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Q. Is an employee who is “disabled” under Workers’
Compensation automatically classified as “disabled’ under ADA?”
A. A "disabled" employee for Workers' Compensation purpose may
not necessarily be "disabled" under the ADA. The Employment Opportunity
Commission ("EEOC") issued guidelines September 3, 1996 state,
"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."
Whether an impairment results from an occupational or non-work related injury,
one of the following criteria must be met to claim an ADA disability: (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. An employee who has filed a Workers' Compensation claim does
not automatically have a disability under the ''record of'' portion of the
Employers must undertake a careful analysis under the ADA before making
any employment decisions involving disabled employees. As a federal law,
the ADA supersedes state Workers’ Compensation laws, and therefore,
its directives provide the floor level protection for disabled individuals.
State Workers’ Compensation laws can provide more protection, but
Q. “How do these laws affect Return-to-Work programs?
A. If an employee is eligible for FMLA leave, the employer may offer a transitional
work assignment that meets the employee’s medical restrictions, but
the employee has the right to refuse. However, the FMLA only creates an
entitlement to unpaid leave, and therefore, the indemnity payments may discontinue
with the refusal to return to work. If the employee accepts the offer, the
period spent on transitional assignments cannot be counted against the 12-week
Under ADA, an employer must assess whether the employee can perform the
essential functions of his/her original position with reasonable accommodation.
Reasonable accommodation is not the same as temporary, transitional work.
The rules are complex and should be evaluated on a case-by-case basis.