Worker''s Compensation & the ADA

Jennifer Bowerman

Welcome everyone to the ADA Distance Learning Program. This month''s call is on Workers'' Compensation and the ADA. We are pleased to have with us attorney Chris Bell. For a reminder to site coordinators this session is currently being real-time captioned on the Great Lakes web site. In addition, site coordinators should have received supplemental materials for the session, that include the "EEOC Guidance on Workers'' Compensation and the ADA" and the Cornell publication "ADA and the Injured Worker." Both are available on the Great Lakes web site, if you didn''t receive them they are also available through your regional Disability and Business Technical Assistance Center. As a reminder this session is hosted by the regional Disability and Business Technical Assistance Centers. If you have questions following the call, feel free to call your regional center at (800) 949-4232. Just a format note for those of you that are joining the program for the first time, the session is one hour in length, the first 30 minutes will be presentation and at the 30 minute mark we will open up for questions and answers. If you are shy and don''t want to ask a question on the telephone portion of the conference call today, you can fax questions in advance, the fax number is (312) 413-1856. Questions can also be submitted through the chat room where the real-time captioning is taking place. Just some background, we have had some previous HR track sessions that have talked about reasonable accommodation, the definition of disability, and the Family Medical Leave Act. We are going to move into the interplay between worker''s compensation and the ADA. This afternoon we are pleased to have with us attorney Chris Bell. He is from the law firm of Jackson Lewis and Associates. Interestingly enough he is formerly with EEOC, where he helped to develop the policy for Title I of the Americans with Disabilities Act. The interesting part or ironic part of that is that Chris is now a defense attorney where he counsels employers on the Americans with Disabilities Act. Chris welcome, thanks for joining us this afternoon.

Chris Bell

Thank you very much, Jennifer, I appreciate it. I wanted to add to one or two comments. I do come at the issue of the ADA from three perspectives: One as Jennifer said, I was involved with overseeing the development of the ADA regulations and technical assistance manual at the EEOC. So that is sort of my former government hat. I also come at it as a disabled person and someone who has been blind for 30 years. Then in my practice as a lawyer, I represent employers and my practice is almost exclusively based on the ADA, the Family and Medical Leave Act and disability management issues. Much of my practice is counseling employers and providing training, but I also represent employers in court. I think the overlap between the ADA and Workers'' Compensation and I''m going to mention a little bit the Family and Medical Leave Act, because it is an important piece of that. I''m going to add another law that Jennifer doesn''t know I''m going to talk about, which is called the Occupational Safety and Health Administration''s Proposed Regulation on Ergonomics (www.osha-slc.gov/ergonomics-standard/index.html). Because that is going to be a very important piece of this as well. I think the best way to get into this, though, is to start with a hypothetical. So let us suppose that we have a small employer called XYZ trucking. Let us assume that XYZ trucking has 50 employees and they all work at one place. Most of the employees drive trucks, pick up stuff and they unload stuff. They have this driver who has worked for them for about five years. One day, at the end of the day, he gets out of his truck and he feels this sharp pain in his lower back. He goes to his boss. Now understand that some bosses are nice people, and some bosses....well, you know, boss spelled backward is SSOB...that is the kinds of boss this truck driver had. He says to the boss, "hey boss, I hurt my back and I''m going to be filing a claim for worker''s compensation benefits." The boss looks at him and says, "All right. But don''t come back till you are 100 percent." So our injured truck driver goes to the doctor and he sends in a report from his doctor saying that he is going to be at least temporarily limited in lifting to no more than 10 lbs and he is going to be absent from work for at least three weeks getting physical therapy. So the three weeks go by, and we get another doctor''s report. This report says that the 10 lb lifting restriction no longer is temporary, now it is permanent. He can''t lift more than 10 lbs and our driver is going to have to be absent from work for another 16 weeks. So that means his total absence from work will be 19 weeks. Well, our boss realizes the company, it is a small company, has this policy about leave. The policy is that after 12 weeks of absence from work for whatever reason, injury on the job or off the job or studying Hindu philosophy, for whatever reason, if after 12 weeks an employee cannot return to work reason, she is automatically terminated from employment. Now as the injured truck driver is getting toward the 12th week and he knows about this policy, he calls up the boss and says, "Hey boss, I have a couple ideas to run by you. Number one: I think if I could get this total of 19 weeks of leave I could probably come back and do something useful." The boss says to him, "No dice. I''m not making any exceptions to our leave policy. Because I did take this one HR course once and I learned that if I treat anybody differently at all, I may be found to be discriminating, favoring one person over another person. So our truck driver says "Well, okay, look. How about having one of the other employees help me with loading and unloading the truck? Because that is where I have this problem with the ten lbs lifting restriction?" The boss says "No. I hired you to do the whole job, if you can''t do the whole job, we are not interested." So finally in desperation, the truck driver says "Well the dispatcher is retiring. How about giving me that job? I could do that job. I''ve been driving a truck here for five years." The boss says "No. No dice. If you are not back at the end of 12 weeks, you''re toast." Sure enough at the end of 12 weeks our injured driver is fired. Of course now he is out. He is receiving workers'' compensation benefits. Finally the insurance carrier and his comp lawyer reach a settlement for his bad back and pay him $20,000. To get the check, he has to sign one of those workers'' compensation documents that says he waives and releases all claims to the workers'' compensation and any other rights he may ever have had from the beginning of the world to the present. Having signed that he gets his check. Well, $20,000 doesn''t go very far. One night he is sitting at home watching Seinfeld reruns and sees a commercial. It says "Has your employer treated you unfairly? Dial 1-800 sue them." So he gets on the phone, he calls up and talks to this lawyer and he says he is kind of running out of money and he is wondering what he could do. The lawyer says, "no problem." Pretty soon he has filed a charge of discrimination under the ADA with EEOC and with the local state agency under the local state nondiscrimination law. He has also filed a claim with the U.S. Department of Labor under the Family and Medical Leave Act. So in order to understand how all of these laws interact, we are going to have to tease them apart like different threads and let''s start with the ADA. Now, the first question always on an ADA matter is whether our plaintiff, our truck driver here, has an ADA covered disability. You probably know that a very significant percentage, I don''t remember exactly the number now, 16-17 percent of all ADA charges are filed by people with back injuries of some kind or other. Back injuries are among the most common types of on the job injuries. In other words they also account for very high percentage of claims for workers'' compensation benefits. The first question we have to find out is whether our driver would be protected by the ADA. So as you remember, the first question is does he have an impairment? Well the back injury is an impairment, it is a disorder, an injury. So you have got the impairment. But the issue is whether he is substantially limited in any major life activity. And I think that the driver probably is because he has a ten lbs lifting restriction and the EEOC and the Courts have said lifting can be a major life activity. Most of the federal appeals courts that have ruled on it have kind of created a bright line that said "if you are able to lift 25 pounds or more, you probably do not have an ADA covered disability in lifting." You might have some other issues, too, but our driver just had a lifting problem. Since he can lift less than 25 pounds and since it is permanent, he has got a good shot at having an ADA covered disability. Many courts will insist that the underlying impairment, back problem in this person''s case, has to last a significant period of time. There is no bright line, some courts have said it has to be permanent, some courts have said it has to be long lasting, the EEOC takes the view it has to be more than several months. As a result, you are going to find a lot of injured workers are not going to be covered by the ADA because their medical condition is corrected within a relatively short period of time. So the ADA is not going to give those individuals any rights. But our driver probably is disabled. Of course the next question is whether or not he is qualified, because under the ADA, of course, you have to be disabled and qualified. And that is somewhat of a catch-22 for disabled plaintiffs, because on the one hand, the plaintiff has to show that their medical condition makes life difficult for them as compared to the average person in the general population. But on the other hand, they need to be the best qualified person able to leap tall buildings in a single bound and run faster than a speeding bullet. So, of course with what the ADA does to turn an unqualified person with a disability into a qualified person with a disability is build in their reasonable accommodation. Well, the first question is, does our driver need any accommodation to be qualified? Can he do the essential functions of his truck driver position? He can''t lift more than ten pounds, and let''s assume that he really needs to be able to lift more than ten pounds to load and unload the truck. So whether he is going to be qualified is going to depend on whether lifting ten pounds and loading the truck and unloading the truck is an essential function. If he drives the truck alone, it is. So he is not qualified unless we can find some way to accommodate him. Now he has asked for three different types of accommodations. One type he has asked for is additional leave, XYZ had a 12 week leave policy. He needed 19 weeks and the boss of course said "No." But additional leave can be a form of reasonable accommodation, unless XYZ can prove it would be an undue hardship. Now courts vary on this, but the EEOC takes the position that additional leave and holding the person''s job open is an accommodation unless undue hardship is shown. Most courts have recognized that additional leave can be an accommodation as well. Courts have varied, I think for the most part, anybody that needs a year''s worth of leave is probably out of luck, probably deemed to be not qualified, although there is a case or two that have allowed more than a year''s worth of leave. At any rate the chances of the driver to get additional leave as an accommodation are pretty good, depending on whether or not he could come back to his old job or another job that was vacant that he was qualified for. Well our driver asked for another potential accommodation. He wanted a co-worker to help him lift the goods in and out of the truck. Whether that is an accommodation is going to depend on some facts which I haven''t given you, namely whether that is an essential function. Probably it was because he drove alone. Therefore he would have to unload the truck at the end of the line where he was dropping off. That means that having a co-worker help him is not something that the ADA requires XYZ to do, because that would have somebody else doing an essential function of the job, and you never have to do that. An employer could do it voluntarily, sometimes the employers do it as a form of light duty. But it is not a requirement under the ADA. Lastly, we have this issue of the dispatcher position. Our driver can''t do the truck driver job, he can''t be accommodated to do the truck driver job. So the ADA imposes on XYZ the obligation to look for another job which is vacant, it has to be a real job and has to be vacant, to which the driver could be reassigned. If the driver was qualified for this dispatcher position that was coming open, then XYZ would have to put him in it. EEOC says he gets that dispatcher job if he is minimally qualified and he does not have to compete for it. By that I mean XYZ can''t say "gee, we have got this other person waiting in the wings that has got more experience as a dispatcher, we want that other person." The EEOC and several courts have said "No, no if you have to compete it is just like applying for a new job, that''s nothing new. That is not getting anything additional-you have to place as the dispatcher non-competitively. We have a couple of other issues raised by this situation. Remember that at the beginning the boss said that he didn''t want the driver back until the driver was 100 percent, meaning the driver had no medical restrictions whatsoever. The EEOC and several courts have taken the view that a no restriction policy is a per se violation of the ADA. The reason behind that is that under the ADA you are qualified if you can do the essential but not the marginal functions of a job. So that implies you don''t have to be restriction free. Also of course you can be accommodated. So again, we can''t say that "under no circumstances can you have any restrictions." That kind of policy is considered unlawful. EEOC these days also is issuing cause findings against employers that have a leave policy that is a blanket leave policy of the type XYZ had. Namely a policy that says after X amount of weeks whether it is six weeks, 12 weeks, 26 weeks, you are automatically terminated. EEOC says that policy on its face is unlawful because it does not allow for assessment of whether or not an individual might need additional time off as an accommodation. I actually don''t think the EEOC is going to be very successful in this point of view. It is one thing to deny a particular person additional leave when the person requests it, it is another to have this policy that might not have excluded anyone with a disability. I''m not sure the EEOC is going to prevail on that in the courts. At any rate there are at least two policy issues there. Also, because our boss was such a kind of curmudgeon and didn''t make any effort at accommodation, the company is going to be denied the defense that exist under damages to the ADA. Namely the employer makes a good faith effort in consultation with a person with a disability to provide an accommodation even if an accommodation is not actually provided, the employer cannot be held liable for compensatory or punitive damages, which for a large employer could be $300,000. So the boss kind of blew it there. The boss thinks he has this workers'' compensation waiver that will allow the boss and the company to blow the injured truck driver out of court because he signed this release saying he has given up all his rights. Well there are a couple of courts that have addressed those releases and said well, those releases unless they expressly say something about the ADA, don''t waive the ADA claims. They only waive the workers'' compensation claims. That is something for employers to be aware of. Two other quick points. The company here also would have violated the Family Medical Leave Act because it did not provide our truck driver with notice of his rights under the Family Medical Leave Act and those rights include 12 weeks of leave and continued health benefits and job restoration. Since he didn''t get notified of his rights all the time that he took off, the 12 weeks when he was fired never counted against his 12 weak entitlement. In fact, he had more time on the clock under that law. Lastly as a quick mention, quick heads up the Occupational Safety and Health Administration has a proposed rule, not final yet, but a proposed rule to deal with people that have musculoskeletal disorders, includes things like carpal tunnel, back problems, knee problems, things relating to the muscles and bones. Myofascial pain syndrome, several things like that. Under this proposal as currently written, an employer would be required to reduce production standards, would be required to eliminate an essential job function, would be required if necessary, to give up to six months of paid leave at 90 percent of the employee''s pay, or to give light duty for six months at 100 percent pay with the job restoration. So this proposal if it becomes law, in its present format, will be much much broader than either the ADA or the FMLA because it is going to cover people with temporary musculoskeletal conditions. There is no right to sue an employer under OSHA, it is administered by the agency, the Occupational Safety and Health Administration by filing a complaint. But it is a much broader mandate than the ADA, because there is no essential functions and there is no undue hardship.

Jennifer Bowerman

Thanks, Chris. We will open it up to questions now.

Caller

We are at the independent center in Norfolk, I''m wondering if the ADA applies to OWCP?

Chris Bell

The OWCP, the federal Workers'' Comp?

Chris Bell

No. It does not. But the Rehabilitation Act of 1973 section 504, would.

Caller

Does it apply to the fact that if somebody becomes injured working under a federal job position, and they are denying him access to payments from this injury, does he have the ability or the right to go into court with this? I guess it is kind of a double sided question, because inside their regulations they have stated their physician that the OWCP assigns to him, overrides any of his attending physicians. Now this is right in, I don''t remember it is like chapter 15, 136 or something like that.

Chris Bell

I don''t know the answer to your question, because I don''t practice federal Workers'' Comp law. That is its own system. But he would not have an ADA claim and it doesn''t even sound from what you are telling me he has a Rehab Act claim because he has been denied benefits. He is probably limited to whatever claim he can bring administratively or in court under the workers'' comp law that applies to federal employees. I don''t know what rights he has under the federal Workers'' Comp law for federal employees. But he would not have an ADA claim and I doubt he would have a Rehab Act claim because his claim is essentially he is entitled to benefits he is not receiving and that is not on the basis of disability, per se. So he is going to be left with whatever remedies he has under the OWCP.

Jennifer Bowerman

Thanks, Chris, it brings up a good point as we move to the next question on medical documentation. Your truck driver went to maybe his doctor and now the employer is looking at the documentation and we get this question all the time is, the issue of the credible documentation. Should the employer be looking at something else? Or we get a lot of requests that the employer has said you have to go to our doctor. And who pays for that? You get all those like trickle down questions, too. Could you talk a little on the medical documentation question?

Chris Bell

Sure. The EEOC in its reasonable accommodation guidance issued in March of 1999 took the position that an employer is entitled to documentation that is sufficient to tell the employer that it is dealing with somebody with an impairment that substantially limits a major life activity. In other words, the person has a disability under the ADA. And that the accommodation at issue is in fact medically necessary. Now, a lot of times an employee will bring in a doctor''s note that just says "So-and-so is a patient under my care. So-and-so can''t work over time. If you have any questions, please call." That note is insufficient. Because you don''t know what is wrong with the person. You can''t tell whether it is a disability. And you don''t understand why it is that the person can''t work over time when they just had been working over time. So the employer is entitled to better documentation than that. Often times in my practice I try to help employers separate out people with real medical conditions from situations where the employee essentially is having a problem on the job, or a problem with co-workers or a problem with a supervisor and gets a doctor''s note that says no over time or something like that. Then I may have the employer require the employee to submit more than a note, maybe to submit relevant medical records to an adviser, a doctor, that can explain what is going on and that can be lawful. I disagree a little with the EEOC guidance on that. The courts are a little more generous to employers in terms of what medical documentation they have a right to get if somebody has a medical condition that is not obvious and they are seeking an accommodation that you don''t really know is medically necessary, because it is not like somebody uses a wheelchair and wants their desk on blocks. It is somebody that looks fine that says they don''t want to work over time or Saturdays-your question is why is this a medical condition? They are get a doctor''s note to beef it up.

Jennifer Bowerman

Then let me ask you this: The old adage "once burned twice shy," now my employer XYZ has had this experience with a truck driver he has an open position for a truck driver, can he ask about previous workers'' compensation history with potential applicants?

Chris Bell

He cannot ask on an application form about prior comp injuries or claims and he can''t ask in an interview. However under the ADA if he makes a conditional offer of employment, he can ask those questions post offer as part of a medical history questionnaire given to all drivers who apply for that position. Having said that, if XYZ simply withdraws the job offer because of a past history of workers'' comp claims, the driver might file an EEOC charge and the trucking company would have to show that the driver actually can''t do the job even with an accommodation or that if the driver did the job, he or she would be a direct threat.

Jennifer Bowerman

Great, thanks Chris. Do we have our next question?

Caller

We have a question regarding a pre-existing condition and it has to do with benefits under the law. For example somebody has a disability and the employer is concerned that they are going to further exacerbate that disability.

Chris Bell

Well, that issue partly is whether or not the job that the person is doing is going to put that person at significant risk of hurting himself or herself and whether there is anything the employer can do to reduce that risk. For example, I''m involved in litigating a case now involving an applicant for a position who had three back fusions and was in a lot of pain. He was applying for a job that was going to put a lot of bouncing around because it was a job driving a commercial truck and our client did not hire this person because of their history of back fusions and their current pain. So I think that was a perfectly lawful decision, because of the person''s back condition. That is a kind of difficult call that an employer would have to make. Now you also asked the benefits question, what if I have this pre-existing condition and I do hurt myself and I file for workers'' compensation? That is going to depend on what the carrier determines as was the cause of the injury, was it really the old injury that maybe wasn''t work related or was it something new that the carrier would have to cover? That is going to be very fact intensive.

Caller

Mr. Bell stated when he was talking about the OSHA guidelines as far as how that related to ADA and I wanted to know also, if they are proposed guidelines or in place right now?

Chris Bell

The OSHA guidelines I referred to are proposed regulations. OSHA is holding hearings on them now. They basically would apply to people with musculoskeletal conditions like bad backs, carpal tunnel, any kind of repetitive strain problem. They could require an employer as they are currently written, to give up to six months of leave at 90 percent pay or require the employer to provide light duty or allow the person to work on a lower production standard or to eliminate an essential function of the job. None of these things the ADA now requires. So it has been much broader than the ADA, however it is not in effect yet and you would not be able to sue under this regulation. You would have to file a complaint with the Occupational Safety and Health Administration.

Caller

So if, for instance, individuals did have carpal tunnel and they wanted to use this guideline if it is passed they would have to fill out documentation with OSHA?

Chris Bell

Yes.

Caller

Not workers'' comp?

Chris Bell

Well, you would also pursue your claim under workers'' comp. But the OSHA piece is a separate right. It is an obligation OSHA is trying to impose on employers to stop having people injured with these kinds of carpal tunnel and repetitive strain injuries. So it is saying if somebody does develop a problem, you have to work with the person.

Jennifer Bowerman

Chris, we will go ahead and put the link to the OSHA proposed regulations on the web site (www.osha-slc.gov/ergonomics-standard/index.html) along with the transcript for those of you that are interested you can also go to www.osha.gov to read through those as well. Our next question?

Caller

We had a question as to what the likelihood is of the the federal OSHA standards being applied by state OSHA. They are not in effect now but should they become law.

Chris Bell

You know, I''m not an expert on OSHA but my guess is that they likely would. I mean the OSHA standard is a mandatory, if it is adopted, it is a mandatory standard. So the issue with state OSHA standards is they can be stronger but they can''t be weaker. It is a question of whether the state is going to enforce it or OSHA is going to enforce it.

Caller

When do you anticipate-is this a comment period?

Chris Bell

Yes. It is a comment period. I do anticipate the rule will take effect largely as it is written and I anticipate that will happen sometime this fall.

Caller

Wow. Okay. You said that the way to enforce this would be to file a claim?

Chris Bell

A complaint.

Caller

A complaint. If for some reason OSHA did not comply with the regs then you would have a cause of action

Chris Bell

No, you would not. There is no cause of action under the Occupational Health and Safety Act.

Caller

I have a two part question Briefly you mentioned a blanket leave policy and the EEOC opinion was that it was a per se violation. Our organization here has a blanket leave policy of 26 weeks. I would like to hear a little bit more about that from you. And also, on reasonable accommodations, for uniformed police officer, can you describe for me what you would consider or what EEOC would consider a reasonable accommodation for an uniform police officer who carries a weapon and is responsible for arrests, etc.

Chris Bell

The EEOC has to my knowledge never articulated its policy that a blanket leave policy is unlawful. However, they are issuing cause findings on it and I was on a program last week in Chicago with the EEOC regional attorney in Detroit and she verified that it is the agency''s position. So I don''t necessarily think that employers should rush in and change their policies, I think the easy fix on that is to insert the word "generally" in front of "will be terminated." So that you have some wiggle room for those people requesting additional leave on a case-by-case basis. In terms of accommodations for sworn police officers, I think the most common accommodation will be leave for treatment and recovery. Perhaps additional leave on top of the FMLA 12 weeks and whatever the police officer is entitled under the collective bargaining agreement, if there is one. The other would be reassignment to a vacant position. Be aware that the Justice Department has successfully sued the City of Denver and the Denver Police Department for failing to take police officers and look for jobs for them in other city departments and agencies. The City said "gee, we can''t do that because of the civil service laws." And the Court said, "you know, civil service you have to do it." And I believe they were hit with about an $1 million judgment. Those are the two most common accommodations

Caller

Thanks, Chris. The first part on the EEOC on the blanket policies, there hasn''t been any district court or federal bench decisions on that? Is that true?

Chris Bell

I haven''t looked for district court rulings on a per se basis of it. There have been many rulings on leave as an accommodation but whether the policy is on its face unlawful, I''m not aware of any of those cases.

Caller

Hi, this is in response to medical documentation. Interplay of medical documentation between ADA, FMLA, and workers'' comp in particular. I''m looking for the time the person has to go out on leave. Often FMLA may come in before you hear anything about workers'' compensation, the employer, what parameters do you have to think about, and secondly what kind of communication can one give to supervisors regarding the medical condition pertaining to the medical documentation?

Chris Bell

A person that goes out on leave because of an on-the-job injury will file probably a notice or a first report of injury or the employer will file that. That starts the workers'' comp process. Under the workers'' comp process, for each state there will be forms that the injured worker''s doctor will have to fill out and submit to the workers'' compensation carrier. The FMLA also has a separate form called a Healthcare Provider Certification Form, which does not list on it the employee''s diagnosis. The employer with regard to the leave authorization under the FMLA will not know what is wrong with the person, the doctor simply certifies whether the employee has a serious health condition, that is the term under the FMLA and is entitled to be absent and for how long. Under the ADA, if we are talking about leave, I advise employers just to start with the FMLA, because that is really for all intents and purposes going to limit what they need. They don''t need more for ADA purposes, because there is this 12 week leave entitlement. The employer can proceed on a workers'' comp front to get whatever documentation the workers'' comp law allows, that usually includes independent medical examinations and the like. What I advise the employer to do with regard to supervisors, depending on the size of the employer, if it is a good sized employer, they should have somebody in a benefits department or HR department that is handling all of these issues. There may be more than one person and that person will receive the medical reports and they should not be shared with supervisors, should be kept as the ADA requires, separately from the personnel file in a locked, confidential place. Supervisors can be told that an employee is absent, you know, legitimately and can be told if the employee is coming back with restrictions or needs accommodations. It is really a need to know rule of thumb that an employer should use.

Caller

Yes, this is more of a comment about something you said dealing with direct threat and your example of the applicant with a history of back fusion surgery. I guess my comment is, it seems to me there is an argument that the EEOC regulations define direct threat to include people who are a threat to themselves could be beyond the reach of the statute itself and may not be upheld because the statute only talks about danger to others.

Chris Bell

Well, that is correct. There is one decision I think under the Northern District of Illinois, Konke v. Delta Airlines that so held, the EEOC couldn''t put danger to self into the statute. That is the only case I''m aware of. I think that would be unfortunate. I don''t think injury to self an issue of paternalism, I think it is an issue are we going to do cost shifting and force employers to increase workers'' compensation costs by taking people on the job who are very likely to be injured. I don''t think that is the right thing to do. And I''m of course the one that actually put injury to self into the regulations because that was my feeling about it.

Caller

What does mediation, acting as an advocate mediating for people, how would you suggest we approach these situations?

Chris Bell

Well, I think the ADA is really perfect for mediation because so many of the claims can be resolved with good communication around things like reasonable accommodation. A good mediator can very often help the two sides to better communicate and to reach some resolution as to how somebody can be accommodated to remain in the workplace. I use it often in ADA cases. The only time I would not use it is where the two sides or are too far apart, if the monetary demand on the claim is too high, or the employer is not going to take the person back no matter what else is true. Then I think there is no point to mediating it.

Caller

Yes, I currently draw Social Security disability on an injury. I went back to work got injured on the job and drew X amount of dollars from workers'' compensation. Why would my Social Security check be reduced because I drew X amount of dollars on workers'' comp?

Chris Bell

It is reduced by Social Security?

Caller

That is what they say it is going to be, they haven''t figured it up yet.

Chris Bell

That is a question of Social Security law, I couldn''t answer the question.

Caller

I am Danny Thompson. In Nevada in workers'' compensation law, there are different subsequent injury funds for the different class of employers. The last session of the legislature there was a move to do away with those subsequent injury funds which are used to offset-provide financial incentive to employers who retains somebody with a subsequent injury or a disability. The argument used to throw those funds out was the ADA already takes care of this. While the legislature didn''t do it. It is going to come up again. I would be interested in hearing your thoughts on those types of law and the ADA.

Chris Bell

That is a very common claim. I don''t agree with that. The ADA does not take care of it for two reasons. First, the ADA does not eliminate the financial disincentive that an employer has hiring a person with a previous injury. That disincentive works this way: Let''s say an employee has injured her left arm so that the left arm is not usable doing the kind of work that she is going to be doing now for the new employer. If she injuries her right arm so she can''t use the right arm the new employer is going to pay for the total disability cost which is going to be higher, because now she can''t use two arms as opposed to only not being able to use one arm. So it is a disincentive, a real monetary disincentive for the employer to take that risk. The ADA does nothing, absolutely nothing, to remove that very real economic disincentive to hiring that person. It doesn''t address that issue. Secondly, in my example of somebody can only use one arm that person would be covered under the ADA, but many, many, many people with injuries and impairments even permanent injuries and impairments will not be covered by the ADA. So it is not going to affect this huge universe. I have never found that reason for eliminating second injury funds to be particularly persuasive.

Jennifer Bowerman

Chris I will throw it back to you in a second for closing comments. Based on our time constraints, there probably will be some type of question later on down the road. Please feel free to call your regional Disability and Business Technical Assistance Center if other questions arise for additional technical assistance at (800) 949-4232. Chris I will throw that back to you if you have closing comments for us.

Chris Bell

Yes. These are very, very complicated issues. It is unfortunate but the reality is that the Congress and the states in having these laws, Workers'' Compensation, the ADA, the Family Medical Leave Act and OSHA, employers have to comply with all of them but they were never written to fit together. It is also of course equally difficult for the employee or the injured worker to figure out this maze of laws. I often say it is like playing three dimensional chess. I think it is important for people, no matter what side you are on, not to jump to conclusions, but to spend some time checking out what your rights and responsibilities are. Because they are not going to be obvious. That would be my comment and thank you all for participating and asking such good questions.

Jennifer Bowerman

Chris, thank you so much for taking time out of your day to spend with us. You have shed a lot of light on the subject, especially with the interplay between the various laws. We hope to have you back in the future. Our next session, next month in May will feature John Salmen who is going to be talking about the principles of universal design. It will be a very interesting conversation with John. In June we will have a presentation by Laura Rothstein talking about post secondary education and the ADA. And our encore session for July, one of our most popular sessions, is a lengthened session with John Wodatch from the Department of Justice and Paul Miller with the EEOC as we take a look back at the last ten years of the Americans with Disabilities Acts we come up on its anniversary, look at some of the milestones and what the future may bring. We hope to have you all in on future sessions. We will be announcing within the next several weeks the upcoming schedule into the year 2001. So we hope to have you involved with future sessions and we thank all of you for joining us today.