Workers’ Participation Necessary for ADA Compliance
Want to avoid problems with the Americans with Disabilities Act? Get the injured worker involved from the get go in new injuries. That’s the advice of two experts.
Employers who turn a blind eye to the reasonable accommodation process early in the claims process may be acting illegally. Workers’ comp practitioners need to understand the nuances of the ADA in order to be in compliance.
“We in the workers’ comp industry have tended to do stay-at-work/return-to-work without the participation of the worker,” said Dr. Jennifer Christian, president of Webility Corporation and a veteran workers’ comp/disability expert. “The big difference I heard when talking to Aaron is that the worker needs to be involved in the discussion — at every step.”
“Aaron” is Aaron Konopasky, senior attorney advisor in the Equal Employment Opportunity Commission’s ADA/GINA Policy Division. As the chair of the work fitness and disability section of the American College of Occupational & Environmental Medicine, Christian is a member of a national return-to-work advisory group for the Department of Labor’s Office of Disability Employment Policy. Part of her role is developing a policy paper on promoting function and work as a health outcome for which stakeholders can be held accountable.
Christian said she was surprised to learn the ADA applies anytime a medical condition can potentially disrupt an employee’s participation in work. “There are people who come in with a disability, and those who acquire a disability while working for you,” she explained. “The ADA applies to any kind of health condition that will have a substantial impact on somebody’s ability to come to work and do their job.”
The need for active engagement by the injured worker is drawn from language in the ADA. Largely misunderstood by many employers, it is called the interactive process.
The ADA is a civil rights act that was signed into law on July 26, 1990, and amended effective Jan. 1, 2009. The law includes a requirement that employers reasonably accommodate their employees’ disabilities, ideally with input from the employee.
“The law says that an appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability,” Christian said.
Once the employer has received the leave accommodation request from the employee with a disability, “the employer must engage in the ADA interactive accommodation process with the employee to determine whether there is a reasonable workplace accommodation that will enable the employee to perform the essential functions of his or her position,” according to a white paper on the ADA published by The Reed Group. “The process includes discussion and exchange of information between the employee and the employer, and sometimes with medical professionals or others.”
While the ADA does not specifically define the interactive process, the EEOC says it shows employers are making a good-faith effort to comply with the ADA, according to the Job Accommodation Network. “And from a practical standpoint, it is a way to streamline the accommodation process and help insure that effective accommodations are provided.”
According to Christian, the provision means “that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process.”
Language about the interactive process is included in the appendix to the administrative rules to the ADA with several problem-solving steps employers should use. The law says reasonable accommodations should be determined by an interactive process, which can include:
- Analyzing the particular job involved, its purpose, and essential functions.
- Consulting with the individual to ascertain the precise job-related limitations imposed by the disability and how they could be overcome with a reasonable accommodation.
- Working with the injured person, identifying potential accommodations, and assessing the effectiveness of each.
- Considering the employee’s preference and selecting and implementing the accommodation that is most appropriate for both the employee and the employer.
Advice for Employers
ADA-related issues can occur at many different points during an employee’s recovery from an injury. Employers need to evaluate and manage workers’ comp and ADA legal issues simultaneously. Christian and Konopasky collaborated to write some concise guidance for employers on why, when, and how to do that.
“You have to think of the ADA and workers’ comp — or short-term-disability — running concurrently, not sequentially,” Christian said. “That’s the administrative compliance angle.”
As she and Konopasky explained, obligations for reasonable accommodation start when the employer realizes a worker’s medical problem is impacting the employee’s ability to work. “If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA,” they wrote.
The three identified specific times when the ADA may apply:
- At the time a person is injured. “No matter whether the condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense.”
- While recovering out of work due to injury. If the worker has been unable to work at all for a period, the interactive process should begin as soon as the worker’s condition is stable enough that a reasonable accommodation might allow the worker to perform the essential functions of the job.
- When the individual has exhausted his leave and workers’ compensation benefits and is still unable to return to the original position even with an on-the-job reasonable accommodation. At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation.