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New Guidance on ADA / Workers' Compensation Issues

March 01, 1996-One of the most commonly asked questions about the Americans with Disabilities Act ("ADA") relates to its relationship to state workers' compensation laws and employer's "light duty" policies. The Equal Employment Opportunity Commission ("EEOC") which enforces the ADA recently released enforcement guidelines which attempt to clarify some of the issues.

A "disabled" employee for workers' compensation purpose may not necessarily be "disabled" under the ADA. Workers' compensation laws use different standards for determining disability. Impairments caused from an occupational injury may not be severe enough to substantially limit a major life activity or may be of a temporary nature. Whether an impairment results from an occupational or non-work related injury, one of the following criteria must be met to claim an ADA disability:

    (1) a physical or mental impairment that substantially limits a major life activity;
    (2) a record of such an impairment; or
    (3) being regarded as having such an impairment.

There is specific EEOC guidance regarding "reasonable accommodation" in the context of workers' compensation. Assuming an employee meets the ADA's definition of disability, he or she may not be discharged because of an inability to work unless it would be an undue burden for the employer to provide medical leave as a reasonable accommodation. In some instances, leave may be requested even after the employer has indicated that it cannot hold the position open. The EEOC takes the position that the employer must consider whether it has a vacant, equivalent position to which the employee can be reassigned in order to continue leave. If an equivalent position is not vacant, the employer must look for a position at a lower level, but continued leave is not required if such a position is not available.

Alternatively, an employer may provide a reasonable accommodation that requires an employee to remain on the job (e.g., reallocating marginal functions or providing a temporary reassignment). However, an employer cannot satisfy its ADA obligation to provide reasonable accommodation for an employee with a disability-related occupational injury by placing him in a workers' compensation vocational rehabilitation program. As to reinstatement rights, according to the EEOC, the employee is entitled to return to his original position once he has recovered, provided it would not be an undue hardship to hold that position open.

"Light duty" positions are usually reserved for employees with occupational injuries. In some situations, however, the ADA requires an employer to consider reassigning a disabled employee who is not occupationally injured to light duty positions. According to the EEOC, if a disabled employee becomes unable to perform the essential functions of the job and there is no other accommodation available, the employee must be reassigned to a vacant reserved light duty position if (1) the employee can perform its essential functions and (2) the reassignment would not impose an undue hardship on the employer. Such a reassignment need not be permanent if light duty positions are generally provided only on a temporary basis.

Finally, the EEOC also addresses questions regarding medical exams related to occupational injuries. This usually arises most often with job applicants. An employer may not ask questions or conduct a medical exam to obtain information about prior workers' compensation claims or occupational injuries until after a conditional job offer is made (and before employment has begun), as long as all new employees in that job classification are subject to the same inquiries and exams. An employer may ask disability-related questions or require a medical exam of a current employee who is injured on the job, provided it is job-related and consistent with business necessity. This requirement is met if the injury might impair the employee's ability to perform essential job functions or raises concerns about a "direct" health threat.

Qualified applicants, and current employees on leave, with prior occupational injuries cannot be excluded from employment unless the "direct threat" standard under the ADA is met. That means there is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

Nevertheless, the EEOC enforcement guidance sets forth factors to be considered under a direct threat analysis which include:

  • the similarities and differences between the position in question and the position in which the prior injury occurred;
  • the number and frequency of prior occupational injuries;
  • the nature and severity of the prior injuries;
  • the amount and time the person has worked in the same or similar positions since the prior injury without subsequent injury; and
  • whether the risk of harm can be lowered or eliminated by a reasonable accommodation.

Statistics indicate that a majority of the lawsuits brought under the ADA are by current employees who are either injured on the job or, because of non-work related injuries or conditions, request a light duty position. Despite the EEOC's enforcement guidance, there are still many legal ADA land mines which must be avoided in the workers compensation and light duty arena. Employers must undertake a careful analysis under the ADA before making any employment decisions involving disabled employees (regardless of where the injury occurred).