In perusing the EEOC’s tweets (yes, I do that for all of you), I came across a shout-out for a memo on workers’ compensation and the ADA that was co-written by one of the EEOC’s attorneys, Aaron Konopasky, and an outside medical professional . The memo raised some interesting points regarding the ADA’s coverage of employees on workers’ compensation that I thought should be brought to employers’ attention.

  • The employer can’t wait until an employee reaches maximum medical improvement (MMI) before starting the reasonable accommodation process. According to the memo, there are multiple points at which an employer should engage in the required interactive discussion with an employee to determine if there is a reasonable accommodation that would enable the employee to perform his/her essential job functions. This includes: (1) at the time of injury, (2) while out of work in recovery, and (3) when leave and benefits are exhausted but the employee still cannot return (reasonable accommodations here might include additional leave or reassignment to a vacant position).
  • Employers may choose to reduce job demands or productivity expectations on a short-term basis, but this is not required under the ADA – in other words, it’s not a reasonable accommodation that an employer would be obligated to provide. (Note that this apparently is different than light duty, which an employer may be required to provide as a reasonable accommodation).
  • As part of the ADA reasonable accommodations process, injured workers must be included in the workers’ comp decision-making process about transitional work assignments and leave.
  • Employees can’t be forced to take leave if they can do the essential functions of the job with a reasonable accommodation.
  • If treating physicians and the employer’s vendors (e.g. benefits claims administrators, managed care companies) fail to properly provide information about an employee’s limitation or possible accommodations, the employer can still be held liable for failing to provide a necessary accommodation even if it didn’t receive this information.
  • Unless an employee has legal leave rights, such as FMLA, he/she can’t choose to take leave if there is an accommodation available that would enable him/her to return to work.
  • Giving an employee paid leave benefits, such as Temporary Total Disability (TTD) benefits, Temporary Partial Benefits, Permanent Partial Benefits, and Permanent Total Benefits, isn’t a reasonable accommodation.
  • Even when an employee has been released to work with restrictions but a collective bargaining agreement or applicable laws require a full unrestricted release before returning to work, employers must still engage in the interactive discussion about reasonable accommodations with the employee.
  • Employers must consider extending limited-length transitional work assignments in individual situations as a reasonable accommodation.

Now, there’s a disclaimer in the memo that it is an “informal discussion and does not constitute an official opinion or interpretation of the EEOC.” Well, ok, but when one of the EEOC’s own attorneys is a co-author and the EEOC chooses to tweet about it, I think we can look to this as a reasonably reliable recitation of the EEOC’s position on these issues.