December 10, 2014
Background: Aaron Konopasky, JD, PhD (senior attorney advisor to the EEOC)
surprised Jennifer Christian, MD, MPH (who chairs ACOEM’s Work Fitness &
Disability Section) when he told her that a doctor’s note with TEMPORARY medical
restrictions puts the employer on notice that the employee has a health
condition affecting his/her ability to work and may trigger the employer’s ADA
obligations to engage in an interactive process and make reasonable
accommodations. Christian and Konopasky agreed to co-author a brief summary of
how the ADA and workers’ compensation programs interact during the post-injury
timeline, which can be seen at this web page. That article generated a lot of
interest and questions, revealing the need to clarify the impact of the ADA on
the stay-at-work and return-to-work process in other programs as well. Their
second collaboration, a succinct and comprehensive summary of the practical
implications of the ADA for the management of ANY situation in which existing
workers develop health issues that may affect their ability to work, appears
below.
Aaron Kopansky from the EEOC and I co-authored last
week’s posting primarily to dispel two common myths:
1. In workers’ compensation, the time to think about the ADA is at MMI.
This is NOT true. MMI is late among several points in the post-injury
timeline when the ADA needs to be considered.
2. The ADA's requirement for an interactive process doesn't apply in
decision-making about transitional work assignments. This is NOT true.
Injured workers do need to be active participants in the workers’ comp
stay-at-work and return-to-work process.
Now we need to clarify that the ADA has several other significant
implications for how employers should respond to existing employees who develop
health problems. The ADA is about civil rights for people with disabilities, not
financial benefits of one kind or another. The fundamental purpose of the ADA's
employment provisions is to help people with disabilities get and keep jobs, as
long as they are qualified to do the work and can meet productivity standards.
The cause of the disability is irrelevant. It does not matter what other types
of policies or programs are also involved -- whether workers' compensation, FMLA,
sick pay, or disability insurance programs. A disability can be newly acquired,
transitory, fluctuating, progressive, or longstanding and stable. It can be the
result of injuries, illnesses, congenital conditions, or the natural aging
process. The only relevant question is whether the disability is now or is
perceived as potentially having a significant impact on someone’s ability to
perform their job, take home their regular paycheck, and stay employed.
Here are 5 more practical implications for management of ALL types of
health-related employment situations:
1. As the Federal agency that enforces the employment provisions of
the ADA, EEOC's biggest concern in situations involving disability leaves of
any type will be that someone with a disability is being forced to take
leave even though he or she could do the essential functions of the job with
a reasonable accommodation. Everyone involved in the decision to keep
someone out of work -- doctors, third-party benefit administrators, managed
care companies, workplace supervisors and employee program managers --
should keep that fact firmly in mind, so that people with disabilities are
not needlessly forced out of the workplace.
2. Only the employer is accountable for complying with the
employment provisions of the ADA. However, treating physicians and the
employer's vendors (benefits claims administrators, managed care companies)
who fail to communicate with the employer during the stay-at-work and
return-to-work process may be exposing the employer to increased
risk/liability. When a vendor or a doctor (especially one who has been
selected by the employer) fails to notify the employer that an employee
described difficulty working or an adjustment that might allow them to work,
the employer could be held liable for failing to provide that accommodation
-- even though the information was never properly passed along. Doctors and
vendors also can help educate employees and small or unsophisticated
employers to ensure that the law is followed.
3. Some employees may express the desire to remain on leave, rather
than return to work with a reasonable accommodation. Of course, employees
with disabilities must be allowed to use accumulated sick or annual leave,
just like any other employee. And they may have a legal right to insist on
leave if, for example, they qualify for FMLA. But if an individual with a
disability has no discretionary leave, and a reasonable accommodation would
allow performance of job functions in a manner that is safe and consistent
with his or her medical needs, then the employee may be required to return
to work with the accommodation.
4. Paying people money to sit home who are well enough to do
something productive does not count as a reasonable accommodation under the
ADA, especially when they were not part of the decision-making process that
has put them out of work. The employee must be actively involved in
arranging any temporary or long-lasting adjustments to their usual jobs in
order for the employer to meet the interactive process obligation. With
respect to specific cash payments made under workers' compensation--
A. Temporary Total Disability (TTD) Benefits - There is little
difference between cash payments under workers' comp TTD and disability
benefit programs for personal health conditions except how the amounts
are calculated. Employees are usually receiving them for one of four
reasons:
1. The doctor wrote "no work" because their patient's medical
condition is so severe or unstable that it is unsafe for them to do
anything except try to get better;
2. The doctor wrote "no work" because of a perception that the
employer cannot or will not provide safe and suitably modified work
on a temporary or long-term basis;
3. The doctor released their patient to work with restrictions,
but state or federal law, or a union contract means that the
employee cannot work until fully able to do the essential functions
of their job, so the employee is put out of work temporarily.
4. The doctor released their patient to work with
restrictions, but the employer said they cannot meet those
restrictions (cannot find appropriate work to assign them within
their current work capacity) so the employee is put out of work.
In all but # 1 above, the ADA may apply. However, the employee is
often not consulted as these decisions are being made. As stated
above, giving the employee money is not a reasonable accommodation,
and the ADA requires that the employer interact with the employee in
looking for a solution that will enable the employee to stay at
work.
B. Other types of cash benefits: Temporary Partial Benefits,
Permanent Partial Benefits and Permanent Total Benefits - These cash
awards help compensate employees for economic loss as a result of their
injuries. However, as stated above, giving people money is not a
reasonable accommodation, and does not accomplish the public purpose of
the ADA.
5. Employers sometimes limit the length of transitional work assignments
(TWA) in order to avoid them turning into required permanent accommodations
or becoming subject to union job bid rules. To avoid ADA liability, a
"usual" 90 day limitation policy that provides for an individualized
assessment of the individual's situation and possible extension is more
appropriate. If there is a specific reason why extending a particular
employee's TWA or granting extra (paid or unpaid) time off to heal more
completely will allow them to keep their job, that might be a reasonable
accommodation. Some temporary adjustments are reasonable accommodations
(including, for example, temporary use of adaptive equipment or temporary
relocation of a workstation to the ground floor) and may need to be extended
unless doing so would involve significant difficulty or expense. However,
TWAs may have other aspects that can be discontinued without fear of ADA
liability, including temporary reductions in productivity requirements and
elimination of essential job functions. These measures go beyond what the
ADA requires.
Aaron Konopasky, JD, PhD
Senior Attorney Advisor
ADA/GINA Policy Division
Equal Employment Opportunity Commission
aaron.konopasky@eeoc.gov |
Jennifer Christian, MD, MPH
Chair, ACOEM Work Fitness & Disability Section
President, Webility Corporation
Jennifer.Christian@webility.md |