Because many more workers are now considered disabled in the eyes of the federal government when they become injured, an employer needs to factor in civil rights law when handling workers compensation claims.
The Americans with Disabilities Act (ADA), which has expanded its definition of disability, “kicks in as soon as somebody’s health condition impacts their ability to earn a living,” said Dr. Jennifer Christian, who is also president of management consulting company Webility.
“It isn’t when their condition has stabilized,” Christian said, or after a workers compensation claim has been filed. The most common such injury is musculoskeletal, involving the back, and nine out of 10 of these cases become long-term and chronic.
“You’re a day late and a dollar short if you wait to see if a condition has become chronic,” before starting a discussion about reasonable accommodation for an employee and his or her return to work under the federal statute.
Christian joined Aaron Konopasky, senior attorney adviser in the ADA division of the Equal Opportunity Employment Commission, in an Advisen webinar, “New ADA Return to Work Interpretations.”
ADA, which requires employers to provide accommodation unless it causes them undue hardship, is flexible on the circumstances of the discussion, said Konopasky.
“But it should look like a brainstorming session,” he said on the webinar.
The biggest difficulties often arise at the point at which an injured employee returns to work.
The questions are, “Can the person do the job with an assistive device? With an altered schedule? Can they work from home? If the person can do the job, the employer has to provide accommodation unless it creates undue hardship,” Konopasky said.
He added that “the ADA cannot require the employer to pay for work that cannot be performed.”
“The output of the employee has to be 100 percent of what is was previously,” said Michael Stack, principal with Amaxx Risk Solutions, on the webinar.
Amaxx consults with employers, brokers and others on how to reduce workers compensation costs and has co-authored, with Advisen, “Your Ultimate Guide to Mastering Workers Comp Costs.”
The ADA Amendments Act in 2008 significantly broadened the definition of “disability” in an effort to strike a balance between employer and employee interests. It also requires courts to focus on whether the covered entity has discriminated, instead of whether the individual seeking the law’s protection has an impairment that fits within the technical definition of the term “disability.”
“The reason the changes affect workers comp so much is that many conditions can now be disabilities, even if they are not permanent or severe,” Konopasky told Advisen.
As a result, the question of ADA compliance “comes up much earlier in the process,” he said.
Konopasky told the webinar that employers are not required to provide transitional work before an employee can fully return to the job, although they can provide lighter duty or part-time work with a commensurate drop in pay.
The issue would be “part of the question of whether the employee can return to work and therefore should be accommodated,” he said.
Employers are also not required to allow for an indefinite leave of absence, nor must they create a different job for the employee or a job in a different location.
They may also require a medical examination to establish a physical condition if the employee has requested accommodation, or if there is reason to believe, based on evidence, that the employee cannot perform the essential functions of the job.
But before a claims adjuster even gets an employee’s medical restrictions from a doctor under workers comp, Christian said, “there needs to be an interactive discussion involving the employee, to not violate ADA.”
The purpose of the federal statute “is to help employees who develop disabilities on the job to keep working if possible,” she said.
