Until recently, musculoskeletal disorders were not often treated as disabilities, but the expansion of the definition of a disability and the Equal Employment Opportunity Commission's proposed regulations for implementing the Americans with Disabilities Amendment Act could change this.
Prior to the passage of the ADAAA, the courts had made clear that most individuals with carpal tunnel were not disabled under the ADA of 1990. In the Supreme Court's ruling in Toyota v. Williams, Williams was found to be not disabled despite being substantially limited in performing manual tasks at her job because her carpal tunnel condition did not prevent her from performing tasks in her daily life.
The ADAAA overturned that pivotal ruling and others, broadening the scope of the law's coverage and the list of impairments that could be covered. The EEOC's proposed guidance for implementing the ADAAA specifically lists MSDs as "examples of impairments that may be disabling for some individuals but not for others," and even singles out carpal tunnel as an example of an impairment that might meet the definition of a disability.
David Sarvadi, an occupational safety and health attorney in the Washington, D.C. office of Keller and Heckman LLP, believes that the proposed regulations essentially act as a "backdoor ergonomics regulation" and could lead "to just about any complaint that inhibits a person's ability to work."
"There have been a large number of cases under the ADA involving MSD complaints," he said. "The courts have uniformly rejected them as having coverage [under the ADA], even though it might have prevented someone from doing a particular job ... but I think some in Congress thought these kinds of complaints should be covered by the ADA, and clearly the commission opened that door."
Focus on ergonomics. According to 2008 figures from the Bureau of Labor Statistics, the most recent data available, more than 10,000 cases of carpal tunnel syndrome were recorded in the private sector, requiring a median of 28 days to recuperate. The cost for treating employees with carpal tunnel is expensive, and ergonomists continue to debate the long-term effectiveness of carpal tunnel relief surgery.
Cindy Roth, CEO of Ergonomics Technologies Corp. in Syosset, N.Y., said the proposed regulations may provide an additional incentive for employers to prevent MSDs.
"They've really tried to shore up the definition of a disability ... and they've construed it in favor of broad coverage, and carpal tunnel fits right there," she said. "Even if it's not carpal tunnel, not that correct definition with the symptomotology, it doesn't matter. The person is still limited [under the ADA]."
While the proposed regulations make clear that not every instance of carpal tunnel will qualify as a disability, Jen Bester, a human resources consultant for Employment Practices Solutions Inc., said employers should err on the side of caution in making their own disability determinations until the courts begin to review cases involving MSDs and the ADAAA. "For the foreseeable future, employers are going to have to be somewhat conservative in their approach for determining what conditions constitute a disability," she said. "They need to be careful to engage in that interactive process that's required and figure out whether the individual at issue can be reasonably accommodated."
But Art Gutman, a professor at Florida Institute of Technology who specializes in personnel issues and EEO law, said that he does not believe the changes to the ADAAA will increase MSD accommodations in the workplace. He argued that the change in the law merely makes it easier for an individual to satisfy the first two prongs of a disability claim under the ADA.
"I don't necessarily think that the ADAAA changed anything for carpal tunnel cases," he said. "It overturned the carpal tunnel ruling [in Toyota v. Williams] -- but if you look deeper into that case, the only thing the court said was that she was not disabled. Now Williams would be disabled."
But, Gutman said, Williams still had to be able to show that she was able to perform the essential functions of the job with accommodation to prevail in her suit against her employer.
"There was no accommodation Toyota could have made where she could have performed all four essential job functions -- Williams would have lost anyway," he said.
Establish job performance criteria. Without knowing how the courts will interpret the proposed regulations or how MSD cases will play out in the legal system, employers need to engage in the interactive process for employees with carpal tunnel and ensure that job performance criteria is in place to protect themselves during the hiring process if applicants seek accommodations for MSDs.
"It's going to require employers to be more careful about defining what the job requirements are and ensure that their examinations are not based on objectionable criteria," Sarvadi said. "If it's not an essential function of the job, you're going to have to make some kind of reasonable accommodation."
Gutman also urged employers to be careful not to speculate about an individual's abilities.
"A lot of employers kind of blow it by assuming certain things that employees can't do," he said. "There really needs to be interaction, and you have to examine potential accommodations."
Gutman also warned that employers need to be sure that the essential functions of a job outlined are, in fact, essential and could hold up if contested.
"You've got to look at a job and what is truly essential -- be accurate," he said. "I've heard lawyers tell their clients to be vague on that, and I flat out disagree. Include all essential job functions, knowledge skills and abilities needed to perform them."
Employers also need to ensure they treat carpal tunnel injuries like any other disability and realize that each assessment and accompanying accommodation needs to be individualized, Sarvadi said.
"You can't have a general rule, and any decision has to be based on the essential functions of the job," he said. "It's no different than any other disability."
Read more at the WorkersComp Forum homepage.
August 30, 2010
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