Is your business compliant with the Americans with Disabilities Act and state Workers’ Compensation Acts? Here's the 411 on workplace disability.
Workplace disability is a wide-ranging topic that can be intimidating for small to medium-sized businesses. The disabled and workers who become disabled on or off the job have protection under two main laws: the Americans with Disabilities Act, which is nationwide legislation as well as state Workers’ Compensation Acts.
The ADA provides protection from discrimination in all aspects of employment. It mandates business provides reasonable accommodations to prospective and current workers to gain or maintain employment despite their real or perceived physical or mental disability.
Workers’ compensation is paid for employees injured on the job. Most states require employers to carry workers’ compensation insurance to cover injuries of employees. Most employers carry short- and long-term workplace disability coverage for their staff members, providing income protection in the event of an injury that keeps them off the job. In some states every employer must carry coverage: in others a minimum amount of employees must be on the payroll to trigger compliance requirements.
A third voluntary option for employers is to offer short- or long-term workplace disability insurance coverage. These plans can be employer-paid or employer-sponsored: requiring the staff member to pay all or a portion of the premiums. STD and LTD are not required by law.
It’s estimated over 12% of the US population has a disability.
What qualifies as an ADA disability?
It’s estimated over 12% of the US population has a disability. The range of qualified disabilities under the Americans with Disabilities Act is extensive and evolving. The ADA defines a person with a disability as someone who a physical or mental impairment that seriously limits one or more major life activities, or who is regarded as having such impairments. In addition to obvious physical challenges, like being blind or using a wheelchair, illnesses, like asthma or allergies may be considered a disability under the ADA. Employees whose condition is managed by medication, like an asthmatic who uses an inhaler to control their breathing, are still covered under the ADA and considered a person with a disability.
A person who is perceived to have a disability is also covered under the ADA whether or not they, in fact, do. An example may be making an assumption that someone has a mental illness like depression. Employees and candidates for employment are all covered as disabled under the ADA.
A person who is perceived to have a disability is also covered under the ADA whether or not they, in fact, do.
Are employers allowed to ask about an employee’s disability?
Whether it’s job seekers or current employees, businesses should not ask about a disability. If a candidate with an obvious disability applies for a job, for example, an employer may ask if they believe they can perform the necessary functions of the job with or without an accommodation only after a conditional offer of employment has been made.
For existing employees, whether the disability is apparent or obvious or is perceived, employers may not inquire. If an employee or candidate discusses their disability or their need for an accommodation you may talk to them about it, but they should be the one who initiates the conversation.
Can a company refuse to hire you because of a disability?
The answer to this is generally no but on very rare occasions, yes. A company hiring bus drivers can certainly exclude blind applicants. But beyond such an obvious generalization, the ADA requires employers make hiring decisions on a case-by-case basis: when a candidate requests an accommodation, employers must assess the nature and cost of the request and determine whether the accommodation is reasonable or will pose an undue hardship on the business.
Th eUS Chamber of Commerce estimates 50% of reasonable accommodations cost employers less than $500.00: 19% have no cost at all. They can be as simple as allowing employees who rely on alternative means of transportation to come to work a bit later than others, to raising desks on planks to allow someone in a wheelchair to sit comfortably. For more costly accommodations, the larger the company, the more the ADA assumes it can absorb the cost and provide employment to the candidate.
The US Chamber of Commerc estimates 50% of reasonable accommodations cost employers less than $500.00: 19% have no cost at all.
How long can you be on workplace disability?
Leave of absence for workplace disability is dependent on the type. For a job-related injury, where workers’ compensation law is protecting the employee, the leave can be as long as it takes to recover from the injury or a maximum allowed by state law.
Workers’ compensation leave and payments can be for temporary or permanent disability – partial or total. Generally, for partial/temporary disability, leave can be three to seven years, depending on state law. For permanent workplace disability, leave can run until the employee is eligible for disability or retirement payments from their Social Security contributions.
For a leave accommodation under the ADA, the amount of time taken off work (which is not required to be paid) will vary depending on the nature of the request, and whether or not it puts an undue hardship on the employer. Each instance must be considered on a case-by-case basis.
What is the process for requesting disability from work?
Depending on the nature of the request for leave, an employee may automatically be eligible or may have to submit a request to their manager or HR representative. If an employee is injured, paperwork must immediately be filed to assure their workers’ compensation benefits and leave allotments begin.
If an employee is injured or falls ill in a non-work related manner, a request should be submitted as soon as reasonably possible.
For an ADA-covered leave request, employees should, if possible, submit a request for leave, outlining the possible length and nature of the request (for corrective surgery, for example, a general outline of what the time for recovery might be). Again, each request must be considered on an individual basis.
How are disability payments calculated?
Workers’ compensation pay rates vary depending in on the impact to the employee. If the employee is on full disability – meaning they cannot work at all – they are paid 2/3rds of their pre-injury average weekly salary.
For employees on partial disability, meaning they can perform light work duties, or work part-time, disability payments are calculated at the differential rate. An example might be an employee who was paid $500.00 per week before their injury returns to work part-time performing light duties afterward. Their compensation at half their hours is then $250.00. Disability pay would be calculated at 60% of the difference: for the $250.00 they are not receiving in salary, workers’ comp would pay them $150.00.
How are disability payments determined?
Disability payments for employees are part of the coverage provided under a company’s workers’ compensation insurance plan and are mandated by law.
For other types of leave, such as non-work-related injury or illness or leave requests under the ADA, there are no legislative requirements to pay employees. However, many companies offer short- or long-term disability insurance options to cover staff members if they’re unable to work for an extended period of time.