Once the injured worker starts feeling better, there will come a time his or her doctor will certify the injured worker is able to return to work. This certification often looks like a note on a doctor’s prescription pad, whereby the medical doctor states the injured worker is able to return to work effective a certain date with or without restrictions or conditions. The note will specify if a restriction or condition is present. Let's examine additional protections afforded injured workers when they are able to return to work with a restriction or condition under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).
ADAAA Statutory Framework
At the outset, the main distinguishing factor when an injured worker seeks to return to his or her pre-injury job with a restriction is that the applicable law changes from workers' compensation laws to federal discrimination statutes, like the ADAAA. Generally, the ADAAA applies to employers of 15 or more employees and prohibits them from discriminating and retaliating against an employee because of their real or perceived disability. The employee must be disabled under the ADAAA, which means he or she has or is perceived to have a physical or mental impairment that substantially limits major life activities.
In employment settings, the prohibited discrimination may include a failure on the part of the employer to make a reasonable accommodation to the known physical limitation of the returning injured worker. The employer, after engaging in the interactive process with the employee, can deny a request to return to work with a condition if the condition results in undue hardship for the employer.
How Do I Engage In The Interactive Process With My Pre-Injury Employer?
Returning to the scenario mentioned above, let's refer to the doctor's note. The note, dated February 8, 2016, may read "Jane Doe is able to return to work effective March 1, 2016. She may not lift any objects over 15 pounds." The note under the ADAAA can be considered a request for a reasonable accommodation and trigger the application of the ADAAA to the injured worker's request to return to work. If the disability is a result of an on-the-job injury, it’s not much of a stretch to prove that the injured worker's employer had actual knowledge of the injured worker's disability. If the employer is still unsure, the doctor's note provides them with both notice of the injured worker's disability and then affirmatively requests the reasonable accommodation. The employer must then determine if they can put the injured worker back to work with the conditions or if the request would result in undue hardship. The injured worker must be able to still perform the essential functions of the position, with or without, a disability. This back-and-forth analysis is the interactive process. Failing to engage in it may open the employer up to a disability discrimination action under the ADAAA.
Another request for a reasonable accommodation an injured worker wishing to return to pre-injury work may make to his or her employer, is requesting a transfer to another part of the company where the restriction is not an issue or reduced hours. As long as the employer engages in the interactive process, they are covered. Failure to properly consider the request opens the employer up to additional liability.
Are you trying to return to work following a work related injury, but your employer won't talk with you?
Disability discrimination claims are another vehicle for redress when an employee has been injured on the job and he or she is unable to return to their prior position when medically cleared to return to work. The ADAAA is a complex law and does not apply to all situations. The law specifically excludes federal government employees, Native American Tribes, and certain non-profit organizations. Nevada also has its own employment discrimination statutes that may be applicable in these circumstances. Contact the law offices of Greenman, Goldberg, Raby, and Martinez in Las Vegas, Nevada at (702) 388-4476 to schedule your free consultation and talk with an experienced workers' comp attorney.