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“Addressing Safety Challenges for Disabled Workers” – “How Do You Get Through Your Day?”

Richie Parker, HMS Engineer -“How Do You Get Through Your Day?” – Video Courtesy of Hendrick Motorsports® ESPN®

Employees in today’s workplace face many challenges. Work forces have been cut, and in many cases, workdays have been extended. Older workers are unable to retire, while younger workers are unable to find work. New technology is introduced into the workplace, requiring all to relearn how to perform their jobs. This is difficult for the average worker, but it is extremely difficult if an employee is further hindered by disabilities.

Disabilities of all types affect employees and can pose various mental or physical challenges. In many situations, a disability may impact the amount of time it takes for an employee to complete a task or get from one part of a facility to another. Some disabilities may be known while others remain unknown to an employer. Thanks to the Americans with Disabilities Act (ADA), employees with disabilities can continue to work without fear of losing their jobs1.

All employees with disabilities deserve the right to support their families. If otherwise qualified for a job, a disability should not take away an individual’s opportunity to work. Existing laws protected those discriminated against for race, sex, national origin and color, but the ADA was the first law to speak for those with disabilities in the workplace.

The ADA disallows discrimination against otherwise qualified individuals in an employment setting because of mental or physical disabilities2. This means that in many situations, the employer has to adjust a work environment to allow an employee to function. In 2009, the ADA was amended to include additional information and coverage. This amendment required the Equal Employment Opportunity Commission (EEOC) to make changes to their regulations regarding the term “substantially limits” and how it is defined2. It also broadens the definition of “major life activities” to include many new activities.

Workplace Adaptations

As with any law that changes the workplace, some fight or avoid it while others fully embrace and promote it. One major compliance concern deals with accessibility. Because of this, many workplaces have adjusted or created more accessible entrances and exits to their facilities, allowing more independence for persons in wheelchairs. Other subtle changes may include the height of water fountains, width of bathroom stalls, hand rails inside the stalls and long ramps instead of stairs. The path of travel that employees take should never be obstructed; there should be no barriers to prevent someone from getting to safety in an emergency3.

Making accommodations in the workplace is important, yet one must avoid making a spectacle of employees with disabilities. One concept being utilized in workplaces is universal design, which is best defined as designing products and work spaces to allow use by everyone, regardless of disability4. This eliminates many cases of employees standing out or requiring special assistance to be able to complete their tasks. Better designed work spaces can increase function for all employees, regardless of age4. This still is a relatively new idea and few examples exist in the workplace despite multiple studies proving the effectiveness.

The goal is to remove all barriers and allow everyone to concentrate on completing job tasks.

Workstations easily can be adapted to follow this universal design. Many companies now use slide-out keyboard trays and monitors on swinging arms to allow employees to adjust to their needs. Desks can accommodate wheelchairs in place of regular chairs, and general work spaces can be lowered to allow easier access. All workplaces eventually will follow the universal design approach3. The main goal is to remove all barriers and allow everyone to concentrate more on completing their tasks.

The biggest challenge with universal design is accommodating the multitude of challenges that different disabilities present. Not all disabilities are the same, and not all will present the same challenges for employees. Some employees may have issues with their right hand while others have issues with their left. For some, it may involve not being able to stand or sit. Some may need low lighting, while others need bright lighting. Designing a facility to accommodate all is always going to be a challenge.

Some disabilities require a service animal to be able to get around or reach materials. ADA protects those that need such animals. This can create another complication for an employer if other employees are allergic to such animals. The employer must work with all parties involved to find a solution.

Companies using older facilities often have the most trouble complying with guidelines of the ADA. Designing a building from the ground up is much easier than attempting to retrofit existing facilities. Some of the complications with retrofitting facilities include adding adequate doorways. Depending on the design of the structure, adding doorways can be complicated and require an extensive amount of remodeling. Other complications include retrofitting areas with stairs and restrooms with stalls that are too narrow. Moving plumbing may require the existing floor to be torn out and require a lot of time.

Read the remainder of the story here: http://ehstoday.com/safety/addressing-safety-challenges-disabled-workers

Source: EHS Today®

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Addressing Safety Challenges for Disabled Workers – “How Do You Get Through Your Day?”

Richie Parker, HMS Engineer -“How Do You Get Through Your Day?” – Video Courtesy of Hendrick Motorsports® ESPN®

Employees in today’s workplace face many challenges. Work forces have been cut, and in many cases, workdays have been extended. Older workers are unable to retire, while younger workers are unable to find work. New technology is introduced into the workplace, requiring all to relearn how to perform their jobs. This is difficult for the average worker, but it is extremely difficult if an employee is further hindered by disabilities.

Disabilities of all types affect employees and can pose various mental or physical challenges. In many situations, a disability may impact the amount of time it takes for an employee to complete a task or get from one part of a facility to another. Some disabilities may be known while others remain unknown to an employer. Thanks to the Americans with Disabilities Act (ADA), employees with disabilities can continue to work without fear of losing their jobs1.

All employees with disabilities deserve the right to support their families. If otherwise qualified for a job, a disability should not take away an individual’s opportunity to work. Existing laws protected those discriminated against for race, sex, national origin and color, but the ADA was the first law to speak for those with disabilities in the workplace.

The ADA disallows discrimination against otherwise qualified individuals in an employment setting because of mental or physical disabilities2. This means that in many situations, the employer has to adjust a work environment to allow an employee to function. In 2009, the ADA was amended to include additional information and coverage. This amendment required the Equal Employment Opportunity Commission (EEOC) to make changes to their regulations regarding the term “substantially limits” and how it is defined2. It also broadens the definition of “major life activities” to include many new activities.

Workplace Adaptations

As with any law that changes the workplace, some fight or avoid it while others fully embrace and promote it. One major compliance concern deals with accessibility. Because of this, many workplaces have adjusted or created more accessible entrances and exits to their facilities, allowing more independence for persons in wheelchairs. Other subtle changes may include the height of water fountains, width of bathroom stalls, hand rails inside the stalls and long ramps instead of stairs. The path of travel that employees take should never be obstructed; there should be no barriers to prevent someone from getting to safety in an emergency3.

Making accommodations in the workplace is important, yet one must avoid making a spectacle of employees with disabilities. One concept being utilized in workplaces is universal design, which is best defined as designing products and work spaces to allow use by everyone, regardless of disability4. This eliminates many cases of employees standing out or requiring special assistance to be able to complete their tasks. Better designed work spaces can increase function for all employees, regardless of age4. This still is a relatively new idea and few examples exist in the workplace despite multiple studies proving the effectiveness.

The goal is to remove all barriers and allow everyone to concentrate on completing job tasks.

Workstations easily can be adapted to follow this universal design. Many companies now use slide-out keyboard trays and monitors on swinging arms to allow employees to adjust to their needs. Desks can accommodate wheelchairs in place of regular chairs, and general work spaces can be lowered to allow easier access. All workplaces eventually will follow the universal design approach3. The main goal is to remove all barriers and allow everyone to concentrate more on completing their tasks.

The biggest challenge with universal design is accommodating the multitude of challenges that different disabilities present. Not all disabilities are the same, and not all will present the same challenges for employees. Some employees may have issues with their right hand while others have issues with their left. For some, it may involve not being able to stand or sit. Some may need low lighting, while others need bright lighting. Designing a facility to accommodate all is always going to be a challenge.

Some disabilities require a service animal to be able to get around or reach materials. ADA protects those that need such animals. This can create another complication for an employer if other employees are allergic to such animals. The employer must work with all parties involved to find a solution.

Companies using older facilities often have the most trouble complying with guidelines of the ADA. Designing a building from the ground up is much easier than attempting to retrofit existing facilities. Some of the complications with retrofitting facilities include adding adequate doorways. Depending on the design of the structure, adding doorways can be complicated and require an extensive amount of remodeling. Other complications include retrofitting areas with stairs and restrooms with stalls that are too narrow. Moving plumbing may require the existing floor to be torn out and require a lot of time.

Read the remainder of the story here: http://ehstoday.com/safety/addressing-safety-challenges-disabled-workers

Source: EHS Today®

Addressing Safety Challenges for Disabled Workers – “How Do You Get Through Your Day?”

Richie Parker, HMS Engineer -“How Do You Get Through Your Day?” – Video Courtesy of Hendrick Motorsports® ESPN®

Employees in today’s workplace face many challenges. Work forces have been cut, and in many cases, workdays have been extended. Older workers are unable to retire, while younger workers are unable to find work. New technology is introduced into the workplace, requiring all to relearn how to perform their jobs. This is difficult for the average worker, but it is extremely difficult if an employee is further hindered by disabilities.

Disabilities of all types affect employees and can pose various mental or physical challenges. In many situations, a disability may impact the amount of time it takes for an employee to complete a task or get from one part of a facility to another. Some disabilities may be known while others remain unknown to an employer. Thanks to the Americans with Disabilities Act (ADA), employees with disabilities can continue to work without fear of losing their jobs1.

All employees with disabilities deserve the right to support their families. If otherwise qualified for a job, a disability should not take away an individual’s opportunity to work. Existing laws protected those discriminated against for race, sex, national origin and color, but the ADA was the first law to speak for those with disabilities in the workplace.

The ADA disallows discrimination against otherwise qualified individuals in an employment setting because of mental or physical disabilities2. This means that in many situations, the employer has to adjust a work environment to allow an employee to function. In 2009, the ADA was amended to include additional information and coverage. This amendment required the Equal Employment Opportunity Commission (EEOC) to make changes to their regulations regarding the term “substantially limits” and how it is defined2. It also broadens the definition of “major life activities” to include many new activities.

Workplace Adaptations

As with any law that changes the workplace, some fight or avoid it while others fully embrace and promote it. One major compliance concern deals with accessibility. Because of this, many workplaces have adjusted or created more accessible entrances and exits to their facilities, allowing more independence for persons in wheelchairs. Other subtle changes may include the height of water fountains, width of bathroom stalls, hand rails inside the stalls and long ramps instead of stairs. The path of travel that employees take should never be obstructed; there should be no barriers to prevent someone from getting to safety in an emergency3.

Making accommodations in the workplace is important, yet one must avoid making a spectacle of employees with disabilities. One concept being utilized in workplaces is universal design, which is best defined as designing products and work spaces to allow use by everyone, regardless of disability4. This eliminates many cases of employees standing out or requiring special assistance to be able to complete their tasks. Better designed work spaces can increase function for all employees, regardless of age4. This still is a relatively new idea and few examples exist in the workplace despite multiple studies proving the effectiveness.

The goal is to remove all barriers and allow everyone to concentrate on completing job tasks.

Workstations easily can be adapted to follow this universal design. Many companies now use slide-out keyboard trays and monitors on swinging arms to allow employees to adjust to their needs. Desks can accommodate wheelchairs in place of regular chairs, and general work spaces can be lowered to allow easier access. All workplaces eventually will follow the universal design approach3. The main goal is to remove all barriers and allow everyone to concentrate more on completing their tasks.

The biggest challenge with universal design is accommodating the multitude of challenges that different disabilities present. Not all disabilities are the same, and not all will present the same challenges for employees. Some employees may have issues with their right hand while others have issues with their left. For some, it may involve not being able to stand or sit. Some may need low lighting, while others need bright lighting. Designing a facility to accommodate all is always going to be a challenge.

Some disabilities require a service animal to be able to get around or reach materials. ADA protects those that need such animals. This can create another complication for an employer if other employees are allergic to such animals. The employer must work with all parties involved to find a solution.

Companies using older facilities often have the most trouble complying with guidelines of the ADA. Designing a building from the ground up is much easier than attempting to retrofit existing facilities. Some of the complications with retrofitting facilities include adding adequate doorways. Depending on the design of the structure, adding doorways can be complicated and require an extensive amount of remodeling. Other complications include retrofitting areas with stairs and restrooms with stalls that are too narrow. Moving plumbing may require the existing floor to be torn out and require a lot of time.

Read the remainder of the story here: http://ehstoday.com/safety/addressing-safety-challenges-disabled-workers

Source: EHS Today®

EEOC Publishes ADAAA Final Regulations – Effective May 24, 2011

New regulations broaden the definition of a disability

Posted March 25, 2011

The EEOC’s final regulations implementing the ADA Amendments Act (ADAAA) were published in the March 25, 2011 Federal Register. They become effective May 24, 2011. The major focus of the regulations is the definition of a disability.

The Act and the new regulations will make it easier for individuals to claim protection under the law, as the definition of a disability is broadened and easier to meet. This will result in the need for employers to provide more accommodations, and will require employers to shift their focus from whether an individual has a disability to whether discrimination occurred.

What’s changed

The law retained the basic definition of disability:

  1. Impairments that substantially limit one or more major life activities,
  2. A record of such an impairment, or
  3. Being regarded as having such an impairment.

The regulations (Appendix), however, provide an updated interpretation, attempting to reflect Congressional and EEOC goals. An individual has a disability if he or she:

  1. Has a physical or mental impairment that substantially limits one or more of that person’s major life activities (the “actual disability” prong);
  2. Has a record of such an impairment (the “record of” prong); or
  3. Is regarded by the covered entity as an individual with a disability; the individual has been subjected to a prohibited action because of an actual or perceived impairment that is not both transitory and minor (the “regarded as” prong).

Under the first two prongs, an individual must have or have had a disability. Under the third prong, an individual need not have a disability; the impairment need not substantially limit or be perceived to substantially limit, a major life activity.

Some of the other major changes the law and the regulations made include the following:

  • Expansion of the list of major life activities to include major bodily functions. These lists are not exhaustive.
  • The use of mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in assessing whether an individual has a disability.
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • The definition of “regarded as” does not require a showing that an employer perceived the individual to be substantially limited in a major life activity.
  • Employment actions based on an impairment include actions based on symptoms of, or mitigating measures used for, an impairment.
  • Individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.
  • Qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision are not to be used unless shown to be job-related and consistent with business necessity.
  • An individualized assessment as to whether an impairment is substantially limiting needs to be performed.

The effect of the changes

As a result of these changes, employers should shift their focus from whether an employee has a disability to the following:

  • Whether discrimination occurred because of a disability,
  • Whether an individual was qualified for a job, and
  • Whether a reasonable accommodation was called for.

With the inclusion of major bodily functions in major life activities, as well as the body systems in the definition of impairments, it should be easier for employers to determine that an individual has a disability, and many more should.

When looking at whether or not an impairment substantially limits a major life activity, employers will need to analyze the situation using nine principles:

  1. Apply the term (“substantially limits”) broadly. Do not spend much effort on it.
  2. Significant or severe restriction is not required. However, not every impairment is substantially limiting.
  3. Substantial limitation should not be the primary object of attention. You don’t need to perform extensive analysis.
  4. Perform an individualized assessment.
  5. You shouldn’t need to use scientific, medical, or statistical analysis to determine whether someone can perform a major life activity compared to most people in the general population.
  6. Don’t consider mitigating measures. It doesn’t matter if an individual chooses to forgo mitigating measures.
  7. It doesn’t matter if the impairment is episodic or in remission.
  8. Individuals do not need to be substantially limited in more than one major life activity.
  9. Effects of an impairment lasting fewer than six months can be substantially limiting. Impairments that last only a short period of time may be covered if sufficiently severe.

Although the EEOC claims there is no “per se” disability, the regulations indicate that an individual assessment of “some kinds of impairments will virtually always result in a determination of disability,” and retain the same examples (deafness, blindness, intellectual disabilities, missing limbs, the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia).

Employers will probably need to provide more reasonable accommodations. However, the reasonable accommodation process should be simpler. For example, to the extent employers may have spent time reviewing medical records to determine whether a particular individual’s diabetes or epilepsy satisfied the legal definition of a substantially limiting impairment, there may be a cost savings in terms of reduced time spent by front-line supervisors, managers, HR staff, and even employees who request reasonable accommodations.

The third prong of the definition of a disability (“regarded as”) warrants some attention. Coverage under this prong should not be difficult for individuals to establish. Employers need not have considered whether a major life activity was substantially limited, and an individual need not demonstrate that he or she is substantially limited in a major life activity. This should be the primary means of establishing coverage in cases that do not involve reasonable accommodation, and consideration of coverage under the first and second prongs will generally not be necessary except in situations where an individual needs a reasonable accommodation. Where an impairment is both transitory and minor, it is exempted from coverage under this prong, however.

Conclusion

According to the preamble of the regulations, there are 38.4 million people in the workforce whose coverage is clarified under the new law and regulations. These are applicants or employees who will now be protected because of the changes. This may result in an increase of millions of requests for accommodations.

In light of the new law and its implementing regulations, the number of EEOC charges and lawsuits filed is expected to increase. In part, because more individuals with disabilities might file charges with the EEOC, and because plaintiff’s lawyers, who previously might not have filed an ADA lawsuit because they believed that an employee would not be covered, will now be more inclined to file lawsuits in cases where they believe that discrimination on the basis of disability — now broadly defined — has occurred.

Sears settles lawsuit with disabled former worker for $6.2M

Sears Holdings Corp. has agreed to pay a record $6.2 million to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission that accused the retailer of illegally firing a disabled worker.

The consent decree, approved today, represents the largest settlement ever for the agency in a single lawsuit alleging violation of the Americans With Disabilities Act, the EEOC said.

The lawsuit, filed in 2004, arose from a charge of discrimination filed with the EEOC by former Sears service technician John Bava, who repaired appliances. Bava was injured on the job at the former Sears, Roebuck and Co. and took workers compensation leave, the agency said. He remained disabled due to the injuries, but repeatedly attempted to return to work. But Sears “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,” said EEOC Chicago District Director John Rowe in a released statement.

According to the agency, documents released as a part of pre-trial discovery revealed that hundreds of other employees who had taken workers’ compensation leave were also terminated by Sears without the company seriously considering reasonable accommodations to return them to work while they were on leave or seriously considering whether a brief extension of their leave would make their return possible.

“Inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law,” John Hendrickson, regional attorney of the EEOC Chicago District Office, said in a statement. “Today’s consent decree is a bright line marker of that reality.”

Sears agreed to the settlement to avoid the time and expense of what would have been a lengthy legal process, said company spokeswoman Kimberly Freely. “Sears anticipated this matter to continue for up to an additional five years and both parties agreed that it was in their mutual interests to resolve the matter through the $6.2 million settlement.”

Fifty-eight-year-old Bava, who hurt his back, knees and wrist when he fell down a flight of stairs at a customer’s home, welcomed the agreement.

“I think it’s phenomenal,” he said. “It’s great. My whole thing of doing this was for other people out there that this has been done to for them to come out and stand up.”

Bava said he found out he was terminated after his wife’s discount card was rejected. He received no prior notice that he had been fired, he said, adding, he hopes the settlement sends the message to employers that they should “treat your employees fairly and try to accommodate them if they’re injured.”

Freely said despite the settlement, Sears “continues to believe that it reasonably accommodates its associates on leave due to work-related illnesses or injuries under the ADA.”

Under the three-year consent decree, approved by federal District Judge Wayne Andersen, Sears is required to abide by the ADA. Sears also is required to amend its workers compensation leave policy, provide written reports to the EEOC detailing its workers compensation practices and train employees regarding the ADA.

Sears has created a centralized leave management team to administer the terms of the consent decree and assist managers and associates “with leave-end issues,” the retailer said.

Courtesy of the Chicago Sun-Times ®

6.2 Million Reasons to Implement a Proactive Workers Compensation Return to Work Program

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.

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 there 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.

The court case can be found at: http://www.eeoc.gov/press/9-29-09.html

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