Guidelines clear up confusion over ADA
EEOC gives clearer definition of term disabled’
Further clarifications from the U.S. Equal Employment Opportunity Commission (EEOC) in Washington, DC, can help risk managers better understand how the Americans with Disabilities Act (ADA) can coexist with workers’ compensation, an area that has prompted great confusion.
The EEOC policy clarifies that a worker who is entitled to workers’ compensation is not automatically classified as "disabled" under the ADA definitions. The worker is considered disabled only if he or she has a physical or mental impairment that "substantially limits a major life activity," or has a record of such an impairment, or is "regarded as having" the impairment. That is the same definition used in all cases to determine ADA coverage, but the EEOC now is specifically saying that qualifying for workers’ comp does not automatically meet that definition.
The guidelines also state that filing a workers’ comp claim does not create the "record of" impairment unless the claim documents a mental or physical impairment that substantially limits one or more major life activities. It should be noted, though, that the ADA applies even if the impairment was diagnosed in error.
The ADA does protect some workers’ comp patients. In many cases, the worker falls under the "regarded as having" a disability clause of the ADA. The EEOC provides these three examples of how occupational injuries can lead a worker to be covered by the ADA:
• Case 1. An occupational injury results in a temporary back impairment that does not substantially limit a major life activity. The employer, however, views the worker as not being able to lift more than a few pounds and refuses to return the worker to his or her previous position. Though the worker is not limited in a major life activity, the employer regards him or her as having an impairment that substantially limits the major life activity of lifting.
• Case 2. An occupational injury results in severe facial disfigurement to a worker. The employer refuses to allow the worker to return to his or her original position because the disfigurement may disturb co-workers and customers. The employer regards the worker as having an impairment that substantially limits the major life activities of interacting with others and working.
• Case 3. An employee is fully recovered from an occupational injury that resulted in a temporary back impairment. The employer fires the employee, fearing that if the worker returns to his or her heavy labor job, the employee will severely injure his or her back and be totally incapacitated. The employer regards the employee as having an impairment that disqualifies him or her from a class of jobs, and therefore substantially limits the worker in a major life activity.
A confusing part of the ADA has always been what sort of questions are allowed and not allowed during a medical examination. In the most recent instructions, the EEOC provides guidance on how the ADA limits what can be asked about workers’ comp history during a medical examination. Once a job offer has been made and the person sent for a medical examination, it is OK to ask about the worker’s prior workers’ compensation claims, disabilities, and any previous occupational injuries.
Here are some of the other questions answered by the EEOC:
• When may an employer ask questions about an applicant’s prior workers’ compensation claims or occupational injuries? Is a medical exam acceptable at that point?
An employer may ask after making a conditional offer of employment but before employment has begun, as long as the same questions are asked of all entering employees in the same job category. The same rule applies to requiring a medical exam to determine the existence and nature of prior occupational injuries.
If the employer already has obtained basic medical information from all entering employees in a job category, specific individuals may be required to have follow-up examinations only if they are medically related to the previously obtained medical information.
• May an employer ask disability-related questions or require a medical examination at the time the worker experiences an occupational injury? How about when the worker returns to work?
Yes. The questions and exam are allowed in both instances, as long as they are job-related and consistent with business necessity. The employer must reasonably believe that the occupational injury will impair the employee’s ability to perform essential job functions or raise legitimate concerns about a direct threat.
However, the questions and exam must not exceed the scope of the specific injury and its effect on the employee’s ability to work.
• If an employee with a disability-related occupational injury requests a reasonable accommodation, may the employer ask for documentation of the disability?
Yes, if the need for accommodation is not obvious. The employer may request documentation showing that the employee has a covered disability but cannot require medical records unnecessary to the request for accommodation.
• May an employer refuse to hire a person with a disability simply because the employer assumes, correctly or incorrectly, that the person poses some increased risk of occupational injury and increased workers’ comp costs?
No, unless the employer can show that hiring the worker would pose a "direct threat." That means a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." The EEOC makes clear that this is a very high hurdle. Erring on the side of safety is not acceptable.
The same reasoning applies to returning a worker to duty after an injury.
• May an employer refuse to return to work an employee with a disability-related occupational injury simply because of a workers’ comp determination that he or she has a "permanent disability" or is "totally disabled"?
No. For the purposes of the ADA, those workers’ comp definitions have little or no bearing.
• Does the ADA require an employer to provide reasonable accommodation to an employee with an occupational injury who does not have a disability as defined by the ADA?
No. The ADA’s reasonable-accommodation requirement applies only when the worker is disabled by ADA definitions.
• May an employer discharge an employee who is temporarily unable to work because of a disability-related occupational injury?
No. The only exception is when it would be an undue hardship for the employer to provide leave as a reasonable accommodation.
• When an employee requests leave as a reasonable accommodation under the ADA, may the employer provide accommodation that allows him or her to remain working instead?
Yes. The employer does not have to provide the employee’s preferred accommodation, only an effective one.
• May an employer satisfy its ADA obligation to provide reasonable accommodation for an employee by placing him or her in a workers’ comp vocational rehabilitation program?
No. An employee’s rights under the ADA are separate from his or her entitlements under a workers’ compensation law.
• May an employer make a workplace modification that is not a required form of reasonable accommodation under the ADA in order to offset workers’ compensation costs?
Yes. For example, the ADA does not require employers to lower production standards to accommodate individuals with disabilities. However, an employer is permitted to lower production standards for an occupationally injured employee as a way of returning him or her to work more quickly.
• Is it acceptable for an employer to reserve all light-duty jobs only for occupationally injured employees, not making them available to other disabled employees?
No. The ADA requires that the employer consider reassigning a disabled employee to a vacant light-duty position, even if those positions normally are reserved for occupationally injured employees who cannot do their normal jobs. The issue could arise, for instance, if an employee with multiple sclerosis becomes unable to perform the job he or she is assigned to, even with reasonable accommodation. The employee may ask that he or she be reassigned to a vacant light duty job. The employer may not refuse on the basis that there would be no vacant light-duty job if an employee were injured on the job.
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