Temporary restructuring may include modification of essential or non-essential functions of the job, limitation of working hours, changes in working conditions, or physical modification of the work place. Departments are encouraged to have a policy regarding light/limited duty assignments.
Several of the Memoranda of Understanding (MOU) contain specific provisions related to light/limited duty as well. In general, light duty assignments are typically limited in duration (e.g. 45 days), but each supervisor should check with the applicable MOUs and department policy to get a better idea of the parameters of such assignments.
Reasonable Accommodation is the modification or adjustment to a job, the work environment, or the way things are usually done that enables a qualified person with a disability or injury to enjoy equal employment opportunities.
It is expected that most requests for reasonable accommodation will involve existing employees who have become disabled, either through a work related injury or illness, or through a non work related injury or illness. The most common request will include the restructuring of jobs or tasks within a job, reassignment to a vacant position in another classification, modification of the existing work site, or acquisition of special equipment and devices.
Often the employee's medical restrictions involve limitation of movement of one of more limbs. This is the case with back injuries that limit lifting, leg injuries that limit walking or bending, and arm/hand injuries that restrict any type of repetitive motion (e.g. carpal tunnel). Permanent job restructuring may involve reassignment of the injury aggravating tasks to another employee, perhaps in exchange for another task that the injured employee is able to perform.
For example, a cook who has a permanent back injury, may be unable to lift heavy pots or food sacks any longer. It is possible that this task may be assigned to another employee in exchange for additional cutting, peeling or washing chores that do not place additional strain on the back.
Reassignment to a Vacant Position
A common request of a worker upon return to work after an extended absence may be for a complete job reassignment. While it is preferable to consider other accommodations that will enable the employee to return to his/her customary job, if this is infeasible, the employer may seek to move the employee into another job classification for which the employee is qualified. This position may be at the same rate of pay, or a lower rate of pay.
Acquisition or Modification of Equipment of Devices
Another common request of an injured employee may be for special equipment to enable the individual to perform the job. Persons with back injuries may request special carts or lifting devices to help them transport heavy items. Persons with hearing disabilities may request things such as telephone handset amplifiers.
Contrary to popular belief, such accommodations are rarely too expensive when compared with the costs for training new staff to do the job of an experienced, though injured, employee. There is a tremendous amount of adaptive equipment available, much of it at minimal cost. In fact, many adaptive devices have been fabricated at the workplace, by a creative supervisor, for virtually no cost (e.g. ramps over stairs, lowered work stations).
Americans With Disabilities Act (ADA)
The ADA protects qualified individuals with disabilities from employment discrimination. The ADA has a three-part definition of "disability." This definition reflects the specific types of discrimination experienced by people with disabilities. Therefore, it is not the same as the definition of disability in other laws, such as workers compensation. Under the ADA, a person with a disability is a person who has (a) a physical or mental impairment that substantially limits one or more major life activities, or (b) a record of such an impairment, or (c) is regarded as having such an impairment.
A physical impairment is defined by the ADA as "any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine."
A mental impairment is defined by the ADA as "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."
To be a disability covered by the ADA, an impairment must substantially limit one or more major life activities. These are activities that an average person can perform with little or no difficulty, such as walking, breathing, seeing, hearing, working, etc.
Whether an injured worker is protected by the ADA depends on whether or not the person meets the ADA definitions of an "individual with a disability." Work related injuries do not always cause physical or mental impairments severe enough to "substantially limit" a major life activity.
Also, many on-the-job injuries cause non-chronic impairments which heal with little or no long-term or permanent impact. Such injuries, in most cases, are not considered disabilities under the ADA. The fact that an employee is awarded workers' compensation benefits, or is assigned a high disability rating, does not automatically establish that this individual is protected under the ADA.
What the Law Requires
To be protected by the ADA, an individual with a disability or an injury, must be qualified for the job that he/she is seeking. Qualified means that the person "satisfies the requisite skill, experience, education and other job-related requirement of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such a position."
The key component of the definition, with regard to injured workers, is the ability to perform the essential functions of the position, with or without reasonable accommodation. Therefore, an injured worker may be protected under the law, if he/she can continue to perform the essential functions of the job with some type of reasonable accommodation.
It is important for supervisors to know that failure to provide reasonable accommodation under the ADA to a qualified employee with a disability, without good cause, can expose the State to penalties in excess of $100,000.
What the Law Does Not Require
The ADA does not require that you accommodate an injured employee by reassigning the essential functions of his/her job to another employee -- even if the injured worker requests such an accommodation. The ADA also does not require that an employee be reassigned to another position in order to provide him/her with a job, especially if the employee is not qualified to perform the new job.
Remember, the employee must be able to perform the essential functions of the job to be protected under the ADA. It is the employer's responsibility, however, to determine the essential functions of the job using reasonable, objective standards. For example: it is an essential function of a proofreader's job to know the proper rules of grammar, however, it is probably not an essential function of a proofreader's job to read sitting in a chair.
Relation to Workers' Compensation
The ADA and Workers' Compensation Laws have totally different purposes. Sometimes those purposes intersect, but they are by no means congruent. In some cases, the laws may conflict. However, there are three primary areas of focus for the supervisor in dealing with an injured worker:
- The supervisor must be able to accurately, and objectively, develop a duty statement or job description for each employee's assignment that accurately defines the "essential functions of the job."
- The supervisor must be open to returning an injured employee to work if he/she (a) can continue to perform the essential functions of the assigned job with reasonable accommodation, or (b) are qualified to perform another available job with or without reasonable accommodation.
- The supervisor should not use a person's injury as an excuse to preclude him/her from doing work that he/she is qualified and medically able to perform. This is especially true for injured workers who otherwise qualify for promotions, transfers, etc.
No matter how hard we try to keep our injured workers employed, there are some situations when the employee's disability is so extensive, that he/she is incapable of performing most of the essential tasks of the job. In these cases, the employee may be eligible for a disability retirement, in addition to the permanent disability benefits provided under workers compensation.
If you believe that you have an employee who is incapable of returning to work, because of the severity of the medical restrictions imposed by the physician, then discuss the feasibility of disability retirement with the Return-To-Work Coordinator in your department.
The information and forms contained in this feature are intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.