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2010 ADA CHANGES: How They Affect Workers’ Compensation and Employer Liability Presented by: Naomi L. Mooney, Esq. Getman, Schulthess & Steere, PA Three.

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Presentation on theme: "2010 ADA CHANGES: How They Affect Workers’ Compensation and Employer Liability Presented by: Naomi L. Mooney, Esq. Getman, Schulthess & Steere, PA Three."— Presentation transcript:

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2 2010 ADA CHANGES: How They Affect Workers’ Compensation and Employer Liability Presented by: Naomi L. Mooney, Esq. Getman, Schulthess & Steere, PA Three Executive Park Drive Bedford, NH 03110 603-634-4300

3 THE ADA The ADA signed into law 1990 EEOC is responsible for enforcing Title I of the ADA ADA prohibits employment discrimination against individuals with disabilities. The Act requires employers to make reasonable accommodations to employees and job applicants with a disability Reasonable accommodations are required unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity

4 Definition of “Disability”Under ADA  A physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment.

5 Reasonable Accommodation Examples include:  (A) making existing facilities readily accessible to and usable by individuals with disabilities; and  (B) job restructuring, part-­time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters. Basically what is required is what the company can bear.

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7 Undue Hardship  In general. - The term “undue hardship” means an action requiring significant difficulty or expense company-wide.

8 Undue Hardship  Factors to be considered in determining whether an accommodation would impose an undue hardship on a covered entity: – the nature and cost of the accommodation – the overall financial resources of the facility – the number of persons employed at such facility – the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility – the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce

9 Americans With Disabilities Act Amendments Act of 2008 (ADAAA) and the New Regulations

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11  September 25, 2008,President Bush signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act," the "ADAAA," or "Act").  Effective on January 1, 2009.  The regulations are not yet final. The EEOC will evaluate all of the comments and make revisions in response to those comments.  A proposed final regulation will be coordinated with various federal agencies before a final regulation is issued.

12 Important Specifics of the ADAAA  The definition of disability should be construed in favor of broad coverage.  The intent of Congress is to amend the definition of disability to cover more people and as a result “prevent more discrimination”.  The result is that question of disability will no longer be significant focus in litigation. Instead, the focus is on whether discrimination has occurred.

13 ADAAA Changes Definition of the Term “Disability”  The ADAAA makes changes to the definition of the term "disability“ in response to US Supreme Court decisions (Murphy and Toyota).  Murphy and Toyota held that physical and mental impairments did not rise to the level of an ADA protected disability if the impairment was controlled by medication or by assistive devices such as hearing aids, or if they did not prevent or restrict an employee from performing a major life activity such as walking or working.

14 Murphy v. United Parcel Service, Inc.,527 U.S. 516 (1999)  UPS terminated Vaughn Murphy from his job as a' UPS mechanic because of his high blood pressure which exceeded the Department of Transportations requirements for drivers of commercial vehicles.  Mr. Murphy brought suit under Title I of the ADA.  The Court held that since when Mr. Murphy is medicated he is inhibited only in lifting heavy objects but otherwise functions normally, he was not "disabled" under the ADA.  The Court also found that Mr. Murphy was not "regarded as" disabled because of his high blood pressure.

15 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002)  Williams was a worker at an automobile manufacturing plant. She was diagnosed with bilateral carpal tunnel syndrome and bilateral tendonitis.  Toyota provided various accommodations to her job and duties. Sometime later she began to experience pain in her neck and shoulders and was further diagnosed with additional medical ailments.  She was placed on a "no-work-of-any-kind" restriction.  The District Court granted summary judgment to Toyota holding that Ms. Williams' impairment did not qualify as a "disability" under the ADA because it did not "substantially limit" any "major life activity.“  The Sixth Circuit reversed and the Supreme Court reversed and remanded on the basis that the Sixth Circuit had failed to apply the proper standard.

16 ADAAA Definition of “Disability”  Under ADAAA the basic three-part ADA definition is retained: a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. However, the meaning of these terms has changed.

17 Rules Used to Determine Whether Someone Has a “Disability” under ADAAA  An impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be “substantially limiting.”  Disability “shall be construed in favor of broad coverage” and “should not require extensive analysis.”  An individual’s ability to perform a major life activity is compared to “most people in the general population,” often using a common- sense analysis without scientific or medical evidence.  An impairment need not substantially limit more than one major life activity.

18 Examples of Disabilities Under ADAAA  Impairments that will consistently result in a determination that the person is substantially limited in a major life activity”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.  Impairments that may be substantially limiting for some individuals but not for others, and therefore may require somewhat more, though still not extensive, analysis: asthma, high blood pressure, back and leg impairments, learning disabilities, panic or anxiety disorders, some forms of depression, carpal tunnel syndrome, and hyperthyroidism.

19 More Examples Illustrating Definition of Disability under ADAAA  Temporary, non-chronic impairments of short duration with little or no residual effects that usually will not substantially limit a major life activity: common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone expected to heal completely, appendicitis, and seasonal allergies.  An impairment may still be substantially limiting even if it lasts or is expected to last fewer than 6 months, such as a 20-pound lifting restriction lasting several months.

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21 Pregnancy may be the newest protected disability under the ADAAA ADAAA does not address pregnancy but the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity." Questions and Answers EEOC statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees. PREGNANCY AND THE ADAAA

22  The ADAAA revises the definition of the term “substantially limits" by providing that a limitation need not "significantly" or "severely" restrict a major life activity in order to meet the standard, and deletes reference to the terms "condition, manner, or duration" under which a major life activity is performed. SUBSTANTIALLY LIMITS

23 Major Life Activities (MLAs) ADAAA expands the definition of “major life activities” through two non- exhaustive lists:  MLAs include “major bodily functions,” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular systems, and reproductive functions.  MLAs also include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working.

24 Mitigating Measures Generally Ignored under ADAAA  Positive effects of mitigating measures (except for ordinary eyeglasses and contact lenses) are ignored in determining whether an impairment is substantially limiting.  Examples of mitigating measures include medication, medical equipment and devices, prosthetics, hearing aids, cochlear implants and other implantable hearing devices, low vision devices, mobility devices, oxygen therapy, use of assistive technology, reasonable accommodations and auxiliary aids or services, behavioral or neurological modifications, and surgical interventions that do not permanently eliminate an impairment.  Ordinary eyeglasses and contact lenses are lenses “intended to fully correct visual acuity or eliminate refractive error.”

25 Impairments that Are Episodic or in Remission Can be a Disability under ADAAA  ADAAA provides that an impairment that is “episodic” or “in remission” is a disability if it would substantially limit a major life activity when active. Examples of impairments that are episodic or in remission include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.

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27 “Regarded As” under ADAAA  Employer regards an individual as having a disability if it takes a prohibited action based on an actual or perceived impairment that is not transitory (lasting or expected to last for six months or less) and minor.  For example, taking an adverse employment action based on a sprained wrist and broken leg expected to heal normally does not amount to regarding an individual as having a disability, because these impairments are transitory and minor.  Taking an adverse action based on carpal tunnel syndrome or Hepatitis C, or on a 2-day virus that an employer perceived to be heart disease, would amount to regarding an individual as having a disability.

28 “Regarded As ”  Actions taken on the basis of an impairment’s symptoms (e.g., a facial tic related to Tourette’s Syndrome) or an individual’s use of mitigating measures (anti-seizure medication for epilepsy) are actions taken on the basis of an impairment.

29 “Regarded As ”  Reasonable accommodations are not available to someone only covered under the “regarded as” prong of the definition of “disability.”

30  ADAAA provides that qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision shall not be used unless shown to be job related for the position in question and consistent with business necessity. Uncorrected Vision Standards

31  It is predicted that there will be an increase in the number of requests by employees for disability-based accommodations and that it may also lead to a rise in discrimination claims. The Impact of the ADAAA

32  As a result the ADAAA employers will be less likely to have cases dismissed on summary judgment since it will be more difficult to allege that a claimant is not disabled The Impact of the ADAAA

33  the focus in litigation will shift from attempts by employers to argue that an employee is not "disabled" under theories related to "major life activities" or "substantially limited" to a focus on issues such as essential job functions, reasonable accommodations and qualifications. The Impact of the ADAAA

34 TIPS FOR REASONABLE ACCOMODATIONS ISSUES  Be Proactive: Determine whether an employee is in need of an accommodation  Interactive Process: Involve the employee as well as medical and disability professionals  Effective Accommodation: Accommodation must be effective, not most preferred by employee  Job Restructuring: Being aware of the essential functions of the job is most critical  Undue Hardship: Must be unduly costly company-wide, and must significantly impact operations

35 Practical Tips Offered by Job Accommodations Network ( a service of the Office of Disability Employment Policy of the U.S. Department of Labor )  Review job. descriptions, qualification standards, and accommodation procedures.  Focus on Performance and Conduct.  Train frontline supervisors and managers.  Document Actions and Decisions.

36 Selected Recent Cases  Corosa v. Nashua Housing Authority and George F. Robinson, (DNH), March 24,2010  The Court denied the Nashua Housing Authority‘s motion to dismiss stating that the plaintiff need not prove his entire case in his complaint but rather must only have alleged sufficient facts to show that his claim is plausible on its face, but granted the motion to dismiss as to the defendant, George F. Robinson on the basis that there is no individual liability under the ADA.

37 Duhy v. Concord General Mutual Insurance, (DNH), June 10,2009  The ADA Amendments Act of 2008 does not apply retroactively, so the Court applied the ADA as it existed when the complained-of acts occurred

38 2010 ADA CHANGES: How They Affect Workers’ Compensation and Employer Liability Presented by: Edwinna Vanderzanden, Esq. Getman, Schulthess & Steere, PA Three Executive Park Drive Bedford, NH 03110 603-634-4300

39 Some Impairments Will Now Consistently Meet the Broader Definition of Disability:

40 Mental Health Diagnoses Will Consistently Meet the Broader Standards For Disability Metal Retardation (n/k/a/ initellectual diability), Autism, Major Depression, Bi- Polar Disorder, Post Traumatic Stress Disorder, Obsessive Compulsive Disorder, Schizophrenia, are all now covered

41 –Deafness, Blindness –Partially or completely missing limbs, –Mobility impairments requiring use of wheelchair (note wheelchairs are mitigating measures), Cerebral Palsy, Multiple Sclerosis, Muscular Dystrophy –Cancer –Diabetes (in the past a frequent source of litigation) –Epilepsy –HIV/AIDS

42 Other Impairments May be Considered Disabilities in Some Circumstances –Asthma –Back and leg impairments –Learning Disabilities

43 For instance, impairments that are episodic i.e. seizure disorders or in remission i.e. cancer will be considered disabilities,. Disabilities that might otherwise have been “mitigated” under the prior law will now consistently meet the definition of disability, i.e. Diabetes

44 There are a number of temporary non- chronic impairments with short duration and little or no residual effects that will generally not be considered disabilities under the amendments:

45 Excluded Conditions –Common Cold –Seasonal Influenza –Sprained Ankle –Minor or non-chronic GI disorders –Bone fractures that are expected to heal completely

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47 Some are Automatically excluded eg. Illegal drug users, except those who have gone through rehab and no longer engage in the illegal use of drugs could meet the definition of disability

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49 The ADA Absolutely Excludes from Definition of Disability : –Transvestism, Transexuals –Pedophilia, Exhibitionism & Voyeurism –General Identity Disorders (not resulting from physical impairments) or Other Sexual Behavior Disorders –Compulsive Gambling, Kleptomania –Pyromania –Psycho-active Substance Use Disorders

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51 While Pregnancy is still not a disability under the ADA, there may be impairments resulting from pregnancy that could substantially limit life activities such as significant post-partum depression or residuals of toxemia

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53 The concept of “type of work” replaces the former “class” or “broad range of jobs” under the 1991 ADA regulations “Types of work” may include such jobs as: –Commercial Truck Driving –Assembly Line Jobs –Food Service Jobs –Clerical Jobs –Law Enforcement Jobs

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55 Points of Intersection between the ADA and State Workers’ Compensation Occupational injuries creating a qualifying disability; Disability-related questions and medical examinations relating to occupational injury and workers' compensation claims; Hiring of persons with a history of occupational injury, Return to work of persons with occupational injury, and application of the direct threat standard; Reasonable accommodation for persons with disability-related occupational injuries; Light duty issues; and Exclusive remedy provisions in workers' compensation laws. Wood v. County of Alameda, 875 F. Supp. 659, 664, 4 AD Cas. (BNA) 43 (N.D. Cal. 1995).

56 The Definition of "disability" Under the ADA Does Not Differ in the Workers' Compensation Context.

57 QUESTION Does everyone with an occupational injury have a disability within the meaning of the ADA?

58 NO Impairments resulting from occupational injury may not be severe enough to substantially limit a major life activity, or they may be only temporary, non-chronic, and have little or no long term impact.

59 QUESTION Does every person who has filed a workers' compensation claim have a disability under the "record of" portion of the ADA definition?

60 NO A person has a disability under the "record of" portion of the ADA definition only if s/he has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

61 QUESTION When does a person with an occupational injury have a disability under the "regarded as" portion of the ADA definition?

62 A person with an occupational injury has a disability under the "regarded as" portion of the ADA definition if s/he: (1) has an impairment that does not substantially limit a major life activity by but is treated by an employer as if it were substantially limiting ;or, (2) has an impairment that substantially limits a major life activity because of the attitude of others towards the impairment; or, (3) has no impairment but is treated as having a substantially limiting impairment.

63 Example A An employer refuses to allow an employee whose occupational injury results in a facial disfigurement to return to his position because the employer fears negative reactions by co-workers or customers. The employer regards him as having an impairment that substantially limits the major life activities of interacting with others and working. The employee has a disability as defined by the ADA.

64 Example B An employee has an occupational injury that has resulted in a temporary back impairment that does not substantially limit a major life activity. However, the employer views her as not being able to lift more than a few pounds and refuses to return her to her position. The employer regards her as having an impairment that substantially limits the major life activity of lifting. The employee has a disability as defined by the ADA.

65 Example C An employee is fully recovered from an occupational injury that resulted in a temporary back impairment. The employer fires the employee believing that, if he returns to his heavy labor job, he will severely injure his back and be totally incapacitated. The employer regards the employee as having an impairment that disqualifies him from a class of jobs (heavy labor) and therefore as substantially limited in the major life activity of working. The employee has a disability as defined by the ADA.

66 QUESTION When may an employer inquire about an applicant's prior workers' compensation claims or occupational injuries?

67 An employer may inquire about an applicant's prior workers' compensation claims or occupational injuries ONLY after it has made a conditional offer of employment, but before employment has begun, as long as it asks the same questions of all entering employees in the same job category.

68 QUESTION When may an employer require a medical examination of an applicant to obtain information about the existence or nature of prior occupational injuries?

69 AFTER it has made a conditional offer of employment, but before employment has begun, as long as it requires all entering employees in the same job category to have a medical examination. Where an employer has already obtained basic medical information from all entering employees in a job category, it may require specific individuals to have follow-up medical examinations ONLYif they are medically related to the previously obtained medical information.

70 QUESTION May an employer ask disability-related questions or require a medical examination of an employee either at the time s/he experiences an occupational injury or when s/he seeks to return to the job following such an injury?

71 YES, Both at Time of Injury and on Return to Work Disability-related questions or medical examinations must be job-related and consistent with business necessity. This requirement is met where an employer reasonably believes that the occupational injury will impair the employee's ability to perform essential job functions or raises legitimate concerns about direct threat. Such questions and examinations MAY NOT exceed the scope of the specific occupational injury and its effect on the employee's ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat.

72 QUESTION May Employers May Ask Disability related questions to ascertain scope of workers’ compensation liability

73 YES, The ADA does not prohibit an employer or its agent from asking disability-related questions or requiring medical examinations that are necessary to ascertain the extent of its workers' compensation liability. However, the questions and examinations must be consistent with the state law's intended purpose of determining an employee's eligibility for workers' compensation benefits. An employer may not use an employee's occupational injury as an opportunity to ask far- ranging disability-related questions or to require unrelated medical examinations. Examinations and questions must be limited in scope to the specific occupational injury and its impact on the individual and may not be required more often than is necessary to determine an individual's initial or continued eligibility for workers' compensation benefits. Excessive questioning or imposition of medical examinations may constitute disability-based harassment which is prohibited by the ADA.

74 QUESTION If an employee with a disability-related occupational injury requests a reasonable accommodation, may the employer ask for documentation of his/her disability?

75 YES If the documentation is reasonably related to the need for accommodation. While the employer may require documentation showing that the employee has a covered disability and stating his/her functional limitations, it is not entitled to medical records that are unnecessary to the request for reasonable accommodation.

76 QUESTION Are there any differences between the employer’s duties regarding Protected Medical Information as Between the ADA and Workers’ Compensation?

77 Medical information regarding an applicant's or employee's occupational injury or workers' compensation claim must be collected and maintained on separate forms and kept in a separate medical file along with other information required to be kept confidential under the ADA. An employer must keep medical information confidential even if someone is no longer an applicant or an employee.

78 The ADA allows disclosure of this information only in the following circumstances: Supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations

79 First aid and safety personnel may be told, when appropriate, if the disability might require emergency treatment; Government officials investigating compliance with the ADA must be given relevant information on request; Employers may give information to state workers' compensation offices, state second injury funds, and workers' compensation insurance carriers in accordance with state workers' compensation laws; and Employers may use the information for insurance purposes.

80 QUESTION DOES THE PRINCIPLE OF DIRECT THREAT STILL APPLY TO HIRING DECISIONS?

81 Direct Threat in Hiring Decisions "Direct threat" means 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. The employer can refuse to hire the person only if it can show that his/her employment in the position poses a "DIRECT THREAT." This means that an employer may not "err on the side of safety" simply because of a potential health or safety risk. Rather, the employer must demonstrate that the risk rises to the level of a direct threat.

82 Direct Threat Analysis May Create Conflict Between the ADA and State Law Some state health or safety laws may permit or require an employer to exclude a person with a disability from employment in cases where the ADA would not permit exclusion because employment of the person in the position does not pose a direct threat. BECAUSE THE ADA SUPERSEDES SUCH STATE LAWS, AN EMPLOYER MAY NOT DEFEND ITS EXCLUSION OF A PERSON WITH A DISABILITY ON THE BASIS OF SUCH A LAW.

83 RETURN TO WORK DECISIONS An employer may not require an injured worker to defer return to work until he/she is fit for “full duty” Unless an employer can show that employment of the person in the position poses a "direct threat." Where an employer refuses to return an employee to work because it assumes, correctly or incorrectly, that his/her disability-related occupational injury creates merely some increased risk of further occupational injury and increased workers' compensation costs, it discriminates on the basis of disability. The employer may not refuse to return to work an employee who is able to perform the essential functions of the job, with or without a reasonable accommodation, unless it can show that returning the person to the position poses a "direct threat."

84 QUESTION Is a Workers’ Compensation finding of “ Permanent or Total Disability” Dispositive in an ADA Claim for Reasonable Accommodation?

85 NO Workers' compensation laws are different in purpose from the ADA and may utilize different standards for evaluating whether an individual has a "disability" or whether s/he is capable of working. Under a workers' compensation statutes, a person who loses vision in both eyes or has loss of use of both arms or both legs may have a "permanent total disability," although s/he may be able to work. A workers' compensation determination also may relate to a different time period. Such a determination is never dispositive regarding an individual's ability to return to work, although it may provide relevant evidence regarding an employee's ability to perform the essential functions of the position in question or to return to work without posing a direct threat.

86 REASONABLE ACCOMMODATION IN THE CONTEXT OF WORKERS’ COMPENSATION The ADA requires that an employer make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship. The general principles regarding reasonable accommodation and undue hardship.

87 The ADA does not require an employer to provide a reasonable accommodation for an employee with an occupational injury who does not have a disability as defined by the ADA.

88 QUESTION What are the Reinstatement Rights of an Employee with a Disability-related Occupational Injury?

89 An employee with a disability-related occupational injury is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. an employee may request more leave even after the employer has communicated that it would impose an undue hardship to hold open the employee's position any longer. In this situation, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship to continue his/her leave for a specific period of time. If the employee needs six months to recover from a disability- related occupational injury, but holding his/her original position open for more than four months will impose an undue hardship. The employer must consider whether it has a vacant equivalent position to which the employee can be reassigned for the remaining two months of leave. If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued leave is not required as a reasonable accommodation if a vacant position at a lower level is not available.

90 An employee with a disability-related occupational injury is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. In some instances, an employee may request more leave even after the employer has communicated that it would impose an undue hardship to hold open the employee's position any longer. In this situation, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship to continue his/her leave for a specific period of time. For example, suppose that an employee needs six months to recover from a disability-related occupational injury, but holding his/her original position open for more than four months will impose an undue hardship. The employer must consider whether it has a vacant equivalent position to which the employee can be reassigned for the remaining two months of leave. If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued leave is not required as a reasonable accommodation if a vacant position at a lower level is not available.

91 QUESTION Must an employer reassign an employee who is no longer able to perform the essential functions of his/her original position, with or without a reasonable accommodation, because of a disability-related occupational injury?

92 YES. Where an employee can no longer perform the essential functions of his/her original position, with or without a reasonable accommodation, because of a disability-related occupational injury, an employer must reassign him/her to an equivalent vacant position for which s/he is qualified, absent undue hardship.If no equivalent vacant position (in terms of pay, status, etc.) exists, then the employee must be reassigned to a lower graded position for which s/he is qualified, absent undue hardship.

93 But an employer is NOT required to “bump” another employee or create a new position to meet its obligations under the ADA. Nor must the employer grant the employee’s desired accommodation as long as the accommodation is reasonable

94 LIGHT DUTY The term "light duty" has a number of different meanings in the employment setting. Generally, "light duty" refers to temporary or permanent work that is physically or mentally less demanding than normal job duties. Some employers use the term "light duty" to mean simply excusing an employee from performing those job functions that s/he is unable to perform because of an impairment.

95 QUESTION What special duties are created for the employer of an injured worker who has an ADA qualifying disability?

96 An employer may recognize a special obligation arising out of the employment relationship to create a light duty position for an employee when s/he has been injured while performing work for the employer and, as a consequence, is unable to perform his/her regular job duties. Such a policy, on its face, does not treat an individual with a disability less favorably than an individual without a disability; nor does it screen out an individual on the basis of disability. An employer must apply its policy of creating a light duty position for an employee when s/he is occupationally injured on a non- discriminatory basis. In other words, an employer may not use disability as a reason to refuse to create a light duty position when an employee is occupationally injured.

97 EXCLUSIVE REMEDY PROVISIONS UNDER STATE WORKERS’ COMPENSATION LAWS Workers' compensation exclusivity clauses are to protect employers from being sued under common law theories of personal injury for occupational injury. Courts have generally held that the exclusive remedy provisions of state workers' compensation laws cannot bar claims arising under federal civil rights laws, even where a state workers' compensation law provides some relief for disability discrimination. Applying a state workers' compensation law's exclusivity provision to bar an individual's ADA claim would violate the Supremacy Clause of the U.S. Constitution and seriously diminish the civil rights protection Congress granted to persons with disabilities.

98 THANK YOU Getman, Schulthess & Steere, P.A. Three Executive Park Drive Bedford, NH 03101 603-634-4300


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