What Does an Employer Have To Do To Accommodate Disabled Or Injured Workers?
Florida is an employment-at-will state. That means that under most circumstances, employees do not have many rights. However, there are exceptions. One exception is protection(s) afforded employees under the Americans With Disabilities Act (“ADA”), and the Florida Civil Rights Act, which is patterned after the ADA.
Under the ADA, an employer may have to give a disabled employee reasonable accommodations. The ADA defines a disability as a physical or mental impairment that substantially limits a life activity. This includes things such as limitations on walking, breathing, sleeping, working, etc. A person in a wheelchair, an employee who is deaf, an employee who is blind, would automatically be considered disabled under the law.
However, an employee with even a minor injury can also be considered disabled under the ADA. For instance, if somebody is in an auto accident and has a back injury such as a herniated disc or something like that, they may be “disabled” under the ADA. If the injury limits the ability to walk, work, lift, etc., they may be disabled under the ADA. The courts look to see how permanent the injury is and what kind of limitations it causes.
Even if an employee is not actually disabled, the ADA states that if the employer “perceives” that person as being disabled, the employee may get the protections of the ADA. This means that the employer views or treats an employee as disabled when they are not. For instance, if the employer thinks the employee is a liability because of their health condition, the employee may get protection under the ADA. If the employer treats the employee as disabled based on the records of the employee, such as medical records, insurance records, etc., the employee may also be entitled to the protections of the ADA.
Thus, if an employee has a disability or the employer merely treats that person as having a disability, the employer may have to give that employee reasonable accommodations if the employee can perform the essential functions of his or her job with or without those accommodations. What that means is that an employee usually must be able to do most of the essential functions of his job with or without an accommodation. If the employee can’t do the essential functions of his job, then he usually does not get the protections of the ADA and the employer may not have to accommodate him. For instance, if the job requires heavy lifting all day long, and that’s the only requirement of the job, and the employee cannot do any lifting at all, then he cannot perform the essential functions of his job with or without an accommodation. He may not get protection under the ADA.
Reasonable accommodations include things the employer can provide the employee without an undue hardship on the employer. For instance, in the situation described above where the job requires heavy lifting all day long, the employer would not have to hire somebody to do the heavy lifting for the employee that cannot lift. However, if the employee’s job only requires lifting heavy objects occasionally, and that’s not essential to the job, then the employer should accommodate the employee by not requiring the employee to lift heavy things if the employer can allow that without much disruption to the business. Sometimes an employer can be required to reassign the employee to another job within the employee’s medical restrictions.
Essential functions of a job do not include marginal functions of the position. Government regulations and the courts define essential functions as the fundamental job duties of the employment position. A job function may be considered essential for reasons such as: the position exists to perform that function; there’s a limited number of employees available to do it; or, it requires highly specialized abilities. Things that the courts look at to determine whether a job function is essential are: written job descriptions; job advertisements; the amount of time spent performing the particular functions; the consequences of not requiring the person to perform the function; the terms of a collective bargain or union agreement; the work experience of other persons in that job; and/or, the current work experience of persons doing similar jobs.
Whether or not an employee can be accommodated is supposed to be determined through an “interactive process” between the employer and employee. The best way to start this process is for the employee to request a reasonable accommodation. However, an employee may not be required to use the magical term “reasonable accommodation.” If an employer is aware that the employee has a potentially qualifying disability, then the employer should engage in this process. This interactive process involves things such as: analyzing the particular job involved to determine the essential functions; consulting with the employee to ascertain their job-related limitations; consult with the employee to identify potential accommodations; and, even consider the preference of the employee.
Reasonable accommodations can include things such as: making existing facilities used by employees readily accessible to individuals with disabilities; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment; appropriate adjustment or modifications of examinations or training materials or policies; and/or, providing qualified readers or interpreters.
Keep in mind that the employer may be responsible for providing these accommodations even if the employee is not actually disabled and the employer merely treats them as such. Typical of this is a situation where the employer thinks that somebody with a sickness or an injury is going to be an insurance liability and, therefore, the employer does not accommodate them or terminates them. It is also illegal for an employer to retaliate against or terminate an employee because the employee requested a reasonable accommodation or because the employer views the employee as a liability.
There are federal regulations which state the criteria that employers should follow. These are contained at the EEOC (Equal Employment Opportunity Commission) website. Also, if an employee is injured at work and files a workers’ compensation claim, the employee may get the protections under the ADA if the employer treats them different because of the workers’ compensation claim. This includes not allowing an injured worker to return to work until they are “full duty” or “100%.” There are EEOC regulations on this exact situation.
Employees who have disabilities or medical impairments or injuries may have rights protected under the ADA and Florida law. They may be entitled to reasonable accommodations. There are a bunch of technical requirements before an employee can bring in an actual claim or lawsuit for violation of the ADA such as being denied benefits or reasonable accommodations. Therefore, it is advisable to speak with a lawyer that specializes in employment law to determine what actions can be taken to protect employee rights.