ADA vs. WCC – Return to Work & the Interactive Process

What does it mean to return to work for a work related injury versus a non-industrial injury? What is reasonable accommodation? What is are the consequences for failing to accommodate adequately? At the 2017 CWC and Risk conference a panel leads a discussion on return to work and the interactive process. The panel included:

· Matthew Graulich, Global Claims Specialist, Whole Foods Market

· Megan Sullivan, Managing Partner, Michael Sullivan & Associates LLP

· Lisa Aguiar, Managing Partner, Employment Law Section, Michael Sullivan & Associates LLP

· Nicole Chappelle, Assistant Vice-President Reserve Administration, Gallagher Bassett

Outcome is the same regardless of the type of injury. Whether the injury is work replaced or non industrial injury you must follow the interactive process. Tips for return to work include require a medical status authorizing return, internally designate who receives the status, and find out if the work restrictions are temporary or permanent. Company should have the employee sign the job analysis or job description upon return.

What should you do with conflicting medical reports?

• still need to engage in interactive process(this is required under ADA)
• gap between workers’ compensation and employment law
• engage employee
• ultimately the employer has the final decision
• stay consistent with each employee
• fitness-for-duty exam is an option
• no return to work should be considered where there is a safety concern for workers or others

What is acceptable medical documentation?

Require for all medical status or certifications must include statement that worker has a disability or medical condition that requires accommodation or restriction, sufficient detail of the restrictions or accommodations required, and length of expected restriction or accommodation. 

What is a “disability?” FEHA definition of disability is:

Physical: physical condition or disorder that affects a major bodily system and that limits a major life activity

Mental: having any mental or psychological disorder or condition that limits a major life activity

“Limits” means simply that the condition makes achievement of the major life activity difficult. 

Under workers’ compensation there is no requirement that the employer must accommodate temporary modified duties however, under FEHA, the employer must determine if they have a “disability” and is this employee disabled under ADA.

Essential job functions

If the workers is disabled, must accommodate to effectively enable him or her to perform an “essential” job function.

• Proving a job function is “essential”
• failure to perform the job function has legitimate business consequences
• past performance reviews considered and evaluated the performance of this essential function
• the job exists to perform those duties
• functions cannot be easily distributed 
• job descriptions describe essential or required job functions and skills

What is reasonable accommodation?

Defining reasonable accommodation is any assistance or changes to a position or workplace that will enable an employee to perform the “essential” job functions: effective in enabling employee to perform the estriol job function and it must overcome the limitation. This emphasizes the “affirmative” nature of the employer’s duty to provide reasonable accommodation. 

Examples of reasonable accommodations include: leave of absence, modification of workspace, elimination of marginal job functions, change in schedule, including work from home, modification in how task is completed, training or coaching for supervisors, and reassignment to vacant alternative position. 

What is not a reasonable accommodation?

 Examples include: offering a temporary job, creating a new position, transforming a temporary light duty position into a permanent one and lowering the quality and quantity of work standards.