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In This issue

  1. A Letter From the Desok of the Chairman
  2. The ADA Link to Workers Compensation Claims
  3. The "Additional Insured"
  4. Generations in the Workforce
  5. Managing Special Events Risks

The ADA Link To Workers Compensation Claims

Barbi L. Feldman, Esq.
RossVecchio, P.A.

Watch out for violations of the American With Disabilities Act (ADA) when you have an injured employee. Too often Employers consider injuries to their employees in the vacuum of workers compensation and fail to consider other laws that may affect them. Two of the most important are the ADA and Family Medical Leave Act (FMLA). Granted, the FMLA does not apply to employers with less than 50 employees, but the ADA applies to all employers regardless of their size. Too often employers fail to consider their obligations under these two acts when dealing with an employee who was injured on the job and who is seeking protection under the workers compensation statutes. This failure opens them to significant liability for unintentional violations of the ADA and FMLA.

While the workers compensation laws were created to provide the employee medical care and wage loss as a result of an on the job injury, the ADA was created to ensure access to employment by those that are disabled and protect from discrimination by requiring employees to accommodate those with disabilities, regardless of whether the disability was personal in nature or caused by an on the job injury.

The ADA was enacted in 1990 and provides civil rights protections to persons with disabilities. Most believe this only attached to the right to public accommodations, transportation, public services, telecommunication and equal access to employment. However, most employers do not truly understand what all of that means. In a nut shell, it means that you have to provide accommodations for disabled persons so that can do their job. Although this does not mean that you have to continue to employ someone who cannot do their job, it does mean that you have to make every reasonable accommodation (at the employers expense) to facilitate the employees ability to do their job.

In a recent law suit the U.S. Equal Employment Opportunity Commission (EEOC) raised allegations of ADA violations against Sears for maintaining a workers compensation leave policy that was to inflexible when leave had been exhausted. Under the Sears policy, once the employee exhausted their workers compensation leave the company too often terminated them rather than providing reasonable accommodations for their disabilities in clear violation of the ADA.

The case arose when a service technician who had been injured on the job exhausted his workers compensation leave, but was still disabled. Although he attempted to return to work, he could not perform his required duties without significant accommodations. The EEOC determined upon investigation that although the technician required significant accommodations, none of the accommodations needed were unreasonable and had they been provided, the technician could have returned to work. This case then triggered a full investigation of Sears and its return to employment policies. As a result a class action law suit was filed and eventually settled for $6.2 million dollars.

This case highlights the importance of developing and implementing a return to work policy that addresses not only the employer’s needs, but the requirements of the ADA, FMLA and applicable workers compensation laws. Employers should have plans in place to deal with coverage issues while the employee is out, as well as return to work policies that can accommodate the employee in ways that may seem unfair, but would be considered reasonable to others. The EEOC and the Courts are looking to the employers to do everything reasonable to place the injured employee back into the work force, rather than writing them off and finding new employees that do not require accommodation.

This is not a straight forward and simple issue. A common misconception by employers is that an employee has to be permanently disabled in some way to qualify for rights under the ADA. This is not true. A temporary disability or partial disability also entitles the employee to ADA protections. For example, assume for a moment that you have an employee who’s job duties require them to lift 50 or more pounds on a regular basis. Now assume that the employee suffers a typical back injury and is placed on light duty. Because the light duty requires no lifting more than 15 pounds, the employer advises the employee that they cannot accommodate his restrictions. This scenario reveals that the employer may already be in violation of the ADA.

If the employer in this scenario has other employees that can assist in the lifting duties, can provide tools to assist in the lifting duties, or can move other employees around to allow the injured employee to return to work in a different capacity for a short time within his restrictions, then according to the EEOC the employer has violated the ADA by telling the injured employee to stay home and continue to collect workers compensation benefits.

Another requirement under the ADA is that the employer evaluate reasonable accommodations by having an interactive conversation with the injured employee in order to determine exactly what the employee can do, cannot do, and what the employee thinks will help him complete his job duties. Many times, the employers merely look at the doctors note and tell the employee what they are going to be doing based solely on that note. Failure to discuss accommodations with the employee is another violation of the ADA. All an employee need do is allege that they feel there are things that the employer could do to reasonably accommodate him and that the employer is not willing to consider his opinions. When this occurs, the employer is in violation of the ADA.

Most exposure to ADA violations occurs when an employer does not have a proactive policy for returning an injured employee to work, and when they fail to discuss that policy with the injured employee. While it may seem easier and more cost effective to replace an injured employee, if an ADA violation is raised, it may not only become more costly for the employer, but may also result in the termination of other employees responsible for making sure the employee is properly accommodated. Therefore, in larger organizations, it is important for employers to fully educate supervisors, managers, risk management and human resource directors, etc.

The Employer should consider that the right to ADA protections begins the moment the injury occurs regardless of whether or not the employee will eventually have a permanent impairment assigned. This is because the injury itself may meet a definition under the ADA. The question that must be considered once the injury is reported is whether accommodations must be provided pursuant to the ADA, or whether the injured employee’s job must be preserved for an eventual return to work if the injury is not one specifically defined by the ADA.

While there are some employers not subject to FMLA, an employer that is subject to the FMLA must preserve an employee’s job during the FMLA leave period. However, the employer must be cautious in requiring an employee to invoke the FMLA leave as many also have a standard termination policy once FMLA is exhausted. If you require the employee to use FMLA and they are still disabled at the end of the term, you must first determine if you can accommodate the employee before you terminate employment. This is also where workers compensation, the ADA and FMLA overlap, because if the employee exhausts FMLA, is still disabled from returning to work, but a doctor opines that he will be able to return to work with accommodations at some point in the future, you may be subject to wrongful termination issues or permanent total disability issues if the employee is unable to locate new employment because of his injury.

OK, so now we know about the risks of violating the ADA. What do we do to protect ourselves?

First, develop a comprehensive return to work program for injured employees. This program should include procedures where the employer not only obtains relevant return to work notes from a physician, but discusses directly with the employee and physician how the injury and recovery will impact the employee’s job duties.

Second, approach each injury independently to determine first if the employee is truly covered by the ADA. (However, my rule of thumb would be to consider every employee as being covered in order to avoid costly litigation.) Then determine pre-injury job duties, current abilities and needs by talking with the employee and physicians, and develop accommodations for the employee to return to work. The accommodations may require some financial investment by the employer. For example, a special key board for carpal tunnel issues. Many times, these types of accommodations will be paid for by the insurance carrier. If the job cannot be accommodated in any way or by reasonable means, then and only then should the employee be terminated. However, in order to add another layer of protection, I would recommend the employer offer a severance and require the employee to sign a general release to any and all claims in exchange for receiving the severance. This is something the employer will have to pay itself as the workers compensation carrier is not obligated to cover this expense.