The purpose of the Americans with Disabilities Act (ADA) is to prohibit employers from discriminating against qualified individuals because of disabilities. State workers' compensation laws provide for prompt payment of benefits for employees who suffer an occupational injury or disease. While these state and federal laws are not necessarily in conflict, the EEOC has recognized that simultaneous application of both laws can be confusing. In an effort to explain the interaction between the ADA and state workers' compensation laws, the EEOC recently issued enforcement guidelines with respect to hiring issues and issues arising when a worker is injured on the job.
Hiring Issues. Assume you give a disabled applicant a job offer, and during the course of a pre-employment physical or interview, you learn that the disability was caused by an on-the-job accident. May you then refuse to hire the person in order to keep your workers' compensation costs down? Generally, an employer may not refuse to hire an individual because he or she poses some increased risk of injury. However, if the individual poses a direct threat, the employer may be justified in refusing to hire. Direct threat means that the person would pose a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." Determination of direct threat must be made on a case-by-case basis, and should take into account:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the harm will occur;and
- the imminence of the potential harm.
A direct threat is not established merely by showing some increased or potential health or safety risk. Rather, the employer must clearly show that there is a very high chance of harm to the disabled person or that the disabled person will risk the safety of others. Moreover, while an employer may consider past occupational injuries in determining whether a person with a disability poses a direct threat, the EEOC cautions that the existence of a past occupational injury does not automatically establish the direct threat requirement. The employer must consider all of the facts and circumstances of the previous injury, as well as whether the risk of harm can be reduced or eliminated by a reasonable accommodation.
Injuries Resulting in Disability. The EEOC makes it clear that not everyone who files a workers' compensation claim is disabled under the ADA. However, the commission notes that the manner in which an employer treats an employee may turn a workers' compensation issue into an ADA claim. For instance, even if the injury does not meet the ADA criteria for establishing a disability, the employee may be considered disabled under the ADA if the employer treats or regards the employee as having a disability by refusing to return the employee to his or her previous position.
If an employee suffers an injury that qualifies as advisability under the ADA, the employer cannot simply fire the employee if he or she is unable to work for a period of time. Unless it poses an undue hardship, the employer must reasonably accommodate the employee with leave time. If the employee is still qualified upon returning from leave, the employee must be returned to the same job, or if it is an undue hardship to hold the same job vacant, to an equivalent position. If the disability renders the employee unable to perform his or her previous job function, the employer must determine whether a reasonable accommodation can be made. If the employee cannot return to the original job and there are no other jobs available, only then may the employer be justified in terminating the employee.
The ADA restrictions placed upon an employer's ability to terminate an employee who is no longer able to perform his or her previous job may differ from many state workers' compensation laws which do not require an employer to retain an employee who cannot doe the job he was hired to do. If there is a conflict between the two laws, the ADA controls. The employer bears the burden of deciding whether a disabled employee is able to return to work. However, the EEOC suggests that the employer consult with a physician, rehabilitation counselor, or other appropriate specialist in making this decision.
IMPACT. Trying to balance the ADA and state workers' compensation laws can pose a number of possible legal threats. Timely and sound legal advice may often be necessary to avoid an employment decision which, while in conformity with state law, may violate the ADA.