- May 7, 2018
- Posted by: admin
- Category: Workers Compensation
The Americans with Disability Act may prevent me from being fired for filing a Maryland Workers Compensation claim.
If your employer has at least 15 employees or you are employed by a government employer you may have additional protection under federal law under the Americans with Disability act.
The Americans with Disability Act is designed to help people with disabilities access the same employment opportunities and benefits available to people without disabilities and is regulated and enforced by the U.S. Equal Employment Opportunity Commission.
Disability discrimination occurs when an employer covered by the Americans with Disabilities Act, or the Rehabilitation Act,
- Covered employer
- treats a qualified applicant or employee
- The legal definition of a qualified individual is, “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires
- less favorably because she has a history of a disability or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less)
- because she has a disability.
- Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
- A person can show that he or she has a disability in one of three ways:
- A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
- A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
- A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
A covered employer is required
- to provide reasonable accommodation to an employee or job applicant with a disability,
- A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
- Some common reasonable accommodation requests?
- Adjusting or modifying tests and training materials – such as providing materials in alternate formats (e.g., Braille or large print or reading instructions out loud to a person with a vision or cognitive impairment).
- Allowing the use of a job coach – permitting a job coach paid by a public or private social service agency to accompany an employee at a job site in order to assist the employee in learning and accurately carrying out job duties.
- Modifying or acquiring equipment or devices – such as raising the height of a desk to accommodate an employee who uses a wheelchair, purchasing amplified stethoscopes for use by nurses and physicians with hearing impairments, or providing assistive technology, such as computer screen readers, for employees with vision impairments.
- Modifying policies or workplace rules – such as allowing an employee with diabetes to eat at her desk or allowing a retail store cashier with a back impairment to use a stool
- Modifying work schedules – such as adjusting arrival or departure times, providing periodic breaks, or altering the times when certain job tasks are performed.
- Providing qualified readers or interpreters – such as a reader to read written materials to an employee with a vision impairment or a sign language interpreter for a person who is deaf.
- Job restructuring – making changes to when and/or how a task is performed or shifting responsibility to other employees for minor tasks that an employee is unable to perform because of a disability.
- Leave – allowing an employee to use accrued paid leave and providing additional unpaid leave once an employee has exhausted all available leave, for disability related reasons such as receiving or recovering from treatment or when a condition “flares up.”
- Reassignment to a vacant position – moving a current employee to an existing vacant position for which he or she is qualified when the employee can no longer perform his or her current job because of a disability.
- Telework – allowing an employee to work from home or a remote location.
- A reasonable accommodation is, generally, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”
- Reasonable accommodation can include making modifications to existing leave policies and providing leave when needed for a disability, even where an employer does not offer leave to other employees. As with any other accommodation, the goal of providing leave as an accommodation is to afford employees with disabilities equal employment opportunities. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship. An employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave for her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. However, there may be legitimate reasons that establish undue hardship, such as the impact on an employer’s operations from the leave already taken and/or from granting additional leave. Also, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipates, as long as those accommodations would be consistent with the employee’s medical needs.
- A policy might permit employees to have no more than five unplanned absences during a 12-month period, after which they will be subject to progressive discipline or termination. Employee’s with disabilities are not exempt from these policies as a general rule. However, such policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.
- Many employers, especially larger ones and those with generous maximum leave policies, may rely on “form letters” to communicate with employees who are nearing the end of leave provided under an employer’s leave program. These letters frequently instruct an employee to return to work by a certain date or face termination or other discipline. Employers who use such form letters may wish to modify them to let employees know that if an employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible so that the employer may consider whether it can grant an extension without causing undue hardship.
- Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work.
- In some situations, the requested reasonable accommodation will be reassignment to a new job because the disability prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship. The Commission takes the position that if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions. Reassignment does not include promotion, and generally an employer does not have to place someone in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly-applied seniority system.
- A medical assistant in a hospital required leave as a reasonable accommodation for her disability. Her doctor clears her to return to work but requires that she permanently use a cane when standing and walking. The employee realizes that she cannot perform significant parts of her job while using a cane and requests a reassignment to a vacant position for which she is qualified. The hospital violates the ADA if it fires the employee rather than reassigning her to a vacant position for which she is qualified and in which she could perform the essential functions while using a cane.
- Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.
- Often in workers’ compensation cases, the issue of whether an injured employee can return to work is decided by the claims adjuster in consultation with the work supervisor, in accordance with any work restrictions noted by the treating physician. Under the ADA, however, a more flexible approach that involves a more open dialogue between the injured employee and the employer, one in which “the employer and employee . . . work together to problem solve to see whether there is a way that the person can come back to work and do the normal duties with a reasonable accommodation if one is necessary.”
- unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
- Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business.
- Determination of whether providing leave would result in undue hardship may involve consideration of the following:
- the amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
- the frequency of the leave (for example, three days per week, three days per month, every Thursday);
- whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week);
- whether the need for intermittent leave on specific dates is predictable or unpredictable);
- the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
- the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.
- In many instances an employee (or the employee’s doctor) can provide a definitive date on which the employee can return to work (for example, October 1). In some instances, only an approximate date (for example, “sometime during the end of September” or “around October 1”) or range of dates (for example, between September 1 and September 30) can be provided. Sometimes, a projected return date or even a range of return dates may need to be modified in light of changed circumstances, such as where an employee’s recovery from surgery takes longer than expected. None of these situations will necessarily result in undue hardship, but instead must be evaluated on a case-by-case basis. However, indefinite leave — meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.
- In assessing undue hardship on an initial request for leave as a reasonable accommodation or a request for leave beyond that which was originally granted, the employer may take into account leave already taken — whether pursuant to a workers’ compensation program, the FMLA (or similar state or local leave law), an employer’s leave program, or leave provided as a reasonable accommodation.
- Leave as a reasonable accommodation includes the right to return to the employee’s original position. However, if an employer determines that holding open the job will cause an undue hardship, then it must consider whether there are alternatives that permit the employee to complete the leave and return to work.
- An employer may not refuse to provide an accommodation just because it involves some cost.
- An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
- an employer may refuse to hire, or may discharge an individual, who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others if the risk cannot be eliminated or reduced by reasonable accommodation.
- The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
- An employer may obtain information from the employee’s health care provider (with the employee’s permission) to confirm or to elaborate on information that the employee has provided. Employers may also ask the health care provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave). Information from the health care provider may also assist the employer in determining whether the leave would pose an undue hardship. An employee requesting leave as a reasonable accommodation should work with his or her health care provider to obtain requested medical documentation as quickly as possible.
- It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
- Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
- The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Only injured workers who meet the Americans with Disability acts definition of an “individual with a disability” will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers’ compensation or other disability laws. A worker also must be “qualified, ” with or without reasonable accommodation, in order to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Many on-the-job injuries cause temporary impairments which heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers’ compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA.
Employers dealing with injured workers are often preoccupied in the early stages of the injury period with workers’ compensation issues, sometimes to the exclusion of other overlapping legal issues. One such issue, compliance with the Americans with Disability act, is often overlooked until the employee’s injury stabilizes, which is often the first point at which the issue of whether the employee has a “disability” under the ADA is considered.
However, the protections of the ADA may require earlier action on the part of employers and employees both, as “the ADA actually kicks in as soon as somebody’s health condition is having a substantial impact on their ability to earn a living, which may start immediately if the condition is expected to last awhile or be significant.”
Under Maryland Workers’ Compensation laws, an employee’s refusal to return to work that meets the capabilities of the employee and any physical restrictions listed by the physician can result in termination of workers’ compensation benefits. Similarly, under the ADA, while an employer cannot require an employee to do something that is inconsistent with restrictions listed by the employee’s doctor, an employer can require an employee to return to work if the employee can perform the work required with or without a reasonable accommodation. In this respect, the ADA does not provide an employee with a legal tool allowing the employee to escape work that he or she is capable of performing. However, the employee also has rights under the Family and Medical Leave Act (FMLA). Under FMLA, the employee has the right to decline work based on their rights under this law for up to 12 weeks. An employee that cannot return to his original work after FMLA leave expires, however, is not entitled to an alternate position. See 29 C.F.R. § 825.207(e).]
Under the ADA, if it becomes apparent that a disabled employee will never be able to return to work at his or her previous position and perform the essential functions of that job even with a reasonable accommodation, that person becomes unqualified for the position and the ADA does not prevent the employer from terminating the employment Similarly, if the employee seeks to extend his or her leave as an accommodation, but that leave has become an undue hardship for the employer, perhaps because the business requires a full-time employee in that position in order to function properly, the ADA would not prevent termination of employment.
Employees who will never be physically able to return to their previous positions may ask for reassignment to a different position as a “reasonable accommodation of last resort” under the ADA. Under those circumstances, an employer is only obligated to try and accommodate the employee with an existing, vacant position. The employer is not required under the ADA to create a new position or a new job description for an existing position.
Employers who are subject to the ADA should review injuries for accommodation immediately. If the condition worsens and the employee’s doctor institutes limitations, discuss ways in which you can honor those limitations while keeping the employee on the job. MMI no longer has anything to do with the employee’s ability to work. If a reasonable accommodation can be made, it is employers obligation to make one.
The ADA certainly does not abolish the workers compensation system and certainly does not dictate the amount of benefits scheduled to be paid to an injured worker; there is no such direct assault. There is, however, a subtler, a more indirect effect that the ADA has on the WC system. To be sure, the injured worker still is entitled to the state-mandated workers compensation benefits. However, the injured worker, under the ADA, may now be considered a “qualified individual with a disability”. And it is in this area that the ADA can modify the workers compensation system. Now, the employer can be sued by an injured worker, not directly because of the injury, but because, as a “qualified individual with a disability”, the employee can seek accommodations to allow him or her to return to work. If the employer unreasonably refuses to accommodate the injured worker, the ADA would allow a discrimination lawsuit by the employee against the employer. Thus, the employee may end up getting the proverbial “two bites of the apple” – workers compensation benefits and monetary damages based on discrimination, both awards basically arising out of the same injury.
There are several differences between the ADA and workers compensation that can be noted. Among these differences are the following.
- First, many work-related injuries covered by workers compensation are minor and only temporarily disabling; the WC payments are meant to cover the medical expenses associated with the injury and get the injured employee back to work as soon as possible. The ADA applies to employees who have substantial, permanent disabilities. A “disability” is defined in the ADA, Note that a temporary or slight disability would not make an employee a “qualified individual with a disability” under the provisions of the ADA since the disability has to substantially limit one or more of the major life activities of the individual. So, permanent and total disability due to a work-related injury can be handled as a WC payment, but, temporary and slight disability due to a work-related injury will not be handled under the ADA.
- Second, the purpose of the WC system is to help employees who suffer job-related bodily injuries; the ADA’s purpose is to protect individuals (employees as well as potential employees) from discrimination based on disability.
- Third, workers compensation applies to injuries arising out of or in the course of employment; the ADA can apply even if the disabling injury did not arise out of employment. The employee has to be on the job for his or her company if workers compensation is to pay for any injury. Under the ADA, the individual not only does not have to be injured on the job, he or she (as implied above) does not even have to be employed by the company in order for the ADA to come into play since the ADA is meant to prohibit discrimination against not only disabled employees but also disabled job applicants.
- Fourth, workers compensation applies to bodily injury while the ADA encompasses bodily or mental impairment. Purely non-physical or emotional harm or disorder (unaccompanied by a physical injury) is not bodily injury and not covered under workers compensation in most states.
- Fifth, workers compensation claims are usually handled by the workers compensation insurer; the ADA is administered by the Equal Employment Opportunity Commission (EEOC).
You should file your complaint as soon as possible. In some instances, you may have only 180 days after the alleged incident. In others, you may have at most one year after the alleged incident to file with OCR.
To file an ADA complaint online:
Online Complaint Form | (en Español)
Instructions for submitting attachments are on the form.
To file an ADA complaint by mail:
US Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section – 1425 NYAV
Washington, D.C. 20530
To file an ADA complaint by fax: (202) 307-1197
What happens after my complaint is received?
- After the complaint is received and reviewed, US Department of Justice will inform you of our action, which may include:
- Contacting you for additional information or copies of relevant documents;
- Referring your complaint for possible resolution through the ADA Mediation Program;
- Referring your complaint to the United States Attorney’s Office in your area for investigation;
- Referring your complaint to another federal agency with responsibility for the types of issues you have raised.
- Investigating your complaint; or
- Considering your complaint for possible litigation by the Department of Justice.
- US Department of Justice cannot investigate or litigate every complaint. If we are unable to take any action on your complaint, we will send you a letter telling you this.
- US Department of Justice review each complaint carefully. Because US Department of Justice receive a large volume of ADA complaints from people throughout the United States, our review can take up to three months. If you have not heard from us by the end of this three-month period, you can find out the status of your complaint by calling the ADA Information Line at 1-800-514-0301 (voice) or 1-800-514-0383 (TTY).
- The ADA Mediation Program is an important part of ADA compliance. Using professional ADA-trained mediators throughout the United States, mediation is a confidential, voluntary way to resolve ADA complaints fairly and quickly. If we determine that your complaint is appropriate for mediation, we will contact you and the entity you complained about to find out if you are both willing to participate in mediation.
- If your complaint is opened for investigation, an investigator or attorney will be assigned and will contact you to obtain additional information.
- During the investigation, the attorney or investigator will not necessarily make a determination about whether or not an ADA violation has occurred. If he or she believes there is a pattern or practice of discrimination or the complaint raises an issue of general public importance, DRS may attempt to negotiate a formal settlement of the matter or may file a lawsuit in federal court on behalf of the Unites States. US Department of Justice do not act as an attorney for, or representative of, the complainant.
Civil rights laws prohibit agencies that receive Justice Department funding from retaliating against you. A retaliation claim stands independent from the underlying discrimination claim. If you believe you have been the target of retaliation, you should file a complaint with us.
For more info on Workers Comp, CLICK HERE.