job description for an existing position.
As this demonstrates, employers engaging in business-as-usual are often at risk of unknowingly violating the ADA. When dealing with workers’ compensation claims, for example, this risk may appear early in the claims process when the employer communicates with the claims adjuster that the employer cannot provide work for the injured employee that meets the employee’s medical restrictions. The ADA should be considered at any point at which the employee’s capability of returning to work is at issue. In order to best meet the requirements of the ADA, employers should be focused in these instances not on whether the employee is 100 percent healed, but on whether the employee can return to work with a reasonable accommodation, if necessary, and be willing to make this determination through a good-faith give-and-take dialogue with the employee.
[Publisher’s Note: A summary of this new information is available in the 2015 Your Ultimate Guide to Mastering Workers Comp Costs.]
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