ADA vs. Workers' Comp

Julie Shenkman
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Reprinted From "Best Practices in HR" and

Trying to comply with the Americans with Disabilities Act (ADA) and the workers' compensation system at the same time can give employers a headache, to say the least.

Generally speaking, the rules are similar - but not "identical."

The California law firm of Gutierrez, Preciado & House, LLP, offers some suggestions that can minimize your liability under ADA while dealing with occupational injuries within the workers' compliance system. The tips suggested cover basic but often overlooked HR management practices.

1. Forbid retaliation or harassment against an employee with an occupational injury who has returned to work with medical restrictions.

2. Identify the essential functions of each position in your company.

3. Train executives, managers, and medical personnel not to regard injured workers as disabled. Follow and enforce that policy.

4. All light-duty jobs for occupationally injured workers returning with temporary restrictions should be temporary. Only occupationally injured workers returning to work should fill those jobs.

5. All occupationally injured workers with temporary restrictions should be placed only in those jobs formally created for them. In other words, occupationally injured workers should not be given temporary placement in permanent positions.

6. When an occupationally injured worker: (a) is declared permanent and stationary or has occupied a light-duty position for as long as the company permits or (b) requests an accommodation, the employer should remove that person from light duty and determine if the person qualifies as disabled under ADA and/or state law.

7. If the employee might qualify as disabled, determine whether the employee can perform the essential functions of the job with or without reasonable accommodation.

8. After engaging in the required interactive process, show the employee the list of essential functions of the job and make the employee commit.

9. Consider reasonableness of possible accommodations, including reassignment, as well as undue hardship.

10. If no agreement can be reached, consider taking advantage of 42 U.S.C. Section 12212 by offering an alternative dispute resolution, such as mediation or arbitration.

By Linda Trainor


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