THE ADA AND WORKERS` COMPENSATION CLAIMS
BY THOMAS D. SCHNEID
One of the questions most often asked by injured fire service personnel is, “How does the ADA affect my state workers` compensation claim?” The basic answer in most cases is that it does not affect your workers` compensation claims at all. An Americans with Disabilities Act (ADA) claim normally is filed with the Equal Employment Opportunity Commission (EEOC), a federal agency. In virtually all states, workers` compensation claims are filed with a state agency under the workers` compensation laws of that particular state. In essence, an employee would have two separate claims–one with the state workers` compensation agency and one with the federal EEOC.
In most states, the state workers` compensation laws contain “exclusivity” clauses that bar all other civil remedies related to the injury that have been compensated under the state`s workers` compensation program. However, the filing of a workers` compensation claim by an injured fire service employee normally does not prevent the filing of a charge under the ADA. In addition, in most circumstances, the ADA requirements supersede any conflicting state workers` compensation laws. Thus, in essence, the exclusivity clauses normally do not prohibit a qualified individual with a disability from filing a discrimination charge with the EEOC or filing a suit under the ADA after the right-to-sue notice has been issued by the EEOC.
In most cases, the ADA takes precedence over the state law. For example, some state workers` compensation laws permit or require the employer to exclude a disabled individual from employment in cases where the ADA would not permit such an exclusion. A fire service organization could not assert as a valid defense to a charge of discrimination under the ADA that it failed to hire or return to work a qualified individual with a disability because doing so would violate the state workers` compensation law that required the exclusion of this individual from the workplace.
Fire service organizations should be aware that published EEOC Guidelines to its regulations provide that fire service organizations or any qualified employer may not discriminate against a qualified individual with a disability based on the fear of increased workers` compensation costs. In addition, fire service organizations may not inquire at the preoffer stage of the selection process as to an applicant`s workers` compensation history or history of work-related injuries or illnesses.
Another commonly confused area is the use of the definition of disability under the ADA and for workers` compensation purposes. In states that have established a “second injury” or “special fund,” employers often are required to certify at the time of hiring that they knew that the employee possessed a preexisting injury to qualify for the fund. Specifically to the definition of disability, the definition utilized by most state second injury funds is substantially different from the definition of disability under the ADA. In Transmart, Inc. v. Brewer [1993 Ala. Civ. App. LEXIS 529 for NDLR Section 293 (Ala. Civ. App. 1993)], state courts need not consider the ADA`s definition of disability when deciding whether an individual is disabled for the purposes of state workers` compensation statutes.
The ADA does not prohibit fire service organizations from obtaining information concerning preexisting injuries and providing needed information to the second injury fund. However, fire service organizations are cautioned to ensure that any inquiries and medical exams be conducted after the offer of employment and prior to the employee`s starting work and that this examination or inquiry be made of all applicants in the same job category. In addition, fire service organizations should be cautioned that all medical information obtained from such examinations or inquiries is to be kept in a confidential manner. However, this information may be submitted to the second injury fund or state workers` compensation commission as required under the workers` compensation laws.
Fire service personnel should look very closely at the definitions of disability under the ADA and their state compensation laws. Under the ADA, an individual is considered qualified if the condition is permanent in nature and the employee has a record of that permanent disability. In addition, being treated as being disabled also could qualify an individual for protection. The degree of permanent disability normally is inconsequential under the ADA. However, the degree of disability is a very pertinent issue under most state second injury fund determinations. It also should be noted that the permanent injury or illness under the ADA does not have to be work-related, whereas under most workers` compensation second injury funds, the initial injury or illness normally is required to be work-related.
Fire service organizations with questions regarding their state workers` compensation laws and second injury funds should contact their insurance administrator or the particular state`s workers` compensation commission. Keep in mind that the definitions under the ADA and individual state workers` compensation programs can be substantially different; extreme caution should be utilized in making any determination with regard to workers` compensation or employment decisions. One wrong decision with regard to these issues may result not only in a workers` compensation claim but also in an ADA claim.
What are the prohibitions provided under the ADA with regard to physical ability testing, psychological testing, and related testing programs? An Equal Employment Opportunity Commission (EEOC) publication entitled “Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities Act” (May 1994) provides specific information to assist fire service organizations and other covered entities in complying with the requirements of the ADA.
In general, alcohol and controlled-substance testing is not considered a medical examination under the ADA and can be performed before making an offer of employment. However, alcohol and controlled-substance tests used to determine whether an individual is using alcohol or a controlled substance or how much of the substance has been consumed are considered medical examinations if the testing procedure is invasive in nature, such as those of testing blood, urine, or breath. These invasive tests would be considered medical examinations and would be prohibited at the preoffer stage of the evaluations.
At the preoffer stage, fire service organizations should be cautious in the line of questioning used before administering an alcohol or controlled-substance test. Covered fire service organizations are prohibited from pursuing a line of questioning concerning current or prior lawful drug use if this information could reveal the existence, the nature, or the severity of a disability. If the test is conducted solely as a search for unlawful drug or alcohol use and the test results indicate lawful drug use, the covered fire service organization would not have violated the ADA provisions.
The question of polygraph testing is specifically addressed in the EEOC Guidance publication. In general, a polygraph is not considered a medical examination; however, certain inquiries made prior to the administration of the test, as well as questions asked during the examination, are prohibited as preoffer inquiries. In general, questions that elicit information about the disability or impairment are prohibited. Prior to initiating or continuing polygraph testing, fire service organizations also should evaluate the Polygraph Protection Act of 1988 [29 U.S.C. § 2001 et seq. (1989)] to ensure compliance with this law.
Physical-agility testing designed so that the applicant can demonstrate the ability to perform actual or simulated essential or marginal job-related tasks is not considered a medical examination under the ADA. Likewise, physical fitness tests that measure the applicant`s performance levels of physical criteria such as running or strength are not considered medical examinations. Prudent fire service organizations using these types of tests also may provide descriptions of the tests at the preoffer stage and request that the applicant have his/her private physician review the description and state whether the applicant can safely perform the tests. Fire service organizations also are permitted to request that the applicant assume responsibility and release the fire service organization of liability for injuries that could be incurred during the testing procedures.
Psychological testing, such as I.Q. tests, honesty tests, aptitude tests, and personality tests, are considered medical examinations under the ADA. According to the EEOC Guidance publication, psychological examinations are considered medical examinations to the extent that they provide evidence concerning whether an applicant has a mental disorder or impairment as categorized in the American Psychiatric As-sociations`s most recent Diagnostic and Statistical Manual of Mental Disorders (DSM). The EEOC Guidance pub-lication provides several examples addressing RUOK, RUSMART, IFIB, and other tests.
In general, basic vision tests that evaluate an applicant`s ability to read a label or distinguish an item as part of a demonstration of actual firefighting job performance are not considered medical examinations. In addition, covered fire service organizations may ask an applicant whether he/she has 20/20 corrected vision. However, the requirement that an applicant`s vision be tested by an optometrist or other medical professional would be considered a medical examination and can be performed only at the post-offer stage.
Testing of applicants for fire service organization positions is essential to acquiring qualified personnel. Prudent fire service organizations should evaluate their current testing procedures to ensure that all tests meet the requirements of the ADA and other applicable laws and that the testing properly evaluates applicants. A careful reading of the ADA and the recent EEOC Guidance publication is essential to ensure that your organization`s testing program is in compliance.
THOMAS D. SCHNEID is an associate professor and attorney with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and certificate of advanced study in safety, a law degree, and an LLM (master of laws) degree in labor and employment. He has 14 years of experience as a consultant for general industry.
