On September 29, 2009 the EEOC entered a $6.2 million consent decree with Sears Roebuck and Company covering ADA violations that involved more than 400 employees. The decree requires Sears to notify each employee who is on leave for job-related injuries 45 days before their leave ends that they may request reasonable accommodation to return to work upon completion of the leave. The company must also list forms of reasonable accommodation that might be available to the employee, such as modified duty, transfer to another job, or a continuation of leave. Sears is required to establish a central management team to administer the leave requests and reasonable accommodation analysis.
This case began when a former service technician attempted to return to work when his Workers Compensation leave expired and while he still had limiting effects due to the job-related injury. Sears neither discussed reasonable accommodation with the technician nor offered him reasonable accommodation. The employee filed a discrimination charge and the EEOC sued Sears. During the discovery process, the EEOC learned that Sears did not provide reasonable accommodation for those who had completed Workers Compensation leave but were still disabled.
This consent decree illustrates a frequent problem with employer treatment of Workers Compensation claims under the ADA and FMLA. If an employee has a job-related injury or illness, the employer should assess whether it qualifies as a serious health condition. If so, the employee’s FMLA rights run concurrently with their Workers Compensation rights. If an employee seeks to return to work upon the expiration of FMLA or more generous leave for job-related injuries or illnesses and has limitations due to the injury or illness, the employer should engage the employee in a reasonable accommodation dialogue. Remember that under the new ADA, the definition of disability is interpreted broadly in favor of concluding that an individual has a disability. The ADA requires a case-by-case reasonable accommodation analysis. For example, in one situation, the employer might be able to accommodate the injured employee by extending leave with the opportunity to return to the same or an equivalent position; in another situation, perhaps accommodation is possible by transferring the employee to a different job which the employee can perform within his or her restrictions, even if that job pays less.
Article courtesy of Worklaw® firm Lehr Middlebrooks and Vreeland (www.lehrmiddlebrooks.com).
