Article originally published by LexisNexis
Best practices for complying with the spirit and law of the Americans with Disabilities Act as amended in 2009
Roger Rabb, J.D., Special Correspondent for the LexisNexis Workers’ Compensation eNewsletter
Employers dealing with injured workers are often preoccupied in the early stages of the injury period with workers’ compensation issues, sometimes to the exclusion of other overlapping legal issues. One such issue, compliance with the Americans with Disabilities Act (ADA), is often overlooked until the employee’s injury stabilizes, which is often the first point at which the issue of whether the employee has a “disability” under the ADA is considered.
However, the protections of the ADA may require earlier action on the part of employers and employees both, as “the ADA actually kicks in as soon as somebody’s health condition is having a substantial impact on their ability to earn a living, which may start immediately if the condition is expected to last awhile or be significant.” This was the observation of Jennifer Christian, M.D., the President of Webility Corp., during a recent webinar hosted by Advisen Ltd. on ADA return-to-work best practices.
An Interactive Search for Reasonable Accommodation
Under the ADA, an employer is generally required to provide a reasonable accommodation for an employee with a disability so that the employee can perform his or her job, unless doing so would cause undue hardship for the employer in the form of a significant difficulty or expense. As noted by webinar participant Aaron Konopasky, a Senior Attorney Advisor with the Equal Employment Opportunity Commission, “the ADA is a civil rights statute,” and “the primary purpose of reasonable accommodation in ADA is to allow people with disabilities to do their work, to allow them to participate fully in the workforce and to stay employed.”
However, it’s not always clear what accommodation for an injured employee is “reasonable,” nor when the right to seek, or obligation to provide, an accommodation kicks in. Under 2009 amendments to the ADA, the definition of a disability has expanded to the point where it may be more prudent for an employer with an injured employee to engage in a dialogue with the employee sooner rather than later about whether a reasonable workplace accommodation may be necessary to allow the employee to continue performing the essential functions of the job, without worrying about whether or not the injury is covered by workers’ compensation or even if it actually constitutes a disability under the ADA.
Often in workers’ compensation cases, the issue of whether an injured employee can return to work is decided by the claims adjuster in consultation with the work supervisor, in accordance with any work restrictions noted by the treating physician. Under the “interactive process” of the ADA, however, Konopasky suggests a more flexible approach that involves a more open dialogue between the injured employee and the employer, one in which “the employer and employee . . . work together to problem solve to see whether there is a way that the person can come back to work and do the normal duties with a reasonable accommodation, if one is necessary.” While the treating physician might be involved as well, Konopasky notes that the employee will often “know best what would help or what wouldn’t help to come back on the job.”
As noted, the employee’s right to a reasonable accommodation under the ADA is balanced by the employer’s right to avoid undue hardship in making that accommodation. An employer should listen to the disabled employee’s suggestions and might be required to accommodate, for example, an altered schedule or even telecommuting for the employee. However, as Konopasky describes, “if what the employee needs is just way too difficult, given the resources of the employer, then the employer does not have to provide it . . . The employer is expected to provide something that is an effective way to get the person productive again, but it does not have to just acquiesce to demands of the employee who has some particular ideas about what that should be.”
This interactive approach differs from the more one-sided approach often taken in workers’ compensation cases, under which workers often feel, as Dr. Christian describes, “powerless and like they don’t have a voice.” She also notes, however, that the one-sided nature of the workers’ compensation process is not inherently part of the normal employment relationship, and that “in a normal employer-employee relationship they are working together.” To that extent, the process envisioned in the ADA is an attempt to get back to that normal level of problem-solving cooperation.
Read Light Duty, Leave, and Return-to-Work Issues; and Final Thoughts here
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The post Workers’ Compensation, Return to Work, and the Americans with Disabilities Act appeared first on Work Comp Roundup.
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