Tag Archives: ADA

Navigating the ADA Minefield in Work Comp

July 16, 2018 by 

icon graphic for article, Navigating the ADA Minefield in Work CompInterested stakeholders in any workers’ compensation program need to be aware of the many issues when it comes to running an effective program.  One of those includes being aware of how the American with Disabilities Act (ADA) impacts their program and post-injury efforts to return an employee to work.  Failure to do so can result in fines, penalties and lack of good will.  Now is the time to pay attention and prepare.

What is the American with Disabilities Act?

The ADA was passed was signed into law in 1990 as an amendment to the Civil Rights Act of 1964.  The law prohibits certain discriminatory practices based on an individual’s disability.  The law was amended one most recently in 2008, when President George W. Bush signed amendments to the law that expanded the scope of the ADA to include additional areas of coverage.

Important matters to consider in the context of workers’ compensation claims include the following:

  • Disability: This is defined by the statute to include “a physical or mental impairment that substantially limits one or more of the major life activities;” and
  • Qualified Individual with a Disability: The ADA only applies to an “individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position.”

    [SEE FULL STORY HERE]

3 Areas to Prevent Workers’ Comp Claims from Office Employees

When employers hear the word ergonomics, they tend to think about teaching their employees proper lifting techniques to prevent back injuries and to prevent the resulting workers’ compensation claims. As back injuries for laborers account for a disproportionate share of the number of work comp claims and a disproportionate share of the cost of work comp that is understandable. However, there are a significant number of workers compensation claims to office workers that could be prevented through proper office ergonomics.

Prevent Injuries by Applying Ergonomic Principles

info graphic of how to avoid carpal tunnel computer workSitting in an office chair that is incorrect for the employee is often the cause of back pain. Using a computer keyboard that is placed improperly often results in carpal tunnel syndrome and other repetitive motion injuries. These types of injuries can be prevented by applying ergonomic principles – the scientific study of individuals and their physical relationship to the work environment.

An office ergonomics plan should have the goal of adapting the workplace to fit the individual needs of each specific employee. To accomplish this, three areas need to be considered.

  • Physical shape and size of the employee
  • Employee’s job description
  • Tasks the employee is required to complete.

In an office environment, a comfortable workstation depends on how the workstation is set up. The location of the computer screen, where the keyboard is placed in relation to the hands, and the type of office chair. An ergonomically incorrect workstation is easy to identify by the employee who is sitting forward in his/her chair, hunched over looking at their computer. The correct workstation will have the employee looking straight ahead while sitting back in their office chair, which provides the employee with lumbar support to keep the back straight, and the neck and head erect. Another quick tip-off that the office is not ergonomically friendly is when all the cubicles have the same height for the work surface, and all the cubicles have the same style office chair.

Incorrect Computer Usage Results in Musculoskeletal Problems

Incorrect computer usage and computer placement results in musculoskeletal problems, eye strain, blurred vision, and headaches. Using a computer involves sitting at the same place for an extended period of time, while engaged in small repetitive motions of the hands and fingers, and repetitive movement of the eyes. These activities will cause the employee to develop various strains and fatigue.

The office employees should be encouraged to:

  1. Shift positions, stretch, walk or take a short break every hour.
  2. Vary their work to utilize different muscles.
  3. Have annual eye exams.
  4. Be sure their workstation or workspace is set up ergonomically correct to fit their physical needs and requirements.

Start the New Year Off Right With an Ergonomic Review

Blog Editor’s note: You can schedule a complimentary ergonomic review with the Physical Therapy Office at Central Coast IndustrialCare at ‭(805) 922-5003‬.

January 4, 2018 by Michael Stack

The New Year provides employers an opportunity to re-examine the issue of ergonomics in the workplace.  Making sure that workplace ergonomics is in place for all employees not only improves workplace morale but can reduce the costs of workers’ compensation claims in the future.

What is Ergonomics?

Defined by Webster, ergonomics is the “the study of people’s efficiency in their working environment.”  This study includes a review of workstations and job functions to reduce muscle overuse, correct poor posture and eliminate injuries cause is repetitive work activities.  It can also include a review of policies and procedures that seek input from a varied of interested stakeholders—include the person perform a particular work function.  It is important to include a review of tools used on a daily basis and other intangibles including, but not limited to workspace lighting.

illustration of correct ergonomics for office worker for article, Start the New Year Off Right With an Ergonomic ReviewImplementing an Effective Review

A proper ergonomics review includes the use of different specialists and stakeholders.  Beyond using a qualified specialist, it is important to include input from company management and employees performing job functions.  This review can also include a review of available resources and budget constraints.

It is also essential to understand the demographics of your labor force.  Studies show that Americans are working into their later years.  This is resulting in more severe injuries from repetitive type injuries that lead to longer periods of disability.  Factors to consider when addressing this issue include:

  • Age discrimination laws that prevent employers from engaging in unlawful labor practices;
  • State and federal OSHA laws and regulations; and
  • Addressing injury and post-injury response.

    [SEE REST OF STORY HERE]

ADA vs. WCC – Return to Work & the Interactive Process

What does it mean to return to work for a work related injury versus a non-industrial injury? What is reasonable accommodation? What is are the consequences for failing to accommodate adequately?

Return To Work logo graphic to go with article, ADA vs. WCC - Return to Work & the Interactive ProcessAt the 2017 CWC and Risk conference a panel leads a discussion on return to work and the interactive process.

Outcome is the same regardless of the type of injury. Whether the injury is work replaced or non industrial injury you must follow the interactive process. Tips for return to work include require a medical status authorizing return, internally designate who receives the status, and find out if the work restrictions are temporary or permanent. Company should have the employee sign the job analysis or job description upon return.

What should you do with conflicting medical reports?

    • still need to engage in interactive process(this is required under ADA)
    • gap between workers’ compensation and employment law
    • engage employee
    • ultimately the employer has the final decision
    • stay consistent with each employee
    • fitness-for-duty exam is an option
    • no return to work should be considered where there is a safety concern for workers or others

What is acceptable medical documentation?

Require for all medical status or certifications must include statement that worker has a disability or medical condition that requires accommodation or restriction, sufficient detail of the restrictions or accommodations required, and length of expected restriction or accommodation.

What is a “disability?” FEHA definition of disability is:

Physical: physical condition or disorder that affects a major bodily system and that limits a major life activity

Mental: having any mental or psychological disorder or condition that limits a major life activity

“Limits” means simply that the condition makes achievement of the major life activity difficult.

Under workers’ compensation there is no requirement that the employer must accommodate temporary modified duties however, under FEHA, the employer must determine if they have a “disability” and is this employee disabled under ADA.

Essential job functions

If the workers is disabled, must accommodate to effectively enable him or her to perform an “essential” job function.

    • Proving a job function is “essential”
    •  failure to perform the job function has legitimate business consequences

      {SEE FULL STORY HERE]

Using a Vendor for ADA Accommodation

By Safety National 07/21/2016

At the 2016 DMEC Annual Conference, a panel talked about Walmart’s experience shifting to a vendor to manage their Accommodation Process. The speakers were:

• Herminio Vargas – Senior Manager Integrated Absence Management – Walmart
• Ben Cormack – Senior Manager Integrated Absence Management – Walmart
• Shawn Johnson – SVP Client Services – Sedgwick

ADA compliant logoAccording to a 2015 DMEC Leave Management Survey, 82% of employers manage their ADA accommodation process internally. In 2013 Walmart initiated a process to move their return to work accommodation process to Sedgwick. Today Sedgwick administers approximately 80% of Walmart’s program.

Walmart is the largest employer in the United States with over 1.4 million employees across over 5000 locations. They have over 6000 different job descriptions. There are 7 Walmart associates managing their accommodations program in addition to over 50 Sedgwick colleagues supporting the program.

The central goals of Walmart’s leave program are to:

• Provide reasonable workplace accommodations that enable disabled associates to safely and productively remain in, or return to, their current position.

• Provide accommodation leave when a qualified disabled associate needs leave as a reasonable accommodation.

• Provide job reassignment to a vacant position if the disabled associate cannot be accommodated in their current position.

[READ FULL STORY HERE]

Rotator Cuff Tear May Be A Covered Disability Under ADA

By John Geaney

rotator exercise chartMichael Cannon applied for a job with Jacobs Field Services (hereinafter JFS) as a field engineer for a Colorado mining site.
The company made him a job offer conditioned on his passing a post-offer medical examination.

During the post-offer exam, Cannon revealed to the doctor that he had an inoperable rotator cuff tear and had taken Ultram (a brand name version of the opioid Tramadol).  He said he still had the prescription but was no longer taking it. In fact, he passed the drug test portion of the post-offer examination.

The doctor cleared Cannon provided that JFS offered accommodations of no driving company vehicles, no lifting, pushing, or pulling more than 10 pounds and no working with his hands above shoulder level.

Less than two hours after receiving the doctor’s report, the company’s technical operations officer at the mining project wrote that the job offer should be rescinded because a field engineer must be capable of driving and lifting.  Ladder climbing was an essential function of the job.

Further, the job site was located in the mountains with rocky terrain over several miles, so driving was essential.  This decision to revoke the job offer was not communicated immediately to Cannon.

A Human Resources Manager later contacted Cannon, expressing concerns about his ability to perform the essential functions of the job.  Cannon offered to contact the Occupational Health Department to address concerns that he was still taking Ultram (he said he was not).  He also brought a note from his doctor stating that he could climb ladders by maintaining three point contact with either arm. Continue reading Rotator Cuff Tear May Be A Covered Disability Under ADA

Obesity Is Not An Impairment Unless…

It Results From An Underlying Physiological Disorder

By John Geaney 4 hours 12 minutes ago

giant fat man in a Mini CooperAn important ADA decision has come from the Court of Appeals in the Eighth Circuit in Morriss v. BNSF Railway Company, 817 F.3d 1104 (8th Cir. 2016).  The case stems from a post-offer medical examination.

Melvin Morriss applied for a machinist position and received a conditional offer of employment.  He was required to undergo a medical review because the position was safety sensitive.  He noted on the medical questionnaire that he weighed 270 pounds and stood 5’10” tall.  He was not currently a diabetic and did not have any health concerns.  He noted no limitations in daily activities.

BNSF doctors examined Morriss and noted that he weighed 281 pounds and had a body mass index of 40.9 in the first exam and 40.4 in the second exam.  Because his BMI exceeded the company’s qualification standards, the company’s medical department advised Morriss that he was not currently qualified due to significant health and safety risks related to Class 3 obesity, which entailed a BMI of 40 or greater.  BNSF then revoked the job offer, and Morriss sued alleging discrimination under the ADA.

Morriss lost in the district court, which noted that Morriss had denied suffering from any medical impairment on BNSF’s medical questionnaire.  His personal doctor said he did not suffer from any medical condition which caused his obesity.  He had no limitations at all.  The court therefore dismissed his case and Morriss appealed.
Continue reading Obesity Is Not An Impairment Unless…

ADA Reasonable Accommodation And Workers Comp Questions Answered

By 

Americans With Disabilities Act graphicWe had very successful webinar recently on the New ADA Return to Work Interpretations.  There were many questions from the audience.  Find below the responses to the questions related to Reasonable Accommodation given by Aaron Konopasky, Senior Attorney Advisor, Equal Employment Opportunity Commission, and Jennifer Christen, MD, President, Webility Corporation.

Is a reasonable accommodation having someone else do part of the worker’s job?  For example, all of the lifting? 

If lifting is an essential function of the job (central to what the person was hired to do), then, generally, no.  Reasonable accommodations enable the person to do the essential functions of the job, not eliminate them.

A few clarifications, though:

It’s possible that someone in a certain position is sometimes expected to lift something, but it’s not really what they were hired to do.  We call that a “marginal” function.  For example, an accountant might occasionally have to lift a heavy box of records above shoulder height to put it on a high shelf in a storage room.  Because she’s an accountant, her job really isn’t lifting.

In a case like that, having someone else help with the lifting could be a reasonable accommodation, especially if it’s for the short term.   But sometimes it’s possible to accomplish the same job tasks without needing anyone else’s help — and that might be even better.  For example, if the person could use a hand truck/trolley to move the records, and they could be stored on a lower shelf, the employer may need to make that reasonable accommodation.

If the job involves rotations or assignments that sometimes require lifting and sometimes do not, assignment to a non-lifting rotation/assignment may be a reasonable accommodation that the employer might have to provide, unless doing so would impose undue hardship.

Can you address how Collective Bargaining Agreements (CBAs) affect the interactive process for accommodation?

 

This is a complicated topic, and I can’t cover it all here.  But two basic points are: (1) the ADA prohibits employers from entering into CBAs that discriminate on the basis of disability, and (2) employers are required to comply with the ADA regardless of whether a CBA exists.

 

In the reasonable accommodation context, many times it will be possible to provide a reasonable accommodation without violating the terms of a CBA.  If an accommodation is required that would violate the terms of a CBA, the employer and union may need to negotiate a variance.  If a CBA is raising complicated ADA issues for you, you may wish to consult a private attorney.

Continue reading ADA Reasonable Accommodation And Workers Comp Questions Answered

Court: Telecommuting Could Be Reasonable Accommodation Under the ADA

By 

Telecommuting womanTelecommuting is a trend that is rapidly growing in the United States, and telecommuting requests are also on the rise as a potential reasonable accommodation under the ADA. A recent Sixth Circuit Court of Appeals case,EEOC v. Ford Motor Company, 2014 U.S. App. LEXIS 7502 (6th Cir. 2014) illustrates how difficult it can be for an employer to oppose a request for telecommuting.

Jane Harris was hired in 2003 by Ford as a resale buyer, serving as an intermediary between steel suppliers and “stampers,” which are companies that use steel to produce parts for Ford. Her job was to respond to emergency supply issues to ensure no gap in steel supply to parts manufacturers. The most important part of the job was group problem solving, requiring that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.

Harris suffered from IBS, an illness that caused her fecal incontinence. Some days she could not drive to work or stand up from her desk without potentially soiling herself. She took intermittent leave when severe symptoms occurred. In 2005 her supervisor allowed her to work from home on a flex-time telecommuting schedule on a trial basis. The company did not view the trial period as a success. She continued to work occasionally from home doing remote work, including on evenings and weekends. However, Ford did not credit Harris with the time she spent working during non-“core” hours and marked the days she stayed home because of her illness as absences. The company stressed that core business hours were important because that was the time when employees do team problem solving.

[READ FULL STORY HERE]

ADA: Targeted Phone Calls May Help Control Diabetes

diabetes app for iPhoneBy Charlene Laino, Senior Writer, Gupta Guide

Published: June 24, 2013
Reviewed by F. Perry Wilson, MD, MSCE; Instructor of Medicine, Perelman School of Medicine at the University of Pennsylvania and Dorothy Caputo, MA, BSN, RN, Nurse Planner

CHICAGO — HbA1c levels dropped by a “startling” 0.6% in people with diabetes in a poor, underserved, urban area who received telephone counseling from trained health educators who lived in their neighborhood and “spoke their language,” a researcher reported here at the American Diabetes Association 2013 Scientific Sessions.

In the 1-year study of nearly 1,000 people, HbA1c levels fell from 9.3% to 8.4% in those who received written and phone counseling (P<0.01), compared with a nonsignificant drop from 9.1% to 8.6% in those who received only print materials.

“The [reduction] in HbA1c in the telephone intervention group was comparable to that produced by some pharmaceuticals,” said study author Elizabeth A. Walker PhD, RN, CDE, of Albert Einstein College of Medicine in New York City. She added that people with higher HbA1c levels at baseline did best.

The key to the program’s success, she said, was behavioral counseling that stressed the importance of medication adherence, exercise, and diet, delivered in “in a voice that sounded familiar, like their neighbor’s.”

Importantly, “this is something that could be done out of [any physician’s] office or clinic. It’s a low-cost intervention — and it does not have to be delivered by a healthcare professional,” Walker said.

“We trained people who had bachelor’s degrees over a 2-week period. But really you can train anyone to perform the telephone intervention,” she said.

Study participants, all of whom lived in the South Bronx, were “some of the hardest-to-reach people,” Walker said. “They were very poor, 70% were foreign born, and 56% were Spanish speaking. That’s why the finding is so significant,” she said.

When the study began in 2009, the prevalence of diabetes in the South Bronx was among the highest in the nation: 14.2%, she said.

For the study, the researchers recruited 941 adult patients with diabetes from the New York City Health Department’s HbA1c registry, a mandatory reporting system that tracks HbA1c test results for all city residents.

Continue reading ADA: Targeted Phone Calls May Help Control Diabetes