most cases, some temporary modification of duties can be made
for an employee that would allow them to return to work in a
limited capacity, subject to his/her medical restrictions.
Such temporary modifications are called "light duty, limited
duty, or modified duty" assignments.
Temporary restructuring may include modification of
essential or non-essential functions of the job, limitation of
working hours, changes in working conditions, or physical
modification of the work place. Departments are encouraged to
have a policy regarding light/limited duty assignments.
Several of the Memoranda of Understanding (MOU) contain
specific provisions related to light/limited duty as well. In
general, light duty assignments are typically limited in
duration (e.g. 45 days), but each supervisor should check with
the applicable MOUs and department policy to get a better idea
of the parameters of such assignments.
Reasonable Accommodation is
the modification or adjustment to a job, the work environment,
or the way things are usually done that enables a qualified
person with a disability or injury to enjoy equal employment
It is expected that most requests for reasonable
accommodation will involve existing employees who have become
disabled, either through a work related injury or illness, or
through a non work related injury or illness. The most common
request will include the restructuring of jobs or tasks within
a job, reassignment to a vacant position in another
classification, modification of the existing work site, or
acquisition of special equipment and devices.
Often the employee's medical
restrictions involve limitation of movement of one of more
limbs. This is the case with back injuries that limit lifting,
leg injuries that limit walking or bending, and arm/hand
injuries that restrict any type of repetitive motion (e.g.
carpal tunnel). Permanent job restructuring may involve
reassignment of the injury aggravating tasks to another
employee, perhaps in exchange for another task that the
injured employee is able to perform.
For example, a cook who has a permanent back injury, may be
unable to lift heavy pots or food sacks any longer. It is
possible that this task may be assigned to another employee in
exchange for additional cutting, peeling or washing chores
that do not place additional strain on the back.
Reassignment to a Vacant Position
request of a worker upon return to work after an extended
absence may be for a complete job reassignment. While it is
preferable to consider other accommodations that will enable
the employee to return to his/her customary job, if this is
infeasible, the employer may seek to move the employee into
another job classification for which the employee is
qualified. This position may be at the same rate of pay, or a
lower rate of pay.
Acquisition or Modification of Equipment of
Another common request of an injured
employee may be for special equipment to enable the individual
to perform the job. Persons with back injuries may request
special carts or lifting devices to help them transport heavy
items. Persons with hearing disabilities may request things
such as telephone handset amplifiers.
Contrary to popular belief, such accommodations are rarely
too expensive when compared with the costs for training new
staff to do the job of an experienced, though injured,
employee. There is a tremendous amount of adaptive equipment
available, much of it at minimal cost. In fact, many adaptive
devices have been fabricated at the workplace, by a creative
supervisor, for virtually no cost (e.g. ramps over stairs,
lowered work stations).
Americans With Disabilities Act (ADA)
protects qualified individuals with disabilities from
employment discrimination. The ADA has a three-part definition
of "disability." This definition reflects the specific types
of discrimination experienced by people with disabilities.
Therefore, it is not the same as the definition of disability
in other laws, such as workers compensation. Under the ADA, a
person with a disability is a person who has (a) a physical or
mental impairment that substantially limits one or more major
life activities, or (b) a record of such an impairment, or (c)
is regarded as having such an impairment.
A physical impairment is defined by the ADA as "any
physiological disorder, or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body
systems: neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and lymphatic,
skin and endocrine."
A mental impairment is defined by the ADA as "any mental or
psychological disorder, such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific
To be a disability covered by the ADA, an impairment must
substantially limit one or more major life activities. These
are activities that an average person can perform with little
or no difficulty, such as walking, breathing, seeing, hearing,
Whether an injured worker is protected by the ADA depends
on whether or not the person meets the ADA definitions of an
"individual with a disability." Work related injuries do not
always cause physical or mental impairments severe enough to
"substantially limit" a major life activity.
Also, many on-the-job injuries cause non-chronic
impairments which heal with little or no long-term or
permanent impact. Such injuries, in most cases, are not
considered disabilities under the ADA. The fact that an
employee is awarded workers' compensation benefits, or is
assigned a high disability rating, does not automatically
establish that this individual is protected under the
What the Law Requires
To be protected by the
ADA, an individual with a disability or an injury, must be
qualified for the job that he/she is seeking. Qualified means
that the person "satisfies the requisite skill, experience,
education and other job-related requirement of the employment
position such individual holds or desires, and who, with or
without reasonable accommodation, can perform the essential
functions of such a position."
The key component of the definition, with regard to injured
workers, is the ability to perform the essential functions of
the position, with or without reasonable accommodation.
Therefore, an injured worker may be protected under the law,
if he/she can continue to perform the essential functions of
the job with some type of reasonable accommodation.
It is important for supervisors to know that failure to
provide reasonable accommodation under the ADA to a qualified
employee with a disability, without good cause, can expose the
State to penalties in excess of $100,000.
What the Law Does Not Require
The ADA does not
require that you accommodate an injured employee by
reassigning the essential functions of his/her job to another
employee -- even if the injured worker requests such an
accommodation. The ADA also does not require that an employee
be reassigned to another position in order to provide him/her
with a job, especially if the employee is not qualified to
perform the new job.
Remember, the employee must be able to perform the
essential functions of the job to be protected under the ADA.
It is the employer's responsibility, however, to determine the
essential functions of the job using reasonable, objective
standards. For example: it is an essential function of a
proofreader's job to know the proper rules of grammar,
however, it is probably not an essential function of a
proofreader's job to read sitting in a chair.
Relation to Workers' Compensation
The ADA and
Workers' Compensation Laws have totally different purposes.
Sometimes those purposes intersect, but they are by no means
congruent. In some cases, the laws may conflict. However,
there are three primary areas of focus for the supervisor in
dealing with an injured worker:
- The supervisor must be able to accurately, and
objectively, develop a duty statement or job description
for each employee's assignment that accurately defines the
"essential functions of the job."
- The supervisor must be open to returning an injured
employee to work if he/she (a) can continue to perform the
essential functions of the assigned job with reasonable
accommodation, or (b) are qualified to perform another
available job with or without reasonable accommodation.
- The supervisor should not use a person's injury as an
excuse to preclude him/her from doing work that he/she is
qualified and medically able to perform. This is
especially true for injured workers who otherwise qualify
for promotions, transfers, etc.
No matter how hard we try to
keep our injured workers employed, there are some situations
when the employee's disability is so extensive, that he/she is
incapable of performing most of the essential tasks of the
job. In these cases, the employee may be eligible for a
disability retirement, in addition to the permanent disability
benefits provided under workers compensation.
If you believe that you have an employee who is incapable
of returning to work, because of the severity of the medical
restrictions imposed by the physician, then discuss the
feasibility of disability retirement with the Return-To-Work
Coordinator in your department.
The information and forms contained in this feature are
intended to provide useful information on the topic covered,
but should not be construed as legal advice or a legal