We had very successful wc mastery training recently on How to Coordinate Return to Work with ADA Compliance. 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 training:
- ADA – If light duty cannot be accommodated, should FMLA run concurrently?
- ADA – Do All Work Comp Injuries Fall Under the Americans with Disabilities Act Amendments Act (ADAAA)?
- ADA – Is it against the law not to hire a person with a disability for a physical position?
A prior training on Return to Work and the ADA initiated the following questions:
- ADA – Questions on Temporary and Permanent Restrictions
- ADA – Reasonable Accommodation And Workers Comp Questions Answered
- ADA – Ensure Interactive Process Compliance, And Other Questions Answered
- ADA – What Happens When An Employee Opposes Return To Work?
- ADA – If No Light Duty Is Available, Can The Employer Terminate Employment?
Can you offer transitional duty to workers with work-related injuries (Workers Comp) and not offer to workers who have non-work related injuries (disability)?
It depends on what you mean by “transitional light duty.” If it involves lowered production standards or elimination of an essential part of the normal job, then the employer can provide it to people who have been injured on the job to the exclusion of others. If “transitional light duty” does not involve lower production standards or elimination of an essential part of the normal job, then it could qualify as a reasonable accommodation, and would have to be provided to employees who need them because of disabilities, regardless of where the disability was caused.
In other words, if an individual has a disability and a reasonable accommodation would allow him or her to do the job, then the employer must provide the accommodation absent undue hardship whether or not the disability is a work-related injury.
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.
I have heard that ADAAA applies to Work Comp but not all Work Comp applies to ADAAA. Would you outline the cases where ADAAA doesn’t apply to Work Comp?
The idea here seems to be that not all medical conditions that qualify someone for Workers’ Comp are disabilities under the ADA. This could be true, but that’s much less clear after the ADA was amended—many more things now qualify as disabilities.
As a practical matter, often it’s not worth the time or effort to determine whether a medical condition is “bad enough” to qualify as a disability under the ADA. The less serious the condition, the less likely an accommodation will be needed. The more serious the condition, the more likely it will be a disability. Employers are encouraged to assume that medical conditions serious enough to interfere with work are disabilities, and to spend more time thinking about possible accommodations that would enable full productivity.
How does the Pregnancy Act fit into the ADA?
Application of the Pregnancy Discrimination Act is complicated. If the person has a pregnancy-related medical condition that qualifies as a disability, then the ADA applies and the analysis is the same. If there is no pregnancy-related medical condition then you will need to do a Pregnancy Act analysis, which depends on how the employer treats people with similar limitations who are not pregnant. Here are some resources:
Also, if the employer doesn’t complete this, when are fines are assessed?
There are no fines under the ADA. The individual’s recourse is to file a charge of discrimination with the EEOC, which will then proceed through EEOC investigation, and then potentially through conciliation and litigation stages.
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 Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a 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 .
Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/
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