By Margaret Spence,President and CEO, Douglas Claims & Risk Consultants, Inc.
Employers are so focused on managing workers compensation injuries that they often forget that the injury itself is the gateway to employment litigation. Until now, employers have systematically overlooked and downplayed the link between the Americans with Disabilities Act (ADA) and workers compensation. As employers were asleep at the switch, the US Equal Employment Opportunity Commission (EEOC) was working diligently to remind us that the ADA is the 6.2 million dollar elephant in the workers compensation room.
On September 29, 2009, The U.S. Equal Employment Opportunity Commission (EEOC) announced a record-setting consent decree resolving a class lawsuit against Sears, Roebuck and Co. (Sears) under the Americans with Disabilities Act (ADA) for $6.2 million. The consent decree, approved by Federal District Judge Wayne Andersen, represents the largest ADA settlement in a single lawsuit in EEOC history. The EEOC's suit alleged that Sears maintained an inflexible workers' compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. Read complete – Settlement at http://www.eeoc.gov/press/9-29-09.html.
This case not only highlights the link between workers compensation and the ADA but it magnifies the fact that twenty years after the ADA was enacted employers are still struggling to understand the process. Even large employers have a hard time balancing and defining the ADA exposure as they manage the work related disability. The EEOC Chicago District Director John Rowe, who supervised the agency's administrative investigation preceding the lawsuit, said that the case arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava. According to Rowe, Bava was injured on the job, took workers' compensation leave, and, although remaining disabled by the injuries, repeatedly attempted to return to work. Sears, Rowe said, "Could never see its way clear to provide Bava with a reasonable accommodation which would have put him back to work and, instead, fired him when his leave expired."
The underlying issue that this case raises is the importance of having a proactive return to work program that not only satisfies the workers compensation exposure but addresses the looming ADA accommodation requirements. It's quite simple when employees are injured on the job employers must have a predefined plan, in place, that addresses return to work options as well as ADA accommodations. We can no longer discard injured employees from the workforce, we have to make a valiant effort to get injured employees back to work and keep them there successfully.
If it's so simple, why do employers struggle to create proactive return to work opportunities? And why do they fail to understand how the ADA exposure is created?
Let's walk though a typical case that illustrates how intertwined and complicated the ADA exposure is, especially when you are balancing State workers compensation and Federal Leave guidelines.
Ouch, I'm Injured – The ADA Exposure Begins - Now!
David is a warehouse clerk, with a large multi-state employer; his job requires lifting up to 75 pounds. David lifts a box and injures his back - a workers compensation claim is filed and David is referred to an orthopedic surgeon, who eventually recommends surgery. David has back surgery and is left with significant lifting restrictions that not only affects his major life activities, but may prevent him from doing his pre-injury job without some accommodation. Several weeks after surgery and rehabilitation David's orthopedic surgeon releases him to return to work light duty with restrictions of no lifting over 15 pounds.
David contacts his employer to return to work and he is told that they can not accommodate his light duty restrictions. His employer request that he stay at home, continue to collect workers compensation and contact them when he is feeling better – a typical conversation that occurs when employers do not have effective return to work policies or procedures – strike one in the ADA compliance process.
David continues to contact his employer because he wants to return to work, he is told repeatedly that there is no job available to accommodate his restrictions – strike two in the ADA compliance process.
Eventually, David is released to return to work full duty with permanent restrictions of no lifting over 20 pounds. David contacts his employer to return to work and he is told that they do not have a job available within his permanent restriction. David advises his employer that he can do his regular job if, he can use a Forklift to lift any items over his lifting restriction. The employer says no – they are afraid David will have another injury because his pre-injury job requires lifting up to 75 pounds – strike three in the ADA process – the employer is now out of compliance.
To further complicate matters, while the workers compensation process was under way, David's employer puts him on Family Medical Leave (FMLA) which provides David with 12 weeks of job protection. The company's leave policy mandates termination at the end of the 12 weeks of FMLA protection. Based on their leave policy, David is slated for termination because his FMLA protection has expired. The employer promptly contacts their insurance carrier attempting to settle David's workers compensation claim – there's no need to discuss return to work because David will be offered a monetary settlement –at this point the EEOC is knocking on the employers' door.
In this example, the employer does not evaluate reasonable accommodations that could help David return to work light duty, they did not have the interactive conversation with David to evaluate the type of the accommodations he is requesting, which is required under the ADA. David, a long term employee, feels that there are other ways to accommodate his restrictions but his employer is not willing to work with him so he hires an attorney and the ADA Elephant is now in the room.
Most employers do not understand the difference between workers compensation disability and qualifying for ADA protection. The key difference between workers compensation and ADA is: workers compensation was designed to provide injured employees with medical and financial assistance following a work related accident. The ADA was enacted by Congress to protect individuals from discrimination associated with their disability and to provide reasonable work accommodation, if the employee qualifies for this protection. The exposure is created when employers do not have proactive return to work policies, when they deny reasonable accommodation and when they are more interested in terminating injured employees who have work related disabilities than brining them back to work.
David's employer incorrectly assumes that because he did not qualify for permanent disability under workers compensation he does not qualify for Americans with Disabilities Act protection or accommodation. The confusion, under the workers compensation system, David has a permanent impairment, he is not considered permanently disabled – this technicality does not mean that he does not meet the definition of disabled under the ADA. In the eyes of David's employer, his work status is a workers compensation issue. Wrong – this is where the wheels come off the ADA accommodation car and the employer is sailing toward a costly reality check.
In our example, the ADA exposure started when David's employer was notified that he had restrictions that would limit his ability to perform his regular job. The key reminder for employers, the ADA exposure can start with the injury itself because the injury can meet the definition of disabled under the ADA – example: an amputated arm.
Another key point, the workers compensation system, mandates that treating physicians address the employees ability to return to work and we further ask the doctor to address the employee ability to do their regular job, we then ask the physician to address permanent restriction and we get these notices routinely - yet we don't have a plan to evaluate accommodations that will result in injured employee retention and successful reintegration into the workforce. I am constantly amazed by the disconnect that occurs when employers are clueless about the information sitting in their files.
In essence, workers compensation is the gateway to ADA accommodation. Employers incorrectly assume that the workers compensation system will protect them from ADA litigation – surprise, surprise, it will not! In fact, the workers compensation system does little to explain the exposure and they will not provide employers with a defense for inadequate ADA policies – the two systems are independent and co-dependent on each other.
During fiscal year 2008, disability discrimination charges rose to 19,453 - an increase of 10 percent from the prior fiscal year and the highest number of disability charges filed with the EEOC in 14 years. One factor that may be contributing to this rise, the economy. As the economy forced employers to make adverse employment decisions, many did not equate terminating injured employees with ADA litigation.
We know the wrong way – so what is the right way to handle the ADA Exposure?
The solution is simple injured employees can return to work if employers make a valiant effort to bring them back to work. Your injury management program should be cohesively blended into your regular employment practices. When evaluating job accommodations, employers must focus on ability, not disability – what can the employee do and how can we keep them working?
Remember, the workers compensation system is built to provide notification of injured employees medical and work status after each doctor's visit. These notifications address the employee's ability to return to work with or without restrictions. If the employee has restrictions, the restriction may eventually affect the employee ability to perform the essential functions of their pre-injury job – creating the ADA exposure. You have to have a plan before this happens. You must evaluate each injury independently and determine if the injured employees qualification for ADA protections. Then you must review the pre-injury job description, evaluate the essential functions or duties required to do the job and you must complete the interactive process with the injured worker to determine how you can accommodate them in the workforce. Is their request for accommodation reasonable and can we provide it? Without these key ingredients more employers will find themselves on the EEOC radar.
If you are still struggling with this process – there is fantastic information available at the Job Accommodation Network's website - http://www.jan.wvu.edu/.
It's unfortunate for Sears that they had to be the one to turn the return to work light bulb on for other employers. Employers now have 6.2 million reasons to evaluate their workers compensation return to work polices and simultaneously evaluate how they comply with the Americans with Disabilities Act.