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Important Change in Return to Work Issues

New regulations of the Equal Employment Opportunity Commission (EEOC), codified at 29 CFR Part 1630, will have a substantial impact on the employment rights of an injured federal employee who is receiving, may receive or has been denied wage loss compensation.  Required by the ADA Amendment Act (ADAAA), the regulations went into effect on May 24, 2011.

If federal employers want to avoid litigation, they must discontinue the tactics of assigning injured workers to humiliating and punitive light duty jobs, of failing to accommodate medical restrictions, and of removing from federal employment injured employees who fit the definition of qualified individuals with disabilities.

A disability is defined under the ADAAA as 1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment.  The ADAAA did not change the basic definition of disability, but it requires a broader reading or construction of the definition of disability.

This broader reading means that the definitions of terms such as physical or mental impairment or major life activity are to be applied in a way that favors the injured worker, who then can actually enjoy the benefits and protection of the law.

A problem has been that federal employers refused to make reasonable accommodation for injuries to enable workers to perform their regular job.  Employers have also refused to find transitional or light duty jobs for injured workers on wage loss compensation.

Employers’ refusals, for example, have led OWCP to refer workers’ compensation recipients to vocational specialists to find alternative work.  Often the result of such referrals is the injured worker not finding work but facing a consequent reduction of wage loss compensation anyway.  From a financial viewpoint, workers would be much better off with a return to work with the federal employer in a job that takes into account medical restrictions.

Another problem has been employers pressuring injured workers to apply for disability retirement and social security disability benefits.  Assuming application for such benefits is approved, that could lead to a substantial reduction in a person’s income and loss of future increased benefits from regular retirement.  Of course, there is the risk that applications for such benefits could be denied, either by the Office of Personnel Management (OPM), the Social Security Administration (SSA), or both.

When a person applies for disability retirement, the employer must indicate any efforts made for reasonable accommodation.  This requirement will probably become more important in forcing employers to take a more positive role in finding appropriate work for an injured person.

In short, changes in the law should help injured federal workers in terms of insisting on more equable treatment in returning to work in meaningful jobs.

Agency personnel departments and EEO counselors should be familiar with the law change.  If a person runs into difficulties with obtaining accommodation, he or she should talk to an EEO counselor at the work site. 

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