Disability Accommodations at the Dwc and Wcab

• Publication year: 2024
• Citation: Vol. 37 No. 1
• Author: CAROL N. FINULIAR, ESQ.

Disability Accommodations at the DWC and WCAB

CAROL N. FINULIAR, ESQ.

OAKLAND, CALIFORNIA

LINDSEY URBINA, ESQ.

OAKLAND, CALIFORNIA

The Division of Workers' Compensation (DWC) provides numerous disability accommodations and has a comprehensive Americans with Disabilities Act (ADA) compliance program. The pandemic ushered in a new era of requests for disability accommodations at the Workers' Compensation Appeals Board (WCAB). Before discussing how to make an accommodation request, it is helpful to look back on a little bit of history.

The ADA of1990 was modeled after the Civil Rights Act of 1964. The ADA prohibits discrimination and guarantees that people with disabilities have the same opportunities to participate in the mainstream of life, to enjoy employment opportunities, and to participate in governmental programs and services as fully able bodied persons.

Congress specified the purpose of the ADA:

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;


(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;


(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and


(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

42 U.S.C. Section 12101(b).

Twenty years ago, the U.S. Supreme Court decided Tennessee v. Lane, 541 U.S. 509 (2004) and discussed Title II of the ADA which mandates equal opportunity to access courts. The ADA provides broad protections, and the definition of disability is intended to be "construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA." 28 CFR section 35.108(a)(2)(i). Additionally, California law is one of the most liberal states with protections for individuals with disabilities.

ACCOMMODATIONS AT THE DIVISION OF WORKERS' COMPENSATION AND THE WCAB

DWC has 26 WCAB district offices serving injured workers and employers in workers' compensation litigation. Each district office has at least two local disability accommodation coordinators who assist with requests for accommodation.

Statewide ADA Coordinators Kathleen Estrada and Maureen Gray have trained their team of local disability coordinators to engage in the interactive process and to keep all requests confidential. Coordinators often provide creative solutions to accommodate individuals with disabilities to participate in DWC's programs, services and activities.

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POTENTIAL ACCOMMODATIONS

DWC will consider all requests and will provide reasonable accommodations to qualified individuals with disabilities. Accommodation is assistance allowing an individual with a disability to have equal opportunity to access and participate in DWC's services, programs, and activities, including access to the WCAB.

Assistive listening devices are available for individuals with...