At the suggestion of one of our readers, I want to provide some thoughts on this federal ADA (Americans with Disabilities Act) and typically state-run work comp concepts. Sometimes they work in unison and harmony, sometimes the results are odd.

Eugene Keefe

The purpose of Title I of the Americans with Disabilities Act was to prevent U.S. employers from discriminating against current or prospective employees based on disability. The ADA was signed into law on July 26, 1990, by President George H.W. Bush and has been in place with a couple of ruffles for about 27 years.

On the other hand, state workers’ compensation laws were intended to provide a mechanism for the prompt and fair resolution, or litigation, of employee claims against their employers for occupational injuries and diseases.

The ADA and workers’ compensation laws generally coincide to provide somewhat different protections and benefits. However, when an employee seeks relief under both sets of laws, various complications can arise. To address these issues, the United States Equal Employment Opportunity Commission (EEOC) regularly issues so-called “enforcement guidance” on the ADA and how the EEOC feels it may impact workers’ compensation laws.

Work-related injuries/disease may not represent an ADA disability

An injured employee eligible for workers’ compensation benefits is not necessarily “disabled” for the purposes of ADA protection. Under the ADA, a disability may be one of three things: 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.

In other words, a worker who suffers a work-related injury or impairment might be entitled to receive workers’ compensation benefits, but the injury or illness may not rise to the level of “substantially limiting a major life activity,” and therefore may not qualify for ADA protection.

A work injury or disease may become regarded as a disability

Suppose an employee suffers a spinal injury on the job. If the injury is temporary and does not substantially limit a major life activity, it would not also be an ADA disability. However, if the employer refuses to let the injured employee return to his position at work, the employer may have effectively “regarded” the employee as “having such an impairment,” or disability, potentially bringing the injury within the ADA definition. In such a case, the employer’s refusal to allow the employee to return to his job may violate the ADA.

Thus, although an applicable workers’ compensation statute may not require the employer to have the injured employee to return to work, the ADA might. Accordingly, the employer’s treatment of the injured employee could create liability based on both a workers’ compensation claim and the federal ADA.

Making careful pre-hiring inquiries that fulfill comp laws and the ADA

Since the ADA was passed in 1990, the EEOC and the courts have attempted to clarify the interaction between work comp and the act. In 1996, the EEOC issued a set of guidelines to describe several questions and answers about the relationship between the two sets of laws.

When hiring new workers, an employer might wish to ask applicants whether they have occupational injuries or workers’ comp claims in an effort to be mindful of future or potential workers’ comp claims. However, such questions might conflict with the ADA’s prohibition on discriminating against prospective employees due to a disability.

The EEOC guidelines state that an employer may make some workers’ compensation-type inquiries of applicants that will also satisfy the ADA, provided some requirements are met.

Post-offer workers’ compensation-related inquiries must be asked after a conditional offer of employment is made but can be asked before actual employment has begun, and asked of all entering workers of the same job category.

If these requirements are met, the employer may inquire about prior workers’ comp claims or work-related injuries, or may require medical exams to obtain information about the existence or nature of the prior work injury.

Unions typically hate the ADA and may try to refuse or block reasonable accommodation for their members.

In Illinois workers’ comp, we have seen union representatives write letters “to whom it may concern” outlining their unusual position that all of their union members have to fully recover from any injury or illness to be returned to work at a union position. Union stewards and leadership will literally work to block anyone from returning a union worker where there are any permanent restrictions. We typically see this done in an effort to guarantee expensive wage loss differential claims where a worker might be able to return to a union job in a permanent light duty capacity, as the ADA contemplates.

The odd or unusual part of a union taking such a position is the idea of blocking a worker from returning to union labor due to a restriction is that the ADA is designed to force employers to do what the unions are trying to block. The reason I characterize this situation as unusual is the employee couldn't care less about what the ADA wants — the federal statute is disregarded and enforcement is tentatively blocked to allow the employee to cash in on six- and seven-figure settlements.

Refusal to bring government workers back to available light work is almost criminal, from the perspective of taxpayers.

One shocking aspect of the ADA occurs in the government sector where police, firefighters, prison guards and others suffer serious or life-changing injuries or illnesses that might make it difficult to return to their former position. In such settings, we don’t typically see the ADA being used or followed to have the State of Illinois, county, municipality or other government bring the police officer, firefighter or other worker back to a sedentary or light position when such positions regularly open up.  

Instead, the worker is provided a going-away party and perhaps a parade when they are awarded substantial workers’ comp benefits for “loss of trade,” along with lifetime line of duty disability pensions. On top of this, they are either given personal lifetime health care coverage or, in some cases, lifetime family health care coverage. All of these benefits come at a staggeringly high cost to the taxpayers that may run well into the millions for many workers.

If you think about it, why do we pension off young men and women in this situation when they could return to numerous other sedentary or light positions using the training and background we have already provided them at high expense? Couldn’t a disabled police officer, firefighter or prison guard be transitioned into administrative work? Doesn’t the ADA contemplate our governments should and must do so?

Conflict of workers’ compensations laws and the ADA

Most workers’ comp laws are generally “no fault” laws and contain provisions that prevent employees from bringing lawsuits against their employer or third parties for occupational injuries. As such, workers’ comp claims are typically the only recourse available to employees for their occupational injuries.

Once an injury is also considered a disability, the federal ADA applies in addition to the workers’ comp statute. It is possible you might need a defense team member from to protect you, and handle both the state administrative proceeding and a federal EEOC charge or direct state claim for retaliatory discharge.

Such claims are not considered “no fault” — the worker has to show you had animus for in some way in violation of the ADA. The disabled employee could enjoy the ADA’s additional protection to be free from job discrimination based on the disability arising from a work accident or exposure.

Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.