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?

If a person with a disability applies for a physical position, is it against the law not to hire them?

Additional information: I work at a pharmaceutical packaging plant. The line operator job tasks are physically demanding, they have to lift, bend, squat, etc.

The answer to this question depends on several factors. Some disabilities will not affect the ability to do these things (e.g., someone with a psychiatric disability may be perfectly able to do this). Some people with disabilities might be affected, but because their condition is under control it wouldn’t actually interfere (e.g., epilepsy). In some cases, it will affect the ability to do the job, but a reasonable accommodation would overcome the difficulty. (Without knowing the details, it’s hard to come up with a realistic example of this. But perhaps a modified workstation would be an example.)

The employer must consider the possibility of reasonable accommodation before rejecting the individual. However, if the individual could not accomplish what he or she is required to accomplish even with a reasonable accommodation (or if all effective reasonable accommodations would cause undue hardship) then he or she is not qualified and may be rejected.

When we do the interactive process, when and how do we coordinate the workers’ compensation carrier/administrator?

Both the ADA law and workers’ compensation best practices run concurrently, and it is recommended to do everything required under both systems.  Following workers comp cost containment best practices, good communication systems with your claims handler are an effective solution.  Working with the adjuster in the ‘team approach’ to claims handling early in the process is recommended.

I encounter employers delaying the interactive process due to being afraid of a 132A violation.

Labor Code §132a states in pertinent part: “(1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or …Oct 23, 2016

It doesn’t make sense that a conflict would exist between Labor Code §132a and the interactive process. Labor Code §132a appears to be a state workers’ compensation law that states the employer is prohibited from discriminating on the basis of intent to file a workers’ comp claim. Engaging in the interactive process (e.g., asking whether the person could do the job with a reasonable accommodation) shouldn’t constitute discrimination. It’s not a threat to discharge or other form of discrimination. Also, the ADA is a federal law; doing what you are required to do under federal law can’t constitute a violation of state law.

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:

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.

Contact: mstack@reduceyourworkerscomp.com.

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

©2019 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.

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?

If a worker is being paid Temporary Total Disability (TTD) because light duty cannot be accommodated, should FMLA run concurrent?

FMLA leave is unpaid time off. However, in lieu of FMLA leave, an employee may take sick days, vacation days or disability leave with pay, unless the employee is receiving workers’ compensation benefits. In that case, the employer cannot require substitution of vacation, sick or other paid leave. If the employer properly designates the workers’ compensation leave as FMLA leave, the absence can be counted against the employee’s 12-week entitlement. Regardless of how many weeks of paid leave an employee decides or is required by his or her employer to use for FMLA leave, the employee is still entitled to take the remainder of the 12 weeks as unpaid leave.

If the workers’ compensation leave runs concurrent with FMLA leave, the employer must comply with the FMLA requirements to maintain group health insurance benefits. Employees who return to work after a concur-rent FMLA and workers’ compensation leave are entitled to reinstatement of all benefits without any qualify-ing restrictions and at the same levels as when the leave began. For this reason, employers may choose to pay for life, long-term disability and related insurance coverage during workers’ compensation leaves of absences unless it is clear that employees are unable to return to the positions because permanent disabling conditions render them no longer qualified to work with or without a reasonable accommodation.

What happens if FMLA leave is exhausted and the employee receives a letter that reasonable accommodations can no longer be made?

Additional information: The employee had been out for cancer related surgery related issues on & off. The job requires travel 50% of the time, but there are times when the employee may need 2 straight weeks in the office. FMLA ran on a rolling calendar and the 12 weeks had been exhausted. So, the employee had been out, FMLA ran out of time & the employee received a letter that reasonable accommodations could no longer be made.

The term ‘audit’ is being interpreted as simply a requirement to be out of the office at a client location.

First, a clarification: it doesn’t sound like any reasonable accommodations were made in this case. It sounds like the individual was given FMLA leave, which is a separate legal right under a separate law.

If what this person needed was to stay in the office, the employer should do a reasonable accommodation analysis. Permission not to do 50% of the regular job would not be a reasonable accommodation that is required under the ADA. However, this may not be the only possibility. The details of the job are not given, but it might be possible for the person to “visit” the distant worksites virtually (e.g., using Skype).  If nothing like that is possible, a temporary reassignment might work, if there is an open position that the employee could do. (The employer would not need to create an empty position, but if there was an unfilled job then a temporary transfer may be possible).

If neither of those solutions would work, and what the employee really needs is leave, then he could ask for leave as a reasonable accommodation. Even when FMLA leave has been exhausted, a person with a disability may be entitled to extra unpaid leave under the ADA, as long as granting it wouldn’t pose an undue hardship.

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: 

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 .

Contact: mstack@reduceyourworkerscomp.com.

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

©2019 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.

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:

• 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?

A follow-training on How to Coordinate Return to Work with ADA Compliance initiated additional questions:

• 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?

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.

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:

• 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?

A follow-training on How to Coordinate Return to Work with ADA Compliance initiated additional questions:

• 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?

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.

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:

• 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?

A follow-training on How to Coordinate Return to Work with ADA Compliance initiated additional questions:

• 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?

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.