Thursday, December 11, 2014

The ADA and Work Recovery Liability

Jennifer Christian, MD, President, Webility Corporation and Chair, Work Fitness & Disability Section, American College of Occupational & Environmental Medicine, and Aaron Konopasky, JD, PhD, Senior Attorney Advisor ADA/GINA Policy Division for the Equal Employment Opportunity Commission, recently released an announcement about the broad reach of amendments to the Americans with Disabilities Act.

The bottom line - if an employer is waiting for injured workers to reach Maximum Medical Improvement before attempting an accommodation, then the employer is exposed to ADA penalties and liabilities; i.e., if an injury or illness is so bad that a person misses time from work then the veil of the ADA rises and it could be considered a disability under the ADA.

“Once you get into a place where you're talking about medical conditions that are so bad they actually prevent you from going to work in the first place, to me that says … we've already jumped the hurdle of (defining disability),” Konopasky said.

This doesn't apply to minor injuries or illnesses; a laceration that will heal in 7 days or a head cold.

“The person's not covered by the ADA if they have a laceration that's going to heal in seven days because that's essentially a trivial interruption in the person's ability to work,” Christian said. “But if on day one the person has a chronic condition they haven't revealed about themselves, that person probably is covered on day one.”
Dwight obviously would qualify.

And if there is some reasonable accommodation the employer can make to help that person get back to work, the ADA requires the employer to do it.

Flexible leave policies count as reasonable accommodations for employees with disabilities, Konopasky said. However, according to Christian, employers also need to understand that the ADA is a protection of the right to work – therefore, businesses still need to try to find a way to bring a person back to his job if possible.

There are two common myths:

1. FALSE: In workers’ compensation, the time to think about the ADA is at MMI; MMI is late among several points in the post-injury timeline when the ADA needs to be considered.

2. FALSE: The ADA's requirement for an interactive process doesn't apply in decision-making about transitional work assignments; In fact injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another, say Christian and Konopasky. 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.

Christian and Konopasky highlight 5 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.

Determining whether a person has a disability can be a time-consuming process by itself, Konopasky said. Because of that, he suggested it might be easier for employers to treat every employee missing work due to an injury as though the ADA applies to them.

“Practically speaking, you may not want to go through that because it's such a weighty exercise and so many things are disabilities now; why not just assume that it's a disability?” he said.

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