Workers' Compensation and the ADA-Who is Covered

Workers' Compensation and the ADA--Who is Covered.

Who is Covered by the ADA? 
An individual with a physical or mental impairment that substantially limits major life activities or physical functions that is expected to be permanent or long-term who can do the essential functions of a job with or without reasonable accommodations.

An individual who does not have a disability as defined by the ADA, but is “regarded” as having a disability by the employer.

The ADA also covers qualified individuals who have a record of a physical or mental impairment that substantially limits a major life activity. Example: Past history of substance abuse or mental illness.

A qualified individual who does not have a disability but is regarded as having a disability based upon an actual or perceived impairment. Example: Employer notices an employee has a facial tic and demotes employee 

Occupational Injury and the "record of" portion of the ADA.
A person who files a workmen’s compensation claim does not automatically establish a “record of” a disability or is seen as “regarded as” having a disability by the workplace.   An individual is covered by the "record of" portion of the ADA definition only if they 

  1. had a history of a physical or mental impairment that met the definition of a disability or 
     
  2. have been misclassified as having a mental or physical impairment that substantially limits one or more major life activities, when they actually do not.

Occupational Injury and the "regarded as" portion of the ADA.
 A person with an occupational injury has a disability under the "regarded as" portion of the ADA definition if s/he:

  1. has an impairment that does not substantially limit a major life activity but is treated by an employer as if it were substantially limiting
     
  2. has an impairment that substantially limits a major life activity because of the attitude of others towards the impairment, or
     
  3. has no impairment but is treated as having a substantially limiting impairment.

     

Example A: An employee has an occupational injury that has resulted in a temporary back impairment that does not substantially limit a major life activity. However, the employer views her as not being able to lift more than a few pounds and refuses to return her to her position. The employer regards her as having an impairment that substantially limits the major life activity of lifting. The employee is covered under the ADA-AA because the employer “regards” her as having a disability.

Example B: An employer refuses to allow an employee whose occupational injury results in a facial disfigurement to return to his position because the employer fears negative reactions by co-workers or customers. Because the employer “regards” the employee as being unable to interact with co-workers and customers, the employee is covered under the ADA-AA, even though the employee does not have an impairment that substantially limits major life activities.

Example C: An employee is fully recovered from an occupational injury that resulted in a temporary back impairment. The employee is fired because the employer believes that if the employee returns to his heavy labor job, he will severely injure his back and be totally incapacitated. The employer regards the employee as having an impairment that disqualifies him from a class of jobs (heavy labor) and therefore as substantially limited in the major life activity of working. The employee is covered under the “regarded as” prong of the ADA-AA, even though the employee is fully recovered from the back injury because the employer “regards” him as being unable to work and terminates employment.