The
U.S. Supreme Court´s ruling that employers are permitted to keep workers with
disabilities out of jobs that would directly endanger their health should be
coordinated with workers´ compensation reinstatement provisions, according to
Tom Robinson, a project coordinator at Duke University Press and recognized
workers´ compensation expert.
EEOC
regulation upheld
In the case
before the Supreme Court, Chevron withdrew its job offer to Mario Echazabal for
a refinery position after a post-offer physical showed he had hepatitis C.
Worried that workplace substances would endanger his health, Chevron asked a
contractor employing Echazabal at the refinery to remove him from any job that
exposed him to solvents or chemicals.
Subsequently,
Echazabal was laid off and he sued, claiming Chevron´s actions were
paternalistic and violated the law. Chevron responded that the law does not
require the hiring of an individual who poses a direct threat to health,
emphasizing that the EEOC interprets this as including an individual´s own
health.
Echazabal
maintained that the regulation was invalid because it went beyond the law´s
statement that employers do not have to hire individuals who pose a direct
threat to the health or safety of other individuals in the workplace, and an
appeals court agreed.
In a unanimous
decision, however, the Supreme Court upheld the rule, determining that the
law´s statement was only one example of a legitimate job qualification. Other
health-related qualifications, including a requirement that workers not risk
their own health, are reasonable, particularly in light of the Occupational
Safety and Health Act (OSHA), the Court decided.
Under OSHA,
employers must provide each employee with a workplace "free from recognized
hazards that are causing or are likely to cause death or serious physical harm"
to an employee, the Court stated. An employer that hires someone it knows may
pose a danger to himself or herself in a particular work setting "would be asking
for trouble."
If employers
could not keep workers with disabilities out of positions that would endanger
their own health, the companies´ duty to comply with the ADA would be "at
loggerheads with the competing policy of OSHA to ensure the safety of each and
every worker," the Court added (Chevron
U.S.A., Inc. v. Echazabal, 122 S.Ct. 2045 (2002)).
Direct
threat to self
"The decision can
be interpreted as giving employers incentives not to rehire or reinstate
employees" returning from workers´ compensation leave, if they feel doing so
would cause a danger to the worker or to others, said Robinson. Although some
states´ workers´ compensation statutes do not require reinstatement, others do
(see the Selected Vocational Rehabilitation and Reinstatement Provisions chart
in Appendix I of the Handbook,
updated in this supplement).
Many states have
employment at will policies, and their workers´ compensation statutes generally
do not require reinstatement. "Employment at will means that an employer holds
the right to terminate an employee for a good reason, a bad reason or no
reason. Similarly, an employee would reserve the right to be able to quit for a
good reason, a bad reason or no reason," Robinson explained.
Under the ADA,
employers should reinstate qualified employees with disabilities at the end of
leave as long as they are qualified and pose no direct threat to the health or
safety of themselves or others. Before denying reinstatement, employers should
not assume that employees could become reinjured or injure others if employed
in certain positions, but instead should be able to show that the risk rises to
the level of a direct threat, according to the EEOC´s Enforcement Guidance: Workers´ Compensation and the ADA. Â
When an employer
refuses to reinstate an employee because it assumes the worker´s disability-
related occupational injury creates a risk of further injury, it has
discriminated on the basis of disability in violation of the ADA, the guidance
states.
Just because an
employee had a disability-related occupational injury does not, by itself, mean
he or she is unable to perform the essential functions of the job or that
returning the worker to work poses a direct threat. In some circumstances,
evidence about an employee´s occupational injury may be relevant to whether the
worker can perform the job´s essential functions, with or without a reasonable
accommodation, or it may be relevant to the direct threat analysis, the
guidance notes.
Direct
threat defined
An employee poses
a direct threat when a reasonable accommodation cannot eliminate or reduce the
significant risk of substantial harm to the health or safety of the individual
or others.
Determining
whether a worker would cause a direct threat requires a fact-based,
individualized inquiry that takes into account the specific circumstances of
the individual with a disability. Employers should consider these factors when
determining if a worker would create a direct threat to the worker´s own or a
co-worker´s health:
- Â the duration of the risk;
- Â the nature and severity of the potential harm;
- Â the likelihood that the potential harm will occur;
and
- Â the imminence of the potential harm.
Limiting
risks
"The Chevron decision allows employers the
ability to responsibly" limit their risks, Robinson remarked.
By contrast, in a
prior decision, the Supreme Court struck down an employer´s policy that
required all female employees to be infertile or beyond the age of becoming
pregnant to work in positions with potential lead exposure. Working in a
battery factory could affect a woman´s ability to reproduce.
The Court
determined that the company´s policy was discriminatory based on gender,
despite the fact that the lead levels the workers were being exposed to
exceeded OSHA standards (United Auto
Workers v. Johnson Controls, 499 U.S. 187 (1991)).
A newborn child
can have a separate suit against the company if it suffers birth defects,
Robinson warned. Consequently, if an employer is unable to prevent a woman from
working in conditions hazardous to the birth of her child, the consequences may
lead to two lawsuits, as well as workers´ compensation benefits, and the
employer will have no defense, he stated.
Light duty
and part-time
Regardless of
whether a worker may pose a direct threat to self, an employee should be able
to perform the essential functions of the position to be reinstated, said Jim
Franklin, chief marketing officer for Optimize Functions, a consulting company
in Boca Raton, Fla.
If an employee
returns with an ADA-covered disability, the employer should look to provide a
reasonable accommodation if one is necessary. While extended ADA leave could be
considered an accommodation, including one that could reduce the risk of harm,
employers are not required by the ADA to provide indefinite leave, he noted.
For employees on
workers´ compensation leave, light duty in a rehabilitative position may reduce
benefits until the employee can resume a full-time position.
If the employer
already has an existing light-duty position, the injured worker can be allowed
to fill it on a temporary basis as a reasonable accommodation.
Under the ADA,
employers are not required to create light-duty positions (see 430 of the Handbook). Light duty is not to be
confused with a part-time schedule, which also may be provided to an employee
returning from workers´ compensation leave as part of the rehabilitation
process.
Reinstatement
required
While the FMLA
generally requires reinstatement at the end of FMLA leave, reinstatement is not
required if the employee cannot perform the job´s essential functions with or
without a reasonable accommodation (see ¶412 of the Handbook).
Reinstating an
employee under light duty or some other reasonably accommodated status stops or
reduces disability payments and also can have the added bonus of enhancing the
relationship between the employee and the company, Robinson commented.
With workers´
compensation, the employer is paying for the injured worker´s leave time and
rehabilitation, so it stands to reason that it would be in the employer´s best
interest to reinstate the employee in some position, even if it is just light
duty, he said.