Representing a Worker on Claims of Employment Discrimination
Under the Americans With Disabilities Act:
A Lawyer's View of Case Management

Bruce J. Kaye, Esq.

Leventhal & Bogue P.C.
950 S. Cherry St., Suite 600
Denver, CO 80210
(303) 759-9945
(303) 759-9692-FAX

ABSTRACT

This presentation will demonstrate the relationship between management of ergonomics in the work setting and claims of employment discrimination under the Americans With Disabilities Act. The employment relationship has evolved to impose a variety of legal obligations and responsibilities designed to protect employees from and compensate them for work-related injuries. Historically, these rights and obligations were subsumed within state workers compensation programs. More recently safety in the workplace has been made subject to Federal regulation. A series of Federal laws prohibit discrimination during the employment relationship due to race, color, sex, religion, national origin and disability.

The science of ergonomics has found its way into the work place as a means of reducing or eliminating conditions which cause work related injuries. The Americans With Disabilities Act (ADA) requires employers to make reasonable accommodations to qualified individuals incapable of performing the essential functions of a job without such accommodation. Health care professionals treating injured workers determine physical restrictions and limitations on both a temporary and permanent basis. Ergonomic solutions can provide the means for a reasonable accommodation. Proper assessment of workers' temporary and permanent restrictions is required to promote reasonable accommodation of disabled workers. Both the ergonomist and treating physician will play a significant role in litigation under the Americans With Disabilities Act.

INTRODUCTION

Historically, absent a specific contract providing otherwise, either party to an employment relationship could terminate the relationship, at any time, with or without cause. This is known as employment at will. Exceptions to the employment at will doctrine have evolved under the common law of each State including implied contracts, public policy exceptions, statutes related to workers rights, and constructive discharge.

An employee is protected against discrimination or harassment during the employment relationship due to race, color, sex, religion, national origin or disability under Title VII of the Civil Rights Act of 1964: 42 U.S.C. § 2000e et seq, the Americans with Disabilities Act Of 1990: 42 U.S.C. 12101 et seq, and the Civil Rights Act of 1991. Some states also have recognized such common law tort claims as outrageous conduct or intentional infliction of emotional distress.

Traditionally, compensation for work related injuries has been under a statutory scheme of workers compensation adopted at the State and Federal levels. Benefits usually include medical care for treatment of work related injuries, wage benefits, and compensation for permanent disability. Temporary and permanent work restrictions and limitations are determined by physicians treating injured workers.

Safety in the workplace became an area of Federal concern with passage of the Occupational Health and Safety Act of 1970. The Occupational Health and Safety Administration has entered into "ergonomic agreements" with employers as a means of resolving citations for violations of the Act including conditions causing cumulative trauma disorder.

The Americans With Disabilities Act makes it unlawful to discriminate against a "qualified individual with a disability" in virtually all aspects of employment. The failure or refusal to make a reasonable accommodation to an individual who is incapable, because of a disability, of performing the essential functions of a job constitutes an act of discrimination prohibited by law.

Lawyers investigating and filing lawsuits for discrimination under the Americans With Disabilities Act should carefully investigate the employers use or failure to utilize ergonomic solutions as a means of making reasonable accommodations to workers with disabilities including those resulting from work related injuries. Equally important are the restrictions and limitations placed upon workers by treating health care professionals because these will be used by employers to determine whether a reasonable accommodation can be made for a disabled worker.

CASE HISTORY
OSHA citation and ergonomic agreement

In April 1993, an employer in the meat packing industry was cited by OSHA for violations of law which OSHA alleged resulted in repetitive trauma disorder injuries to employees. The employer and OSHA entered into a stipulation and settlement of the citation. The settlement included an ergonomic agreement.

The agreement required the employer to implement controls on cited jobs. These controls included making available ergonomically designed knives, adding employees to certain production lines on a shift, redesigning work areas, reducing the weight of product, matching employees by size with work areas, utilizing job pairing and job rotation.

The agreement also required implementation of an ergonomics program. The employer was required to hire or retain a consultant to perform a basic ergonomic analysis of non-cited jobs, and recommend engineering and/or administrative controls. Orientation, training and education of employees and supervisors is a part of the program. A program of medical management was to be implemented. Under the medical management program "duty assignments" were to be in conformity with the employee's restrictions as prescribed by the treating physician.

For several years prior to the OSHA citation, the employer had followed a policy of placing workers who sustained on the job injuries resulting in work restrictions or limitations on "restricted duty" during their regular working hours. In general the workers compensation laws allow an employer to provide "light duty" to injured employees, who receive their regular wage, in lieu of allowing the employee to remain off work and receive temporary disability benefits.

Charges of discrimination under the ADA

In March 1992, approximately three (3) months before the effective date of the Americans With Disabilities Act, the employer created a restricted duty work pool ("C" shift) which required injured employees to perform restricted duty tasks on a shift which operated from 11:00 p.m. to 7:00 a.m. Tuesday through Saturday. Any injured worker who was either given restrictions or limitations from a physician lasting greater than one month or who was on restricted duty for more than a month was automatically assigned to the "C" shift.

Charges of discrimination under the ADA were filed by workers on the "C" shift relating to the working conditions. The charging parties claimed the employer violated the ADA by limiting, segregating and classifying them in a manner adversely affecting the terms and conditions of their employment; subjecting them to a hostile work environment; and engaging in unlawful retaliation, intimidation, coercion and interference. The employer discontinued the "C" shift in 1995 and reassigned "C" shift workers with limitations to "restricted duty" during normal working hours. During the existence of the "C" shift and since its demise a number of workers who reached maximum medical improvement have been terminated because the employer claims it has no work within the employee's permanent restrictions. Those workers who have been fired also claim wrongful termination under the ADA and State law.

Case management

The term case management has a number of meanings depending on the setting in which it is used. In the context of this case history, it involves two systems which are interrelated, the workers compensation system and the ergonomic program implemented as part of the agreement between the employer and OSHA. Physicians treating injured workers under a workers compensation scheme establish physical restrictions and limitations. The ergonomist should have considerable input on matters which relate to reasonable accommodation.

It is not sufficient for health care providers to evaluate, treat and provide work restrictions without having a thorough understanding of the patient's job duties, physical demands, and working conditions. A restricted duty job may well fit the physical limitations provided by a physician; however, other working conditions may make restricted duty medically inadvisable. For example, restricted duty on a night shift may cause other physical and psychological harm which interferes with the process of healing injuries and returning persons to work.

Likewise, it is not sufficient to assess the physical demands of a job and terminate a worker whose restrictions exceed the demands. The ADA requires a problem solving approach to a request for a reasonable accommodation. See 29 C.F.R. § 1630.9. This regulation requires analyzing the job, consulting with the employee concerning reasonable accommodations and considering the preference of the person to be accommodated. The ergonomist should evaluate the work restrictions and consider job restructuring, modified work schedules, job rotation, job pairing and alternative positions.

CONCLUSION

The Americans with Disabilities Act prohibits discrimination against disabled persons. The act applies to workers who have been injured on the job and the manner in which such an individual is treated by the employer after the injury occurs.

Physicians treating injured workers are responsible for providing work restrictions and limitations. Such health care providers have an ethical and perhaps legal obligation to understand how their opinions impact their patients employment. Similarly, those professional providing advice and recommendations to employers on ergonomic issues have an ethical and perhaps legal duty to utilize their expertise to enable employers to make reasonable accommodations to disabled employees. The Americans with Disabilities Act requires that case management in this setting be viewed as a joint or team effort by the treating physician, ergonomist, employer and employer.