Interactive Process
Issue # 63
July, 14, 2008
An employee is injured on the job and begins a course of treatment with the appropriate medical care provider. The employer submits a claim to the workers' compensation insurance company in a timely manner, thereby feeling they have satisfied their responsibility. While this may be true from a workers' compensation standpoint, there are federal and state disability discrimination laws that place further responsibility on the employer.
Federal standards that protect individuals with disabilities are set forth in the Americans with Disabilities Act (ADA). In California, the Fair Employment and Housing Act (FEHA) provides similar protections. While the ADA addresses conditions that "substantially limit" a major life activity of the employee, the FEHA uses the term "limits" and goes on to broadly define major life activities to include working.
Therefore, if an injured employee is released back to work on a modified basis due to limitations prescribed by the treating physician, the employer has certain obligations under the California Fair Employment and Housing Act (FEHA). The FEHA makes it unlawful for an employer to fail to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodations by an individual with a known physical condition.
These regulations limit the scope of an employer's obligation to make reasonable accommodations for disabled individuals. Specifically, employers need not make accommodations that would impose an undue hardship. The interactive process marks the beginning of making these decisions.
As a proactive risk management strategy, employers should consider the following:
1. Understand FEHA's requirements as it relates to workers' compensation. I have found a good source of information at http://www.dfeh.ca.gov/publications/CAM%202008%20Update/Chapter%205%20Disability.pdf
2. Periodially review job descriptions to assure the accuracy of the essential functions for each position.
3. Train supervisors and managers as respects their responsibility in the process.
4. Document any accommodations recommended by the employee and the factors supporting the conclusion that an undue hardship would result.
Kempkey Insurance Services goes beyond insurance by designing and implementing risk management programs for growth oriented businesses. We help our clients maximize the value of their insurance dollars and minimize their potential for unwanted surprises. Ed Kempkey can be contacted at (888) 536-7539 extension 2188, or at ed@kempkey.com.