Return to Home PageThe U.S. Equal Employment Opportunity Commission
EEOC NOTICE
Number 915.002
Date
1. SUBJECT: EEOC Enforcement Guidance: Workers' Compensation and the ADA
2. PURPOSE: This enforcement guidance sets forth the
Commission's position on the interaction between Title I of the
Americans with Disabilities Act of 1990 and state workers'
compensation laws.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: As an exception to EEOC Order 205.001,
Appendix B, Attachment 4, § a(5), this Notice will remain in
effect until rescinded or superseded.
5. ORIGINATOR: ADA Division, Office of Legal Counsel.
6. INSTRUCTIONS: File after Section 902 of Volume II of the
Compliance Manual.
_______________ _____________________________________
Date Gilbert F. Casellas
Chairman
EEOC Enforcement Guidance: Workers' Compensation and the ADA
TABLE OF CONTENTS
INTRODUCTION
DISABILITY
QUESTIONS AND EXAMINATIONS
CONFIDENTIALITY OF MEDICAL INFORMATION
HIRING DECISIONS
RETURN TO WORK DECISIONS
REASONABLE ACCOMMODATION
LIGHT DUTY
EXCLUSIVE REMEDY PROVISIONS
INDEX (removed in ASCII version)
EEOC Enforcement Guidance: Workers' Compensation and the ADA
INTRODUCTION
This enforcement guidance concerns the interaction
between Title I of the Americans with Disabilities Act of 1990
(ADA)1 and state workers' compensation laws.2 The purpose of
Title I of the ADA is to prohibit employers from discriminating
against qualified individuals because of disability in all
aspects of employment.3 On the other hand, the purpose of a
workers' compensation law is to provide a system for securing
prompt and fair settlement of employees' claims against employers
for occupational injury and illness.4 While the purposes of the
two laws are not in conflict, the simultaneous application of the
laws has raised questions for EEOC investigators, for employers,
and for individuals with disabilities in a number of areas.5 In
this document, the Commission provides guidance concerning the
following issues:
* whether a person with an occupational injury has a
disability as defined by the ADA;
* 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.
DISABILITY
The Commission has provided general guidance on the
definition of the term "disability" under the ADA in EEOC:
Definition of the Term "Disability," 8 FEP Manual (BNA) 405:7251
(1995). This section applies that guidance in the context of
occupational injury and workers' compensation. The definition of
"disability" under the ADA is no different in the workers'
compensation context than in any other context.
1. Does everyone with an occupational injury have a
disability within the meaning of the ADA?
No. Even if an employee with an occupational injury
has a "disability" as defined by a workers' compensation statute,
s/he may not have a "disability" for ADA purposes.
The ADA defines "disability" as: (1) a physical or
mental impairment that substantially limits a major life
activity, (2) a record of such an impairment, or (3) being
regarded as having such an impairment. 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.
2. Does every person who has filed a workers' compensation
claim have a disability under the "record of" portion of the ADA
definition?
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.
3. When does a person with an occupational injury have a
disability under the "regarded as" portion of the ADA definition?
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 but is treated by an employer as if it were
substantially limiting, (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.6
Example A: 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.
Example B: 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.
Example C: An employee is fully recovered from an
occupational injury that resulted in a temporary back impairment.
The employer fires the employee because it believes 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.
QUESTIONS AND EXAMINATIONS
The Commission has provided general guidance on disability-
related questions and medical examinations in ADA Enforcement
Guidance: Preemployment Disability-Related Questions and Medical
Examinations, 8 FEP Manual (BNA) 405:7191 (1995). The guidance
provided here pertains particularly to disability-related
questions and medical examinations related to workers'
compensation and occupational injuries.
4. When may an employer ask questions about an applicant's
prior workers' compensation claims or occupational injuries?
An employer may ask questions about an applicant's
prior workers' compensation claims or occupational injuries 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.
5. When may an employer require a medical examination of an
applicant to obtain information about the existence or nature of
prior occupational injuries?
An employer may require a medical examination to obtain
information about the existence or nature of an applicant's prior
occupational injuries, 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 only if they are medically related to the
previously obtained medical information.
6. Before making a conditional offer of employment, may an
employer obtain information about an applicant's prior workers'
compensation claims or occupational injuries from third parties,
such as former employers, state workers' compensation offices, or
a service that provides workers' compensation information?
No. At the pre-offer stage, as at any other time, an
employer may not obtain from third parties any information that
it could not lawfully obtain directly from the applicant.
7. 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?
Yes, in both instances, provided that the disability-
related questions or medical examinations are 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.
However, the questions and examinations must 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.7
8. May an employer ask disability-related questions or
require a medical examination of an employee with an occupational
injury in order to ascertain the extent of its workers'
compensation liability?
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.8
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.
9. If an employee with a disability-related occupational
injury requests a reasonable accommodation, may the employer ask
for documentation of his/her disability?
Yes. If an employee with a disability-related
occupational injury9 requests reasonable accommodation and the
need for accommodation is not obvious, the employer may require
reasonable documentation of the employee's entitlement to
reasonable 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.
CONFIDENTIALITY OF MEDICAL INFORMATION
10. Do the ADA's confidentiality requirements apply to
medical information regarding an applicant's or employee's
occupational injury or workers' compensation claim?
Yes. 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.
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;10
* first aid and safety personnel may be told, when
appropriate, if the disability might require emergency
treatment;11
* government officials investigating compliance
with the ADA must be given relevant information on request;12
* 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;13 and
* employers may use the information for insurance
purposes.14
HIRING DECISIONS
11. May an employer refuse to hire a person with a
disability simply because it assumes, correctly or incorrectly,
that s/he poses some increased risk of occupational injury and
increased workers' compensation costs?
No, unless the employer can show that employment of the
person in the position poses a "direct threat." In enacting the
ADA, Congress sought to address stereotypes regarding disability,
including assumptions about workers' compensation costs.15 Where
an employer refuses to hire a person because it assumes,
correctly or incorrectly, that, because of a disability, s/he
poses merely some increased risk of occupational injury (and,
therefore, increased workers' compensation costs), the employer
discriminates against that person on the basis of disability.
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.
"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.16
The determination that a direct threat exists must be the result
of a fact-based, individualized inquiry that takes into account
the specific circumstances of the individual with a disability.
In determining whether employment of a person in a
particular position poses a direct threat, the factors to be
considered are:
* the duration of the risk;
* the nature and severity of the potential harm;
* the likelihood that the potential harm will
occur; and
* the imminence of the potential harm.17
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.
12. May an employer refuse to hire a person with a
disability simply because s/he sustained a prior occupational
injury?
No. The mere fact that a person with a disability
experienced an occupational injury in the past does not, by
itself, establish that his/her current employment in the position
in question poses a direct threat, i.e., a significant risk of
substantial harm that cannot be lowered or eliminated by a
reasonable accommodation. However, evidence about a person's
prior occupational injury, in some circumstances, may be relevant
to the direct threat analysis discussed in question 11, above.
An investigator should consider the following factors
regarding a prior occupational injury in applying the direct
threat analysis set forth in question 11, above:
* whether the prior injury is related to the
person's disability (e.g., if employees without disabilities in
the person's prior job had similar injuries, this may indicate
that the injury is not related to the disability and, thus, is
irrelevant to the direct threat inquiry);
* the circumstances surrounding the prior injury
(e.g., the actions of others in the workplace or the lack of
appropriate safety devices or procedures may have caused or
contributed to the injury);
* the similarities and differences between the
position in question and the position in which the prior injury
occurred (e.g., the prior position may have involved hazards not
present in the position under consideration);
* whether the current condition of the person with
a disability is similar to his/her condition at the time of the
prior injury (e.g., if the person's condition has improved, the
prior injury may have little significance);
* the number and frequency of prior occupational
injuries;
* the nature and severity of the prior injury
(e.g., if the injury was minor, it may have little or no
significance);
* the amount of time the person has worked in the
same or a similar position since the prior injury without
subsequent injury; and
* whether the risk of harm can be lowered or
eliminated by a reasonable accommodation.
Example A: CP applies for a position operating a large
saw with R, a lumber mill. After making a conditional job offer,
R discovers that CP, who has insulin-dependent diabetes, was
seriously injured while operating a similar saw for another
lumber mill. The injury was caused by the failure of a safety
device and was unrelated to CP's diabetes. R assumes, however,
that the injury was related to the diabetes and refuses to hire
CP for safety reasons. CP's prior occupational injury, which was
unrelated to her disability, does not constitute evidence that
she poses a direct threat in the saw operator position because of
her disability.
Example B: CP, who has a shoulder disability, applies
to R restaurant for the position of bus person which requires
frequent carrying of basins full of dirty dishes weighing 40-45
pounds. After a conditional job offer, R discovers that CP has
had five serious injuries to his left shoulder while carrying
basins full of dirty dishes in other bussing jobs over the past
four years. A medical examination and physical fitness test show
that the condition of CP's shoulder has significantly
deteriorated with each injury. They also show that, if CP
carries heavy basins, there is a high probability that his left
shoulder will be immediately and permanently injured to the point
where his left arm will be useless. Assume that there is no
reasonable accommodation that will enable CP to perform the
essential functions of the bussing position. The objective
medical and other evidence (the number, frequency, nature, and
severity of the prior injuries; the similarity of the position at
issue to the positions in which the injuries occurred; the
progressive deterioration of CP's shoulder with each injury; and
the evidence that a further injury will render CP's arm useless)
supports a finding that CP's employment in the position of bus
person poses a significant risk of substantial harm. The
evidence further shows that the risk cannot be lowered or
eliminated through a reasonable accommodation. Therefore, CP's
employment in the position of bus person poses a direct threat.
Example C: CP applies for a position as a laborer with
R, a construction company. The position requires lifting
equipment and other items weighing up to 100 pounds. After
making a conditional offer of employment to CP, R requires him to
undergo its standard medical examination. As a result, R
discovers that CP previously injured his back while working for
an automotive repair shop. CP's prior on-the-job injury, which
occurred when CP was helping a co-worker push a stalled vehicle,
was not serious. CP has completely recovered from the back
injury. Nevertheless, R rescinds its offer of employment because
it is worried about increased workers' compensation costs and
considers CP to be a poor risk for heavy labor.18 CP's prior
occupational injury, which was not serious and which occurred in
a position involving hazards not present in R's position, does
not constitute evidence that employment of CP in the laborer
position would pose a direct threat.
RETURN TO WORK DECISIONS
13. May an employer require that an employee with a
disability-related occupational injury be able to return to "full
duty" before allowing him/her to return to work?
No. The term "full duty" may include marginal as well
as essential job functions or may mean performing job functions
without any accommodation. An employer may not require that an
employee with a disability-related occupational injury who can
perform essential functions be able to return to "full duty" if,
because of the disability, s/he is unable to perform marginal
functions of the position19 or requires a reasonable
accommodation that would not impose an undue hardship.
14. May an employer refuse to return to work an employee
with a disability-related occupational injury simply because it
assumes, correctly or incorrectly, that s/he poses some increased
risk of reinjury and increased workers' compensation costs?
No, 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." (See the
discussion of direct threat in questions 11 and 12, above.)
The fact that an employee has had a disability-related
occupational injury does not, by itself, indicate that s/he is
unable to perform the essential functions of the job or that
returning him/her to work poses a direct threat. In some
circumstances, evidence about an employee's disability-related
occupational injury may be relevant to whether s/he can perform
the essential functions of the job, with or without a reasonable
accommodation, or it may be relevant to the direct threat
analysis. An employer should consider the pertinent factors
listed in questions 11 and 12, above, in applying the direct
threat analysis in this context.
Example A: CP, a clerk/typist, breaks her wrist while
trying to move heavy office equipment with a co-worker. CP is
unable to work for six weeks and receives workers' compensation.
After CP's wrist completely heals, she asks to return to work. A
physician indicates that there is little risk that repetitive
motion will damage CP's wrist. However, R refuses her request to
return to the clerk/typist position because it believes that any
repetitive motion will cause serious and permanent reinjury of
her wrist.20 The following objective evidence supports a finding
that returning CP to the clerk/typist position does not pose a
significant risk of substantial harm (i.e., direct threat): (1)
her injury was not caused by repetitive motion, (2) her wrist has
completely healed, and (3) there is little risk that she will
reinjure her wrist through repetitive motion. R has violated the
ADA by not returning CP to her clerk/typist position.
Example B: CP, a maintenance worker, badly fractures
both ankles in a workplace accident. She is unable to work for
six months and receives workers' compensation. Although CP's
ankles partially heal, she is unable to walk and stand for more
than short periods of time. CP's maintenance job requires
extensive walking and standing on cement floors. The report from
CP's most recent medical examination shows that there is a high
probability of immediate, severe, and permanent damage to CP's
ankles if she walks or stands for more than short periods of
time, especially on hard surfaces. Assume that there is no
accommodation that will lower the risk of harm. R may refuse to
return CP to her maintenance position because there is sufficient
evidence to support a finding that her employment in the position
poses a direct threat, i.e., a significant risk of substantial
harm that cannot be eliminated or reduced through a reasonable
accommodation. (However, R must reassign CP, as set forth in
question 22, below, absent undue hardship.)
15. May an employer refuse to return to work an employee
with a disability-related occupational injury simply because of a
workers' compensation determination that s/he has a "permanent
disability" or is "totally disabled"?
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. For example, under a workers'
compensation statute, 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.
16. Under the ADA, is a rehabilitation counselor, physician,
or other specialist responsible for deciding whether an employee
with a disability-related occupational injury is ready to return
to work?
No. The employer bears the ultimate responsibility for
deciding whether an employee with a disability-related
occupational injury is ready to return to work. Therefore, the
employer, rather than a rehabilitation counselor, physician, or
other specialist, must determine whether the employee can perform
the essential functions of the job, with or without reasonable
accommodation, or can work without posing a direct threat.
On the other hand, the employer may find it helpful to
seek information from the rehabilitation counselor, physician, or
other specialist regarding the employee's specific functional
limitations, abilities, and possible reasonable accommodations.
In order to obtain useful and accurate information from
a rehabilitation counselor, physician, or other specialist in
making a return to work decision, an employer may wish to provide
him/her with specific information about the following:
* the essential functions of the employee's
position and the nature of the work to be performed;
* the work environment and the employer's
operations, including any unavoidable health or safety hazards
which may exist; and
* possible reasonable accommodations.
An employer also may obtain useful information from
others who are not experts but who are knowledgeable about the
employee's current abilities, limitations, and possible
reasonable accommodations. Such information will enable the
employer to make an independent and accurate determination about
the employee's ability to return to work.
REASONABLE ACCOMMODATION
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 are discussed in the
Commission's ADA regulations and interpretive guidance (29 C.F.R.
§§ 1630.2, 1630.9 and Appendix (1995)), and in the
Technical Assistance Manual at 3.0, 8 FEP Manual (BNA) 405:6998
(1992). This section provides specific guidance regarding
reasonable accommodation in the context of workers' compensation.
17. Does the ADA require an employer to provide reasonable
accommodation for an employee with an occupational injury who
does not have a disability as defined by the ADA?
No. 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.
18. May an employer discharge an employee who is temporarily
unable to work because of a disability-related occupational
injury?
No. An employer may not discharge an employee who is
temporarily unable to work because of a disability-related
occupational injury where it would not impose an undue hardship
to provide leave as a reasonable accommodation.21
19. What are the reinstatement rights of an employee with a
disability-related occupational injury?
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 also unavailable.22
20. Must an employer, as a reasonable accommodation,
reallocate job duties of an employee with a disability-related
occupational injury?
Yes, if the duties to be reallocated are marginal
functions23 of the position that the employee cannot perform
because of the disability. Reasonable accommodation includes
restructuring a position by reallocating or redistributing the
marginal functions that the employee cannot perform because of
the disability. However, an employer need not eliminate
essential functions of the position.
21. May an employer unilaterally reassign an employee with a
disability-related occupational injury to a different position
instead of first trying to accommodate the employee in the
position s/he held at the time the injury occurred?
No. An employer must first assess whether the employee
can perform the essential functions of his/her original position,
with or without a reasonable accommodation. Examples of
reasonable accommodation include job restructuring, modification
of equipment, or a part-time work schedule. Reassignment should
be considered only when accommodation within the employee's
original position is not possible or would impose an undue
hardship.24
22. 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?
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.25 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.
23. If there is no vacancy for an employee who can no longer
perform his/her original position because of a disability-related
occupational injury, must an employer create a new position or
"bump" another employee from his/her position?
No. The ADA does not require an employer to create a
new position or to bump another employee from his/her position in
order to reassign an employee who can no longer perform the
essential functions of his/her original position, with or without
a reasonable accommodation.
24. When an employee requests leave as a reasonable
accommodation under the ADA because of a disability-related
occupational injury, may an employer provide an accommodation
that requires him/her to remain on the job instead?
Yes. An employer need not provide an employee's
preferred accommodation as long as the employer provides an
effective accommodation -- one that is sufficient to meet the
employee's job-related needs.
Accordingly, an employer may provide a reasonable
accommodation that requires an employee to remain on the job, in
lieu of providing leave (e.g., reallocating marginal functions,
or providing temporary reassignment).
The employer is obligated, however, to restore the
employee's full duties or to return the employee to his/her
original position once s/he has recovered sufficiently to perform
its essential functions, with or without a reasonable
accommodation.
However, if an employee with a disability-related
occupational injury does not request a reasonable accommodation,
but simply requests leave that is routinely granted to other
employees (e.g., accrued paid leave or leave without pay), an
employer may not require him/her to remain on the job with some
type of adjustment unless it also requires employees without
disabilities who request such leave to remain on the job with
some type of adjustment.
(Note that, if an employee qualifies for leave under
the Family and Medical Leave Act, an employer may not require
him/her to remain on the job with an adjustment in lieu of taking
a leave of absence. 29 C.F.R. § 825.702(d)(1) (1995).)
25. May an employer satisfy its ADA obligation to provide
reasonable accommodation for an employee with a disability-
related occupational injury by placing him/her in a workers'
compensation vocational rehabilitation program?
No. An employer cannot substitute vocational
rehabilitation services in place of a reasonable accommodation
required by the ADA for an employee with a disability-related
occupational injury. An employee's rights under the ADA are
separate from his/her entitlements under a workers' compensation
law. The ADA requires employers to accommodate an employee in
his/her current position through job restructuring or some other
modification, absent undue hardship.26 If it would impose an
undue hardship to accommodate an employee in his/her current
position, then the ADA requires that an employer reassign the
employee to a vacant position s/he can perform, absent undue
hardship.27 (See question 22, above.)
26. May an employer make a workplace modification that is
not a required form of reasonable accommodation under the ADA in
order to offset workers' compensation costs?
Yes. Nothing in the ADA prohibits an employer from
making a workplace modification that is not a required form of
reasonable accommodation under the ADA for an employee with an
occupational injury in order to offset workers' compensation
costs. For example, the ADA does not require employers to lower
production standards to accommodate individuals with
disabilities. However, an employer is clearly permitted to lower
production standards for an occupationally injured employee as a
way of returning him/her to work more quickly.
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. "Light duty" also may consist of particular
positions with duties that are less physically or mentally
demanding created specifically for the purpose of providing
alternative work for employees who are unable to perform some or
all of their normal duties. Further, an employer may refer to
any position that is sedentary or is less physically or mentally
demanding as "light duty."
In the following questions and answers, the term "light
duty" refers only to particular positions created specifically
for the purpose of providing work for employees who are unable to
perform some or all of their normal duties.
27. Does the ADA prohibit an employer from creating a light
duty position for an employee when s/he is injured on the job?
No, in most instances. 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.28
Of course, 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.
An employer need not create a light duty position for a
non-occupationally injured employee with a disability as a
reasonable accommodation. The principle that the ADA does not
require employers to create positions as a form of reasonable
accommodation applies equally to the creation of light duty
positions. However, an employer must provide other forms of
reasonable accommodation required under the ADA. For example,
subject to undue hardship, an employer must: (1) restructure a
position by redistributing marginal functions which an individual
cannot perform because of a disability, (2) provide modified
scheduling (including part time work), or (3) reassign a non-
occupationally injured employee with a disability to an
equivalent existing vacancy for which s/he is qualified.
Accordingly, an employer may not avoid its obligation to
accommodate an individual with a disability simply by asserting
that the disability did not derive from an occupational injury.
In some cases, the only effective reasonable
accommodation available for an individual with a disability may
be similar or equivalent to a light duty position. The employer
would have to provide that reasonable accommodation unless the
employer can demonstrate that doing so would impose an undue
hardship.
Example: R creates light duty positions for employees
when they are occupationally injured if they are unable to
perform one or more of their regular job duties. CP can no
longer perform functions of her position because of a disability
caused by an off-the-job accident. She requests that R create a
light duty position for her as a reasonable accommodation. R
denies CP's request because she has not been injured on the job.
R has not violated the ADA. However, R must provide another
reasonable accommodation, absent undue hardship. If it is
determined that the only effective accommodation is to
restructure CP's position by redistributing the marginal
functions, and the restructured position resembles a light duty
position, R must provide the reasonable accommodation unless it
can prove that it imposes an undue hardship.
28. If an employer reserves light duty positions for
employees with occupational injuries, does the ADA require it to
consider reassigning an employee with a disability who is not
occupationally injured to such positions as a reasonable
accommodation?
Yes.29 If an employee with a disability who is not
occupationally injured becomes unable to perform the essential
functions of his/her job, and there is no other effective
accommodation available, the employer must reassign him/her to a
vacant reserved light duty position as a reasonable accommodation
if (1) s/he can perform its essential functions, with or without
a reasonable accommodation; and (2) the reassignment would not
impose an undue hardship. This is because reassignment to a
vacant position and appropriate modification of an employer's
policy are forms of reasonable accommodation required by the ADA,
absent undue hardship.30 An employer cannot establish that the
reassignment to a vacant reserved light duty position imposes an
undue hardship simply by showing that it would have no other
vacant light duty positions available if an employee became
injured on the job and needed light duty.
Example: R has light duty positions which it reserves
for employees in its manufacturing department when they are
unable to perform their regular job duties because of on-the-job
injuries. CP, an assembly line worker, has multiple sclerosis
(MS) which substantially limits a number of major life
activities. Eventually CP is unable to perform the essential
functions of her position, with or without a reasonable
accommodation, because of the MS. As a reasonable accommodation,
CP requests that she be reassigned to a vacant light duty
position for which she is qualified. R says that the vacant
light duty position is reserved for employees who are injured on
the job and refuses to reassign CP, although it would not impose
an undue hardship to do so. R has violated the ADA by refusing
to reassign her to the vacant light duty position.
29. If an employer has only temporary light duty positions,
must it still provide a permanent light duty position for an
employee with a disability-related occupational injury?
No. The ADA typically does not limit an employer's
ability to establish or change the content, nature, or functions
of its positions. So, for example, an employer is free to
determine that a light duty position will be temporary rather
than permanent.31 Thus, if an employer provides light duty
positions only on a temporary basis, it need only provide a
temporary light duty position for an employee with a disability-
related occupational injury.
EXCLUSIVE REMEDY PROVISIONS
30. Do exclusive remedy provisions in workers' compensation
laws bar employees from pursuing ADA claims?
No. The purpose of workers' compensation exclusivity
clauses is 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,32 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.
INDEX (removed in ASCII version)
1. Codified as amended at 42 U.S.C. §§ 12101-
12117, 12201-12213 (1994).
2. The analysis in this guidance also applies to federal
sector complaints of non-affirmative action employment
discrimination arising from the interaction between the Federal
Employee's Compensation Act, 5 U.S.C. §§ 8101-8193
(1994), and section 501 of the Rehabilitation Act of 1973, 29
U.S.C. § 791(g) (1994), and to complaints of non-affirmative
action employment discrimination arising from the interaction
between sections 503 and 504 of the Rehabilitation Act of 1973,
29 U.S.C. §§ 793(d), 794(d) (1994), and state workers'
compensation laws.
3. 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.4.
4. Workers' compensation laws generally require employers to
compensate employees who are injured or become ill in the course
of employment for the resulting loss of earning capacity and for
medical care. See 1 Arthur Larson, The Law of Workmen's
Compensation, § 1-1.10 (1994).
5. Basic information on this topic may be found in EEOC:
Technical Assistance Manual on the Employment Provisions (Title
I) of the Americans with Disabilities Act at 9.0, 8 FEP Manual
(BNA) 405:7055 (1992) [hereinafter Technical Assistance Manual].
6. For a detailed discussion of whether an individual is
covered under the "regarded as" portion of the ADA definition of
disability, see EEOC: Definition of the Term "Disability" at
902.8(a), 8 FEP Manual (BNA) 405:7278-405:7286 (1995).
7. If, as a result of an examination or inquiry, an employer
refuses to return an employee to work because of a disability,
the reason for doing so must be job-related and consistent with
business necessity. See 29 C.F.R. § 1630.10 and Appendix
(1995). Where safety considerations are implicated, the employer
can only refuse to return the employee to work where his/her
employment in the position would pose a "direct threat." Direct
threat is discussed in questions 11, 12, 14, and 15, below.
8. This is because the ADA does not invalidate the
procedures of any federal, state, or local law "that provides
greater or equal protection for the rights of individuals with
disabilities" than is provided by the ADA. 42 U.S.C. §
12201(b) (1994). Those portions of state workers' compensation
laws that protect the rights of individuals to be compensated for
work-related injury provide such greater or equal protection.
The same is true for the analogous portions of the Federal
Employee's Compensation Act, 5 U.S.C. §§ 8101-8193
(1994).
9. An individual with a disability may have an occupational
injury that has nothing to do with the disability. The term
"disability-related occupational injury" is used herein when the
ADA and workers' compensation statutes apply simultaneously,
i.e., where there is a connection between an occupational injury
and a disability as defined by the ADA.
10. 42 U.S.C. § 12112(d)(3)(B)(i) (1994); 29 C.F.R.
§ 1630.14(b)(1)(i), (c)(1)(i) (1995).
11. 42 U.S.C. § 12112(d)(3)(B)(ii); 29 C.F.R. §
1630.14(b)(1)(ii), (c)(1)(ii).
12. 42 U.S.C. § 12112(d)(3)(B)(iii); 29 C.F.R. §
1630.14(b)(1)(iii), (c)(1)(iii).
13. See 42 U.S.C. § 12201(b); 29 C.F.R. pt. 1630 app.
§ 1630.14(b).
14. See 42 U.S.C. § 12201(c); 29 C.F.R. pt. 1630 app.
§§ 1630.14(b) and 1630.16(f). For example, an employer
may submit medical information to the company's health insurance
carrier if the information is needed to administer a health
insurance plan in accordance with § 501(c) of the ADA.
15. H.R. Rep. No. 485 pt. 3, 101st Cong., 2d Sess. 31
(1990).
16. 29 C.F.R. § 1630.2(r) (1995).
17. "Direct threat" is discussed more fully in the
Commission's ADA regulations and interpretive guidance, 29 C.F.R.
§ 1630.2(r) and Appendix (1995), and in the Technical
Assistance Manual at 4.5, 8 FEP Manual (BNA) 405:7022-405:7026
(1992).
18. CP has a disability as defined by the ADA because R
regards CP as having a substantially limiting impairment. R,
which disqualified CP from the heavy laborer position because it
believed that CP was a poor risk for heavy labor, treated CP as
unsuitable for the class of heavy labor jobs. Accordingly, R
regards CP as substantially limited in the major life activity of
working. See EEOC: Definition of the Term "Disability" at
902.8(f), 8 FEP Manual (BNA) 405:7282 (1995).
19. The employer can reallocate or redistribute to other
employees the marginal functions that the employee is unable to
perform because of the disability.
20. CP has a disability because R regards her as having an
impairment that disqualifies her from a class of jobs
(clerk/typist) and therefore as substantially limited in the
major life activity of working. See EEOC: Definition of the Term
"Disability" at 902.8(f), 8 FEP Manual (BNA) 405:7282 (1995).
21. Under the ADA, permitting the use of accrued paid leave
or providing additional unpaid leave for treatment and/or
recovery are forms of reasonable accommodation that an employer
must provide, absent undue hardship. See 29 C.F.R. pt. 1630 app.
§ 1630.2(o) (1995); Technical Assistance
Manual at 3.10(4), 8 FEP Manual (BNA) 405:7011 (1992). In
addition, an injured employee may be entitled to leave under the
Family and Medical Leave Act of 1993, 29 U.S.C. §§
2601-2654 (1994), which is enforced by the United States
Department of Labor.
22. For further information on an employer's obligations
regarding reassignment, see questions 21 and 22, below.
23. For a discussion of essential and marginal job
functions see 29 C.F.R. § 1630.2(n) and Appendix (1995) and
the Technical Assistance Manual at 2.3(a)-(c), 8 FEP Man. (BNA)
405:6993-405:6998 (1992).
24. 29 C.F.R. pt. 1630 app. § 1630.2(o); Technical
Assistance Manual at 3.10(5), 8 FEP Manual (BNA) 405:7011-
405:7012 (1992). Note, however, that the ADA does not prohibit
an employer and an employee from choosing reassignment rather
than accommodation in the original position, if both parties
voluntarily agree that reassignment is preferable.
25. Id. Note, however, that the ADA does not prohibit an
employer from removing an essential function that an employee is
no longer able to perform, in lieu of reassignment, if removing
the essential function does not result in a diminution of an
employment opportunity or status. Where removing an essential
function results in a diminution of an employment opportunity or
status, an employer may remove the essential function in lieu of
reassignment only if both parties voluntarily agree that it is
preferable to reassignment. Of course, the ADA does not require
an employer to remove an essential job function as a reasonable
accommodation.
26. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1995);
Technical Assistance Manual at 3.10(5), 8 FEP Manual (BNA)
405:7011-405:7012 (1992).
27. However, the ADA does not prohibit an employer and an
employee from choosing vocational rehabilitation as an
alternative to accommodating the employee in his/her current
position, if both parties voluntarily agree that vocational
rehabilitation is preferable.
28. A policy of creating light duty jobs for employees when
they are occupationally injured in some instances may
disproportionately exclude a class of individuals with
disabilities. Where this is established by appropriate evidence
of adverse impact, an employer must show that the policy is job-
related and consistent with business necessity. Similarly, where
such a policy has a disparate impact on a protected class under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e-2000e-17 (1994), or the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621-634 (1994),
the employer must show that the policy is job-related and
consistent with business necessity.
29. If it is established by appropriate evidence that a
policy of reserving light duty jobs for employees who have been
occupationally injured has an adverse impact on a protected class
under any of the laws enforced by the EEOC, an employer must show
that the policy is job-related and consistent with business
necessity. See footnote 28, above. Of course, an employer may
not apply the policy in a discriminatory manner.
30. 29 C.F.R. § 1630.2(o)(2)(ii) (1995).
31. Technical Assistance Manual at 9.4, 8 FEP Manual (BNA)
405:7057-405:7058 (1992).
32. The only federal court to have addressed the issue
under the ADA has held that an individual's ADA rights are not
precluded by a state workers' compensation exclusive remedy
provision. Wood v. County of Alameda, 875 F. Supp. 659, 664, 4
AD Cas. (BNA) 43 (N.D. Cal. 1995). Prior to enactment of the
ADA, it was well established that the exclusive remedy provisions
of state workers' compensation laws could not bar claims arising
under federal civil rights laws, including the Rehabilitation
Act. See, e.g., Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1190
(2d Cir. 1987) (while workers' compensation law might bar
plaintiff's state common law claim, it cannot bar relief under 42
U.S.C. § 1981 for discriminatory discharge); Rosa v.
Cantrell, 705 F.2d 1208, 1221 (10th Cir. 1982), cert. denied, 464
U.S. 821 (1983) (state statute's exclusivity provision does not
bar a federal civil rights claim under 42 U.S.C. § 1983);
Smith v. Lake City Nursing Home, 771 F. Supp. 985, 987, 1 AD Cas.
(BNA) 1874 (D. Minn. 1991) (federal remedy under section 504 of
Rehabilitation Act for disability discrimination cannot be
limited by a state workers' compensation act).