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Potential legal conflicts for return-to-work programs.

Many safety and workers' compensation programs utilize modified duty programs, otherwise known as transitional duty, early return-to-work, temporary duty or by other titles, These types of programs expedite workers' return to the workplace, which lowers temporary total disability (TTD) costs, reduces the chance of attorney involvement and helps reduce the final payment per day (PPD) settlement, It is important to understand, however, that when a worker is returned to duty, the world of traditional safety management expands and crosses over into the world of human resources, As such, a host of federal, state and local regulations governing the employment and termination of employees come into play, Of primary concern to those in risk management, safety management and human resources are the conflicts that can occur when workers are brought back to modified duty, which, while permissible under most state workers' compensation systems, may clash with two major pieces of federal labor legislation: the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

Comparing the Laws

The ADA was passed in 2990. According to the Department of Labor's Office of Disability Employment Policy, this federal anti-discrimination statute is intended to remove barriers for individuals with disabilities. "The ADA seeks to ensure equal access to employment opportunities regardless of whether someone has a disability," the Policy states, adding that Title I of the ADA prohibits discrimination against any qualified applicant or employee with a disability in all aspects of employment. Unfortunately, exactly what constitutes "disability," "reasonable accommodations" and an "otherwise qualified individual" were never strictly defined by the legislation and are currently undergoing continuous interpretation by the courts.

The FMLA was enacted in 1993. According to the Office of Disability Employment Policy, the FMLA requires employers to provide up to 12 weeks of unpaid, job-protected leave to "eligible" employees for certain family and medical reasons. Employees are eligible if they have worked for a covered employer for at least one year, and for 1,250 hours during the previous 12 months, and if the company employs at least 50 people within a 75-mile radius. The Office of Disability Employment Policy goes on to say that "there are some areas of interaction between FMLA and ADA," although the "concept of reasonable accommodation under the ADA and FMLA are different."

When comparing and contrasting the state workers' compensation laws in terms of the requirements of the FMLA and ADA, a number of major questions arise. What constitutes a disability? Can workers be allowed or required to come back to modified duty? Can the worker be reinstated or reassigned? These basic issues have to be answered in order to establish a viable return-to-work program that does not inadvertently run afoul of the FMLA or the ADA.

Requiring a worker to return to work on modified duty instead of drawing TTD is a staple of good cost containment. However, the rules of FMLA and ADA are different. For example, under the FMLA, light/modified duty is allowed, but employers can not require workers to accept light/modified duty instead of their benefits accorded by the FMLA. While under the ADA, light/modified duty is allowed, but the employer does not have to create a light/modified duty position or to make it permanent. The ADA also requires that the employer provides "reasonable accommodations" for "the essential functions of the employment position that such individual holds or desires."

Unfortunately, because workers' compensation laws vary from state to state and because of different interpretations by different courts regarding the FMLA and ADA, there are no easy answers to the question of returning an injured employee to work and the conflicts that exist between the laws. In addition, the Supremacy Clause, which mandates that federal law reigns supreme, takes precedence over any state law. Meaning that even if your particular state might allow a certain practice under workers' compensation statutes, the FMLA and ADA take precedence over them.

Where Does a Firm Begin?

Although there are a number of questions as to how workers' compensation, the FMLA and ADA interplay, the entire process begins with the question of what is a disability. Exactly what is a "serious health condition" that the FMLA refers to? What is a physical or mental impairment that substantially limits one or more of the major life "activities" as defined by the ADA? Until these questions are answered, the procedures to operate a return-to-work program free of legal risks are clouded.

According to the Equal Employment Opportunity Commission (EEOC), a disability under the ADA is "a qualified individual with a disability is a person who meets legitimate skill, experience, education or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation."

If this definition does not seem clear, you are not alone. In a recent U.S. Supreme Court case, Toyota Motor Manufacturing, KY, Inc. v. Williams (534 US 184), the Supreme Court addressed what is considered a covered disability under the ADA. While the Court appeared to limit the scope of the ADA--much to the benefit of the business community--there is still much uncertainty left concerning the ADA's wordage following the Toyota case.

In a 2002 article for HR Magazine, Peter J. Petesch, an attorney with Ford & Harrison LLP in Washington, D.C., said that the court "didn't even commit itself to whether working was a major life activity." In that same story, Michael J. Lotito, an attorney and member of the Society for Human Resource Management's board of directors, noted that the Toyota decision "presents the possibility for even more litigation" as cases and conditions are settled essentially on a case-by-case basis.

In fact, the State Supreme Court of Washington has already done just that. According to attorney Ralph C. Pond of Lane, Powell, Spears, & Lubersky, LLP, Washington's Law Against Discrimination (WLAD) prohibits discrimination based on disability, race, age and gender. Unlike the ADA, Pond says, WLAD conditions no definition of "disability." The Washington State Human Rights Commission defined a disability as any condition that is "abnormal." The Washington State Supreme Court ruled that whether or not an individual disability is covered or not is a question of fact in each and every individual case.

As contrasted with the "disability" definition of the ADA, the FMLA's standard is a "serious health condition." The statute defines this as an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice or residential medical care facility; or continuing treatment by a health care provider.

Whereas, the ADA deals with permanent conditions, the FMLA deals with temporary conditions. Of course, temporary and permanent conditions both have the potential to overlap into workers' compensation issues of disability and return to work.

In addition to the legislature or the courts providing set answers, another problem existing with the conflict between workers' compensation, FMLA and ADA is that not even the medical profession is able to provide answers regarding what is a disability or who is qualified to say that one is disabled.

On May 8, 1996, while she was testifying in front of the United States Senate Subcommittee on Children and Families of the Committee on Labor and Human Resources, Cynthia Graham, human resources analyst for Southern States Utilities in Apopka, Florida, pointed out that "any health condition has the potential to become qualified." Citing Reich v. Midwest Plastic Engineering, Inc., the Department of Labor took the position that chicken pox qualified as a serious health care condition under the ADA. Graham also pointed out that the definition of "health care providers" could include midwives, nurse practitioners, clinical social workers, Christian Science practitioners and a variety of other providers."

In short, the business community does not know what is a disability or who is qualified to diagnose a disability. Undoubtedly the same courts that provide different opinions on such social issues as abortion, the constitutionality of the Pledge of Allegiance, and the Second Amendment will provide differing views of disability and the responsibilities of the business community.

What Does the Government Suggest?

With all of this uncertainty, one might consider turning to the Department of Labor, which oversees both the ADA and FMLA. While DOL does provide some guidance along with a sample program for dealing with the various workplace laws, it is very general. "Each state has its own workers' compensation law and second injury fund. The employers' return-to-work policies and procedures for an employee who is injured or disabled must be consistent not only with state workers' compensation laws, but also with ADA, FMLA and OSHA regulations," the DOL warns in its 2003 Office of Disability Employment Policy. "It is important to remember that the ADA does not distinguish between reasonable-accommodation requirements for employees with work-related injures and illnesses as opposed to non-work-related injuries and illnesses."

In addition to the problems with the interplay between workers' compensation, the FMLA and ADA, other legal pitfalls await. For example, the Pregnancy Discrimination Act can also apply to workers' compensation, FMLA and ADA situations. Also, the Vocational Rehabilitation Act provides similar protections to the ADA, although both have requirements that need interpretation by a competent labor law attorney familiar with each particular situation. State law can also be a question. For example, the New Mexico Human Rights Act implies that similar standards for all employers with more than one employee may apply to FMLA and ADA situations.

It is important to understand that the standard of care required under the workers' compensation, FMLA and ADA interplay is dynamic. While a topnotch attorney could write an article regarding this interplay today, a court decision next week might totally change the landscape of what is required. In short, the goal line for compliance is forever changing. As a result, most firms will not have the internal resources for specialists who monitor the changes.

Keeping Informed

The conflicts between the traditional modified duty programs, the FMLA and the ADA present no easy solutions. According to the EEOC, ADA violations could result in civil penalties that may not exceed $55,000 for a first violation or $110,000 for any subsequent violation while the FMLA has its own enforcement mechanisms.

The purpose of this article, however, is not to discuss penalties, nor provide legal advice for a constantly changing situation, nor even specifics for a situation where none exist. It is simply to meet step one in the DOL's sample program, "Keep Informed," so that you understand that there is a dynamic danger in the conflicts between traditional return-to-work programs, the FMLA and the ADA.

Now your firm can work with appropriate legal and human resources professionals in your specific geographical area, which dictates which court you might have to satisfy, to protect your firm from legal problems as you continue to operate your back-to-work programs.

Dr. Shawn Adams, CPCU, ARM, PHR is a professor of risk management at Pittsburgh State University.
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Author:Adams, Shawn
Publication:Risk Management
Geographic Code:1USA
Date:Nov 1, 2004
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