At the 2018 Business Insurance / CLM Workers’ Compensation Conference a panel discussed the intersection of workers’ compensation and ADA. The panel included:
- Rajiv Dash, MD – Medical Director, Albertson’s Corporation
- Negar Matian – Attorney, Matian Law Group
- Carolyn Horton – Integrated Leave and Accommodation Manager, Costco Wholesale
- Erin Foley – Partner, Seyfarth Shaw
It is important for people handling workers’ compensation claims to understand how those claims can impact the employer on the ADA side. Many employers have different people responsible for workers’ compensation and Human Resources so they will not consider how these two issues can interact. Often times the ADA claim will not come up until the workers’ compensation claim is settled and the injured worker looks to return to work. There is more than Federal ADA to be concerned about as many states and even municipalities have their own leave of absence laws. ADA laws are designed to protect the job of workers that have been impacted by any type of disability, whether work related or not.
One of the keys to an ADA situation is understanding the essential functions of a job. Employers need to have detailed job descriptions that specifically outline physical and other requirements of the job. ADA requires an employer to make a “reasonable accommodation” of disabled workers’ so that they can return to work. If things are not detailed in the job description as an essential function, it is difficult to deny an ADA accommodation that is requested outside those essential functions. One example of this is physically being in the workplace. There has been lots of litigation over whether physically being in the workplace is an “essential function of the job” and often the worker requesting the accommodation of working from home has been allowed.
The key element of ADA compliance is the interactive process. This requires the employer and employee to work together to determine what the physical restriction is, whether they are temporary or permanent, and whether a reasonable accommodation will allow them to perform the “essential functions” of the job. The interactive process must be “interactive” as there must be communication between the employer and employee. Courts lean to expecting the employer to make an accommodation unless the employer can absolutely demonstrate that there is no “reasonable accommodation” available to meet the request and doing so would create an undue burden on the employer.
The interactive process should be ongoing. You need to touch base regularly with the employee to make sure the accommodation is working as expected. Also, if the accommodation is temporary you need to make sure to follow up with the employee to know when the restrictions have changed.
Common questions about the ADA process:
Is the process the same whether the disability is industrial or not? Yes, there is no distinction.
What if the employee does not provide a doctor’s note to verify the disability or work restrictions? There is no requirement of a doctors note for an ADA accommodation.