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On-The-Job Injuries – Don' t Forget About The ADA
July 14, 2009
By Francis R. Laws and Donna M. Glover
As most employers are aware, Congress significantly broadened the Americans With Disabilities Act (“ADA”) with the now famous American's with Disabilities Amendments Act (“ADAAA”). In short, the ADAAA has made it easier for an individual to establish that he or she has a disability within the meaning of the ADA, and employers will soon be grappling with the revised regulations the Equal Opportunity Employment Commission (“EEOC”) has proposed, which will conform to the changes made to the ADAAA.
In the meantime, an employer should not forget that when an employee is on leave due to an on-the-job injury, it must worry about at least three things: state laws protecting an employee from being retaliated against for taking a workers' compensation related leave, whether the employee's illness/injury qualifies for leave under the Family and Medical Leave Act (“FMLA”), and whether the employee is entitled to a reasonable accommodation under the ADA, as amended by the ADAAA.
Let's assume an employee is not eligible for FMLA because he or she does not have one year of service and has not worked 1,250 hours prior to the start of the leave. Let's also assume the employer wants to terminate the employee because it does not offer light duty. Does this employer have to consider providing a reasonable accommodation under the ADA?
The answer is “Yes.” If the on-the-job injury is a disability under the ADA an employer should always engage in the “interactive process” and provide a reasonable accommodation where such accommodation does not represent an “undue hardship” to the employer. The EEOC's enforcement guidance regarding the ADA and occupational injuries, which the agency is reviewing to ensure it complies with the ADAAA, tells employers the following: - Leave As An Accommodation: An employer may not discharge an employee who has a disability-related occupational injury where it does not impose an undue hardship to provide leave as a reasonable accommodation.
- Reinstatement Rights: An employee is entitled to return to his or her same position unless the employer can show that holding open the position is an undue hardship.
- Reasonable Accommodation: Where an employee can perform the “essential functions” of the job, the employer must consider reallocating “marginal duties” the employee cannot perform because of the disability.
- Reassignment: The EEOC's guidance states that employers cannot unilaterally reassign employees to a different position. Rather, an employer must engage in the interactive process to determine if an employee can perform the essential functions of his or her job with reasonable accommodation. The EEOC also states that an employer must reassign an individual who can no longer perform the essential functions of his or her job to an equivalent vacant position for which he or she is qualified, absent undue hardship.
What about light duty? The ADA does not require or prohibit an employer from offering light duty, but under the ADA, an employer cannot require that an employee return to “full duty” because “full duty” implies that the employee must perform all functions of the job – even marginal functions that could be reasonably accommodated under the ADA. If an employer offers light duty, it must apply that policy on a non-discriminatory basis; and, according to EEOC guidance, must consider reassigning employees with a disability within the meaning of the ADA to light duty positions as a reasonable accommodation, absent undue hardship.
Of course, EEOC guidance is not law, but courts often look to such guidance to determine how the law should be applied. Thus, with the expansion of the ADA as to what constitutes a disability, employers should tread cautiously when deciding whether to terminate an employee with an occupational injury – employers should think ADA first.
i Francis R. Laws is a shareholder at the firm of Thomas & Libowitz, P.A. and chairs the firm's Labor and Employment practice. He can be reached at (443) 927-2119 or flaws@tandllaw.com.
ii Donna M. Glover is an associate in the firm's Labor and Employment practice. She can be reached at (443) 927-2149 or dglover@tandllaw.com.
iii This article is provided for informational purposes only and should not be construed as a legal opinion or legal advice. The reader should not rely on this article in making business, legal or other decisions on any matter without first consulting an attorney regarding any such decision or undertaking.
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