UPDATE: Federal Law and the Arizona Injured Worker

by Denise M. Blommel and N. Douglas Grimwood

We wrote in 1994 about the effect of then-new federal legislation, namely the 1990 Americans with Disabilities Act¹ (ADA) and the 1993 Family Medical Leave Act² (FMLA), upon the employment rights of Arizona injured workers.³ Many events have occurred since 1994 concerning the interrelationship of the ADA, FMLA and worker compensation law. The United States Department of Labor (USDOL), the agency that enforces the FMLA, has issued "final" FMLA regulations.⁴ On September 3, 1996, the United States Equal Employment Opportunity Commission (EEOC), the agency that enforces the ADA, issued its long-awaited "EEOC Enforcement Guidance: Workers’ Compensation and the ADA."⁵ Federal and state courts have also been considering these issues. The Arizona Legislature enacted legislation in 1996 prohibiting compensability of a work-related accident or injury when drugs or alcohol were a "substantial contributing factor" in that accident or injury.⁶ Employers continue to have questions about their responsibilities, and employees continue to have questions about their rights.

Americans with Disabilities Act

Whom Does the ADA Protect?
Title I of the ADA protects the qualified individual with a disability (QID) from discrimination in employment. The QID is otherwise qualified for the job, has a disability and can perform all the essential functions of the job with or without reasonable accommodation. Disability is defined as (1) a physical or mental⁷ impairment that substantially limits a major life activity (2) a record of such an impairment or (3) being regarded as having such an impairment.⁸

As the EEOC states in its 1996 Guidance, not everyone with an occupational injury has an ADA disability. For example, only about eleven percent of all worker compensation claims filed in 1995 with the Industrial Commission of Arizona (ICA) were "time lost" claims involving seven or more days missed from work.

Not every person who has filed a worker compensation claim has a "record" of a disability. However, injured workers may be "regarded as" having a disability if their employers treat them as though they had impairments that are substantially limiting.

For example, the Ninth Circuit reversed summary judgment for an employer in a case involving a testy store manager. The employer suggested that the manager receive counseling due to his "problem" relating to subordinates. The manager subsequently filed a worker compensation claim for stress and there was an independent medical examination. The Ninth Circuit agreed that the manager’s stress did not substantially limit him from the major life activity of working. However, the court found that the employer knew of the manager’s stress and considered it a problem for treatment. As such, there was a genuine issue as to whether the employer "regarded" the manager "as" disabled. ⁹

The most active area in recent litigation revolves around the definition of "substantial limitation on a major life activity." The Ninth Circuit ruled that a registered nurse with a cervical injury who was restricted from lifting over 25 pounds on a continuous basis, more than 50 pounds twice a day and more than 100 pounds once a day was not "substantially limited" in performing a major life activity.¹⁰ Because the nurse eventually returned to work in sales for a health care equipment company, the court found that Thompson proved that she could work in the health care industry and thus was not precluded from an entire class of jobs. The court also held that a 25 pound lifting restriction was not a substantial limitation on the ability to lift. The court further distinguished Holihan because the perception that an employee suffers from a psychiatric condition would disqualify that employee from a broad range of jobs.

Over a strong dissent, the Sixth Circuit recently found that an employee’s work-related carpal tunnel syndrome was not a substantial limitation on the major life activity of working as that condition only disqualified her from a narrow range of repetitive motion jobs. ¹¹ The Fifth Circuit ruled that an injured worker must connect the impairment with the inability to perform numerous jobs other than the date-of-injury job or the inability to perform other of life’s ordinary functions to be disabled under the ADA. ¹²

Other recent litigation deals with reasonable accommodation. The Ninth Circuit considered the case of the worker with chronic fatigue syndrome who asked for extended medical leave based upon her doctor’s assertion that she was totally disabled. The worker applied for California state disability and Social Security disability. In the process, the worker swore that she was totally disabled from all work, based upon her doctor’s comments. When her employer terminated her employment, the worker sued her employer under the ADA. The Ninth Circuit upheld summary judgment for the employer, as there was no genuine issue of material fact as to whether the worker could perform any job functions. ¹³

While the EEOC has cautioned that state and Social Security definitions of "disability" may not be congruent with the ADA’s definitions,¹⁴ sworn statements of total disability to Social Security or a long-term disability carrier or temporary total disability status in worker compensation are inconsistent with QID status and will probably defeat an ADA claim in the Ninth Circuit.¹⁵

What are Reasonable Accommodations for the Disabled Injured Worker?
The first accommodation to the disabled injured worker is leave from work. "An employer may not discharge an employee who is temporarily unable to work because of a disability-related occupational injury where it would not impose an undue hardship to provide leave as a reasonable accommodation." ¹⁶ While we certainly have no statistics, it is our collective experience that Arizona injured workers who are off work for more than 30 days ordinarily are terminated from their jobs. Leave from work under the FMLA is more fully discussed below. What if an injured worker does not qualify for FMLA leave? Or, what if her FMLA leave has expired? If there is no undue hardship, the ADA requires the employer to continue leave for that worker.

The tough question is how long the employer must await the return of the injured worker. A firm prognosis is required to answer this question. The Sixth Circuit affirmed summary judgment for the employer in an ADA case where the employee had taken indefinite medical leave and applied for long-term disability benefits. The employer terminated the employee and was faced with an ADA claim. ¹⁷ As in both Monette and Applause, the workers proved that they could not perform the essential functions of the job and that there was no possible reasonable accommodation. The employer must "bet on" the recovering employee but the employee must "bet on" returning to work.

In one recent case, a truck driver was seriously injured at work and was unable to work for one year. This driver was ultimately released, and, upon returning to work, worked on an intermittent basis. He was assigned to drive a water truck; this aggravated his industrial back condition and he said he did not want to drive the water truck again. For more than a year this driver did not inform the employer of his availability to work. Conversely, the employer did not contact the driver. The Ninth Circuit affirmed summary judgment for the employer, finding that the employer did not treat this driver differently than other drivers. ¹⁸ The injured worker upon returning to work must keep the employer apprised as to his status in order to state an ADA claim.

The next accommodation to the disabled injured worker is return to work in a modified date-of-injury job or a light duty job. Again, we have no statistics but it is our collective experience that many injured workers, when released to light duty by a doctor, are told by their employers, "We have no light duty here," or, "Come back only when you can work full duty." The EEOC’s 1996 Guidance clearly states that an employer may not require that its employee with a disability-related occupational injury be able to return only to full-duty status before permitting a return to work. ¹⁹ That is because "full duty" encompasses both the essential and marginal functions of a job. A QID need only show that she can perform the essential functions of a job with or without reasonable accommodation.

Oftentimes the injured worker is told upon return to work that he poses a greater risk to the employer. We understand that nationwide statistics indicate that only about ten percent of all injured workers who return to work reinjure themselves. An employer may refuse to return an injured worker to work if it can prove that same constitutes a "direct threat." According to the 1996 Guidance, a direct threat "...means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."²⁰ Since there seems to be a 90 percent chance that the injured worker will not be reinjured, there may be no factual basis for an employer to refuse work to an injured worker simply because it fears reinjury.

The EEOC also requires the employer to first assess whether the returning injured worker can perform the essential functions of the date-of-injury job with or without a reasonable accommodation such as job restructuring, modification of equipment or scheduling. Marginal functions of that job can be reallocated.²¹ If the injured worker cannot perform that job even with the accommodations, then the employer must reassign the employee to an equivalent vacant position for which she is qualified. If there is no vacant equivalent position, then the injured worker must be reassigned to a lower-graded vacant position for which he is qualified. All of these accommodations are absent undue hardship and presume that there are such vacant positions.²²

The most intriguing issue concerns light duty positions and loss of earning capacity, a basis for worker compensation benefits. The EEOC has approved the creation of reserved temporary light duty positions for employees with occupational injuries. However, if an employee becomes disabled due to non-occupational factors and that employee can return to work in one of these light duty reserved positions, and that position is vacant, the employer must place that worker in one of those reserved positions.²³ The employer cannot claim that one of its other employees might become injured and need that position.

The ADA does not require the creation of permanent light duty positions.²⁴ The ADA and Arizona worker compensation law concerning "make work" positions for permanently injured workers are thus consistent. The ADA does not require the creation of "make work" jobs, and a "make work" job is not indicative of the permanently injured worker’s loss of earning capacity.²⁵ It appears that light duty positions can be used consistently with the ADA and worker compensation for workers receiving temporary benefits.²⁶

What About Hiring and Medical Examinations?
Employers may not use services that check a job applicant’s record for previous worker compensation claims before a job offer is made.²⁷ An employer who refuses to hire a person because it assumes that because of a disability there is some increased risk of worker compensation costs violates the ADA.²⁸ There is no violation if the employer can demonstrate that such a risk amounts to a direct threat.

The Arizona worker compensation laws now deny compensability to an injured worker if drugs or alcohol were the substantial contributing cause of the accident or injury.²⁹ In order to take advantage of this new law, it is anticipated that employers will test newly injured employees for drugs and alcohol. Testing for alcohol is a medical examination and forbidden for an existing employee under the ADA unless there is business necessity or the examination is job-related. While it is easy to show the business necessity of a medical examination to determine the nature and extent of an industrial injury, more may be required to show why every injured worker needs to be tested for alcohol.

Any medical examination must be kept confidential. The 1996 Guidance does permit employers to use examinations for "insurance purposes."³⁰ Access to medical evidence is critical to processing or defending claims. But that evidence, whether in initial or independent medical examinations, must be related to the injury. An employer may not use the "IME" to ask far-ranging disability questions or hunt for unrelated medical issues. Excessive imposition of medical examinations may constitute harassment forbidden by ADA.³¹

Does the ADA Pre-Empt Arizona Worker Compensation Law in Any Way?
There really are two questions. First, does any interpretation of the ADA preclude the receipt of or otherwise mitigate worker compensation benefits? Second, does the exclusive remedy provision of Arizona’s worker compensation statutes preclude an injured worker from ADA remedies? The answer to both questions is no.

The ADA specifically provides that it shall not be construed to invalidate or limit the rights, remedies and procedures of any state law that provides greater or equal protection for disabled individuals.³² The interpretative guidance to the ADA regulations further provides that state worker compensation laws are not preempted by the ADA or the regulations.³³

Shortly after the ADA became applicable to employers, an Alabama appellate court used Section 12201(b) to deny an employer’s argument in a worker compensation matter that the effect of the ADA upon employment practices must be considered in determining the extent of an injured worker’s disability.³⁴ That court said that consideration of the ADA’s effect upon the employability of the worker compensation applicant would limit the remedies available to the worker under the Alabama worker compensation law.³⁵

The 1996 Guidance states that exclusive remedy provisions in state worker compensation laws³⁶ cannot bar employees from pursuing ADA claims.³⁷ The EEOC cites to the Supremacy Clause³⁸ in determining that the application of a state statute to bar a federal claim would be unconstitutional.

Two federal courts have addressed this precise issue. The exclusive remedy under California’s worker compensation act was preempted by the ADA when a public employer failed to return an injured worker to a job. ³⁹ That court cited to a United States Supreme Court case which permitted Florida farm laborers to both claim worker compensation benefits from a work related motor vehicle injury and to sue their employer for those same injuries under the federal Migrant and Seasonal Worker Protection Act.⁴⁰ Simultaneous recovery was permitted so long as federal and state statutes were compatible.

In Wood, the California federal court held that the ADA provided a floor for injured workers’ rights so that worker compensation exclusivity was not a bar to the recovery of simultaneous damages. It also held that the ADA could never be a ceiling to prevent injured workers from having the protection of California’s worker compensation laws. A federal court in Florida recently agreed with the California federal court, holding that simultaneous recovery was permissible under the worker compensation laws and the ADA. ⁴¹

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) ⁴² applies to employers of 50 or more employees and to employees working at job sites at which the employer has 50 or more employees working within a 75-mile radius.⁴³ In order to be eligible for leave, the employee must have worked for the employer for at least twelve months and have worked at least 1250 hours during the preceding year.

An injured worker would be eligible for FMLA leave if he had a "serious health condition." This is defined as any impairment which requires inpatient care at a hospital, or which creates an incapacity from work, school or other daily activities of more than three calendar days and which requires continuing treatment by or the supervision of a health care provider. ⁴⁴ It also includes any chronic or long-term condition that is incurable or would result in incapacity for more than three calendar days if not treated.⁴⁵

An employee is unable to perform the functions of his job if he is unable to perform all of the essential functions of his position, as those functions are defined by the ADA. This inability to work can be certified by the employee’s health care provider. The employer is entitled to provide a list of the essential job functions to the health care provider. If the employer fails to do so, the health care provider can rely on the description of the job given by the employee. ⁴⁶

If an employee has suffered a serious health condition and he cannot perform the essential functions of his position, he is entitled to 12 weeks of leave during any 12-month period. ⁴⁷ The 12 weeks of leave begins when the employer notifies the employee of his/her rights under the FMLA and that the current leave is being counted against the annual 12-week allotment.⁴⁸ The employer may choose a calendar year, a fiscal year, or a 12-month period measured from the date that an employee’s first leave begins, or a rolling period measured backward from the date an employee uses any leave. Employers may choose any of these methods, provided that the method chosen is applied consistently and uniformly to all employees. ⁴⁹ An employer which fails to select a uniform 12-month period must permit each employee to select the 12-month period most advantageous to that employee. ⁵⁰

An employee who has been released to work for a reduced number of hours during each work day, or a reduced number of days in each work week, or has been released on an intermittent schedule, must be accepted by the employer on that basis. The employer may assign the employee to a "alternative position." The alternative position must have equivalent pay and benefits. ⁵¹ If an employee returns to work on a part-time or variable schedule, the leave must be extended pro rata. For example, if an employee has two months of FMLA leave remaining and is released to work on a four-hour-per-day schedule, the employee must be maintained on that schedule for four months, since each calendar day only reduces the period of the leave by one-half day. ⁵²

Although the Act provides for unpaid leave, an employer or employee may request or require that an employee use accrued paid leave before taking unpaid leave. Therefore, an employer may require that an employee take vacation, accrued sick leave, and any other paid time off during the 12-week FMLA leave. ⁵³

Where an employee has used paid leave for an FMLA purpose without informing the employer, and then asks for further FMLA leave, the employer is entitled to "reach back" and count the previous leave toward the employee’s 12-week entitlement. For example, if an employee was off on vacation and utilized the time for purposes which would have entitled the employee to FMLA leave, the employer is entitled to include that vacation time in the computation of the 12 weeks of FMLA leave to which the employee is entitled.⁵⁴

During the course of an FMLA leave, the employee is entitled to have his health plan benefits maintained as if the employee were continuing to work.⁵⁵ If the health plan requires employee contributions, the employee should continue to make those contributions. However, without regard to whether the employee makes the contributions during the term of his FMLA leave, the employer is required to reinstate those health benefits upon the employee’s return from FMLA leave. Therefore, the prudent employer will probably continue to make the contributions for the employee to assure that the employee is eligible for coverage on the first day of return from FMLA leave.

When an employee is ready to return from FMLA leave, he is entitled to reinstatement to an "equivalent position." ⁵⁶ The regulations provide that an equivalent position must involve the same pay, benefits and working conditions, including the perquisites, privileges and status of the former position.⁵⁷ The position must involve the same or substantially similar duties and responsibilities and entail substantially equivalent skill, effort, responsibility and authority. Where the employee is unable to perform the position because of a physical or mental condition, the employer’s actions may be governed by the ADA.

An employer may require that an employee provide certification of his inability to perform the essential functions of his position. This would generally be done by the health care provider of the employee based on the job description of the position provided by the employer.⁵⁸ If the employer disagrees with the certification, the employer is entitled to send the employee to its own health care provider at its own expense. This health care provider cannot be one who is "regularly employed" by the employer. In the event that the two health care providers disagree, the employee may be sent to a health care provider mutually agreeable to the employer and the employee, at the employer’s expense. The decision of this third health care provider is binding on all parties.⁵⁹

When it is time for the employee to return to work, the certification of the employee’s health care provider must be accepted at face value. Employers may not seek second or third opinions on fitness-for-duty certifications.⁶⁰

The burdens of proof in an FMLA action are the same as Title VII discrimination cases involving race, sex or national origin.⁶¹ Jury trials are available in FMLA cases.⁶²

Some Applications of the FMLA to Arizona Injured Workers

The first action which an injured worker must take to preserve his rights under the ADA and the FMLA is to notify the employer of the need for accommodation for the disability, or, if no accommodation is possible during the early stages of the disability, of the need for leave. This is especially important in the case of FMLA leave. Assuming that the employer has posted the required notices advising the employee of the procedures, the employee must act "as soon as practicable"; "within no more than one or two working days of learning of the need for the leave."⁶³

Once the notice has been given, the FMLA assumes that the parties will work together to work out the details. The most important question to be answered is whether the employee can perform the essential job functions of the former position, or some other position for which the employer has a vacancy. No portion of any of these laws require "bumping" (displacing incumbent employees) to accommodate a disability.

If the employee cannot return to the former position or to any existing position, the next area of inquiry is whether some "reasonable accommodation" can be made. The only limiting factor on an employer’s obligation to make these accommodations and modifications is the concept of "undue hardship." It should be noted that if the accommodation consists of modifying work hours, the employer must make the changes under the provisions of the FMLA.⁶⁴ If the health care provider finds that the employee can work in his former position for four hours per day, the employer must accommodate that schedule. The FMLA does permit the employer to assign the employee to "alternate duties" at pay and benefits equivalent to his former position if the modified work schedule is not practical for his former position.⁶⁵

So long as an injured worker needs continuing medical care to improve the disabling condition, a "serious medical condition" exists. The worker will therefore be entitled to the benefits of the FMLA.⁶⁶

Conclusion

Employers can develop a comprehensive leave policy which should identify all pertinent factors about FMLA leave, payment during leave and centralized processing of leave requests. Since the FMLA and ADA are still in their infancy, employers and employees do well to seek advice of experienced employment counsel concerning these issues.

Denise Blommel is a certified specialist in workers’ compensation and a shareholder in Day, Kavanagh & Blommel, P.C. N. Douglas Grimwood is an attorney with Twitty, Sievwright & Mills.

ENDNOTES:

1. 42 U.S.C. §§ 12101, et seq.
2. 29 U.S.C. §§ 2601 et seq.
3. Grimwood, Blommel, "Employment Rights of Injured Workers in Arizona: The Effect of New Federal Legislation," Arizona Attorney (April 1994).
4. 29 C.F.R. §§ 825.100 et seq.
5. Technical Assistance Manual, Number N-915.002, hereafter "1996 Guidance." Number 915.002 of March 14, 1995 deals with the definition of disability and contains excellent examples.
6. A.R.S. § 23-1021(C).
7. Note that the Arizona Civil Rights Act’s handicap discrimination provisions do not include mental impairments. A.R.S. § 41-1461(4).
8. 42 U.S.C. § 12102; 29 C.F.R. § 1630.2(g).
9. Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir. 1996).
10. Thompson v. Holy Family Hospital, 121 F.3d 537 (9th Cir. 1997).
11. McKay v. Toyota Motor Manufacturing, 110 F.3d 369 (6th Cir. 1997). See also Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir. 1995) (meatcutter with carpal tunnel syndrome not disabled as only disqualified from narrow range of meatcutting jobs).
12. Rogers v. International Marine Terminals, 87 F.3d 755 (5th Cir. 1996).
13. Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir. 1996).
14. See Enforcement Guidance on the Effect of Representations Made in the Applications on Coverage Under the ADA (EEOC Office of Legal Counsel, February 12, 1997).
15. See Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597 (9th Cir. 1996).
16. 1996 Guidance, p. 15. cf, 42 U.S.C. § 12112; 29 C.F.R. § 1630.9(a).
17. Monette v. Electronic Data Systems, 90 F.3d 1173 (6th Cir. 1996).
18. Summers v. Teichert & Son, Inc., 127 F.3d 1150 (9th Cir. 1997).
19. 1996 Guidance, p. 11.
20. Id. at p. 8.
21. Id. at p. 16.
22. Id. at p. 17. The employer controls the extent of the accommodation and need not offer its employee the precise accommodation the employee requests. Sharpe v. AT&T, 66 F.3d 1045 (9th Cir. 1995).
23. Id. at pp. 19-22.
24. Id. at p. 22.
25. See footnote 3, specifically our analysis of Doles v. ICA, 167 Ariz. 604, 810 P.2d 602 (App. 1990), and Matos v. City of Phoenix, 176 Ariz. 125, 859 P.2d 748 (App. 1993).
26. Note that the Arizona Civil Rights Act specifically excludes injured workers receiving temporary benefits from its definition of qualified handicapped individuals. A.R.S. § 23-1461(4)(b).
27. 1996 Guidance pp. 4-5.
28. Id. at p. 8.
29. A.R.S. § 23-1021; cf. A.R.S. §§ 23-493 et seq.
30. 1996 Guidance, p. 7; 29 C.F.R. §§ 1630.14(b) and 1630.16(f).
31. Id. at p. 6.
32. 42 U.S.C. § 12201(b).
33. 29 C.F.R. § 1630.14(b) Interpretative Guidance.
34. Trans Mart, Inc. v. Brewer, 630 So.2d 469 (Ala. Civ. App. 1993).
35. Id. at 471-472.
36. See A.R.S. § 23-1022(A).
37. 1996 Guidance pgs. 22-23.
38. United States Constitution, Article VI.
39. Wood v. County of Alameda, 875 F. Supp. 659 (N.D. Cal. 1995).
40. Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990).
41. Mangin v. Westco Security Systems, Inc., 922 F. Supp. 563 (M.D. Fla. 1996).
42. 29 U.S.C. §§ 2601, et seq.
43. Thus, it would be possible that employees working for a chain of convenience markets in a remote location would be working for an employer of more than 50 employees but still not be covered because the requisite 50 employees of the employer could not be found within 75 miles of the job site.
44. Family and Medical Leave Act, Final Rules, 60 FR 2180 (January 6, 1995). Several "non-serious" health conditions, taken together, can constitute a "serious health condition". Price v. City of Fort Wayne, 117 F.3d 1022 (7th Cir. 1997).
45. 29 U.S.C. § 2611(11).
46. 29 C.F.R. § 825.300(a).
47. 29 U.S.C. § 2612(a)(1)(D). The burden is on the employee to show incapacity from work. Martyszenko v. Safeway, Inc., ___ F.3d ___ (4th Cir. 1997).
48. Vierick v. City of Gloucester, 961 F.Supp. 703 (D.N.J. 1997).
49. 29 C.F.R. § 825.300(b).
50. 29 C.F.R. § 825.300(e).
51. 29 U.S.C. § 2612(6).
52. 29 U.S.C. § 2612.
53. It should be noted that an employee receiving worker’s compensation payments is deemed to be on "paid leave." An employer may not require that an employee utilize additional paid leave during this period of disability.
54. 29 C.F.R. § 825.208.
55. 29 U.S.C. § 2612.
56. 29 U.S.C. § 2614.
57. 29 C.F.R. §§ 825.214 and 215.
58. 29 U.S.C. § 2613. Job descriptions are helpful in ADA cases as well.
59. 29 C.F.R. §§ 825.305-308.
60. 29 C.F.R. § 825.310. These medical examinations of existing employees appear to satisfy the ADA’s requirement that same be based upon job relationship and business necessity. 42 U.S.C. § 12112.
61. Richmond v. Oneok, Inc., ___ F.3d ___, 3 Wage/Hour Cases 2d 1825 (10th Cir. 1997).
62. Helmly v. Stone Container Corp., 957 F. Supp. 1274 (S.D. Ga. 1997).
63. 29 C.F.R. § 825.303.
64. 29 U.S.C. § 2612.
65. 29 U.S.C. § 2612(6).
66. Although the FMLA leave is "unpaid" in the sense that the employer is under no obligation to continue pay during the leave, the injured worker can receive temporary compensation benefits during the period of the leave.