EEOC answers vexing questions about ADA
The guidance issued by the U.S. Equal Employment Opportunity Commission in Washington, DC, answers 30 of the most common and confusing questions concerning the interaction of the Americans with Disabilities Act (ADA) and workers’ compensation.
Here are some of the questions and answers:
• 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 it asks the same questions 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, it may require specific individuals 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 it is not entitled to medical records unnecessary to the request for accommodation.
• May an employer refuse to hire a person with a disability simply because it 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 she is assigned to, even with reasonable accommodation. The employee may ask that 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.
Tucker P, Barton J, Folkard S. Comparison of eight- and 12-hour shifts: Impacts on health, wellbeing, and alertness during the shift. Occ and Envir Med 1996; 53:767-772.
Occupational health professionals generally have agreed that shift work has a detrimental effect on the health and safety of workers, so these researchers from the University of Wales in Singleton Park, Swansea, looked at the effects of particular types of shift work. The goal was to determine if the ill effects of shift work could be minimized by organizing the shifts in particular ways.
Two groups of chemical workers were studied, with one group of 92 working 12-hour shifts and the other group of 70 working the more traditional eight-hour shifts. The 12-hour shifts enable workers to compress their working week into fewer days. Some researchers have argued that the 12-hour shifts allow for longer periods of continuous leisure away from the job, which can have a positive effect on the health of the workers. Other researchers contend that the 12-hour shift is physically and mentally stressful, while not actually improving the workers’ home lives.
Variables included fatigue, alertness
The researchers measured a number of variables with the workers in the two groups, including their physical health, sleep quality, fatigue, alertness, and the disruption of social and domestic life. The eight-hour group reported more symptoms of cardiovascular disease and more disruption of their social lives. The eight-hour group also reported more satisfaction with their working arrangements than the 12-hour group, but the 12-hour shift workers reported significantly less disruption of their social lives. Contrary to what might be expected, there was no significant difference in chronic fatigue between the two groups, and sleep quality was about the same.
Alertness declined sharply for both groups when they worked the night shifts, but decreased especially as the 12-hour shift workers neared the end of their shifts. The researchers conclude that most effects of extending the work shift to 12 hours may be less significant than expected, but they caution that the decreased alertness may be an important safety consideration on 12-hour shifts. t
Bernacki EJ, Tsai SP. Managed care for workers’ compensation: Three years of experience in an employee choice’ state. JOEM 1996; 38:1,091-1,097.
The authors of this study describe three years of experience in identifying and abating workplace hazards and medically managing cases using a preferred provider organization established solely for workers’ compensation cases. Within this system, the occupational health physician and nurse case management team coordinate the entire process, from prevention of accidents to facilitating return to work.
The study period ranged from 1992, the year before the managed care initiative, to 1995. The researchers found that per capita losses were reduced 23% during the study period, from $241 in 1992 to $185 in 1995. The rate of "medical only" cases dropped significantly from 155 per 1,000 in 1992 to 96 per 1,000 in 1995. The most significant savings in medical costs were related to claims for new occupational health injuries. The per capita loss on such cases was $23 in 1992 and $13 in 1995, a 43% decrease.
"We feel that these results indicate that environmental-risk management and medical-care management can be integrated to produce substantial savings," the researchers conclude. "It also suggests that managed-care techniques, which are becoming more available to employers, can even be applied in states that do not have managed care legislation." t
Kristal-Boneh E, From P, Harari G, et al. Fatigue among Israeli industrial employees. JOEM 1996; 38:1,145-1,149.
Researchers in Israel examined the prevalence of fatigue and its association with occupational conditions and health-related habits in 3,785 industrial employees, with the goal of identifying factors that can be modified. They examined complaints of fatigue during and after work, an ergonomic evaluation of employees’ workstations, demographic characteristics, and habits that could affect their health.
Eighteen percent of the workers complained of severe fatigue frequently or very frequently. An analysis of all the factors measured in the study showed that those workers were most likely to report two modifiable factors: They did not participate in physical activity at least once a week, and they worked in areas without temperature control.
The workers who did not get physical activity had a 1.7-fold increase in the prevalence of severe fatigue. Those working at jobs without temperature controls had a 50% increase in the prevalence of fatigue. Accidents were significantly more frequent in those workers with fatigue.
The researchers suggest using the study results to help workers avoid fatigue on the job and to help avoid placing fatigue-prone workers in jobs that can be become dangerous when the worker is fatigued.
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