Module 3: Workers with Disabilities or Injuries

Employers may not discriminate against qualified employees or applicants with physical or mental disabilities.  The main law prohibiting discrimination against workers with disabilities is the Americans with Disabilities Act, which defines the types of medical conditions that qualify as disabilities, obliges employers to provide reasonable accommodations for disabled workers, and provides remedies for disabled workers who may have been discriminated against in the workplace.

Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 bans discrimination in employment, transportation, public accommodation, communication, and government participation against individuals with disabilities.[1]  It is the most far-reaching federal law protecting individuals with disabilities.

The ADA requires employers to provide equal opportunity in hiring and reviewing qualified applicants with disabilities, make reasonable accommodations for disabled job applicants and workers and ensure equal opportunity in advancement and benefits.  However, the ADA does not guarantee employment for workers with disabilities.  Employers are not obligated to offer jobs to unqualified individuals just because they are protected by the ADA.  The law requires employers to determine whether an applicant is qualified for a position and, if so, the employer must make reasonable accommodations to ensure that the applicant can succeed despite the disability.

ADA protections apply to a broad set of medical conditions.  The first step in securing coverage under the ADA is for an employee to demonstrate that he or she has a qualifying disability.  The ADA applies to workers with a physical or mental impairment that substantially limits their life activities.  This impairment must be recorded in the worker’s personal or medical history and may or may not be producing symptoms at the time the worker starts a job. [2]

The law applies to both physical mental impairments.  Physical impairments affect a worker’s neurological, muscular, skeletal, sensory, respiratory, cardiovascular, reproductive, digestive, genital, urinary, or metabolic or hormonal body systems.  Certain serious infectious diseases, including tuberculosis and HIV, also qualify as physical impairments.  Psychological conditions affecting emotional or mental health such as dyslexia and learning disabilities are also protected by the ADA.  However, whether a mental illness qualifies as a disability can be a difficult to determine. For example, courts have found that compulsive gambling, kleptomania, and pyromania do not qualify as mental illnesses. Moreover, illegal drug use and addiction disorders do not qualify as ADA-protected disabilities until the afflicted worker successfully completes a supervised drug rehabilitation program or begins attending ongoing treatment for addiction, such as Alcoholics Anonymous meetings.[3]

The key factor in determining whether an affliction qualifies as a disability is whether the impairment substantially limits a major life activity.  A major life activity means a task that most people can perform with little or no difficulty.  Examples include seeing, hearing, walking, eating, sleeping, standing, lifting, speaking, reading, learning, or communicating.  An ADA-recognized disability must substantially limit these activities. Therefore, an affliction sometimes can progress into a disability when its symptoms advance. 

Taking medication or using equipment to treat or mitigate symptoms of an impairment does not impact qualification under the ADA, even if these measures eliminate the effects of the impairment.  For example, a worker diagnosed with cancer who is in remission due to successful chemotherapy treatments would still be entitled to the rights afforded to disabled workers by the ADA. 

Employer Obligations Under the ADA

Private businesses employing 15 people or more, employment agencies, state and local governments and labor associations are prohibited from discriminating against qualified individuals with disabilities. The ADA also imposes affirmative action responsibilities on public entities to ensure equal hiring opportunities for qualified applicants with disabilities.

Employers’ obligations under the ADA begin when the company advertises open positions and solicits applications. Advertisements must not dissuade otherwise qualified disabled people from applying and must not imply that otherwise qualified disabled people will not be considered for the position. Employers must also be careful when inquiring into a job candidate’s background, as routine inquiries may indicate the disability. Discovering the candidate’s disability may unwittingly expose the employer to potential liability for making a hiring decision on that basis.

In fact, workers have brought successful ADA claims against employers who discovered some information that led the employer to believe that there was a disability when, in fact, the worker had no disability at all.  While it may seem counterintuitive that the ADA would create a legal course of action protecting workers without disabilities, the overall purpose of the statute is to prevent the unfair stigmatization and prejudice that many disabled Americans have experienced in the workplace.[4] 

If a disabled individual is qualified for a job, the employer must consider whether the disabled worker would need any reasonable accommodations in order to place him on a level playing field with other workers not impacted by disabilities.  Employers have no obligation to alter the essential functions of a job to make it easier for a disabled employee to perform, but is required to allow accommodations in the workplace that are reasonable and proper to ensure that disabled workers have equal access to professional success.[5]

Accommodations may take the form of specialized equipment, physical modifications to the workspace, adjustments to work schedules or job expectations or many other possibilities.  Whether an accommodation is reasonable depends on the circumstances of the employer, such as the company’s practical ability to alter working conditions and operations.  Some accommodations for disabled workers may be considered reasonable for large companies with substantial financial and physical resources, but unreasonable when imposed upon small businesses. 

The ADA does not require employers to make accommodations that would impose an undue burden on their businesses.  To excuse the employer from its responsibilities under the ADA, the burden of accommodation must substantially and unreasonably impact business operations.  When employers are directed to make accommodations, they are given broad discretion to design and implement accommodations in a manner that minimizes any adverse impact on the workplace.[6] In other words, disabled people are entitled to reasonable accommodations, but these are of the employer’s choosing. While a disabled employee who cannot walk from site to site might prefer a private company car, for example, a provision for cab fare for the employee would certainly be considered a reasonable accommodation even if it’s slightly less convenient.

All workers have the right to prevent their employers from prying into confidential medical information. Therefore, employers may not ask employees about a disability, nor can it require them to submit to pre-hiring medical testing.[7] Still, if the disability accommodation is requested, it is reasonable and legal for the employer to subject the employee to reasonable medical examinations to determine the viability of proposed accommodations.

ADA Enforcement

The EEOC enforces the ADA’s employment provisions, while other federal agencies are responsible for ensuring anti-discrimination policies in other sectors.   The EEOC receives over 25,000 complaints alleging disability discrimination in the workplace annually, resulting in roughly a hundred million dollars in compensation being paid out. Employers should be aware of their potential liability under the ADA, as companies that have refused to accommodate disabled employees or terminated workers for having disabilities may find themselves liable for hundreds of thousands of dollars or more in civil damages.[8]

If an employee believes that he has been the subject of discriminatory treatment because of a disability, he may bring a lawsuit under the ADA.  If a qualified disabled worker can show that he was not hired despite appropriate qualifications and abilities merely due to disability, the worker may be able to recover lost wages and damages.  Similarly, a disabled worker can recover if she can show differing treatment from the rest of the workforce, and that this disparate treatment had an adverse impact on the worker’s career.[9] 

Other Laws Affecting Workers With Disabilities

In addition to the Americans with Disabilities Act, the federal government has created other programs to facilitate workplace success for disabled people. The Rehabilitation Act of 1973 bans federal agencies from discriminating based on disability and requires them to develop affirmative action programs for the hiring and advancement of people with disabilities that go beyond the protections of the Americans With Disabilities Act. These requirements also apply to certain businesses under contract with the federal government and organizations receiving federal financial assistance.  

There are several other laws providing additional rights to disabled workers.  The Vietnam Era Veterans’ Readjustment Assistance Act bars discrimination and requires most federal government contractors to take affirmative action to employ and promote disabled veterans.[10] Executive Order 13160, signed by President Bill Clinton in 2000, bans disability-based discrimination in education programs and other government activities. The federal Office of Disability Employment Policy promotes and coordinates policies to increase workplace and entrepreneurship opportunities for people with disabilities.[11] 

The government also provides a free service, the Employer Assistance and Resource Network that helps employers hire and retain people with disabilities across the country.  The Ticket to Work and Self-Sufficiency Program was designed to increase access for people with disabilities to training and vocational rehabilitation programs.  This type of training can support disabled individuals as they obtain, regain, or maintain employment.[12]  Similarly, the Workforce Recruitment Program for college students with disabilities also provides recruitment and placement services for post-secondary students and recent college graduates.[13]  The government launched the website “disability.gov” to provide information and resources for workers with disabilities, employers, and the general public, which discusses workplace entitlements, responsibilities and accommodations.

Compensation for On-the Job Injury or Disability

The very first workers compensation laws originated in Europe.  The German Sickness Insurance Law of 1883 and Accident Insurance Law of 1884, for example, created an insurance system under which all employers had to pay a small amount per employee into a pool of funds. If a worker became sick or injured on the job, he could collect a portion of his wages from the pool until he could return to work.  These became the basis for the workers’ compensation programs common in most modern democracies, including the United States.[14]

Excluding federal employees and a few private industries subject to special legal protections, workers compensation programs are administered at the state level.  Employees injured on the job obtain compensation by suing employers for damages, enrolling in compensation programs involving medical treatment and wage supplementation or by taking advantage of social insurance and assistance programs.

Suing Employers for Damages Resulting from Workplace Injuries

Employees injured on the job rarely succeed in civil suits against their employers.  State workers’ compensation programs have become universal, and employees are required to use this process rather than resolve their complaints in the courts.  Only workers excluded from coverage under worker’s compensation programs may sue employers over a workplace injury.  Still, if the injury was intentionally inflicted by the employer, workers compensation statutes will not prevent a successful civil action against the employer. Fraudulent misrepresentation can also constitute intentional malfeasance. So, for example, if an employer intentionally misleads a worker about the health hazards of a particular chemical used in the workplace, and the worker is harmed by the chemical as a result of being misled, the worker may be able to recover damages in a civil suit. [15]

Workers Compensation Statutes

Each state operates workers’ compensation programs for private companies and local governments.  In general, employers fund these programs by paying a small percentage- about 1-1.5 percent of an employee’s total wage- into an insurance program that compensates employees and their families if the employee is hurt or killed on the job.[16]

Workers’ compensation laws vary from state to state, but are comparable to each other.  Under workers’ compensation programs, employees who are injured on the job may file a claim for compensation with a public agency.  Unlike lawsuits, where an employee must prove the employer’s fault in causing his injury, workers’ compensation claims do not require a finding of fault.  Rather, their purposes are limited to helping injured workers recover medically, professionally, and financially after being injured on the job.  Workers’ compensation programs offer weekly payments based on to the injured worker’s former wages while the worker heals and searches for a new job.  Medical benefits are also available through workers’ compensation, and the laws also typically provide job-training or vocational rehabilitation programs that can help injured or disabled workers enter a new profession.[17]

Federal Workers’ Compensation Programs

The federal government has enacted the Federal Employees’ Compensation Act which establishes a workers’ compensation program covering the disability or death of a civilian federal employee resulting from an injury sustained while working for the U.S. government.[18]  Congress has also enacted workers’ compensation laws directed at specific work-related injuries of national significance.  For example, the Black Lung Benefits Act provides payments and medical care for coal miners disabled by black lung disease, and the Energy Employees Occupational Illness Compensation Program Act provides similar coverage for federal employees, contractors, and subcontractors who suffered injury caused by exposure to radiation and certain toxins involved in the energy industry.[19]

Disability Insurance

About one-third of employers provide private long-term disability insurance access to their employees.  Long-term disability insurance can increase injured workers’ access to funds, as well as provide services that help workers return to work after time away due to illness or injury.   Access to long-term disability insurance is more common among relatively high-wage workers at large establishments and in jobs with low disability rates.  Most workers with an option to enroll in long-term disability insurance choose to do so, with enrollment rates commonly exceeding 90%. Long-term disability insurance coverages vary from plan to plan, but most coverage includes rehabilitation benefits, accommodation support, and return-to-work incentives.  Medical care, however, is typically not included in disability insurance. 

Social Security Disability Insurance is a public program that provides financial support to workers with disabilities if they meet certain eligibility criteria.  These depend upon the injured worker’s contribution into the Social Security program through payroll taxes.  Social Security Disability coverage also includes health care benefits through Medicare. Workers receiving benefits from long-term disability insurance may still receive additional benefits under Social Security Disability Insurance, if eligible.[20]

Conclusion

            The common thread that goes through disability accommodation rules in workers’ compensation rules is an underlying policy desire to protect people who suffer from disabilities or injuries from adverse impacts and to maximize their chances of success in the workplace and to compensate for possible inability to work.