Employment Practice Considerations: Workers' Compensation and the ADA

42 U.S.C. Section 12101 et. seq. La. Rev. Stat. 23:1021 et. seq.

Employee Medical Questionnaires

Prior to the passage of the ADA, many employers required job applicants to complete a medical questionnaire. These medical questionnaires later assisted the employers in documenting the knowledge requirement for a Second Injury Fund claim. However, with the passage of the ADA, many employers have abandoned the medical questionnaire. If implemented correctly, the employer can enjoy the benefits of a medical questionnaire (Second Injury Fund, 1208.1 defense), without violating the provisions of the ADA.

The ADA requires that the employer not consider any disabilities of the employee/applicant when making employment decisions. Therefore, it would not be proper for the employer to request an applicant to complete a medical questionnaire PRIOR to an offer of employment.

However, once an offer of employment has been made, the employer may gather certain medical information through a questionnaire or a physical. However, this information should not be used in making any employment decisions. It is important that this information be gathered and stored in a medical folder which is separate from the employee's personnel folder. Furthermore, this information should not be accessed except for legitimate purposes, such as medical emergencies, claims for Second Injury Fund, and for 1208.1 defenses.

Pre-employment Inquiries

The EEOC (through the use of a checklist and examples) is trying to explain to employers which disability related inquiries are illegal pursuant to the ADA requirements. For example, it isillegal to ask:

1. Do you have AIDS?
2. Have you ever filed for worker's compensation benefits?
3. What prescriptions are you currently taking?
4. Have you ever been treated for mental health problems?

On the other hand, an employer can legally ask:

1. Can you perform the functions of this job, with or without reasonable accommodations?
2. Can you describe or demonstrate how you would perform these functions?
3. Can you meet the attendance requirements of the job?
4. Do you have the required licenses to perform these jobs?

However, the EEOC's interpretation and breakdown of legal pre-employment questioning makes varying degrees of distinction, and some are not readily apparent. For example: although obesity is a disability under the Act, the newly issued guidance by the EEOC states that the question, "How much do you weigh?" is a disability related question and therefore illegal.

Another subtle distinction is that at the initial stage, an employer MAY ask, "How many days did you take leave last year?", but MAY NOT ask, "How many days were you sick last year?". It is best to steer clear of any questions that could possibly be "disability related".

The EEOC has recognized that the issue of workers' compensation was left out when Congress passed the Americans With Disabilities Act, and it is now up to the EEOC to fill the gap. It has been noted that every workers' compensation claimant does not have an ADA disability, since a workers' compensation injury may be temporary (non-chronic impairment such as a broken leg that heals normally). That kind of condition would not be protected by the ADA. The EEOC also takes the position that the ADA does not overrule, nor is it at odds with, state workers' compensation laws.

The EEOC has recognized that under the ADA, employers (not doctors) make the decisions as to when employees are ready to return to work. Employers may require return to work medical examinations, but they must be narrowly confined to the employee's injury. Under the ADA, an employer is not required to create a light duty job for an injured worker; but the reasonable accommodation obligation may require job restructuring, which could mean eliminating the marginal functions of a job so that the particular injured worker may perform it. Therefore, modified duty or return to work programs are beneficial, both in light of the ADA and workers' compensation statutes. It is clear that a light duty program will result in lower medical costs and reduced indemnity payments because the employees are returning to work.

The issue of return to work programs also affects the Family and Medical Leave Act. In November of 1993, the Department of Labor advised employers that they may not require employees to participate in modified job assignments if they would rather take unpaid medical leave under the Family and Medical Leave Act. However, employers should realize that the advisory opinion has not yet been tested in court.

Employers should also be careful about statements they make in worker's compensation hearings and proceedings, because those statements can later be used against the employer in any ADA lawsuit.

On July 26, 1994, the employment provisions of the ADA were extended to employers who have 15 or more workers. This extended ADA coverage to approximately 380, 000 additional businesses across the United States and approximately 9 million additional employees. It is expected that the number of ADA charges filed with the EEOC will increase. Discharge because of a disability, has remained the charge most often filed with the EEOC under Title I of the ADA, accounting for almost 50% of the claims since the ADA's inception two years ago. In most of those cases, back impairments have been cited.