At the 2016 PARMA Conference, a panel discussed the interaction between workers’ compensation and disability accommodation. Many of the facts in this presentation apply to California law on these issues. The panel was:
- Anthony Carlton from Chula Vista Elementary School District
- Marc Liebowitz from Laughlin, Falbo, Levy & Moresi LLC
- Robert Cutbirth from Tucker Ellis
In recent years, there has been a significant increase in litigation involving the interplay between workers’ compensation and leave of absence programs. Attorneys are not only filing disability accommodation claims but are also filing retaliation claims associated with workers’ compensation cases. This increase in litigation is occurring even though the frequency rates for workers’ compensation injuries has been slowly declining.
One of the big issues in managing this is that disability and workers’ compensation are often handled in different business units with risk management overseeing one and human resources the other. There are different standards for the different programs, but they do intersect in many ways. Employers are not allowed to treat non-industrial disability and restrictions different than workers’ compensation disability and restrictions. You must be consistent in how you approach absence management.
There is a significant difference in the types of information that employers can request in terms of absence management. In workers’ compensation, the discovery allowed can be very broad and include pre-existing conditions. However, on the non-occupational side, employers are only allowed to obtain information on disability for which the accommodation is sought. Employers are required to keep separate files for leave of absence and workers’ compensation and only very limited information can be shared between these two files. People at the employer who have dual responsibility over both workers’ compensation and leave of absence can access information from both areas, but they have to be very careful about who this information is shared with others at the employer (for example, supervisors).
Employers in California have an “affirmative duty” to make a reasonable accommodation for a known disability. The employer must consider actual disability, perceived disability and historic disability. The employer does not even need to witness the disability. Hearing about it from a “reliable source” triggers the obligation to accommodate. The employee does not need to ask for the accommodation to trigger the legal obligations. The employer must consider all possible accommodations except those that create an undue hardship.
Another thing to keep in mind is that the interactive process and accommodations is a fluid thing that must constantly be adjusted as the restrictions and the job changes. Also, the employee cannot mandate their accommodation (such as getting the doctor to say that he or she cannot work for a particular supervisor).
Arbitrary time limits in your disability accommodation program will usually be found to be illegal by the courts because they do not consider individual needs. Some employers like to set a maximum duration for providing modified duty work, but this is usually not allowed. It is very important to distinguish between a “temporary” accommodation and a “permanent” accommodation. Permanent accommodations must still allow the person to perform the essential functions of their job while temporary accommodations are focused on simply getting the person back into the workplace.
Pre-structured return-to-work programs are designed to allow employers to easily get injured workers back on the job when they have restrictions. These work very well on the workers’ compensation side. However, such programs may violate ADA/FEHA rules that require “individualized evaluations” on disability accommodation.
A growing area of accommodation is a request for “comfort” animals. Surprisingly, the request for a comfort animal trumps consideration for co-workers who may have fears of the animal or even allergies. You are also seeing more of these “comfort” animals on airplanes where they do not have to be in a carrier during the flight. This can be very problematic for fellow passengers.
- When in doubt, get a waiver that allows you to obtain medical information. The waiver must include the type of information, length the waiver will apply, the purpose and the right to revoke.
- Fitness for duty evaluations can be important to determine if the person can safely perform the essential duties of the job.
- Structured modified duty programs must still be flexible and match actual capabilities with actual duties.
- Keep in mind the difference between temporary and permanent accommodations.
- You must be consistent with how you treat industrial and non-industrial disability
- If you receive more information than you are legally entitled to receive, get that information out of your file, give it back to the source and tell them not to send it to you again. Make sure you disclose this to the impacted party because failure to do so can cause problems in litigation.
- Make sure you understand the different obligations under different leave programs (WC, ADA, FMLA, etc). Also make sure the employee understands which leave program you are applying to their case.
- Collective bargaining agreements may expand benefits beyond what is required by law, but they cannot limit benefits to less than the law requires.
- No means no. Maybe means no. The only thing that means yes is yes. If the employee refuses to provide the necessary information to make an accommodation, you need to document this thoroughly in their file.
- Ensure that all medical and private information are on secure, encrypted servers with sufficient pass code and security measures. You must be taking all reasonable steps to prevent a cyber data breach.