The reality is, with the ADA and workers' compensation the overwhelming majority of claims do not qualify as a “disability” under the definition set forth under the ADA.
The ADA defines "disability" as:
- A physical or mental impairment that substantially limits a major life activity,
- A record of such an impairment, or
- 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.
WORK IS A MAJOR LIFE ACTIVITY
Major life activities include walking, talking, communicating, sight and working. Wait a minute. Working is considered a major life activity under the ADA? Yep. So, you may ask, “when does a work related injury that wouldn’t otherwise qualify as a disability under the ADA become qualified as a disability under the ADA?”
That is defined by the EEOC here:
A person with an occupational injury has a disability under the "regarded as" portion of the ADA definition if he/she:
- Has an impairment that does not substantially limit a major life activity but is treated by an employer as if it were substantially limiting.
- Has an impairment that substantially limits a major life activity because of the attitude of others towards the impairment.
- Has no impairment but is treated as having a substantially limiting impairment.
Employers, make every attempt to accommodate, and document it
In other words, workers' compensation injuries that don’t qualify as a “disability” under the definition set forth by the ADA, immediately qualify the minute an injured worker has a restricted work capacity, and the employer refuses to accommodate without determining if reasonable accommodations can be made at the original job. In other words, there are a lot of injured workers that don’t know they qualify and a lot of employers exposed.
Windham Group sees dozens of cases that we’re asked to assist with where the employee has been terminated by the employer and their case has not been settled and there is no documentation of an interactive process or a determination of whether there was a reasonable accommodation.
These employers are hyper-exposed under the ADA.
The reality is, the EEOC and the ADA are not created to be punitive (although they are certainly capable of being that for the non-conformers), instead they are an attempt to prompt the employer to do the right thing.
It’s not difficult to determine if the essential functions of one's job can continue to be performed with a reasonable accommodation. It’s easy to document one way or the other and it’s what we as employers should be doing anyway. It feels good doing the right thing and will potentially save your company tens of thousands of dollars in fines and litigation costs.