Avoiding ADA Liability for Employees Injured on the Job

Authored by Steve Holden. Published by the Sacramento Business Journal August 2012.

Employers frequently expose themselves to liability because they do not understand the relationship between disability discrimination law and workers’ compensation law. Although both sets of law can be complex, a basic understanding of them and the correction of some common misconceptions can go a long way in reducing the exposure.

When an employee is injured on the job, the employee enters the workers’ compensation system. The system ensures that employees injured on the job receive medical treatment and compensation for lost wages. In exchange, employers are relieved of the potential for litigation over who is responsible for the injury. The purpose of disability discrimination law is quite different. The discrimination law is designed to break down stereotypes about individuals with disabilities and to provide equal access and opportunity on the job.

When an employee is injured on the job it is not an either or choice between workers’ compensation and disability discrimination. Both laws apply, and the overlap can be confusing. Both laws use very similar, if not the same, words. Unfortunately, the same word can have a different meaning in the workers’ compensation system than it does under disability discrimination law. This results in understandable confusion and is a potential trap for employers. It is best to think of the two laws as existing on parallel tracks. When an employee is injured on the job, the workers’ compensation and the potential discrimination case move forward on separate, parallel tracks. Though both parts of the case look similar and move along at a comparable pace, each law must be analyzed independently.

Employers can reduce potential liability by not falling into the trap of the following common misconceptions.

Misconception: If an employee is in the workers’ compensation system, the employer does not have to worry about reasonable accommodations — that will be taken care of in the handling of the workers’ comp case.

Reality: Under both laws, there may be significant cross-over on the analyses of an employee’s medical condition, physical limitations and potential for return to work, but significant differences also exist. Not conducting a separate analysis under each law is a common mistake.

Misconception: If an accommodation is inefficient or costly it is not a “reasonable accommodation” under discrimination law.

Reality: The majority of accommodations will be somewhat inefficient or costly. In order to be deemed unreasonable or an undue hardship on the employer, the inefficiency or cost must be extreme. Keep in mind that what is “reasonable” is ultimately decided by a judge or jury.

Misconception: An employee must ask for a reasonable accommodation.

Reality: Employees are not required to specifically ask for an accommodation. Once an employer has information that an employee may have a disability and may need an accommodation, the employer must think about possible accommodations and discuss them with the employee.

Misconception: An accommodation creates an “undue hardship” on the employer because providing it will have a negative effect on other employees’ morale.

Reality: Disability discrimination law does not provide any exception for employee morale. In light of the fact that the law’s purpose is to break down stereotypes, the law contemplates that morale issues will be dealt with through education and understanding.

Misconception: An employee has a significant disability rating out of the workers’ compensation system Therefore the employee cannot perform the “essential functions” of the job.

Reality: The disability rating for purposes of providing benefits under workers’ compensation is irrelevant to and not part of the analysis required under discrimination law.

Misconception: Once an employer makes an accommodation for an employee, the employer’s duty is done.

Reality: Under disability discrimination law, it is an employer’s ongoing obligation to consider and provide reasonable accommodations. If an employee’s medical condition changes and it impacts the employee’s ability to perform the essential functions of the job, the employer will have to revisit the process for analyzing reasonable accommodation.

Misconception: Once an employee uses all of his or her leave under the Family and Medical Leave Act, the employer is not required to provide any more leave time.

Reality: The courts ruled that a leave of absence might be a reasonable accommodation under discrimination law. The employer’s obligations under the leave act must be analyzed separately from the obligations under discrimination