The various aspects of hiring, accommodating, providing modified duty in the case of workers’ compensation and firing an employee with a disability can be tricky. But being informed and communicating policies clearly takes the mystery out of managing disabled workers and those who may become disabled following a work-related injury.
Americans with Disabilities Act (ADA)
Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees. It also applies to employment agencies and labor organizations.
Disability discrimination occurs:
- when an employer treats a qualified individual with a disability who is an employee or applicant unfavorably because of the disability
- when an employer treats an applicant or employee less favorably because of a history of a disability
- or because the employee is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if the employee does not have such an impairment)
- when an employer treats an employee differently because of the employee’s relationship with a person with a disability (even though the employee is not disabled)
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability to perform the “essential functions of the job”, unless doing so would cause “undue hardship.” Undue hardship means a significant difficulty or expense for the employer when considered in light of factors such as the employer’s size, financial resources and the nature and structure of its operation.
Reasonable accommodations may include things like:
- making existing facilities used by employees readily accessible to and usable
- job restructuring
- modifying work schedules,
- reassignment to a vacant position
- acquiring or modifying equipment or devices,
- adjusting or modifying examinations, training materials, or policies,
- providing qualified readers or interpreters
Employee Retirement Income Security Act (ERISA)
ERISA is administered by the Employee Benefits Security Administration (EBSA). The provisions of Title I of ERISA cover most private sector employee benefit plans. ERISA grants employees several protections such as the right to receive information about their pension or health benefit plans, to participate in timely and fair processes for benefit claims, to elect to temporarily continue group health coverage after losing coverage, to receive certificates verifying health coverage under a plan and to recover benefits due under the plan.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) includes provisions for continuing health care coverage. These provisions are in Part 6 of Title I of ERISA. They apply to group health plans of employers with 20 or more employees. COBRA gives certain former employees, retirees, spouses, former spouses and dependent children (“qualified beneficiaries”) the right to temporary continuation of health coverage at group rates. This coverage, however, is only available when coverage is lost due to certain specific events (“qualifying events”) such as termination of employment. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees because usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. Plans must give covered individuals an initial general notice informing them of their rights under COBRA and describing the law.
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) amended ERISA to provide for improved portability and continuity of health coverage connected with employment. These provisions include rules relating to exclusions of preexisting conditions, special enrollment rights and prohibition of discrimination against individuals based on health status-related factors.
Family and Medical Leave Act (FMLA)
The FMLA is administered by the Wage and Hour Division of the Department of Labor (DOL). The FMLA requires employers that have 50 or more employees to give up to 12 weeks of unpaid, job-protected leave to eligible employees for the birth or adoption of a child or for the serious illness of the employee or a spouse, child or parent. Employers need to be aware of a possible obligation to extend FMLA benefits if an injured worker does not want to participate in the company’s transitional duty (TD) program. On March 8, 2013 statutory amendments to the FMLA involving military families and airline crew became effective.
The DOL has an interactive FMLA Advisor tool to help employees and employers understand their rights and responsibilities under the FMLA. The FMLA Advisor can help identify which employers are covered by the law, which employees are eligible for FMLA leave, what entitlements and benefits are provided under the law, and in what situations FMLA leave may be used. http://www.dol.gov/elaws/fmla.htm.
It’s important to coordinate your transitional duty (TD), light duty and modified duty policies with ADA and FMLA requirements. Disability and employment laws vary from state to state. Make sure your legal counsel and insurer review all policies and procedures you use for workers’ compensation.
Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com.
Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.
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