The Scenario

Certain positions are maintained in your Company as light duty positions to help keep workers’ compensation costs down. An employee who is currently working in one of these positions has been released by his physician to return to work with no restrictions, and his claim has been closed. You are preparing to return him to his regular position when he informs you that he is unable to perform certain duties in his customary work and cannot return. He confirms that statement with a note from another doctor. Since these positions are reserved for workers’ compensation cases, you refuse his request.

Was this proper?

Yes - You have met your obligation by offering to reinstate him to his original position.

No - Why not?

The Answer:

No – you have failed to consider the ADA and reasonable accommodation, and are risking a disability discrimination claim. The ADA does not require you to create a position, or provide light duty that does not exist. Obviously however, light duty does exist in this case since he has been working in a modified capacity. As our main article discusses this month, you cannot separate the ADA and workers’ compensation unless the employee’s medical condition is not a disability under the ADA definition. You should provide this employee with the Physician/Health Care Provider Form to first determine whether his injury continues to substantially limit a major life activity, and if so, begin the Interactive Process and be ready to extend his light duty status.

Source: EPLI Pro, May 2010 Newsletter

Disclaimer

What is the “Interactive Process”?

State law incorporates guidelines developed by the EEOC in defining an “interactive process” between the employer and employee. A specific, or implied, request triggers the interactive process. A “specific” request occurs once a request is made or the employer otherwise learns of a request for accommodation from a third party (spouse, friend, another employee, doctor…). Examples are:

• An employee’s wife calls telling the employer that the employee had a medical emergency due to MS, needed to be hospitalized, and therefore needs time off
• An employee is given restrictions related to workers’ compensation claim

An “implied” request is when the employer observes the employee with an obvious disability or is having difficulty performing the essential functions of their job.

What is an Employer Required to Do?

Employers must provide reasonable accommodation for those applicants and employees who, because of their disability, are unable to perform the essential functions of the job. In doing so, the employers must engage in a timely, good faith, interactive process with applicants or employees in need of reasonable  accommodation.

These guidelines include consulting with the individual to ascertain the precise job-related limitations and how they could be overcome with a reasonable accommodation. Then, identifying these potential accommodations and assessing their effectiveness.

What is “Reasonable Accommodation”?

Examples of reasonable accommodation can include:

• Making existing facilities accessible
• Job restructuring
• Part-time or modified work schedules
• Acquiring or modifying equipment
• Changing tests, training materials or policies
• Providing qualified readers or interpreters
• Reassignment to a vacant position

What is NOT required under Reasonable Accommodation?

Not all requests by an employee must be accommodated. Examples of non-reasonable requests can include:

• Removing of essential job functions
• Creating of new jobs
• Providing personal need items such as eye glasses and mobility aids
• Maintaining same pay and benefits for accommodating a change from full-time to part-time
• Tolerating violation of company conduct rules

The Six-Step Interactive Process

To recap, the Interactive Process can be broken down into 6 distinct steps:

Step 1: Analyze the job and essential job functions
Step 2: Identify job-related limitations
Step 3: Identify possible accommodations
Step 4: Assess the feasibility of accommodations
Step 5: Implement the accommodation that is the most appropriate
Step 6: Follow up regularly

Concerned? You don’t have to go at it alone.

If you are concerned about complying with all areas of the law, you are not alone. Many employers do not attempt to create, implement and manage these guidelines on their own. Rather, the engage the services of a Professional Employer Organization (PEO) to do it for them. A PEO is staffed with human resources and labor law compliance experts and are well-equipped to create and manage an ADA compliance program. If you would like more information, please contact us.

What is ADAAA??

Effective January 1, 2009, the ADA Amendment Act (ADAAA) was enacted which provides for a more expansive interpretation of what constitutes a “disability”. The new laws extended ADA coverage to millions of Americans previously outside of that law’s protection. The ADA Amendments provide a much broader definition of disability, “to the maximum extent permitted by the terms of this Act.” The Act expanded the definition of a disability in four ways:

1. That a person’s impairment must be considered without corrective measures,
   except for ordinary eye glasses and contact lenses.
2. Includes in the definition of a disability those impairments that are episodic
   or in remission, if the medical condition would fall within the definition when
   active.
3. Expands the definition of major life activities, adding “eating, sleeping,
   walking, standing, lifting, bending, reading, concentrating, thinking, and
   communicating” as well as bodily functions
4. Interpretation of “substantially limits” as being “significantly restricted” is too
   limiting and that the EEOC should adopt a broader interpretation.

The Act protects against discrimination because an individual is “regarded as” having an impairment whether or not the perceived impairment actually is included within the ADA definition of a disability.

What these changes mean to you.

The broader definition of “disability” means that more requests for accommodation for common conditions will be brought forth by employees who had not previously not been considered disabled. This can include common ailments such as:

1. Diabetes
2. Obesity
3. Bad back; minor ailments

The expansion of “regarded as” coverage will likely to lead to increased EEOC charges and lawsuits. In our next post we will discuss the six-steps of the “Interactive Process” and how a proactive approach to an employee with a disability will help reduce your chances of being sued.

Effective January 1, 2009, the ADA was amended to require a more expansive interpretation of what constitutes a “disability”. The new laws extended ADA coverage to millions of Americans previously outside of that law’s protection. The ADA Amendments provide a much broader definition of disability, “to the maximum extent permitted by the terms of this Act.” Under the Act:

• Mitigation measures such as medications, artificial limbs and hearing aids may not be considered when determining whether a person is disabled.
• Impairments that are episodic or in remission will be classified as “disabilities” if they substantially limit major life activities when they are active.
• “Major life activities” are defined to include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Also included are: the operation of major bodily functions such as normal cell growth, immune system, digestive, neurological, reproductive, and other functions.

The Act protects against discrimination because an individual is “regarded as” having an impairment whether or not the perceived impairment actually is included within the ADA definition of a disability. (Perceived impairment must last at least six months).

A result of the changes to this act may be increased litigation.  You can’t afford a lawsuit in today’s economy, so please contact a CPEhr Human Resources Representative if you have further questions regarding these amendments.