Answers to tricky HR questions: Can ADA accommodation lead to comp claim?
March 18, 2010 by Jim GiulianoPosted in: Answers to tricky HR questions, Employment law, In this week's e-newsletter, Latest News & Views
Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s question: How can we protect ourselves against a workers comp claim when offering an ADA accommodation?
Question:
How can we defend against a situation where we: a) accommodate a disabled employee; b) risk that the disability will get worse as a result of working and we’ll end up with a workers compensation claim?
Can we deny the accommodation based on the belief that the disability will worsen as a result of the person’s continuing to work?
Answer:
With one exception, you usually can’t deny an accommodation based on the belief that work in general will worsen the condition and lead to a comp claim, explains attorney Adele Abrams, who specializes in ADA compliance.
The exception: The U.S. Supreme Court ruled in favor of a company that denied employment to a worker whose disability would have worsened as a result of exposure to chemicals common in the company’s factory.
So, if you can show a specific danger to the employee, that makes for a stronger case for denial.
Tags: accommodation, ada, workers comp
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March 22nd, 2010 at 12:53 pm
I am very happy to see this article, as it relates to a situation I’m currently faced with. I hope that someone out there can offer some suggestions. Here’s the situation…
A couple of weeks ago a field supervisor came to me to ask if I had seen the an EE’s ‘return to work’ slip in my mailbox. He explained that the EE had been out because of an allergy to concrete dust (he’s one of our iron workers) and that this wasn’t the first time he’d been off work because of it (I’m fairly new to this company and did not know that). The supervisor felt that it wasn’t anything to be concerned about since the EE has never reported it as a WC injury to the ER doctor. I was concerned since I know that even a pre existing condition can end up a WC claim if the condition is aggravated while at work. I called our WC carrier for confirmation. I then spoke to our president and he suggested that we make him wear a respirator or long sleeves but I told him that I didn’t think we could do that since we don’t require any of the others in the field to do the same. I did request (not require) that he get something from his doctor explaining the condition so that we may provide him a with a safe working environment. As it turns out, he was diagnosed with the allergy 6 years before he began working here. The doc also states that he should be “avoiding cement dust and wearing a respirator if concrete can’t be avoided”. When I checked his WC medical questionnaire that all new hires complete, he had answered ‘no’ to the allergy question. Is it safe to assume that because he falsified the questionnaire, we are released from any liability or are we still liable for the next ‘flare up’ since we’re aware of the condition AND the doctors advice? Does the EE have any responsibility to protect himself? I’ve thought about having him sign something that waives us of any liability but then I question whether that is even legal. Any advice would be greatly appreciated since I’m supposed to be meeting with him on Wednesday.
March 23rd, 2010 at 8:16 am
I would contact WC insurance and discuss this with them, also have WC insurance contact the Dr.’s office and explain the job description and the allergy. If he needs a respiratory while on the job this must be listed on the note from the Dr. releasing him to full duty. You will need to discuss with HR and president to see if the employee can do his normal job while wearing a respirator.
good luck.
March 25th, 2010 at 11:21 pm
If we are concerned about the impact of providing accommodation leading to a future workers’ comp claim, and take action based upon that belief, then we could be very well subjecting ourselves to the ADA’s “regarded as” provisions. Under the ADA as amended, we can be found to have discriminated if our actions adversely affect a qualified disabled employee whether we regarded them as such or not. Determining if whether we should provide accommodation based upon the potential of further injury is actually regarding that person as having a disability. As such, they should be engaged in the Interactive Process. If you have any concerns about an accommodation impacting an employee’s safety, then discuss those concerns directly with the employee under their protection and right to be engaged in good faith communication about how their disability may be reasonably accommodated. If an accommodation poses a direct threat to their health and safety, then the obligation to provide that accommodation becomes mitigated. Again, that has to be discussed in good faith with the employee, giving them every opportunity to participate in that decision.
Marlon
April 13th, 2010 at 4:45 pm
I have been an HR Director for 23 years. When I’m busy I end up reading these late, so I don’t know if DMHR has an answer yet, but this is my take…
I don’t believe the applicant falsifying the allergy information will remove your responsibility to provide accomodation, since you are now aware of it.
I believe that falsifying information on an employment application may be a cause for termination. I don’t think I would do that at this point either.
I think the best thing to do is, if he can do the job with the respirator, it should be provided to him.
It doesn’t sound like it would be a very costly situation. If that is what the doctor orders, I can’t see having to impose that on every person in a like position.
April 14th, 2010 at 11:47 am
Since I posted my comment, I have been advised by our labor attorney to submit to them a very detailed job description. Once I did that, they contacted the DOL and spoke with a ‘disability’ specialist. She suggested speaking with the EE and ‘requesting’ that he sign a waiver agreeing to wear the company provided PPE appropriate for his condition and waiving us of any liability if he chose not to wear it.
August 27th, 2010 at 10:54 am
I do not have a reply, I have a question.
We are a small company (under 100) and we have been requested to supply a feminine hygeine product machine in all washrooms. Is this a necessary evil that is required? We are located in New York State, and I would appreciate any assistance here.