Employers may not refuse to let an employee return to work if the employee can perform the essential functions of the job (with or without reasonable accommodations) unless the employer can show that returning the person to the position poses a "direct threat.” Also, an employer may not require an employee with a disability-related occupational injury to be able to return to “full duty”before allowing him/her to return to work. The term "full duty" may include marginal as well as essential job functions or may mean performing job functions without any accommodation. An employer may only require that an employee with a disability-related occupational injury perform “essential functions” to be able to return to functions of the position or requires a reasonable accommodation that would not impose an undue hardship.An employer may not refuse to allow an employee with a disability-related occupational injury to return to work simply because of a workers' compensation determination that the employee has a "permanent disability" or is "totally disabled".
Workers' compensation laws are different in purpose from the ADA and may utilize different standards for evaluating whether an individual has a "disability" or whether s/he is capable of working. For example, under a workers' compensation statute, a person who loses vision in both eyes or has loss of use of both arms or both legs may have a "permanent total disability," although that individual may be able to work. A workers' compensation determination also may relate to a different time period.
A worker's compensation determination may provide relevant evidence regarding an employee's ability to perform the essential functions of the position in question or to return to work without posing a direct threat, but it should never be use as only or primary reason to make a decision regarding the employee's ability to return to work.
Sophia, a clerk/typist, breaks her wrist while trying to move heavy office equipment with a co-worker. She is unable to work for six weeks and receives workers' compensation. After Sophia's wrist completely heals, she asks to return to work. A physician indicates that there is little risk that repetitive motion will damage her wrist. However, the company refuses her request to return to the clerk/typist position because it believes that any repetitive motion will cause serious and permanent reinjury of her wrist.
Conclusion:The company has violated the ADA by not returning Sophia to her clerk/typist position.
The following objective evidence supports a finding that returning Sophia to the clerk/typist position does not pose a significant risk of substantial harm (i.e.., direct threat):
- her injury was not caused by repetitive motion,
- her wrist has completely healed, and
- there is little risk that she will reinjure her wrist through repetitive motion
Jennifer, a maintenance worker, badly fractures both ankles in a workplace accident. She is unable to work for six months and receives workers' compensation. Although Jennifer's ankles partially heal, she is unable to walk and stand for more than short periods of time. Jennifer's maintenance job requires extensive walking and standing on cement floors. The report from Jennifer's most recent medical examination shows that there is a high probability of immediate, severe, and permanent damage to Jennifer's ankles if she walks or stands for more than short periods of time, especially on hard surfaces. Assuming that there is no accommodation that will lower the risk of harm, the employer may refuse to return Jennifer to her maintenance position because there is sufficient evidence to support a finding that her employment in the position poses a direct threat, i.e.., a significant risk of substantial harm that cannot be eliminated or reduced through a reasonable accommodation. However, the employer must reassign Jennifer, absent undue hardship.
Responsibility for the Decision to Allow an Employee to Return to Work
On the other hand, the employer may find it helpful to seek information from the rehabilitation counselor, physician, or other specialist regarding the employee's specific functional limitations, abilities, and possible reasonable accommodations. In order to obtain useful and accurate information from a rehabilitation counselor, physician, or other specialist in making a return to work decision, an employer may wish to provide him/her with specific information about the following:
* the essential functions of the employee's position and the nature of the work to be performed;
* the work environment and the employer's operations, including any unavoidable health or safety hazards which may exist;
* possible reasonable accommodations.
An employer also may obtain useful information from others who are not experts but who are knowledgeable about the employee's current abilities, limitations, and possible reasonable accommodations. Such information will enable the employer to make an independent and accurate determination about the employee's ability to return to work.