Navigating the Perils of Work Comp, ADA, & FMLA Laws

The workers’ compensation landscape is filled with pitfalls that can trap the uninformed.  In addition to the many procedure hurdles presented under a workers’ compensation act, other challenges including complaints or penalties under FMLA, ADA and other discrimination claims.  Proactive members of the claims team need to be informed on these issues to run an efficient operation and prevent troubles for the people they seek to serve.

 

 

Common Pitfalls Associated with Work Comp

 

There are many legal issues surrounding a workers’ compensation claim.  Some of the most common include:

 

 

Family Medical Leave Act (FMLA)

 

FMLA is a federal law that applies to qualified employees and employers.  Employers covered under this law generally must have over 50 employees, or are a public agency or a school.  In order to qualify, an employee must work for the employer for one year, work 1,250 hours during a 12-month period and have a “serious health condition” personally or with a family member.  This can include most work-related injuries.  Problems arise in the context of a workers’ compensation claim when:

 

  • The employee qualifies for leave in disputed workers’ compensation claims and proper communication on their rights is not provided by the employer;

 

  • The employee is off work due to disability and never receives official notice of hours remaining in their leave “bank.”

 

 

Americans With Disabilities Act (ADA)

 

The ADA has been in existence since the 1990s and impacts employers with more than 15 employees.  The law prohibits an employer from discriminating against a prospective or actual employee based on their disability.  Common areas where claims arise under this law are in the context of workers’ compensation claims that include:

 

  • Return to work or written job offers that do not take into consideration the employees work restrictions or limitations; and

 

  • Employment practices where questions are asked on an application or during an interview regarding an employee’s physical limitations or restrictions. Injured workers seeking post-injury employment fear this situation as they are walking a fine line between being honest and not being excluded from an applicant pool.

 

Employers seeking to comply this law must make “reasonable accommodations” to all persons, regardless of their ability.  Questions remain as to the extent these accommodations are appropriate or place an “undue hardship” in the process.

 

 

Implementing Proactive Compliance to Avoid Problems

 

The workers’ compensation claim management team can be a resource for the employers they work with on these complex issues.  Legal advice from an attorney practicing in these areas should be sought when doubt or questions arise.

 

Best practices for FMLA compliance:

 

  • Create a FMLA checklist that outlines the various timelines and employee eligibility requirements;

 

  • Designate one person in the human resources department who understands and is familiar with this law. This person should be a point of reference for all supervisors and managers who have employees potentially subject to this law; and

 

  • Conspicuously display U.S. Department of Labor approved notices in office common spaces regarding an employee’s rights and responsibilities.

 

Guidance regarding ADA issues can be more difficult.  Proactive stakeholders should consider the following:

 

  • Understand that the ADA may allow an employee to take additional leave time, beyond FMLA;

 

  • Have a designated HR representative engage employees on suggestions for workplace modifications. Remember that this is only one step in making “reasonable” accommodations; and

 

  • Foster a culture that views all employees regardless of ability as a human being. Being courteous and respectful to all is something everyone deserves.

 

 

Conclusions

 

The workers’ compensation system impacts a number of federal laws that demands attention from all interested stakeholders.  Claims management teams can be proactive on this issue by partnering with their employer-clients to foster a workplace that complies with these rigorous laws.  It can also drive changes for the better in company culture that promote goodwill among the workforce, including those suffering from a work injury.

 

 

Michael Stack - AmaxxAuthor Michael Stack, CEO Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center. .

 

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

 

©2017 Amaxx LLC. All rights reserved under International Copyright Law.

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

ADA – If No Light Duty Is Available, Can The Employer Terminate Employment?

We had very successful webinar recently on the New ADA Return to Work Interpretations.  There were many questions from the audience.  Find below the responses to the questions related to the Interactive Process given by Aaron Konopasky, Senior Attorney Advisor, US Equal Employment Opportunity Commission, and Michael Stack, Risk Consultant, Co-Author Your Ultimate Guide to Mastering Workers Comp Costs

 

This post is one of a series as a follow up to this webinar:

 

 

If someone is pregnant and on light duty, but light duty is not available, can the employer terminate the employment?

 

The inclusion of pregnancy makes this much more complicated.  The Supreme Court just decided a case called Young v. UPS that addresses this issue, and it’s complicated enough that I won’t address it here.

 

So let’s assume that someone is put on light duty because of a disability.  (A pregnancy-related illness or injury can be a disability too.  It only gets more complicated if the pregnant person needs light duty based only on the fact that she is pregnant, without any associated medical condition.)

 

If no light duty is available, I would first make sure that the employee really can’t do his or her normal job, even with a reasonable accommodation.  (Could he or she do the regular job on an alternative schedule?  With special equipment?  From home? …)  Sometimes doctors aren’t thinking about the possibility of reasonable accommodation when they decide whether someone can return to “full duty.”

 

If there really is no way that the employee can do her original job, the employee should be allowed to use accrued leave or FMLA leave, if any.  (Employers with 50 or more employees are required to provide unpaid leave for up to 12 weeks under FMLA, provided that certain other requirements are met.)

 

If the employee has no accrued leave or FMLA leave available, but additional unpaid leave would allow the employee to return eventually, and would not cause significant difficulty or expense to the employer, then the leave should be provided as a reasonable accommodation.

 

If leave would not allow the person return eventually, or if it would cause significant difficulty or expense, then the employer needs to consider reassignment.  If there is a vacant position, and the employee is qualified, and reassignment would not cause significant difficulty or expense, then the reassignment must be provided as a reasonable accommodation.

 

If none of the above options are available, then the person can be terminated.

 

 

If we have a transitional duty program, are we in jeopardy of being sued by employees if we terminate them because we cannot provide a reasonable accommodation?

 

Whether you have a transitional work program or not, employers must provide reasonable accommodations that allow an employee to do his or her regular job, unless doing so would cause significant difficulty or expense.  If the employer fails to do this, then the employee could sue.

 

So, before terminating someone, the employer must ask whether a reasonable accommodation would allow the person to accomplish what the job requires.  If so, then the employer has to provide the accommodation.  (The employer is not required to offer additional transitional work, which is different from a reasonable accommodation, but it could choose to do so as a workers comp cost containment best practice).

 

If an on-the-job-accommodation wouldn’t help, or would cause significant difficulty or expense, the employer would need to consider unpaid leave as a possible accommodation (Employers with greater than 50 employees are required to provide up to 12 weeks of unpaid leave under FMLA).  If additional leave would allow the person to return eventually, and would not cause significant difficulty or expense, then the employer should provide the leave.

 

If unpaid leave would not allow the person to return eventually, or would cause significant difficulty or expense, then the employer should consider reassignment to a vacant position for which the employee is qualified (if one exists), as a reasonable accommodation.  If none of those options are available, then the employee can be terminated.

 

 

What if an employee, during the interactive process, says no, he or she is not aware of a reasonable accommodation?

 

If an employee who is having trouble at work because of a disability can’t think of an accommodation that would allow him/her to remain on full duty, the next step is to look for possible solutions together.  Calling the Job Accommodation Network, for example, might be helpful.  There is no cost.

 

If, after searching for an accommodation, you decide that there just isn’t one that allows the person to work at full capacity, then you would need to explore the possibility of leave or reduced work responsibilities.  If the person has accrued leave available, or is eligible for FMLA leave, then he or she should be allowed to use it.  (Employers with 50 or more employees are required to provide up to 12 weeks leave under FMLA, provided that certain other requirements are met.)

 

If the employee has no accrued leave or FMLA leave available (because the employer has less than 50 employees, because it has already been used, or for any other reason), unpaid leave could be a reasonable accommodation if it would allow the person to eventually return and would not cause undue hardship.  The employer also has the option of voluntarily offering a transitional work assignment.

 

If the employee is expected to never be able to return to his or her original job, then the employer needs to consider reassignment.  If there is a vacant position, and the employee is qualified, and reassignment would not cause significant difficulty or expense, then the reassignment must be provided as a reasonable accommodation.

 

 

What about union contracts that stipulate “no light duty?”

 

The ideas of light duty and reasonable accommodation need to be kept separate.  The union contract could not be interpreted to mean “no reasonable accommodations,” because then the contract would violate federal law.  What this means is that, if an employee has a disability, and can’t do his or her normal job, the employer still needs to figure out whether a reasonable accommodation would allow the person to do the essential functions of the job without causing significant difficulty or expense.  The employer would also need to consider leave and reassignment as reasonable accommodations, when appropriate.

 

The contract is addressing a different sort of solution: creating a temporary new job for the person that isn’t as physically demanding.  It’s the difference between finding a different way for the employee to meet the usual demands of his or her job, versus giving the employee a different job temporarily.

 

 

What about employees in transitional duty that are literally counting paper clips or just sitting in a break room?

 

[Publisher’s note: What you are referring to is a very ineffective return to work program as counting paper clips is not productive for the employee or employer.  This practice occurs when the employer has not properly prepared for Return to Work.  A more effective strategy is to create a transitional duty job bank prior to injury that contains a list of productive light duty positions. Ask supervisors to create a ‘wish list’ of tasks they need completed, but have not had time to complete. Another strategy is to create a Job Demands Library working with an expert in physical therapy or ergonomics to more easily place employees in positions that can accommodate their physical restrictions.]

 

The ADA does not require the employer to provide transitional duty where the employee cannot meet the usual demands.  So, in this case, the counting paper clips could not be required by the ADA.

 

However, the employer should determine whether a reasonable accommodation would allow the person to return to his or her regular job.  If so, the employer is required to provide it unless it would cause significant difficulty or expense.  If not, the employer would also need to consider leave and reassignment as reasonable accommodations, when appropriate.

 

 

Author:

Aaron Konopasky is a Senior Attorney Advisor in the ADA/GINA Policy Division at the U.S. Equal Employment Opportunity Commission (EEOC) headquarters in Washington, D.C.  He assists the Commission in interpreting and applying the statutes it enforces, and participates in drafting regulations, policy guidance, and other publications.

 

Dr. Konopasky joined EEOC after receiving his J.D. from Stanford Law School.  Prior to law school, he received his Ph.D. in philosophy from Princeton University, and served as an adjunct professor of philosophy at Rutgers University, Tulane University, and the University of New Orleans.

 

 

Author:

Michael B. Stack, Principal, Amaxx Work Comp Solutions. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

ADA – Ensure Interactive Process Compliance, And Other Questions Answered

We had very successful webinar recently on the New ADA Return to Work Interpretations.  There were many questions from the audience.  Find below the responses to the questions related to the Interactive Process given by Aaron Konopasky, Senior Attorney Advisor, US Equal Employment Opportunity Commission, and Michael Stack, Risk Consultant, Co-Author Your Ultimate Guide to Mastering Workers Comp Costs

 

This post is one of a series as a follow up to this webinar:

 

 

From an employer standpoint when commencing the interactive process, i.e. scheduling meetings with the employee; however, the employee either disagrees to meet or fails to respond how many efforts does an employer have to make to ensure they have conducted their due diligence?

 

The employee has a duty to engage in the interactive process.  That said, there is no specific number of attempts that the employer must make.  It could also depend on the reason why the employee is not cooperating – the answer might be different, for example, depending on whether he failed to respond because he was unconscious or because he simply couldn’t be bothered.

 

The employer should make a good faith effort to develop a solution that will work, according to the information available.  If the individual refuses to provide necessary information, then the employer will not know how to modify its proposal so that it’s acceptable.  In a situation like that, it seems to me that the options are for the employee are to accept the proposed solution, provide the missing information, or be considered absent.

 

As is the case with a transitional duty policy in workers comp cost containment best practices, good communication systems are an effective solution.  It is recommended that the employer provide an ‘employee brochure’ which contains basic information about workers compensation, the ADA, interactive process, and each party’s roles and responsibilities.

 

 

What is your recommendation on the interactive process so that it does not come across as coercive with the employer coming up with all the solutions and the employee countering on how it won’t work.  Then the employer comes up with another solution, etc.?

 

It seems like you are raising both a legal and an interpersonal issue.  Legally, both the employer and the employee have a duty to engage in the interactive process.  If the employee refuses to give the employer information that is necessary to come up with an acceptable solution, then the employee has caused the process to break down.  (Note, though, that it’s also possible in a situation like this that the employee feels the same way – that he or she is offering a solution that the employer is dismissing out of hand, without listening to what is being said about his or her medical needs.  If an employer rejects a reasonable accommodation that would be effective, and would not impose undue hardship on the employer, and instead insists on a different reasonable accommodation that would cause pain, prolong recovery, etc., then the employer will be liable.  Both sides have to make a good faith effort to come up with a solution that meets everyone’s needs.)

 

Whether the process seems coercive to the person sounds like an interpersonal issue.  If the employer really is making a good faith effort to come up with a solution that does not cause pain, reinjury, prolonged recovery, etc., and is taking into account all of the relevant information that is available, then the employee shouldn’t feel any more coerced than someone who doesn’t have a disability and is required to come to work.

 

From a practical standpoint, the feeling of coercion often comes from improper expectations, or the fear of the unknown.  Employers can avoid mistrust by setting the proper employee expectations prior to injury.  Communication should include formal items such as brochures and letters explaining policies and procedures, as well as informal communication such as conversations, phone calls, and face-to-face encounters.

 

 

How about after we go through the interactive process and the employee returns to work in a transitional duty job and then becomes “stressed” by the new transitional duties. How do we address the challenge of stress allegations as a work-related injury vs. a temporary workplace employee relations issue?

 

“Stress” is a tricky word because it can mean so many things.  It’s possible that the employee is informing you that the transitional program is exacerbating the injury, causing pain, or increasing risk of reinjury.  Communication with the employee and with your medical provider throughout this process is critical.  A good practice is to ask the physician to give as much information as possible about what the employee can and can’t do on the job, at the very first appointment.  With this information, you can assign a transition duty position that is within the individual’s current capabilities.

 

Instead, the employee may be informing you that the work is causing, triggering, or exacerbating a mental health condition like depression, panic disorder, or generalized anxiety disorder.  If this happens, then the employer can ask for medical documentation of the existence of the mental disorder from a medical professional.  It can also ask for documentation of the resulting functional limitations.  Those limitations would then be added to the other ones to generate a comprehensive set of workplace restrictions.  The interactive process would then be required to determine whether a reasonable accommodation would allow the individual to return to work, and, if not, whether additional unpaid leave would allow the person to recover sufficiently to return.

 

The employee also might simply be saying that he or she is experiencing normal workplace stress.  If the stress does not arise from a disability, then the employee may be required to perform the duties.  The ADA only requires reasonable accommodations that overcome workplace barriers caused by disabilities.  Work can be stressful for anyone, but employees are routinely required to do it anyway.

 

 

Author:

Aaron Konopasky is a Senior Attorney Advisor in the ADA/GINA Policy Division at the U.S. Equal Employment Opportunity Commission (EEOC) headquarters in Washington, D.C.  He assists the Commission in interpreting and applying the statutes it enforces, and participates in drafting regulations, policy guidance, and other publications.

 

Dr. Konopasky joined EEOC after receiving his J.D. from Stanford Law School.  Prior to law school, he received his Ph.D. in philosophy from Princeton University, and served as an adjunct professor of philosophy at Rutgers University, Tulane University, and the University of New Orleans.

 

 

Author:

Michael B. Stack, Principal, Amaxx Work Comp Solutions. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

To Learn Step-By-Step instructions to create your Return to Work program, Purchase Your Ultimate Guide To Mastering Workers Comp Costs.

 

 

 

ADA – Reasonable Accommodation And Workers Comp Questions Answered

We had very successful webinar recently on the New ADA Return to Work Interpretations.  There were many questions from the audience.  Find below the responses to the questions related to Reasonable Accommodation given by Aaron Konopasky, Senior Attorney Advisor, US Equal Employment Opportunity Commission, and Jennifer Christian, MD, President, Webility Corporation.

 

This post is one of a series as a follow up to this webinar:

 

 

Is a reasonable accommodation having someone else do part of the worker’s job?  For example, all of the lifting? 

 

If lifting is an essential function of the job (central to what the person was hired to do), then, generally, no.  Reasonable accommodations enable the person to do the essential functions of the job, not eliminate them.

 

A few clarifications, though:

 

It’s possible that someone in a certain position is sometimes expected to lift something, but it’s not really what they were hired to do.  We call that a “marginal” function.  For example, an accountant might occasionally have to lift a heavy box of records above shoulder height to put it on a high shelf in a storage room.  Because she’s an accountant, her job really isn’t lifting.

 

In a case like that, having someone else help with the lifting could be a reasonable accommodation, especially if it’s for the short term.   But sometimes it’s possible to accomplish the same job tasks without needing anyone else’s help — and that might be even better.  For example, if the person could use a hand truck/trolley to move the records, and they could be stored on a lower shelf, the employer may need to make that reasonable accommodation.

 

If the job involves rotations or assignments that sometimes require lifting and sometimes do not, assignment to a non-lifting rotation/assignment may be a reasonable accommodation that the employer might have to provide, unless doing so would impose undue hardship.

 

 

Can you address how Collective Bargaining Agreements (CBAs) affect the interactive process for accommodation?

 

This is a complicated topic, and I can’t cover it all here.  But two basic points are: (1) the ADA prohibits employers from entering into CBAs that discriminate on the basis of disability, and (2) employers are required to comply with the ADA regardless of whether a CBA exists.

 

In the reasonable accommodation context, many times it will be possible to provide a reasonable accommodation without violating the terms of a CBA.  If an accommodation is required that would violate the terms of a CBA, the employer and union may need to negotiate a variance.  If a CBA is raising complicated ADA issues for you, you may wish to consult a private attorney.

 

 

Can Ergonomic Worksite Analysis serve as part of an Interactive Process since it engages the employee in identifying alternative methods, tools, and techniques to perform essential functions? The report can serve as a foundation for employees and employer to discuss reasonable accommodations.  What are your thoughts?

 

That sounds like it would be a good idea, as long as the person doing the analysis knows to consider alternatives to the normal way in which job functions are performed.  This could include alternatives that someone who specializes in ergonomic analysis is not used to considering, like telework.

 

 

Is Reasonable Accommodation  “all or nothing”?  If an employer can only provide 4 hours a day, 20 hours a week, and such an accommodation is offered, yet turned down by the employee, is that now a situation for separation?

 

If a reasonable accommodation would enable the person to do the essential functions of the job, and would be consistent with the person’s medical needs (would not cause pain, reinjury, etc.), then the employer can require the individual to do the work with the accommodation.  If the individual simply refuses to do work that he or she is perfectly able to do, then he/she could be terminated, just like anyone else who decides not to do their assigned work.

 

I would be careful about describing reasonable accommodation as “all or nothing” though.  If an employer offers someone a reasonable accommodation that turns out not to be effective (for example because the person is still experiencing too much pain), then the employer and employee should go back to the drawing board to determine whether a different solution is possible.  Also, the exact accommodation needed could change over time.

 

I should also point out: allowing someone to do less work (e.g., 4 days instead of 5) for the same amount of pay is not an ADA reasonable accommodation, meaning that the employer could not be legally required provide it.  (The employer is perfectly free to provide it, though.*) The employer and employee should explore whether something other than reduced productivity would help.

 

Also, if an on-the-job accommodation isn’t possible (and if the employee does not have any paid leave available to use at their discretion), the employer might be required to provide extra unpaid leave as a reasonable accommodation instead of termination, if it would allow the person to eventually return to work, and if providing the unpaid leave wouldn’t cause significant difficulty or expense for the employer.  If the employee will never be able to return to the original job, then the employer should consider reassignment to another job as a reasonable accommodation, if one is available and the person is qualified.  If all of that fails, then the ADA doesn’t prevent termination.

 

*[Publishers Note: The biggest distinction between an ADA Reasonable Accommodation and a “light duty” workers comp best practice is the expected output of the employee.  The ADA requires essential functions of the job to be performed.  Light duty typically reduces or modifies essential functions, but is a best practice that promotes faster recovery, lower medical costs, and eliminates indemnity costs.  Light duty is generally not required by workers’ compensation law.]

 

 

How does the identification of light duty jobs in general factor into ADA’s interpretation of reasonable accommodations?

 

It’s my impression that “light duty” usually means that the employee is not being required to do his or her regular job.  Perhaps an essential function is eliminated, or the person is doing something different altogether.  If that’s what you mean by “light duty,” then light duty doesn’t have much to do with the ADA.  The ADA can never require an employer to pay people full wages while they are not doing their regular jobs or to keep people employed who are not expected to regain the ability to perform the essential functions of the position for which they were hired (with or without reasonable accommodation), which includes a reasonable timeframe.

 

The ADA doesn’t prevent employers from assigning people to light duty positions.*

 

*[Publishers Note:  We continue to recommend the use of transitional work assignments during recovery as a best practice.  Transitional work can EITHER take the form of a reasonable accommodation or the more traditional “light duty.”  The biggest distinction is the expected output of the employee.  The ADA requires all essential functions of the job to be performed.  Light duty typically reduces or modifies essential functions or productivity expectations.  Either form of transitional work promotes faster recovery, lowers medical costs, and eliminates indemnity costs.  Light duty is generally not required by workers’ compensation law.]

 

 

How about an objective, validated, functional Fit for Duty test that addresses job-specific tasks that the worker will need to show they can do these safely on the job before returning to work?  If not able to do all tasks safely, a modified RTW can be coordinated with both employer and worker?

 

Most existing methods of evaluating fitness for duty / functional ability do not consider reasonable accommodations.   However, functional testing can reveal areas of difficulty where a discussion about reasonable accommodation may be required.  So, for example, if a person has a disability that affects manual dexterity, a job-specific functional ability test would reveal that she is unable to keyboard well enough to perform her job – when using the keyboard that is now at her workstation.  This should kick off a search for an alternative solution – a reasonable accommodation.  Possibilities include a different or voice recognition software for example.    Another example: if a workplace uses a siren to warn employees workers of danger, someone who is deaf might nevertheless be fit for duty if flashing lights could be installed as a reasonable accommodation (unless installing the lights would impose undue hardship for some reason).

 

 

What about mental health issues and issues such as Narcolepsy– when the medical provider gives the employee a blank slate such as tardiness to work and or the possibility of mistakes at work (performance issues related to the disability).

 

Accepting poor performance, tardiness, reduced productivity, etc. are not reasonable accommodations.  An employee could never use the ADA to require the employer to accept poor work.  Note, however, that an employer cannot treat an employee with a disability more harshly than other employees who are having the same problems with performance. An employer couldn’t terminate an employee with a disability for tardiness, for example, if an employee without a disability would not be terminated for the same level of tardiness.

 

An employer could be required to provide a reasonable accommodation that would prevent performance issues, however.  For example, it’s possible that a person could ask for permission to arrive an hour late and leave an hour late as a reasonable accommodation, because of the side effects of medication, for example (notice that the overall amount of work is the same).  Or the supervisor might be required to provide detailed written instructions for assignments, so that the person doesn’t forget or become confused.

 

Really, the doctor should not be deciding whether the employee is allowed to arrive late or to make mistakes.  The doctor should be describing the mental and physical effects of the medical condition.  The employer and employee are the ones who are supposed to figure out how those restrictions should affect work.

 

 

Is it really considered reasonable to provide extra paid breaks to associates? Wouldn’t this cause issues with how other associates might be treated?

 

No, extra paid breaks could not be required if it means less total time spent on work throughout the course of the day.  A person could ask for his break to be at a different time than usual, however, or for it to be split up into small chunks, or to work a longer day in order to allow time for more breaks.

 

Setting aside the issue of reduced productivity, though, from the point of enforcement, it is generally not relevant how coworkers perceive an accommodation.  A person who needs a special chair because of a back problem, for example, might be entitled to get it even if coworkers would become jealous.

 

It is up to the employer to manage the impact of this on the workplace by signaling to all employees that the process is being managed thoughtfully, firmly and fairly, so people get what they legitimately need, not just what they demand.  The employer is not allowed to explain that the reason for the special chair is a disability (breach of confidentiality).  However, it is appropriate to make sure every employee remains aware of the company’s commitment to upholding the ADA and helping employees who have or develop disabilities to stay at work and keep their jobs.

 

 

Let’s say an employee is given sedentary duty work restrictions by a doctor, and the employer allows the employee to work with those restrictions.  But after a period of time (a few months), the employer can no longer afford to allow the employee to work sedentary duty.  Does the employer still have a duty to provide a reasonable accommodation under the ADA?  Is the employer now required to find a sedentary job for the employee in another department if there is no sedentary work in the employee’s current department?

 

I assume you are thinking of a situation in which the person is not performing his/her usual job.  The ADA never requires an employer to keep paying an employee who is not doing the job for which he/her was hired, no matter how long this kind of substitution has already been happening.  The ADA couldn’t even require it at the beginning of the situation you describe.  That’s not considered an ADA “reasonable accommodation.”

 

The employer could be required to provide a reasonable accommodation in a situation like that, if there is one that would enable the person to do his or her regular job.  (Could the person accomplish what his usual job requires him to accomplish while sedentary, for example, by allowing him to work from home, or allowing him to use a wheelchair, or… ?)

 

If an on-the-job accommodation isn’t possible (and if the employee does not have any paid leave available for use at his/her discretion), the employer might be required to provide extra unpaid leave as a reasonable accommodation, if it would allow the person to eventually return to work, and if providing the leave wouldn’t cause significant difficulty or expense.

 

If the employee will never be able to return to the original job, then, yes, the employer might be required to reassign the individual to another job that is consistent with the limitations.  But the other job must actually exist and be currently vacant, and the individual must be qualified for it.

 

[Publishers Note: In transitional duty as a workers comp best practice, it is common for employees to be assigned “light duty” in which essential job functions are modified or eliminated.  When that is the case, the light duty assignment should not last longer than 90 days without medical review to determine whether timely recovery of ability to perform all essential functions is realistic.  However, during a prolonged transitional work period, the employer needs to follow the ADA requirements for reasonable accommodation and reassignment, including additional unpaid leave.  If the company has done so and the employee cannot resume working after the 90 days, the employee can be considered for termination.]

 

 

In a reassigned position, does the employee have to qualify for the position or do we have to train them as a result of meeting that accommodation?

 

For reassignment to be required under the ADA, the person must already be qualified for the position.   There is nothing to prohibit the employer from providing the training as a good faith gesture on a case by case basis.

 

 

Visit these articles for more information on the ADA and workers compensation:

Further implications of the ADA on managing workers with health issues

ADA Questions on Temporary and Permanent Restrictions

 

 

 

Author:

Aaron Konopasky is a Senior Attorney Advisor in the ADA/GINA Policy Division at the U.S. Equal Employment Opportunity Commission (EEOC) headquarters in Washington, D.C.  He assists the Commission in interpreting and applying the statutes it enforces, and participates in drafting regulations, policy guidance, and other publications.

 

Dr. Konopasky joined EEOC after receiving his J.D. from Stanford Law School.  Prior to law school, he received his Ph.D. in philosophy from Princeton University, and served as an adjunct professor of philosophy at Rutgers University, Tulane University, and the University of New Orleans.

 

Author

Jennifer Christian, MD, MPH, FACOEM is a thought leader and advocate for improving medical outcomes and preventing needless work disability in workers’ compensation and disability benefits systems.  She is board-certified in occupational medicine and earned both her medical and public health degrees from the University of Washington in Seattle.  She chairs the Work Fitness & Disability Section of the American College of Occupational & Environmental Medicine (ACOEM).  While practicing medicine in Alaska, she was chosen as Physician of the Year.

 

She is President of Webility Corporation, a management consulting and training company.  Most recently, she developed Webility’s newest offering – the non-medical Maze-Masters program which provides educational and life coaching services directly to individuals who have gotten “lost in the system” to help them get their lives back on track.

 

Editor:

Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

ADA – Questions on Temporary and Permanent Restrictions

We had very successful webinar recently on the New ADA Return to Work Interpretations.  There were many questions from the audience.  Find below the responses to the questions  on Temporary and Permanent restrictions given by:

 

Aaron Konopasky, Senior Attorney Advisor, Equal Employment Opportunity Commission

Jennifer Christen, MD, President, Webility Corporation

Michael Stack, CPA / Risk Consultant, Amaxx Risk Solutions

 

This post is one of a series as a follow up to this webinar:

 

 

If you allow 90 days of light duty and they do not seem to be increasing or progressing in treatment – can you place them back out of work until Full Duty (FD) or Maximum Medical Improvement (MMI)? 

 

From a workers compensation management perspective, placing them back out of work at this point is not the recommended course of action as it is likely to spiral this employee and claim downward.  You should be in discussions with the treating physician as to why they are not making progress.  A nurse case manager might be helpful to better understand and assist the recovery.

 

From a medical perspective, 90 days is a sensible milestone.  Most injuries have healed and are as good as they are going to get by that time — because most damaged tissue has repaired itself within 6 to 8 weeks.  Those that haven’t may be turning into chronic conditions.  However, there are some exceptions.  The most obvious ones are workers who had conservative treatment for 6 or 8 weeks and then had surgery.  An operation is like a re-injury and it resets the biological clock.  One good way to identify the biological timeframe of recovery you are dealing with is to ask someone to look up the diagnosis in a resource like MDGuidelines or ODG to see what the typical durations of disability are for the worker’s particular condition.  This will help you see whether it really is time to ask the doctor for more information.

 

There really are only three possibilities at this time for a worker’s comp case:

 

  1. The person has a good prognosis for full recovery back to baseline levels of function, but it’s happening more slowly than you hoped.
    1. You either need to wait for them to recover or find a reasonable accommodation that will let them do it, or pay them to sit home.
  2. The person is realistically never going to get back to baseline so it is time to look for a reasonable accommodation.
    1. If you and the worker can’t identify one, consider getting an expert in accommodations involved because they may see options you can’t. If there is no way to accommodate, consider your options and take the appropriate action.  Don’t leave things hanging.  If the person’s career at your company is over, don’t leave them hanging.  Talk to them and express a desire to help them get on track towards a more realistic future outside your company.
  3. For some reason, it is still unclear what the eventual extent of functional recovery is going to be. If so, you need to talk to someone with expertise in these matters such as a nurse case manager or the treating physician in order to make an informed choice how to handle the situation.

 

For your responsibility under the ADA, does “light duty” mean reduced productivity requirements or elimination of essential functions?  If so, then the ADA does not require the employer to continue the light duty assignment.  However, before placing the individual back on leave, you must consider whether a reasonable accommodation would allow the person to return to full duty without imposing undue hardship on the employer.  Would an assistive device help?  An alternative schedule?

 

If the person is unable to return to full duty safely at this time, then they may be placed back out of work (although the employer could continue the light duty assignment if it wanted to, if it isn’t hurting the person or interfering with recovery).  When the person should be brought back to full duty does not depend on Full Duty or Maximum Medical Improvement – it depends on when the person is able to go back to full duty with a reasonable accommodation (if one is necessary).  So, if the person recovers enough that he or she can do the essential functions of the job with an alternative schedule, preferential shift assignment, assistive device, etc., then he/she can be place back to full time regardless whether he/she has reached MMI.

 

If the person does reach MMI and still can’t return to full duty, even with a reasonable accommodation, then the employer must consider reassignment to a vacant position, if one is available, as a reasonable accommodation.  If there is no work that the person can do, even with a reasonable accommodation, then he/she may be terminated.

 

 

 

After how long would temporary accommodations provide presumptive evidence that permanent accommodations are reasonable?

 

By “accommodations,” do you mean the type of reasonable accommodation required by the ADA (for example, an alternative schedule, assistive device, telework, etc.), or do you mean something like light duty, with reduced productivity or elimination of essential functions?

 

If you mean an ADA accommodation, then there is no reason to presume one way or the other whether the accommodation will be permanent.  You must provide the accommodation for as long as it’s needed, unless doing so becomes an undue hardship (causes significant difficulty or expense).  This does not mean that you must ever create a new position, no matter how long the ADA accommodation is provided – ADA accommodations allow the person to perform the essential functions of the original position (but in a different way than usual – with an alternative schedule, adaptive equipment, etc.).

 

If you mean light duty or some other form of permission not to perform essential job functions, then the ADA doesn’t ever prevent you from taking it away.  It’s possible that other laws, like WC laws, would have something to say about this though.

 

In general, workers’ compensation best practice dictates that transitional or light duty should last no more than 90 days.  This, however, needs to be a flexible policy since some conditions do have natural healing times longer than that, so allowing an employee a longer time to recover might be considered a reasonable accommodation under the ADA.

 

 

 

If I have provided 90 days of accommodation, can that not be determined as an accommodation of a perceived disability, thus becoming reasonable on a permanent basis

 

By “accommodations,” do you mean the type of reasonable accommodation required by the ADA (for example, an alternative schedule, assistive device, telework, etc.), or do you mean something like light duty, with reduced productivity or elimination of essential functions?

 

If you mean an ADA accommodation, then there is no reason to presume one way or the other whether the accommodation will be permanent.  You must provide the accommodation for as long as it’s needed, unless doing so becomes an undue hardship (causes significant difficulty or expense).  This does not mean that you must ever create new position, no matter how long the ADA accommodation is provided – ADA accommodations allow the person to perform the essential functions of the original position (but in a different way than usual – with an alternative schedule, adaptive equipment, etc.).

 

Employees have a right to AN accommodation but not to a PARTICULAR one.  Since circumstances and technologies can change over time, it would be illogical to say that the employer can’t ever change how a disability is being accommodated.

 

 

 

In Question 8 on your slides (Can the employer offer an employee an assignment at a different location such as a different division of the same company or at a charitable organization, if there are no suitable jobs at the original location?), are you talking about a permanent offer?

 

The question was referring to a temporary assignment, but there are some situations in which permanent reassignment may be required under the ADA.

 

If the individual is temporarily unable to return to full duty, even with an ADA reasonable accommodation (for example, an alternative schedule, assistive device, telework, etc.), then the ADA allows, but does not require, the employer to assign the person alternative duties that the individual can perform (including work at a local charity).  As soon as the person is able to return to full duty at the original position, with a reasonable accommodation if one is necessary, then they must be returned to the original position.  If the person will never be able to return to full time duty, even with a reasonable accommodation, then the employer should consider permanent reassignment as the “reasonable accommodation of last resort.”  For reassignment to be required, the employer must have a vacant position available that the individual is qualified to perform.  The ADA could never require an employer to permanently reassign someone to work for another business (e.g., a charity) at the employer’s expense.

 

 

 

What do we do as an employer when we are waiting for an IME report to come in? Do we use the treating Dr’s restrictions for permanent accommodation? What if the IME comes in and restrictions are completely different?

 

 

You are describing a situation in which the employer has been given limitations.  The employer should engage in the interactive process with the employee to determine whether an ADA reasonable accommodation (for example, an alternative schedule, assistive device, telework, etc.) would allow the employee to do the essential functions of the job without causing pain, re-injury, etc., and without imposing undue hardship on the employer.  The employer can ask follow-up questions of the treating doctor and the employee if it’s not clear whether return to full duty is possible.  If a reasonable accommodation would allow the person to return, the person should be given the accommodation and returned to full-time duty.  The employer would need to provide the accommodation for as long as it’s needed and does not impose undue hardship – there is no need to decide whether it will be permanent or temporary.

 

If the IME report comes in, the employer can reassess the need to provide an ADA accommodation, and if so which one, at that time.  Again, engage in the interactive process with the doctors and the employee to figure out what the person can do with a reasonable accommodation.  If there is a disagreement between the doctors or between the employee and the doctors, the employer will have to somehow decide who to believe.  The employer could ask for further clarifying documentation to try to re solve the conflict.

 

 

 

With regards to temporary restrictions and the recommended 90 day limit, is there a risk to allowing transitional duty too long and thereby creating a permanent position inadvertently?

 

The recommended 90-day limit referred to some form of light duty or transitional work that allows the person to work at lowered productivity or that eliminates essential functions of the job.  The ADA says nothing one way or the other about whether or how long this type of assignment is given (although, other laws might have something to say about that).

 

But be careful not to transfer the automatic 90-day limit over to ADA-required reasonable accommodations.  An employer is required to provide ADA accommodations (for example, an alternative schedule, assistive device, telework, etc.) for as long as they are needed, unless doing so causes undue hardship (significant difficulty or expense).  This does not mean that you must ever create new position, no matter how long the ADA accommodation is provided – ADA accommodations allow the person to perform the essential functions of the original position (but in a different way than usual – with an alternative schedule, adaptive equipment, etc.).

 

Author

Aaron Konopasky is a Senior Attorney Advisor in the ADA/GINA Policy Division at the U.S. Equal Employment Opportunity Commission (EEOC) headquarters in Washington, D.C.  He assists the Commission in interpreting and applying the statutes it enforces, and participates in drafting regulations, policy guidance, and other publications.

 

Dr. Konopasky joined EEOC after receiving his J.D. from Stanford Law School.  Prior to law school, he received his Ph.D. in philosophy from Princeton University, and served as an adjunct professor of philosophy at Rutgers University, Tulane University, and the University of New Orleans.

 

Author

Jennifer Christian, MD, MPH, FACOEM is a thought leader and advocate for improving medical outcomes and preventing needless work disability in workers’ compensation and disability benefits systems.  She is board-certified in occupational medicine and earned both her medical and public health degrees from the University of Washington in Seattle.  She chairs the Work Fitness & Disability Section of the American College of Occupational & Environmental Medicine (ACOEM).  While practicing medicine in Alaska, she was chosen as Physician of the Year.

 

She is President of Webility Corporation, a management consulting and training company.  Most recently, she developed Webility’s newest offering – the non-medical Maze-Masters program which provides educational and life coaching services directly to individuals who have gotten “lost in the system” to help them get their lives back on track.

 

Author:

Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

EEOC Speaks Out on Workers Compensation ADA Obligations

Employers Must Begin Interactive Process for Return to Work Sooner Than Thought
Dated: December 4, 2014

[WorkCompRoundUp is authorized to provide this information on behalf of EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD.]
EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD Provide Guidance on When Employers Must Start Discussion Regarding Return to Work Accommodations

 

This may be surprising news for some readers: In workers’ compensation, MMI should not be viewed as the trigger for ADA-related protections and obligations.

 

Background: A common practice in workers’ compensation claims management may not be legal. Employers / claims organizations that postpone the reasonable accommodation process until an injured worker’s medical condition has reached MMI (maximum medical improvement) may be violating the ADA, now that the definition of “disability” has been broadened. Prior to MMI, if medical restrictions have been established by the treating physician, employers often decide whether to offer temporary transitional work without involvement of injured workers. If not, the workers remain out of work – and may end up losing their jobs. Jennifer Christian, MD, MPH who chairs ACOEM’s Work Fitness & Disability Section, asked Aaron Konopasky, JD, PhD, a senior attorney advisor to the EEOC about this. She was surprised to hear that the ADA does apply at any time – whenever a medical condition has the potential to significantly disrupt an employee’s work participation. This means that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process. Christian and Konopasky agreed to co-author a brief summary of the way these two programs interact during the post-injury period, which appears below. Please forward this on to anyone who needs to know.

 

In the Worker’s Compensation context, ADA-related issues can arise at any of several points along the injury management timeline. As a practical matter, employers should be pro-actively evaluating and managing Worker’s Compensation and ADA legal issues concurrently.

 

This is because an employer’s reasonable accommodation-related obligations begin as soon as the employer knows that an individual worker is having trouble at work because of a serious medical problem. By definition, if a doctor informs the employer that a worker has medical restrictions/limitations due to a work-related condition, whether or not the employee is actually working, the employer is now aware that a medical problem is having an impact on the employee’s ability to work. If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA.

 

Although the employer can stop at this point to determine whether the individual is a “qualified individual with a disability,” it may not be worthwhile. Since employees with workers’ comp injuries are already employed at the time of injury, one can presume they meet the requirement of being “qualified” for the job. And, under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA “disability.” An extended inquiry regarding the applicability of the ADA could result in unnecessary delay during a critical period.

 

Thus, whether or not the worker’s condition is stable and has reached maximum medical improvement (is at MMI) has no relevance, either (a) to the time when the employer’s obligation to engage in the interactive process begins or (b) to the time when a worker should be considered a qualified individual with a disability under the ADA. For more details about specific times when the ADA may apply, read below.

 

1. At the time a person is injured.
No matter whether the resulting condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense. Examples might include specialized equipment, removal of non-essential job functions, and special scheduling. Individualized assessment is a key precept of the ADA, so a blanket policy is not appropriate. Employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA. It should be noted, though, that the ADA cannot be used to deny a benefit or privilege to which the employee is entitled on a separate basis. If, for example, the individual has other types of leave available at his or her discretion, whether paid (such as vacation leave) or unpaid (such as FMLA leave), the employer cannot deny that leave based on the fact that he or she could remain on the job with a reasonable accommodation.

 

2. While recovering out of work due to injury
The ADA may apply as soon as the worker’s condition becomes stable enough that on-the-job reasonable accommodations might allow the individual to perform the essential functions of the job (whether or not there has been a formal declaration of MMI). A blanket policy is not appropriate at this juncture, either. At this point, the employer should re-engage the interactive process to determine whether a reasonable accommodation would allow the individual to return to their usual job. As mentioned above, employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA.

 

3. When the individual has exhausted his or her leave and workers’ compensation benefits, and is still unable to return to the original position, even with an on-the-job reasonable accommodation.
At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation, such as additional unpaid leave or, if the individual is not expected to regain the ability to do the essential functions of his or her current position, reassignment to a vacant position (if one is available). Again, a blanket policy is not appropriate.

 

In summary, legal obligations under Worker’s Compensation and ADA legal issues should not be assumed to be sequential, because they may run simultaneously. Duration is not the key issue; the main issue is the nature of the condition and its impact on the ability to function at work.

 

 

CLARIFICATION To MEMO dated December 4, 2014
Dated: December 11, 2014

The EEOC’s Aaron Konopasky and I were glad to see many thoughtful comments in response to our message about the ADA in workers’ compensation last week in the forums where it was posted. Our summary was primarily written to dispel two common myths:

  1. In workers’ compensation, the time to think about the ADA is at MMI. This is NOT true. MMI is late among several points in the post-injury timeline when the ADA needs to be considered.
  1. The ADA’s requirement for an interactive process doesn’t apply in decision-making about transitional work assignments. This is NOT true. Injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

 

However, based on the comments we have received, we want to clarify that the ADA has several other significant implications for how employers should respond to existing employees who develop health problems. The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another. The fundamental purpose of the ADA’s employment provisions is to help people with disabilities get and keep jobs, as long as they are qualified to do the work and can meet productivity standards. The cause of the disability is irrelevant. It does not matter what other types of policies or programs are also involved — whether workers’ compensation, FMLA, sick pay, or disability insurance programs. A disability can be newly acquired, transitory, fluctuating, progressive, or longstanding and stable. It can be the result of injuries, illnesses, congenital conditions, or the natural aging process. The only relevant question is whether the disability is now or is perceived as potentially having a significant impact on someone’s ability to perform their job, take home their regular paycheck, and stay employed.

 

Here are 5 more practical implications for management of ALL types of health-related employment situations:

 

  1. As the Federal agency that enforces the employment provisions of the ADA, EEOC’s biggest concern in situations involving disability leaves of any type will be that someone with a disability is being forced to take leave even though he or she could do the essential functions of the job with a reasonable accommodation. Everyone involved in the decision to keep someone out of work — doctors, third-party benefit administrators, managed care companies, workplace supervisors and employee program managers — should keep that fact firmly in mind, so that people with disabilities are not needlessly forced out of the workplace.

 

  1. Only the employer is accountable for complying with the employment provisions of the ADA. However, treating physicians and the employer’s vendors (benefits claims administrators, managed care companies) who fail to communicate with the employer during the stay-at-work and return-to-work process may be exposing the employer to increased risk/liability. When a vendor or a doctor (especially one who has been selected by the employer) fails to notify the employer that an employee described difficulty working or an adjustment that might allow them to work, the employer could be held liable for failing to provide that accommodation — even though the information was never properly passed along. Doctors and vendors also can help educate employees and small or unsophisticated employers to ensure that the law is followed.

 

  1. Some employees may express the desire to remain on leave, rather than return to work with a reasonable accommodation. Of course, employees with disabilities must be allowed to use accumulated sick or annual leave, just like any other employee. And they may have a legal right to insist on leave if, for example, they qualify for FMLA. But if an individual with a disability has no discretionary leave, and a reasonable accommodation would allow performance of job functions in a manner that is safe and consistent with his or her medical needs, then the employee may be required to return to work with the accommodation.

 

  1. Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA, especially when they were not part of the decision-making process that has put them out of work. The employee must be actively involved in arranging any temporary or long-lasting adjustments to their usual jobs in order for the employer to meet the interactive process obligation. With respect to specific cash payments made under workers’ compensation—

 

A.  Temporary Total Disability (TTD) Benefits – There is little difference between cash payments under workers’ comp TTD and disability benefit programs for personal health conditions except how the amounts are calculated. Employees are usually receiving them for one of four reasons:

 

  1. The doctor wrote “no work” because their patient’s medical condition is so severe or unstable that it is unsafe for them to do anything except try to get better;
  2. The doctor wrote “no work” because of a perception that the employer cannot or will not provide safe and suitably modified work on a temporary or long-term basis;
  3. The doctor released their patient to work with restrictions, but state or federal law, or a union contract means that the employee cannot work until fully able to do the essential functions of their job, so the employee is put out of work temporarily.
  4. The doctor released their patient to work with restrictions, but the employer said they cannot meet those restrictions (cannot find appropriate work to assign them within their current work capacity) so the employee is put out of work.

 

In all but # 1 above, the ADA may apply. However, the employee is often not consulted as these decisions are being made. As stated above, giving the employee money is not a reasonable accommodation, and the ADA requires that the employer interact with the employee in looking for a solution that will enable the employee to stay at work.

 

B. Other types of cash benefits: Temporary Partial Benefits, Permanent Partial Benefits and Permanent Total Benefits -These cash awards help compensate employees for economic loss as a result of their injuries. However, as stated above, giving people money is not a reasonable accommodation, and does not accomplish the public purpose of the ADA.

 

5. Employers sometimes limit the length of transitional work assignments (TWA) in order to avoid them turning into required permanent accommodations or becoming subject to union job bid rules. To avoid ADA liability, a “usual” 90-day limitation policy that provides for an individualized assessment of the individual’s situation and possible extension is more appropriate. If there is a specific reason why extending a particular employee’s TWA or granting extra (paid or unpaid) time off to heal more completely will allow them to keep their job that might be a reasonable accommodation. Some temporary adjustments are reasonable accommodations (including, for example, temporary use of adaptive equipment or temporary relocation of a workstation to the ground floor) and may need to be extended unless doing so would involve significant difficulty or expense. However, TWAs may have other aspects that can be discontinued without fear of ADA liability, including temporary reductions in productivity requirements and elimination of essential job functions. These measures go beyond what the ADA requires.

 

 

Please note that this material is an informal discussion and does not constitute an official opinion or interpretation of the EEOC.

 

 

Aaron Konopasky, J.D., Ph.D
Senior Attorney Advisor
ADA/GINA Policy Division
Equal Employment Opportunity Commission
Email: aaron.konopasky@eeoc.gov

 

Jennifer Christian, MD, MPH
President, Webility Corporation
Chair, Work Fitness & Disability Section
American College of Occupational & Environmental Medicine
Email: Jennifer.christian@webility.md

 

If you would like to hear directly from the EEOC, inquiries can be submitted by mail to:

EEOC Office of Legal Counsel
131M Street, NE
Washington, DC 20507

 

Download A Printable Copy of This Memo

Americans with Disabilities Act and Workers Comp Coordination

The Americans with Disabilities Act extends the ability of workers with disabilities to be employed with reasonable accommodation. Medical examinations and review of prior medical records are frequently necessary for a vocational expert to comment on what jobs can be done by an individual with a disability and what the earning capacity would be. The vast number of ADA examinations are for pre-employment purposes. The use of ADA for examinations of workers in serious comp claims has received little attention.

 

 

In serious workers comp claims, precisely the same issues relevant to a pre-employment ADA exam appear about a year after date of accident, a time at which a permanent rate of disability and amount of wage loss in NY claims will be considered. Settlements will also be discussed. (WCxKit)

 

 

Using New York as an example (settlement procedures vary widely from state to state), an ADA examination and conference can be an effective RTW strategy and greatly reduce post-injury loss of earnings. In addition, ADA compliance is not subject to oversight and regulation by state workers comp agencies. Nor does an ADA medical exam count as a workers comp IME.

 

 

The ADA compliance exam must be done by the employer as part of a good faith effort to return a worker to employment. The worker, however, must indicate an interest in return to work for the employer; the exam cannot be forced.

 

 

A typical procedure might be as follows, subject to many modifications under collective bargaining agreements.

 

 

  1. After a reasonable period, the employer may ask the worker if there is interest in returning to work, on a trial basis and with reasonable accommodations.

 

  1. 2. A face-to-face conference may be scheduled, with spouse present, to discuss the possibilities and the wages which would be paid.

 

  1. A medical exam may be necessary to determine what accommodations might be necessary.

 

  1. A vocational expert should compose a report and comment on wage earning capacity.

 

  1. An effort to place the worker into a suitable job must be made.

 

 

In NY, settlement figures for comp PPD claims cluster at 50% disability, resulting in many claims with over $400/wk. rates. With a proper ADA program, many of these can be held to $100/wk., less, or even no wage loss.

 

 

A fact known to nearly every Social Security disability attorney is that the spouse is usually highly supportive of RTW, not extended disability. Involving the spouse in RTW  discussions will produce far better results. (WCxKit)

 

 

The ADA exam and conference are part of the employer/employee relationship, not the workers comp claim, and are therefore outside the control of a comp board.

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

 

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact

 

Lawsuit Alleges Wearing High Heels Led to Injury

A former executive assistant at a Detroit law group recently filed a lawsuit alleging, due to a Mad Men like atmosphere, she was required to wear high heels which caused her to trip and injure her back.
 
 
According to safetynewsalert.com, the woman sued after the firm didn’t offer her a job following medical leave. (WCxKit)
 
 
Denise Fitzhenry claims that in February 2007 she injured her back while working at the law offices of Honigman Miller Schwartz and Cohn when her high heel got caught in carpet. The lawsuit reports she was discriminated against following her injury.
 
 
Fitzhenry underwent back surgery and was out of work under the Family and Medical Leave Act.
 
 
When she returned to work, she requested accommodations because she was still in pain. The requested accommodations included working part time, regular work breaks and a ban on heavy lifting.
 
According to Fitzhenry, she was forced to take a second leave of absence because of continuing pain, but when she tried to return to work, she was informed there were no open positions for her.
 
 
She also alleges that the law firm discriminated against her due to the fact she filed a workers compensation claim.
 
 
Fitzhenrys attorney, Deborah Gordon, informed law.com that the atmosphere at Honigman was similar to an episode of Mad Men than a modern workplace. Fitzhenry claims she was required to wear high heels on the job. (WCxKit)
 
 
According to the law firm, the allegations in the suit are without merit and that Honigman has complied with all applicable laws including the Americans with Disabilities Act.
 
 

As for the Mad Men accusations, the company called them preposterous

 

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact:  RShafer@ReduceYourWorkersComp.com 

 
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SUBSCRIBE: 
Workers Comp Resource Center Newsletter

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact
Info@ReduceYourWorkersComp.com.

Two Lawsuits Filed in Texas Disability Cases Involving Illness and Age

The Houston District Office of the U.S. Equal Employment Opportunity Commission (EEOC) has filed two separate lawsuits to enforce the ADA, demonstrating the on-going relevance of and need for the law in today’s workplace.

The lawsuits
, filed in the United States District Court for the Southern District of Texas, Houston Division, addresses various alleged unlawful practices by these two employers illustrating the broad and necessary protections afforded by the ADA.

In addition, one of the employers, DynMcDermott Petroleum Operations Co. (“DynMcDermott”) is alleged to have violated the Age Discrimination in Employment Act (“ADEA”). (WCxKit)


In the suit
against ENGlobal Engineering Inc. (“ENGlobal”) (Civil Action No. 4:10-cv-XXXX), the EEOC alleges the company terminated the employee, Jeff Rose (“Mr. Rose”), because it regarded him as being disabled. ENGlobal is a publicly traded corporation providing engineering and professional services to the energy sector.

According
to the EEOC, Mr. Rose worked for ENGlobal as a safety supervisor for approximately two weeks when, unbeknownst to him, he began to develop multiple sclerosis (“MS”) symptoms that did not debilitate nor substantially limit him. Mr. Rose informed his manager of the symptoms and kept him informed of the conversations he had with his doctors as they tried to ascertain what was wrong with him. As the manager learned more about Mr. Rose’s condition and realized he faced a potential MS diagnosis, the manager searched for a replacement and urged Mr. Rose to take medical leave despite the fact that he could continue working. After taking medical leave at his manager’s insistence, Mr. Rose presented the company with a doctor’s note stating he had clearance to return to work.

Although his position
was available, ENGlobal’s human resources manager falsely told Mr. Rose it was not. Further, although the human resources manager then told Mr. Rose that ENGlobal would try to find him another position within the company, it took no such action. Three weeks later, ENGlobal hired another individual for Mr. Rose’s position. It is the EEOC’s position that ENGlobal’s management violated the ADA by incorrectly and impermissibly viewing Mr. Rose as substantially limited in his ability to perform the work of any job within the company.

The ADA
was also violated by DynMcDermott when the company failed to hire an applicant for employment, the EEOC alleged in the lawsuit filed against this employer for actions occurring at its Winnie, Texas facility (Civil Action No. 4:10-cv-XXXX). The EEOC also maintains DynMcDermott’s actions violated the ADEA.

According to the lawsuit, DynMcDermott is a privately held corporation providing maintenance and operations services for the Strategic Petroleum Reserve managed by the U.S. Department of Energy. The EEOC alleges that the applicant and employee, Phillip (“Mike”) Swafford (“Mr. Swafford”), applied with DynMcDermott for a position he had previously held with the company. He was interviewed by and recommended for the position by both his former supervisor and the manager in charge of hiring for the position.

Nonetheless,
the facility’s director, who had authority over both the supervisor and the hiring manager, stated to them and others, on at least two occasions, that Mr. Swafford should not be hired because of his age, then 56 years, and his wife’s cancer, which the director simply assumed would interfere with Mr. Swafford’s ability to perform his job duties. The EEOC alleges this assumption and DynMcDermott’s unwillingness to hire Swafford because of his age and his wife’s cancer violated both the ADA and the ADEA. DynMcDermott ultimately hired a 35-year-old applicant with no prior experience with the company for the position.

The EEOC filed the lawsuits after conciliation efforts to reach a voluntary settlement with each employer were unsuccessful. (WCxKit)
In each lawsuit, the EEOC is seeking a permanent injunction prohibiting the relevant company from engaging in employment discrimination, as well as other non-monetary relief to address the unlawful practices. The EEOC is also seeking back pay, compensatory damages, punitive damages or liquidated damages, and other relief.

Author Robert Elliott
, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact:  Info@ReduceYourWorkersComp.com or 860-553-6604.
 
WORK COMP CALCULATOR:   http://www.LowerWC.com/calculator.php
 
WC GROUP:  http://www.linkedin.com/groups?homeNewMember=&gid=1922050/
SUBSCRIBE: Workers Comp Resource Center Newsletter

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Challenges When Testing for Prescription Drugs in the Workplace

Recently in the “Commercial Appeal” (TN), quoting from a New York Times article about the trickiness of drug testing when workers take prescriptions drugs the article ended with this quote.

“Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue.”
employers cannot afford not to address this issue.”

 

Indeed drug testing in the workplace is challenging given the fact so many people take illegal drugs. Employers have every right to discover who these workers are before a serious workplace injury occurs.

However,
the quote seems to be saying if a person is taking a legal prescription drug(s), albeit those possibly causing impairment leading to an accident in the workplace, such legal use qualifies as “prescription drug abuse.” (WCxKit)


It is a fine
line between maintaining a drug-free workplace understood to mean illegal drug usage and firing someone for taking prescription drugs – some even for injuries sustained in the employer’s workplace.

Statistics show
(Quest Diagnostics) of 500,000 drug tests, use of prescription drugs rose 18% between 2005 and 2009. Opiates were found in those workers following an accident at four times the level than when they were first hired.

That being said
, a leap cannot be made from high usage of prescription drugs to abusive usage of prescription drugs. Some people abuse. Others take their medications appropriately and, yes, the drug is found in their system at testing.

The real questions are
: Are workers taking legal prescription drugs showing evidence of behavior as a result of their medication(s) putting them at a higher risk of a workplace injury? Are workers taking prescription medication actually having more injuries? In other words, is there a quid pro quo?

Employers must
continue to test for drugs in the workplace. In addition to the drug-free policy, they must implement a plan for working with those taking prescription drugs and evaluate each individual on the basis of what is found during the test and the behavior of the worker, taking steps to intervene if unsafe behaviors or potential for accidents are found.

The drug-testing
plan needs openness and communication with employees taking RX meds. A policy must be set as to what will be tolerated within the guidelines of the prescription dosages. Employees must also be open and honest about medications they take — opiates or not —  at the time of drug testing. It’s common knowledge diabetics may experience inconsistent affects from both their disease and the medication they take, even when taken correctly. No employer would be allowed to fire a diabetic if deemed at risk for an injury. They would be required to accommodate.

Someone taking
two Vicodin twice a day, morning and evening, would be expected to have a fixed level of the drug in his/her body. If at testing a person is found to have much high amounts, that’s the time for the employer to step in.

Steps an employer
may consider are counseling, re-assigning the person to a safer job, working with employees and their physicians to substitute or alter the dosage during the workday. Check the laws in your state and the regulations of the American with Disabilities Act. (WCxKit)

It’s much wiser
for employers to be on a sure footing before firing workers who “fail” drug tests for taking legitimate medications than to fight a lawsuit. Indeed, if lower worker comp costs are the goal, lawsuits blow cost right up the scale, big time.


For more information visit
http://reduceyourworkerscomp.com/drug-testing-state-laws.php#axzz14LwH8dOJ


Author Rebecca Shafer
, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
C
ontact:  RShafer@ReduceYourWorkersComp.com or 860-553-6604.
 
FREE TOOLS
WORK COMP CALCULATOR:   http://www.LowerWC.com/calculator.php
 
JOIN
WC GROUP:  
http://www.linkedin.com/groups?homeNewMember=&gid=1922050/
SUBSCRIBE: Workers Comp Resource Center Newsletter

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

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