The U.S. Equal Employment Opportunity Commission

     EEOC NOTICE
     Number 915.002
     Date

  1.     SUBJECT: EEOC Enforcement Guidance: Workers' Compensation and the ADA

     2.     PURPOSE: This enforcement guidance sets forth the 
     Commission's position on the interaction between Title I of the 
     Americans with Disabilities Act of 1990 and state workers' 
     compensation laws.

     3.     EFFECTIVE DATE: Upon receipt.

     4.     EXPIRATION DATE: As an exception to EEOC Order 205.001, 
     Appendix B, Attachment 4, § a(5), this Notice will remain in 
     effect until rescinded or superseded.

     5.     ORIGINATOR: ADA Division, Office of Legal Counsel.

     6.     INSTRUCTIONS: File after Section 902 of Volume II of the 
     Compliance Manual.

     _______________            _____________________________________
     Date                       Gilbert F. Casellas
                                Chairman

---

     EEOC Enforcement Guidance: Workers' Compensation and the ADA

             TABLE OF CONTENTS

     INTRODUCTION
     DISABILITY
     QUESTIONS AND EXAMINATIONS
     CONFIDENTIALITY OF MEDICAL INFORMATION
     HIRING DECISIONS
     RETURN TO WORK DECISIONS
     REASONABLE ACCOMMODATION
     LIGHT DUTY
     EXCLUSIVE REMEDY PROVISIONS
     INDEX (removed in ASCII version)

     EEOC Enforcement Guidance: Workers' Compensation and the ADA
 

             INTRODUCTION

               This enforcement guidance concerns the interaction 
     between Title I of the Americans with Disabilities Act of 1990 
     (ADA)1 and state workers' compensation laws.2  The purpose of 
     Title I of the ADA is to prohibit employers from discriminating 
     against qualified individuals because of disability in all 
     aspects of employment.3  On the other hand, the purpose of a 
     workers' compensation law is to provide a system for securing 
     prompt and fair settlement of employees' claims against employers 
     for occupational injury and illness.4  While the purposes of the 
     two laws are not in conflict, the simultaneous application of the 
     laws has raised questions for EEOC investigators, for employers, 
     and for individuals with disabilities in a number of areas.5  In 
     this document, the Commission provides guidance concerning the 
     following issues:

               * whether a person with an occupational injury has a 
     disability as defined by the ADA;

               * disability-related questions and medical examinations 
     relating to occupational injury and workers' compensation claims;

               * hiring of persons with a history of occupational 
     injury, return to work of persons with occupational injury, and 
     application of the direct threat standard;

               * reasonable accommodation for persons with disability-
     related occupational injuries;

               * light duty issues; and

               * exclusive remedy provisions in workers' compensation 
     laws.
 

             DISABILITY

          The Commission has provided general guidance on the 
     definition of the term "disability" under the ADA in EEOC: 
     Definition of the Term "Disability," 8 FEP Manual (BNA) 405:7251 
     (1995).  This section applies that guidance in the context of 
     occupational injury and workers' compensation.  The definition of 
     "disability" under the ADA is no different in the workers' 
     compensation context than in any other context.

          1. Does everyone with an occupational injury have a 
     disability within the meaning of the ADA?

               No.  Even if an employee with an occupational injury 
     has a "disability" as defined by a workers' compensation statute, 
     s/he may not have a "disability" for ADA purposes.

               The ADA defines "disability" as: (1) a physical or 
     mental impairment that substantially limits a major life 
     activity, (2) a record of such an impairment, or (3) 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.
 

          2. Does every person who has filed a workers' compensation 
     claim have a disability under the "record of" portion of the ADA 
     definition?

               No.  A person has a disability under the "record of" 
     portion of the ADA definition only if s/he has a history of, or 
     has been misclassified as having, a mental or physical impairment 
     that substantially limits one or more major life activities.
 

          3. When does a person with an occupational injury have a 
     disability under the "regarded as" portion of the ADA definition?

               A person with an occupational injury has a disability 
     under the "regarded as" portion of the ADA definition if s/he: 
     (1) has an impairment that does not substantially limit a major 
     life activity but is treated by an employer as if it were 
     substantially limiting, (2) has an impairment that substantially 
     limits a major life activity because of the attitude of others 
     towards the impairment, or (3) has no impairment but is treated 
     as having a substantially limiting impairment.6

               Example A:  An employee has an occupational injury that 
     has resulted in a temporary back impairment that does not 
     substantially limit a major life activity.  However, the employer 
     views her as not being able to lift more than a few pounds and 
     refuses to return her to her position.  The employer regards her 
     as having an impairment that substantially limits the major life 
     activity of lifting.  The employee has a disability as defined by 
     the ADA.
 

               Example B:  An employer refuses to allow an employee 
     whose occupational injury results in a facial disfigurement to 
     return to his position because the employer fears negative 
     reactions by co-workers or customers.  The employer regards him 
     as having an impairment that substantially limits the major life 
     activities of interacting with others and working.  The employee 
     has a disability as defined by the ADA.

               Example C:  An employee is fully recovered from an 
     occupational injury that resulted in a temporary back impairment.  
     The employer fires the employee because it believes that, if he 
     returns to his heavy labor job, he will severely injure his back 
     and be totally incapacitated.  The employer regards the employee 
     as having an impairment that disqualifies him from a class of 
     jobs (heavy labor) and therefore as substantially limited in the 
     major life activity of working.  The employee has a disability as 
     defined by the ADA.

             QUESTIONS AND EXAMINATIONS
 

          The Commission has provided general guidance on disability-
     related questions and medical examinations in ADA Enforcement 
     Guidance: Preemployment Disability-Related Questions and Medical 
     Examinations, 8 FEP Manual (BNA) 405:7191 (1995).  The guidance 
     provided here pertains particularly to disability-related 
     questions and medical examinations related to workers' 
     compensation and occupational injuries. 
 

          4. When may an employer ask questions about an applicant's 
     prior workers' compensation claims or occupational injuries?

               An employer may ask questions about an applicant's 
     prior workers' compensation claims or occupational injuries after 
     it has made a conditional offer of employment, but before 
     employment has begun, as long as it asks the same questions of 
     all entering employees in the same job category.  
 

          5. When may an employer require a medical examination of an 
     applicant to obtain information about the existence or nature of 
     prior occupational injuries?

               An employer may require a medical examination to obtain 
     information about the existence or nature of an applicant's prior 
     occupational injuries, after it has made a conditional offer of 
     employment, but before employment has begun, as long as it 
     requires all entering employees in the same job category to have 
     a medical examination.  Where an employer has already obtained 
     basic medical information from all entering employees in a job 
     category, it may require specific individuals to have follow-up 
     medical examinations only if they are medically related to the 
     previously obtained medical information.
 

          6. Before making a conditional offer of employment, may an 
     employer obtain information about an applicant's prior workers' 
     compensation claims or occupational injuries from third parties, 
     such as former employers, state workers' compensation offices, or 
     a service that provides workers' compensation information?

               No.  At the pre-offer stage, as at any other time, an 
     employer may not obtain from third parties any information that 
     it could not lawfully obtain directly from the applicant.
 

          7. May an employer ask disability-related questions or 
     require a medical examination of an employee either at the time 
     s/he experiences an occupational injury or when s/he seeks to 
     return to the job following such an injury?

               Yes, in both instances, provided that the disability-
     related questions or medical examinations are job-related and 
     consistent with business necessity.  This requirement is met 
     where an employer reasonably believes that the occupational 
     injury will impair the employee's ability to perform essential 
     job functions or raises legitimate concerns about direct threat.  
     However, the questions and examinations must not exceed the scope 
     of the specific occupational injury and its effect on the 
     employee's ability, with or without reasonable accommodation, to 
     perform essential job functions or to work without posing a 
     direct threat.7
 

          8. May an employer ask disability-related questions or 
     require a medical examination of an employee with an occupational 
     injury in order to ascertain the extent of its workers' 
     compensation liability?

               Yes.  The ADA does not prohibit an employer or its 
     agent from asking disability-related questions or requiring 
     medical examinations that are necessary to ascertain the extent 
     of its workers' compensation liability.8

               However, the questions and examinations must be 
     consistent with the state law's intended purpose of determining 
     an employee's eligibility for workers' compensation benefits.  An 
     employer may not use an employee's occupational injury as an 
     opportunity to ask far-ranging disability-related questions or to 
     require unrelated medical examinations.  Examinations and 
     questions must be limited in scope to the specific occupational 
     injury and its impact on the individual and may not be required 
     more often than is necessary to determine an individual's initial 
     or continued eligibility for workers' compensation benefits.  
     Excessive questioning or imposition of medical examinations may 
     constitute disability-based harassment which is prohibited by the 
     ADA.

          9. If an employee with a disability-related occupational 
     injury requests a reasonable accommodation, may the employer ask 
     for documentation of his/her disability?

               Yes.  If an employee with a disability-related 
     occupational injury9 requests reasonable accommodation and the 
     need for accommodation is not obvious, the employer may require 
     reasonable documentation of the employee's entitlement to 
     reasonable accommodation.  While the employer may require 
     documentation showing that the employee has a covered disability 
     and stating his/her functional limitations, it is not entitled to 
     medical records that are unnecessary to the request for 
     reasonable accommodation.

             CONFIDENTIALITY OF MEDICAL INFORMATION

          10. Do the ADA's confidentiality requirements apply to 
     medical information regarding an applicant's or employee's 
     occupational injury or workers' compensation claim?

               Yes.  Medical information regarding an applicant's or 
     employee's occupational injury or workers' compensation claim 
     must be collected and maintained on separate forms and kept in a 
     separate medical file along with other information required to be 
     kept confidential under the ADA.  An employer must keep medical 
     information confidential even if someone is no longer an 
     applicant or an employee.

               The ADA allows disclosure of this information only in 
     the following circumstances:

                    * supervisors and managers may be told about 
     necessary restrictions on the work or duties of the employee and 
     about necessary accommodations;10

                    * first aid and safety personnel may be told, when 
     appropriate, if the disability might require emergency 
     treatment;11

                    * government officials investigating compliance 
     with the ADA must be given relevant information on request;12

                    * employers may give information to state workers' 
     compensation offices, state second injury funds, and workers' 
     compensation insurance carriers in accordance with state workers' 
     compensation laws;13 and
 

                    * employers may use the information for insurance 
     purposes.14

             HIRING DECISIONS
 

          11. May an employer refuse to hire a person with a 
     disability simply because it assumes, correctly or incorrectly, 
     that s/he poses some increased risk of occupational injury and 
     increased workers' compensation costs?

               No, unless the employer can show that employment of the 
     person in the position poses a "direct threat."  In enacting the 
     ADA, Congress sought to address stereotypes regarding disability, 
     including assumptions about workers' compensation costs.15  Where 
     an employer refuses to hire a person because it assumes, 
     correctly or incorrectly, that, because of a disability, s/he 
     poses merely some increased risk of occupational injury (and, 
     therefore, increased workers' compensation costs), the employer 
     discriminates against that person on the basis of disability.  
     The employer can refuse to hire the person only if it can show 
     that his/her employment in the position poses a "direct threat."  
     This means that an employer may not "err on the side of safety" 
     simply because of a potential health or safety risk.  Rather, the 
     employer must demonstrate that the risk rises to the level of a 
     direct threat.

               "Direct threat" means a significant risk of substantial 
     harm to the health or safety of the individual or others that 
     cannot be eliminated or reduced by reasonable accommodation.16  
     The determination that a direct threat exists must be the result 
     of a fact-based, individualized inquiry that takes into account 
     the specific circumstances of the individual with a disability.

               In determining whether employment of a person in a 
     particular position poses a direct threat, the factors to be 
     considered are:

                    * the duration of the risk;

                    * the nature and severity of the potential harm;

                    * the likelihood that the potential harm will 
     occur; and 

                    * the imminence of the potential harm.17

               Some state health or safety laws may permit or require 
     an employer to exclude a person with a disability from employment 
     in cases where the ADA would not permit exclusion because 
     employment of the person in the position does not pose a direct 
     threat.  Because the ADA supersedes such state laws, an employer 
     may not defend its exclusion of a person with a disability on the 
     basis of such a law.
 

          12. May an employer refuse to hire a person with a 
     disability simply because s/he sustained a prior occupational 
     injury?

               No.  The mere fact that a person with a disability 
     experienced an occupational injury in the past does not, by 
     itself, establish that his/her current employment in the position 
     in question poses a direct threat, i.e., a significant risk of 
     substantial harm that cannot be lowered or eliminated by a 
     reasonable accommodation.  However, evidence about a person's 
     prior occupational injury, in some circumstances, may be relevant 
     to the direct threat analysis discussed in question 11, above.

               An investigator should consider the following factors 
     regarding a prior occupational injury in applying the direct 
     threat analysis set forth in question 11, above:

                    * whether the prior injury is related to the 
     person's disability (e.g., if employees without disabilities in 
     the person's prior job had similar injuries, this may indicate 
     that the injury is not related to the disability and, thus, is 
     irrelevant to the direct threat inquiry);

                    * the circumstances surrounding the prior injury 
     (e.g., the actions of others in the workplace or the lack of 
     appropriate safety devices or procedures may have caused or 
     contributed to the injury);

                    * the similarities and differences between the 
     position in question and the position in which the prior injury 
     occurred (e.g., the prior position may have involved hazards not 
     present in the position under consideration);

                    * whether the current condition of the person with 
     a disability is similar to his/her condition at the time of the 
     prior injury (e.g., if the person's condition has improved, the 
     prior injury may have little significance);

                    * the number and frequency of prior occupational 
     injuries;

                    * the nature and severity of the prior injury 
     (e.g., if the injury was minor, it may have little or no 
     significance);
 

                    * the amount of time the person has worked in the 
     same or a similar position since the prior injury without 
     subsequent injury; and 

                    * whether the risk of harm can be lowered or 
     eliminated by a reasonable accommodation.

               Example A:  CP applies for a position operating a large 
     saw with R, a lumber mill.  After making a conditional job offer, 
     R discovers that CP, who has insulin-dependent diabetes, was 
     seriously injured while operating a similar saw for another 
     lumber mill.  The injury was caused by the failure of a safety 
     device and was unrelated to CP's diabetes.  R assumes, however, 
     that the injury was related to the diabetes and refuses to hire 
     CP for safety reasons.  CP's prior occupational injury, which was 
     unrelated to her disability, does not constitute evidence that 
     she poses a direct threat in the saw operator position because of 
     her disability.

               Example B:  CP, who has a shoulder disability, applies 
     to R restaurant for the position of bus person which requires 
     frequent carrying of basins full of dirty dishes weighing 40-45 
     pounds.  After a conditional job offer, R discovers that CP has 
     had five serious injuries to his left shoulder while carrying 
     basins full of dirty dishes in other bussing jobs over the past 
     four years.  A medical examination and physical fitness test show 
     that the condition of CP's shoulder has significantly 
     deteriorated with each injury.  They also show that, if CP 
     carries heavy basins, there is a high probability that his left 
     shoulder will be immediately and permanently injured to the point 
     where his left arm will be useless.  Assume that there is no 
     reasonable accommodation that will enable CP to perform the 
     essential functions of the bussing position.  The objective 
     medical and other evidence (the number, frequency, nature, and 
     severity of the prior injuries; the similarity of the position at 
     issue to the positions in which the injuries occurred; the 
     progressive deterioration of CP's shoulder with each injury; and 
     the evidence that a further injury will render CP's arm useless) 
     supports a finding that CP's employment in the position of bus 
     person poses a significant risk of substantial harm.  The 
     evidence further shows that the risk cannot be lowered or 
     eliminated through a reasonable accommodation.  Therefore, CP's 
     employment in the position of bus person poses a direct threat.
 

               Example C:  CP applies for a position as a laborer with 
     R, a construction company.  The position requires lifting 
     equipment and other items weighing up to 100 pounds.  After 
     making a conditional offer of employment to CP, R requires him to 
     undergo its standard medical examination.  As a result, R 
     discovers that CP previously injured his back while working for 
     an automotive repair shop.  CP's prior on-the-job injury, which 
     occurred when CP was helping a co-worker push a stalled vehicle, 
     was not serious.  CP has completely recovered from the back 
     injury.  Nevertheless, R rescinds its offer of employment because 
     it is worried about increased workers' compensation costs and 
     considers CP to be a poor risk for heavy labor.18  CP's prior 
     occupational injury, which was not serious and which occurred in 
     a position involving hazards not present in R's position, does 
     not constitute evidence that employment of CP in the laborer 
     position would pose a direct threat.
 
 
 

             RETURN TO WORK DECISIONS
 
 

          13. May an employer require that an employee with a 
     disability-related occupational injury be able to return to "full 
     duty" before allowing him/her to return to work?

               No.  The term "full duty" may include marginal as well 
     as essential job functions or may mean performing job functions 
     without any accommodation.  An employer may not require that an 
     employee with a disability-related occupational injury who can 
     perform essential functions be able to return to "full duty" if, 
     because of the disability, s/he is unable to perform marginal 
     functions of the position19 or requires a reasonable 
     accommodation that would not impose an undue hardship.
 

          14. May an employer refuse to return to work an employee 
     with a disability-related occupational injury simply because it 
     assumes, correctly or incorrectly, that s/he poses some increased 
     risk of reinjury and increased workers' compensation costs?

               No, unless an employer can show that employment of the 
     person in the position poses a "direct threat."  Where an 
     employer refuses to return an employee to work because it 
     assumes, correctly or incorrectly, that his/her disability-
     related occupational injury creates merely some increased risk of 
     further occupational injury and increased workers' compensation 
     costs, it discriminates on the basis of disability.  The employer 
     may not refuse to return to work an employee who is able to 
     perform the essential functions of the job, with or without a 
     reasonable accommodation, unless it can show that returning the 
     person to the position poses a "direct threat."  (See the 
     discussion of direct threat in questions 11 and 12, above.)
 

               The fact that an employee has had a disability-related 
     occupational injury does not, by itself, indicate that s/he is 
     unable to perform the essential functions of the job or that 
     returning him/her to work poses a direct threat.  In some 
     circumstances, evidence about an employee's disability-related 
     occupational injury may be relevant to whether s/he can perform 
     the essential functions of the job, with or without a reasonable 
     accommodation, or it may be relevant to the direct threat 
     analysis.  An employer should consider the pertinent factors 
     listed in questions 11 and 12, above, in applying the direct 
     threat analysis in this context.

               Example A:  CP, a clerk/typist, breaks her wrist while 
     trying to move heavy office equipment with a co-worker.  CP is 
     unable to work for six weeks and receives workers' compensation.  
     After CP's wrist completely heals, she asks to return to work.  A 
     physician indicates that there is little risk that repetitive 
     motion will damage CP's wrist.  However, R refuses her request to 
     return to the clerk/typist position because it believes that any 
     repetitive motion will cause serious and permanent reinjury of 
     her wrist.20  The following objective evidence supports a finding 
     that returning CP to the clerk/typist position does not pose a 
     significant risk of substantial harm (i.e., direct threat): (1) 
     her injury was not caused by repetitive motion, (2) her wrist has 
     completely healed, and (3) there is little risk that she will 
     reinjure her wrist through repetitive motion.  R has violated the 
     ADA by not returning CP to her clerk/typist position.

               Example B:  CP, a maintenance worker, badly fractures 
     both ankles in a workplace accident.  She is unable to work for 
     six months and receives workers' compensation.  Although CP's 
     ankles partially heal, she is unable to walk and stand for more 
     than short periods of time.  CP's maintenance job requires 
     extensive walking and standing on cement floors.  The report from 
     CP's most recent medical examination shows that there is a high 
     probability of immediate, severe, and permanent damage to CP's 
     ankles if she walks or stands for more than short periods of 
     time, especially on hard surfaces.  Assume that there is no 
     accommodation that will lower the risk of harm.  R may refuse to 
     return CP to her maintenance position because there is sufficient 
     evidence to support a finding that her employment in the position 
     poses a direct threat, i.e., a significant risk of substantial 
     harm that cannot be eliminated or reduced through a reasonable 
     accommodation.  (However, R must reassign CP, as set forth in 
     question 22, below, absent undue hardship.)
 

          15. May an employer refuse to return to work an employee 
     with a disability-related occupational injury simply because of a 
     workers' compensation determination that s/he has a "permanent 
     disability" or is "totally disabled"?
 

               No.  Workers' compensation laws are different in 
     purpose from the ADA and may utilize different standards for 
     evaluating whether an individual has a "disability" or whether 
     s/he is capable of working.  For example, under a workers' 
     compensation statute, a person who loses vision in both eyes or 
     has loss of use of both arms or both legs may have a "permanent 
     total disability," although s/he may be able to work.  A workers' 
     compensation determination also may relate to a different time 
     period.  Such a determination is never dispositive regarding an 
     individual's ability to return to work, although it may provide 
     relevant evidence regarding an employee's ability to perform the 
     essential functions of the position in question or to return to 
     work without posing a direct threat.
 

          16. Under the ADA, is a rehabilitation counselor, physician, 
     or other specialist responsible for deciding whether an employee 
     with a disability-related occupational injury is ready to return 
     to work?

               No.  The employer bears the ultimate responsibility for 
     deciding whether an employee with a disability-related 
     occupational injury is ready to return to work.  Therefore, the 
     employer, rather than a rehabilitation counselor, physician, or 
     other specialist, must determine whether the employee can perform 
     the essential functions of the job, with or without reasonable 
     accommodation, or can work without posing a direct threat.

               On the other hand, the employer may find it helpful to 
     seek information from the rehabilitation counselor, physician, or 
     other specialist regarding the employee's specific functional 
     limitations, abilities, and possible reasonable accommodations.

               In order to obtain useful and accurate information from 
     a rehabilitation counselor, physician, or other specialist in 
     making a return to work decision, an employer may wish to provide 
     him/her with specific information about the following:

                    * the essential functions of the employee's 
     position and the nature of the work to be performed;

                    * the work environment and the employer's 
     operations, including any unavoidable health or safety hazards 
     which may exist; and

                    * possible reasonable accommodations.  

               An employer also may obtain useful information from 
     others who are not experts but who are knowledgeable about the 
     employee's current abilities, limitations, and possible 
     reasonable accommodations.  Such information will enable the 
     employer to make an independent and accurate determination about 
     the employee's ability to return to work.
 
 
 

             REASONABLE ACCOMMODATION
 

          The ADA requires that an employer make reasonable 
     accommodation to the known physical or mental limitations of an 
     otherwise qualified individual with a disability, unless the 
     employer can demonstrate that the accommodation would impose an 
     undue hardship.  The general principles regarding reasonable 
     accommodation and undue hardship are discussed in the 
     Commission's ADA regulations and interpretive guidance (29 C.F.R. 
     §§ 1630.2, 1630.9 and Appendix (1995)), and in the 
     Technical Assistance Manual at 3.0, 8 FEP Manual (BNA) 405:6998 
     (1992).  This section provides specific guidance regarding 
     reasonable accommodation in the context of workers' compensation.
 

          17. Does the ADA require an employer to provide reasonable 
     accommodation for an employee with an occupational injury who 
     does not have a disability as defined by the ADA?

               No.  The ADA does not require an employer to provide a 
     reasonable accommodation for an employee with an occupational 
     injury who does not have a disability as defined by the ADA.
 

          18. May an employer discharge an employee who is temporarily 
     unable to work because of a disability-related occupational 
     injury?

               No.  An employer may not discharge an employee who is 
     temporarily unable to work because of a disability-related 
     occupational injury where it would not impose an undue hardship 
     to provide leave as a reasonable accommodation.21
 

          19. What are the reinstatement rights of an employee with a 
     disability-related occupational injury?

               An employee with a disability-related occupational 
     injury is entitled to return to his/her same position unless the 
     employer demonstrates that holding open the position would impose 
     an undue hardship.
 

               In some instances, an employee may request more leave 
     even after the employer has communicated that it would impose an 
     undue hardship to hold open the employee's position any longer.  
     In this situation, the employer must consider whether it has a 
     vacant, equivalent position for which the employee is qualified 
     and to which the employee can be reassigned without undue 
     hardship to continue his/her leave for a specific period of time.  
     For example, suppose that an employee needs six months to recover 
     from a disability-related occupational injury, but holding 
     his/her original position open for more than four months will 
     impose an undue hardship.  The employer must consider whether it 
     has a vacant equivalent position to which the employee can be 
     reassigned for the remaining two months of leave.  If an 
     equivalent position is not available, the employer must look for 
     a vacant position at a lower level.  Continued leave is not 
     required as a reasonable accommodation if a vacant position at a 
     lower level is also unavailable.22
 

          20. Must an employer, as a reasonable accommodation, 
     reallocate job duties of an employee with a disability-related 
     occupational injury?

               Yes, if the duties to be reallocated are marginal 
     functions23 of the position that the employee cannot perform 
     because of the disability.  Reasonable accommodation includes 
     restructuring a position by reallocating or redistributing the 
     marginal functions that the employee cannot perform because of 
     the disability.  However, an employer need not eliminate 
     essential functions of the position.
 

          21. May an employer unilaterally reassign an employee with a 
     disability-related occupational injury to a different position 
     instead of first trying to accommodate the employee in the 
     position s/he held at the time the injury occurred?

               No.  An employer must first assess whether the employee 
     can perform the essential functions of his/her original position, 
     with or without a reasonable accommodation.  Examples of 
     reasonable accommodation include job restructuring, modification 
     of equipment, or a part-time work schedule.  Reassignment should 
     be considered only when accommodation within the employee's 
     original position is not possible or would impose an undue 
     hardship.24
 

          22. Must an employer reassign an employee who is no longer 
     able to perform the essential functions of his/her original 
     position, with or without a reasonable accommodation, because of 
     a disability-related occupational injury?

               Yes.  Where an employee can no longer perform the 
     essential functions of his/her original position, with or without 
     a reasonable accommodation, because of a disability-related 
     occupational injury, an employer must reassign him/her to an 
     equivalent vacant position for which s/he is qualified, absent 
     undue hardship.25  If no equivalent vacant position (in terms of 
     pay, status, etc.) exists, then the employee must be reassigned 
     to a lower graded position for which s/he is qualified, absent 
     undue hardship.
 
 

          23. If there is no vacancy for an employee who can no longer 
     perform his/her original position because of a disability-related 
     occupational injury, must an employer create a new position or 
     "bump" another employee from his/her position?

               No.  The ADA does not require an employer to create a 
     new position or to bump another employee from his/her position in 
     order to reassign an employee who can no longer perform the 
     essential functions of his/her original position, with or without 
     a reasonable accommodation.
 

          24. When an employee requests leave as a reasonable 
     accommodation under the ADA because of a disability-related 
     occupational injury, may an employer provide an accommodation 
     that requires him/her to remain on the job instead?

               Yes.  An employer need not provide an employee's 
     preferred accommodation as long as the employer provides an 
     effective accommodation -- one that is sufficient to meet the 
     employee's job-related needs.

               Accordingly, an employer may provide a reasonable 
     accommodation that requires an employee to remain on the job, in 
     lieu of providing leave (e.g., reallocating marginal functions, 
     or providing temporary reassignment).

               The employer is obligated, however, to restore the 
     employee's full duties or to return the employee to his/her 
     original position once s/he has recovered sufficiently to perform 
     its essential functions, with or without a reasonable 
     accommodation.

               However, if an employee with a disability-related 
     occupational injury does not request a reasonable accommodation, 
     but simply requests leave that is routinely granted to other 
     employees (e.g., accrued paid leave or leave without pay), an 
     employer may not require him/her to remain on the job with some 
     type of adjustment unless it also requires employees without 
     disabilities who request such leave to remain on the job with 
     some type of adjustment.

               (Note that, if an employee qualifies for leave under 
     the Family and Medical Leave Act, an employer may not require 
     him/her to remain on the job with an adjustment in lieu of taking 
     a leave of absence.  29 C.F.R. § 825.702(d)(1) (1995).)
 

          25. May an employer satisfy its ADA obligation to provide 
     reasonable accommodation for an employee with a disability-
     related occupational injury by placing him/her in a workers' 
     compensation vocational rehabilitation program?

               No.  An employer cannot substitute vocational 
     rehabilitation services in place of a reasonable accommodation 
     required by the ADA for an employee with a disability-related 
     occupational injury.  An employee's rights under the ADA are 
     separate from his/her entitlements under a workers' compensation 
     law.  The ADA requires employers to accommodate an employee in 
     his/her current position through job restructuring or some other 
     modification, absent undue hardship.26  If it would impose an 
     undue hardship to accommodate an employee in his/her current 
     position, then the ADA requires that an employer reassign the 
     employee to a vacant position s/he can perform, absent undue 
     hardship.27  (See question 22, above.)
 

          26. May an employer make a workplace modification that is 
     not a required form of reasonable accommodation under the ADA in 
     order to offset workers' compensation costs?
 

               Yes.  Nothing in the ADA prohibits an employer from 
     making a workplace modification that is not a required form of 
     reasonable accommodation under the ADA for an employee with an 
     occupational injury in order to offset workers' compensation 
     costs.  For example, the ADA does not require employers to lower 
     production standards to accommodate individuals with 
     disabilities.  However, an employer is clearly permitted to lower 
     production standards for an occupationally injured employee as a 
     way of returning him/her to work more quickly.
 
 
 

             LIGHT DUTY
 

          The term "light duty" has a number of different meanings in 
     the employment setting.  Generally, "light duty" refers to 
     temporary or permanent work that is physically or mentally less 
     demanding than normal job duties.  Some employers use the term 
     "light duty" to mean simply excusing an employee from performing 
     those job functions that s/he is unable to perform because of an 
     impairment.  "Light duty" also may consist of particular 
     positions with duties that are less physically or mentally 
     demanding created specifically for the purpose of providing 
     alternative work for employees who are unable to perform some or 
     all of their normal duties.  Further, an employer may refer to 
     any position that is sedentary or is less physically or mentally 
     demanding as "light duty."

          In the following questions and answers, the term "light 
     duty" refers only to particular positions created specifically 
     for the purpose of providing work for employees who are unable to 
     perform some or all of their normal duties.
 

          27. Does the ADA prohibit an employer from creating a light 
     duty position for an employee when s/he is injured on the job?

               No, in most instances.  An employer may recognize a 
     special obligation arising out of the employment relationship to 
     create a light duty position for an employee when s/he has been 
     injured while performing work for the employer and, as a 
     consequence, is unable to perform his/her regular job duties.  
     Such a policy, on its face, does not treat an individual with a 
     disability less favorably than an individual without a 
     disability; nor does it screen out an individual on the basis of 
     disability.28

               Of course, an employer must apply its policy of 
     creating a light duty position for an employee when s/he is 
     occupationally injured on a non-discriminatory basis.  In other 
     words, an employer may not use disability as a reason to refuse 
     to create a light duty position when an employee is 
     occupationally injured.
 

               An employer need not create a light duty position for a 
     non-occupationally injured employee with a disability as a 
     reasonable accommodation.  The principle that the ADA does not 
     require employers to create positions as a form of reasonable 
     accommodation applies equally to the creation of light duty 
     positions.  However, an employer must provide other forms of 
     reasonable accommodation required under the ADA.  For example, 
     subject to undue hardship, an employer must: (1) restructure a 
     position by redistributing marginal functions which an individual 
     cannot perform because of a disability, (2) provide modified 
     scheduling (including part time work), or (3) reassign a non-
     occupationally injured employee with a disability to an 
     equivalent existing vacancy for which s/he is qualified.  
     Accordingly, an employer may not avoid its obligation to 
     accommodate an individual with a disability simply by asserting 
     that the disability did not derive from an occupational injury.

               In some cases, the only effective reasonable 
     accommodation available for an individual with a disability may 
     be similar or equivalent to a light duty position.  The employer 
     would have to provide that reasonable accommodation unless the 
     employer can demonstrate that doing so would impose an undue 
     hardship.  

               Example: R creates light duty positions for employees 
     when they are occupationally injured if they are unable to 
     perform one or more of their regular job duties.  CP can no 
     longer perform functions of her position because of a disability 
     caused by an off-the-job accident.  She requests that R create a 
     light duty position for her as a reasonable accommodation.  R 
     denies CP's request because she has not been injured on the job.  
     R has not violated the ADA.  However, R must provide another 
     reasonable accommodation, absent undue hardship.  If it is 
     determined that the only effective accommodation is to 
     restructure CP's position by redistributing the marginal 
     functions, and the restructured position resembles a light duty 
     position, R must provide the reasonable accommodation unless it 
     can prove that it imposes an undue hardship.
 

          28.     If an employer reserves light duty positions for 
     employees with occupational injuries, does the ADA require it to 
     consider reassigning an employee with a disability who is not 
     occupationally injured to such positions as a reasonable 
     accommodation?

               Yes.29  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.  This is because reassignment to a 
     vacant position and appropriate modification of an employer's 
     policy are forms of reasonable accommodation required by the ADA, 
     absent undue hardship.30  An employer cannot establish that the 
     reassignment to a vacant reserved light duty position imposes an 
     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.
 

               Example: R has light duty positions which it reserves 
     for employees in its manufacturing department when they are 
     unable to perform their regular job duties because of on-the-job 
     injuries.  CP, an assembly line worker, has multiple sclerosis 
     (MS) which substantially limits a number of major life 
     activities.  Eventually CP is unable to perform the essential 
     functions of her position, with or without a reasonable 
     accommodation, because of the MS.  As a reasonable accommodation, 
     CP requests that she be reassigned to a vacant light duty 
     position for which she is qualified.  R says that the vacant 
     light duty position is reserved for employees who are injured on 
     the job and refuses to reassign CP, although it would not impose 
     an undue hardship to do so.  R has violated the ADA by refusing 
     to reassign her to the vacant light duty position.
 

          29.  If an employer has only temporary light duty positions, 
     must it still provide a permanent light duty position for an 
     employee with a disability-related occupational injury?

               No.  The ADA typically does not limit an employer's 
     ability to establish or change the content, nature, or functions 
     of its positions.  So, for example, an employer is free to 
     determine that a light duty position will be temporary rather 
     than permanent.31  Thus, if an employer provides light duty 
     positions only on a temporary basis, it need only provide a 
     temporary light duty position for an employee with a disability-
     related occupational injury.
 
 
 

             EXCLUSIVE REMEDY PROVISIONS
 

          30. Do exclusive remedy provisions in workers' compensation 
     laws bar employees from pursuing ADA claims?

               No.  The purpose of workers' compensation exclusivity 
     clauses is to protect employers from being sued under common law 
     theories of personal injury for occupational injury.  Courts have 
     generally held that the exclusive remedy provisions of state 
     workers' compensation laws cannot bar claims arising under 
     federal civil rights laws,32 even where a state workers' 
     compensation law provides some relief for disability 
     discrimination.  Applying a state workers' compensation law's 
     exclusivity provision to bar an individual's ADA claim would 
     violate the Supremacy Clause of the U.S. Constitution and 
     seriously diminish the civil rights protection Congress granted 
     to persons with disabilities.

             INDEX (removed in ASCII version)
 

     1.     Codified as amended at 42 U.S.C. §§ 12101-
     12117, 12201-12213 (1994).

     2.     The analysis in this guidance also applies to federal 
     sector complaints of non-affirmative action employment 
     discrimination arising from the interaction between the Federal 
     Employee's Compensation Act, 5 U.S.C. §§ 8101-8193 
     (1994), and section 501 of the Rehabilitation Act of 1973, 29 
     U.S.C. § 791(g) (1994), and to complaints of non-affirmative 
     action employment discrimination arising from the interaction 
     between sections 503 and 504 of the Rehabilitation Act of 1973, 
     29 U.S.C. §§ 793(d), 794(d) (1994), and state workers' 
     compensation laws.

     3.     42 U.S.C. § 12112(a); 29 C.F.R. § 1630.4.

     4.     Workers' compensation laws generally require employers to 
     compensate employees who are injured or become ill in the course 
     of employment for the resulting loss of earning capacity and for 
     medical care.  See 1 Arthur Larson, The Law of Workmen's 
     Compensation, § 1-1.10 (1994).

     5.     Basic information on this topic may be found in EEOC: 
     Technical Assistance Manual on the Employment Provisions (Title 
     I) of the Americans with Disabilities Act at 9.0, 8 FEP Manual 
     (BNA) 405:7055 (1992) [hereinafter Technical Assistance Manual].
 

     6.     For a detailed discussion of whether an individual is 
     covered under the "regarded as" portion of the ADA definition of 
     disability, see EEOC: Definition of the Term "Disability" at 
     902.8(a), 8 FEP Manual (BNA) 405:7278-405:7286 (1995).

     7.     If, as a result of an examination or inquiry, an employer 
     refuses to return an employee to work because of a disability, 
     the reason for doing so must be job-related and consistent with 
     business necessity.  See 29 C.F.R. § 1630.10 and Appendix 
     (1995).  Where safety considerations are implicated, the employer 
     can only refuse to return the employee to work where his/her 
     employment in the position would pose a "direct threat."  Direct 
     threat is discussed in questions 11, 12, 14, and 15, below.

     8.     This is because the ADA does not invalidate the 
     procedures of any federal, state, or local law "that provides 
     greater or equal protection for the rights of individuals with 
     disabilities" than is provided by the ADA.  42 U.S.C. § 
     12201(b) (1994).  Those portions of state workers' compensation 
     laws that protect the rights of individuals to be compensated for 
     work-related injury provide such greater or equal protection.  
     The same is true for the analogous portions of the Federal 
     Employee's Compensation Act, 5 U.S.C. §§ 8101-8193 
     (1994).

     9.     An individual with a disability may have an occupational 
     injury that has nothing to do with the disability.  The term 
     "disability-related occupational injury" is used herein when the 
     ADA and workers' compensation statutes apply simultaneously, 
     i.e., where there is a connection between an occupational injury 
     and a disability as defined by the ADA.

     10.     42 U.S.C. § 12112(d)(3)(B)(i) (1994); 29 C.F.R. 
     § 1630.14(b)(1)(i), (c)(1)(i) (1995).

     11.     42 U.S.C. § 12112(d)(3)(B)(ii); 29 C.F.R. § 
     1630.14(b)(1)(ii), (c)(1)(ii).

     12.     42 U.S.C. § 12112(d)(3)(B)(iii); 29 C.F.R. § 
     1630.14(b)(1)(iii), (c)(1)(iii).

     13.     See 42 U.S.C. § 12201(b); 29 C.F.R. pt. 1630 app. 
     § 1630.14(b).

     14.     See 42 U.S.C. § 12201(c); 29 C.F.R. pt. 1630 app. 
     §§ 1630.14(b) and 1630.16(f).  For example, an employer 
     may submit medical information to the company's health insurance 
     carrier if the information is needed to administer a health 
     insurance plan in accordance with § 501(c) of the ADA.

     15.     H.R. Rep. No. 485 pt. 3, 101st Cong., 2d Sess. 31 
     (1990).

     16.     29 C.F.R. § 1630.2(r) (1995).

     17.     "Direct threat" is discussed more fully in the 
     Commission's ADA regulations and interpretive guidance, 29 C.F.R. 
     § 1630.2(r) and Appendix (1995), and in the Technical 
     Assistance Manual at 4.5, 8 FEP Manual (BNA) 405:7022-405:7026 
     (1992).

     18.     CP has a disability as defined by the ADA because R 
     regards CP as having a substantially limiting impairment.  R, 
     which disqualified CP from the heavy laborer position because it 
     believed that CP was a poor risk for heavy labor, treated CP as 
     unsuitable for the class of heavy labor jobs.  Accordingly, R 
     regards CP as substantially limited in the major life activity of 
     working.  See EEOC: Definition of the Term "Disability" at 
     902.8(f), 8 FEP Manual (BNA) 405:7282 (1995).

     19.     The employer can reallocate or redistribute to other 
     employees the marginal functions that the employee is unable to 
     perform because of the disability.

     20.     CP has a disability because R regards her as having an 
     impairment that disqualifies her from a class of jobs 
     (clerk/typist) and therefore as substantially limited in the 
     major life activity of working.  See EEOC: Definition of the Term 
     "Disability" at 902.8(f), 8 FEP Manual (BNA) 405:7282 (1995).

     21.     Under the ADA, permitting the use of accrued paid leave 
     or providing additional unpaid leave for treatment and/or 
     recovery are forms of reasonable accommodation that an employer 
     must provide, absent undue hardship.  See 29 C.F.R. pt. 1630 app. 
     § 1630.2(o) (1995); Technical Assistance
     Manual at 3.10(4), 8 FEP Manual (BNA) 405:7011 (1992).  In 
     addition, an injured employee may be entitled to leave under the 
     Family and Medical Leave Act of 1993, 29 U.S.C. §§ 
     2601-2654 (1994), which is enforced by the United States 
     Department of Labor.

     22.     For further information on an employer's obligations 
     regarding reassignment, see questions 21 and 22, below.

     23.     For a discussion of essential and marginal job 
     functions see 29 C.F.R. § 1630.2(n) and Appendix (1995) and 
     the Technical Assistance Manual at 2.3(a)-(c), 8 FEP Man. (BNA) 
     405:6993-405:6998 (1992).

     24.     29 C.F.R. pt. 1630 app. § 1630.2(o); Technical 
     Assistance Manual at 3.10(5), 8 FEP Manual (BNA) 405:7011-
     405:7012 (1992).  Note, however, that the ADA does not prohibit 
     an employer and an employee from choosing reassignment rather 
     than accommodation in the original position, if both parties 
     voluntarily agree that reassignment is preferable.

     25.     Id.  Note, however, that the ADA does not prohibit an 
     employer from removing an essential function that an employee is 
     no longer able to perform, in lieu of reassignment, if removing 
     the essential function does not result in a diminution of an 
     employment opportunity or status.  Where removing an essential 
     function results in a diminution of an employment opportunity or 
     status, an employer may remove the essential function in lieu of 
     reassignment only if both parties voluntarily agree that it is 
     preferable to reassignment.  Of course, the ADA does not require 
     an employer to remove an essential job function as a reasonable 
     accommodation.

     26.     29 C.F.R. pt. 1630 app. § 1630.2(o) (1995); 
     Technical Assistance Manual at 3.10(5), 8 FEP Manual (BNA) 
     405:7011-405:7012 (1992).

     27.     However, the ADA does not prohibit an employer and an 
     employee from choosing vocational rehabilitation as an 
     alternative to accommodating the employee in his/her current 
     position, if both parties voluntarily agree that vocational 
     rehabilitation is preferable.

     28.     A policy of creating light duty jobs for employees when 
     they are occupationally injured in some instances may 
     disproportionately exclude a class of individuals with 
     disabilities.  Where this is established by appropriate evidence 
     of adverse impact, an employer must show that the policy is job-
     related and consistent with business necessity.  Similarly, where 
     such a policy has a disparate impact on a protected class under 
     Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
     §§ 2000e-2000e-17 (1994), or the Age Discrimination in 
     Employment Act of 1967, 29 U.S.C. §§ 621-634 (1994), 
     the employer must show that the policy is job-related and 
     consistent with business necessity.

     29.     If it is established by appropriate evidence that a 
     policy of reserving light duty jobs for employees who have been 
     occupationally injured has an adverse impact on a protected class 
     under any of the laws enforced by the EEOC, an employer must show 
     that the policy is job-related and consistent with business 
     necessity.  See footnote 28, above.  Of course, an employer may 
     not apply the policy in a discriminatory manner. 

     30.     29 C.F.R. § 1630.2(o)(2)(ii) (1995).

     31.     Technical Assistance Manual at 9.4, 8 FEP Manual (BNA) 
     405:7057-405:7058 (1992).

     32.     The only federal court to have addressed the issue 
     under the ADA has held that an individual's ADA rights are not 
     precluded by a state workers' compensation exclusive remedy 
     provision.  Wood v. County of Alameda, 875 F. Supp. 659, 664, 4 
     AD Cas. (BNA) 43 (N.D. Cal. 1995).  Prior to enactment of the 
     ADA, it was well established that the exclusive remedy provisions 
     of state workers' compensation laws could not bar claims arising 
     under federal civil rights laws, including the Rehabilitation 
     Act.  See, e.g., Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1190 
     (2d Cir. 1987) (while workers' compensation law might bar 
     plaintiff's state common law claim, it cannot bar relief under 42
     U.S.C. § 1981 for discriminatory discharge); Rosa v. 
     Cantrell, 705 F.2d 1208, 1221 (10th Cir. 1982), cert. denied, 464 
     U.S. 821 (1983) (state statute's exclusivity provision does not 
     bar a federal civil rights claim under 42 U.S.C. § 1983); 
     Smith v. Lake City Nursing Home, 771 F. Supp. 985, 987, 1 AD Cas. 
     (BNA) 1874 (D. Minn. 1991) (federal remedy under section 504 of 
     Rehabilitation Act for disability discrimination cannot be 
     limited by a state workers' compensation act).
 
 

     This page was last modified on July 6, 2000.

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