Ron Andrykovitch, director at the law firm of Cohen & Grigsby, P.C. in Pittsburgh, offers straight talk on what you need to do to stay legal.
What's the main point of the new guidance?
The purpose is [for the EEOC] to provide its own enforcement guidance as to how it would deal with the issues for which the state workers' comp laws and the ADA interplay with each other. The notice attempts to answer some of the most common issues or questions that have come up recently.
One of its main impacts is on the use of light or modified duty; please explain.
A lot of employers have had lightduty programs that have been administered just to get employees off the workers' comp rolls. In the past, many employers didn't offer those light-duty positions to employees who had disabilities that weren't work-related.-
Was that a problem?
There has always been some concern about whether that violated the ADA—whether employers had to offer those light-duty positions to disabled employees under the ADA. The EEOC notice clarified that point and for the first time stated its position: Employers are required to offer light-duty positions to employees who are disabled and have injuries that aren't work-related.
What does that mean to employers?
Employers that maintain these programs just for workers' comp purposes are now going to have to consider whether they need to offer those light-duty positions to employees who are disabled for reasons not work-related. That change will impact a lot of employers.
Do these guidelines mean employers have to open up light-duty positions for those who qualify under the ADA?
Employers aren't required to have light-duty programs. They're not required to create light-duty programs under the ADA. But what the notice is saying is if employers have such a program and have light-duty positions available that they've reserved for employees on workers' comp because of injuries, they now must consider whether those positions should be offered to other disabled employees as a reasonable accommodation. [The ADA's reasonable accommodation provisions don't require employers to make established, temporary light-duty positions permanent for disabled employees, however.]
So what's the employer's obligation?
The obligation would be if there's an employee who's a qualified individual with a disability, and there's a question as to whether the employer must accommodate that employee by placing him or her in a light-duty position, then the question is: Is there an open position? If there is, the employer must consider the employee for that position. If there's no position open—if the employer maintains five light-duty positions, and all five are filled with people who have workers' comp injuries—then there's no obligation for the employer to create an additional position. On the other hand, if the employer's policy is to create positions for anyone who's disabled, then I think the ADA [regulations] would say that the employer would have to be consistent in approach and would have to follow the policy by offering a light-duty job to someone who's disabled for a non-work-related injury.
Any other changes in the new EEOC guidance?
There's another significant clarification of the EEOC's position in this notice, and that relates to whether employers can terminate employees who are on leave of absence due to a workers' comp injury or another injury that could be a disability. A lot of employers have leave-of-absence policies that [state] if an employee is on leave for a certain amount of time, say 12 months, that at the expiration of that leave period the employee will be terminated. The EEOC says in its notice that if an employee is a qualified individual with a disability, under the ADA an employer must grant a temporary extension of leave of absence as a reasonable accommodation unless doing so creates an undue hardship.
And what does this change mean to employers?
A policy that would automatically terminate an employee after being on leave for [a specified period of time] may not pass muster under the ADA any longer. In each case the employer would have to consider whether it can grant a temporary extension of the leave. And temporary is the key word here—temporary extension. If that leave is indefinite, if the employee can give the employer no indication that he or she will be able to return to work at any certain time in the future, then it would appear that the ADA wouldn't require an extension of leave indefinitely. But for cases in which the employee can provide the employer with some definite time frame by which the employee can return to work, then the employer would have to consider extending that leave period, unless it would pose an undue hardship. But the burden of showing an undue hardship for most employers is pretty heavy.
The EEOC also provided new guidance concerning hiring people with a history of occupational injury. What did it say?
What the EEOC notice makes clear is that an employer can't refuse to hire an individual with a disability simply because doing so might create some increased risk of injury or re-injury that would increase their workers' comp costs. What an employer has to show to avoid hiring someone who has a workers' comp history is that doing so creates a direct threat—that either the employee will injure himself or herself or injure someone else if returned to work.
How does an employer prove this?
The EEOC notice says a direct threat means a significant risk of substantial harm to the health or safety of the individual or others that can't be eliminated or reduced by reasonable accommodation. My guess is this is going to be a heavy burden on the employer to show a significant risk. It can't be speculation. It can't be a potential risk. An employer's going to have to show something very tangible to establish a direct threat.
And what's the new language concerning the exclusive-remedy provision in workers' comp laws?
Most employers are aware generally that workers' comp laws provide an exclusive remedy to employees who are injured at work. In other words, if they're injured at work, their remedy and any compensation they receive should be through the workers' comp law. But the EEOC makes clear that this is not always the case-that the workers' comp laws don't protect employers from being sued under other common-law theories of personal injury. They can't bar claims under the federal Civil Rights Act, such as claims for racial discrimination, sexual discrimination [and so on].
How will this affect employers?
We have seen and will continue to see lawsuits in which employees are injured at work or their injuries are work-related, and they bring lawsuits for other reasons, whether based on civil-rights law violation or common-law theories of personal injury.
Finally, what's the enforceability of these new guidelines?
Employees can bring charges [through] the EEOC. They can sue in either state or federal court under the ADA. The ADA provides for remedies that include damages that can be as high as $300,000 in any particular case in which there's intentional discrimination found. Employees are entitled to compensative and punitive damages under the ADA, and they can sue for future monetary losses or even mental anguish and inconvenience, those kinds of things.
Workforce, February 1997, Vol. 76, No. 2, pp. 72-74.