EEOC releases guidelines on ADA and workers’ comp
New information released by the U.S. Equal Employment Opportunity Commission (EEOC) in Washington, DC, clarifies many of the most confusing issues concerning the overlap of the Americans with Disabilities Act (ADA) and workers’ compensation, an overlap that can put occupational health professionals on thin ice.
The EEOC issued the guidance recently as another step in its efforts to explain how the complex ADA is to be applied in the workplace. The first question addressed by the recent guidelines is whether any worker who is entitled to workers’ compensation is automatically classified as "disabled" under the ADA definitions. If so, that would mean that all workers’ comp patients have special rights that could be difficult to protect without creating an unreasonable hardship on employers.
But fortunately for employers, the answer is no. Workers’ comp patients are not automatically considered "disabled." Instead, 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 a worker who qualifies for workers’ comp does not automatically meet that definition.
Guidelines should clear up some confusion
The clarification should be welcomed by occupational health professionals because there has been considerable confusion over how the ADA and workers’ comp system interact, says William B. Patterson, MD, MPH, president of New England Occupational Health Services in Wilmington, MA. The ultimate answer from the guidelines is reassuring, he says. In essence, the EEOC is saying that workers injured on the job are covered by the ADA in the same way as people with any other medical problems no more and no less. While simple, that interpretation was not so clear previously because many professionals felt that the workers’ comp system required a determination of "disability" that would then be used to qualify for ADA coverage.
"Impairments resulting from occupational injury may not be severe enough to substantially limit a major life activity, or they may be temporary, and they may have little long-term impact," Patterson explains. "Those conditions would not meet the threshold for a disability under the ADA."
The guidelines also make clear that filing a workers’ comp claim does not create the "record of" impairment that is part of the requirement for ADA coverage. The workers’ comp claim does not create a record of impairment unless it documents a mental or physical impairment that substantially limits one or more major life activities. However, the ADA applies even if the impairment was diagnosed in error.
Patterson notes, however, that the ADA does protect some workers’ comp patients. Those protected include not only the worker who suffers a grievous, debilitating injury, but also those with relatively minor conditions. The EEOC provides these three examples of how occupational injuries can lead a worker to be covered by the ADA, all using the "regarded as having" an impairment provision:
• Case 1.
An employee has an occupational injury that has resulted in a temporary back impairment that does not substantially limit a major life activity. However, the employer regards the employee as unable to lift more than a few pounds and refuses to return employee to his or her previous position, possibly as a precaution against further injury or liability. Though the employee 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 employee suffers an occupational injury that results in severe facial disfigurement. The employer refuses to allow the worker to return to his or her original position, fearing the disfigurement will disturb co-workers and customers. Whether true or not, 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 employee 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 employee in a major life activity.
Medical exam questions answered
The EEOC also 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. That also is an important clarification, Patterson says, because the complexity of the ADA rules can make many occupational health professionals reluctant to ask about any previous disability history.
"It is our practice at the time of pre-placement examination to inquire about past work-related medical conditions, significant injuries, and the need for accommodations," Patterson notes.
The EEOC stresses that information regarding a patient’s history of work-related medical conditions and claims is covered by the ADA’s confidentiality requirements, so that information must be collected and maintained on forms separate from the rest of the patient’s file. That information may not be disclosed to employers except in these four circumstances:
• Supervisors can be told about necessary restrictions and accommodations.
• First-aid providers can be told about a worker’s disability if it might require emergency treatment.
• Government officials investigating ADA compliance can be informed.
• Appropriate information about a worker’s disability can be provided to workers’ comp insurance carriers, administrators, and state agencies.
Protection for OH patients
Overall, the EEOC guidelines may put to rest many of the fears occupational health providers have about running afoul of the ADA. But the guidelines also emphasize that many occupational health patients are protected by the ADA.
"The ADA clearly protects injured workers who wish to return to work with reasonable accommodation prior to full recovery from their injury or illness," Patterson explains. "Employers are not permitted to insist that an individual be capable of performing full duty before allowing them to return to work." (For more on specific questions answered by the EEOC guidelines, see the story below.)
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