EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Workers' Compensation; Health Insurance and Other Benefits
January 28, 2000
This is in response to your letter dated November 30, 1999, which asks several questions about the relationship of the Americans with Disabilities Act of 1990 (ADA) to state workers' compensation laws.
As you know, the EEOC enforces Title I of the ADA which prohibits discrimination against qualified individuals on the basis of disability in all aspects of employment. 42 U.S.C.
§ 12112. The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of a person's major life activities, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). Discrimination is prohibited with respect to all terms, conditions, and privileges of employment. 42 U.S.C. § 12112.
You first ask whether paying employees with work-related injuries the difference between their workers' compensation income and their regular pay, while not paying employees with non-work-related disabilities the difference between their disability income and their regular pay would violate the ADA. In a different context, the enclosed fact sheet "Questions and Answers About Disability and Service Retirement Plans Under the ADA," dated May 11, 1995, at 2 (Q & A "C"), states that "[t]he ADA does not require that service retirement plans and disability retirement plans provide the same level of benefits, because they are two separate benefits which serve different purposes." While the Commission has not taken a position on whether this analysis applies to the type of situation you describe, arguably, it would not violate the ADA to provide different types of benefit programs for people with occupational and non-occupational injuries. (1)
You next ask whether providing light duty positions of indefinite duration with regular pay to employees with work-related injuries who have reached maximum medical improvement,
while not providing the same for employees with disabilities not caused by work-related injury would violate the ADA. Question 28 of the Commission's Enforcement Guidance: Workers' Compensation and the ADA (September 3, 1996) ("Guidance"), addresses this issue as follows:
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.
The guidance further notes that an employer cannot establish 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. Guidance, 22 (Q&A 28). Thus, contrary to the interpretation of the Guidance advanced in your letter, an employer that provides light duty positions of indefinite duration with regular pay to employees with disabilities caused by work-related injuries must also do so for employees with non-work-related disabilities if needed as a reasonable accommodation. Since failing to provide such an accommodation would violate the ADA, the issue of adverse impact need not be addressed.
Finally, you ask whether an employer may create light duty positions for employees with work-related injuries, but not for employees with disabilities that are not cause by work-related injuries. Question and Answer 27 of the Guidance clearly states that an employer need not do so. This is because the ADA does not require employers to create positions as a form of reasonable accommodation. Of course, if such a light duty position becomes a permanent position after the employee for whom it was created no longer occupies it, the employer must consider reassigning an employee with a non-work-related disability to it as a reasonable accommodation in accordance with the principles set forth above. An employer also must provide other forms of reasonable accommodation required under the ADA, absent undue hardship, such as (1) restructuring a position by redistributing marginal functions which an individual cannot perform because of a disability, (2) provide modified scheduling (including part time work), and (3) reassign a non-occupationally injured employee with a disability to an equivalent existing vacancy for which s/he is qualified, regardless of whether any of these types of accommodations might be considered "light duty."
Whether a policy of creating light duty positions for employees who are injured on the job while not creating the same for employees with disabilities that are not caused by work-related injuries would have an adverse impact on employees with disabilities must be determined
on a case-by-case basis. An employer must consider the overall composition of its workforce to determine whether such a policy would disproportionately exclude individuals with disabilities from employment opportunities.
We hope this information is helpful to you. Please note, however, that this letter is an informal discussion of the issues raised by you and is not an official opinion of the Equal Employment Opportunity Commission. In addition, our failure to address other matters that may have been presented should not be construed as agreement with the statements or analysis related to those matters.
Christopher J. Kuczynski
Assistant Legal Counsel
1. Even if such a policy is permissible under the ADA, an employer would be prohibited from discriminating on the basis of disability in providing such benefits to employees. Thus, for example, an employer would violate the ADA if it paid employees with work-related injuries who are not covered by the ADA the difference between workers' compensation and their regular pay but did not do the same for employees with work-related injuries who are covered by the ADA.
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