As shown by a recent post from LexisNexis Legal Newsroom, workers’ compensation insurers and employers are finally starting to understand the Americans with Disabilities Act (ADA). Hopefully the days of employers firing employees after their 12-week FMLA leave when the employee can’t come back to work “full duty” and/or “with no restrictions” are behind us. But just because most employers and workers’ compensation insurers are now complying with basic requirements, doesn’t mean that injured workers will be able to successfully defend their rights under the ADA and their ability to maintain employment.
Employers and insurers understand the importance of the “interactive process” and how it should involve the employee and the employer. But this is too simple. The process involves a doctor who may or may not know the employer’s true job restrictions. The insurer/employer can also be represented by a nurse case manager who is familiar with medical terminology, practice and might even have a pre-existing relationship with the doctor. That nurse case manager could also be in communication with an employer and have an idea of a job that the employee can be placed into.
In this situation, the employee is at a disadvantage. The employee usually doesn’t understand medical terminology or know the doctor. In addition, an employee probably won’t have a job description to present to the doctor so they will be at a disadvantage in return to work. This situation can be made worse if an employee appears to a doctor as if they don’t want to go back to work.
So what can an employee do?
1. Ask for actual copies of job descriptions. This way an employee is armed with the facts about the job. Furthermore, they can tell the doctor if the job description is accurate. Assuming the employee is credible in what they tell the doctor, they will have more basis than a nurse case manager in being able to describe the job.
Next, an employer has an obligation to engage in a “good faith interactive process.” If management decides that they won’t give out written job descriptions to injured workers who request them for the purpose of determining work restrictions, then that would be evidence of bad faith on the part of the employer.
2. If you can, pick your own doctor or surgeon. Unfortunately, some doctors are generally unwilling to give injured workers a fair break and can be way too cooperative with insurers or major employers. In Nebraska, employees can pick their own treating doctor and can pick their surgeon even if they give up their initial right to pick their doctor. Exercising doctor choice at least gives employees some control over their medical care and it makes it more likely that they will find a doctor who will be cooperative in regards to the ADA.