Proceed with care at intersection of ADA and worker's comp laws.

• Author: Davis, Raymond M.
• Position: Americans with Disabilities Act of 1990; North Carolina Workers' Compensation Act - 1997 Law Journal

Employers attempting to analyze the maze of requirements imposed by the Americans With Disabilities Act (ADA) and North Carolina Workers' Compensation Act (NCWCA) will find numerous questions with few absolute answers. The Equal Employment Opportunity Commission, the federal agency that oversees the ADA, has recently published two guidance statements examining pitfalls experienced by employers attempting to abide by both regulatory schemes. Yet few comprehensive articles exist offering practical guidance.

This article focuses on three difficult issues at the intersection of these two laws and offers tips for handling them. Naturally, the information presented is general; questions concerning specific employment situations should be discussed with legal counsel.

Different definitions of disability

The ADA and the North Carolina Workers' Compensation Act both apply to individuals with a "disability." However, each law defines "disability" differently. The differences create a potential trap for employers.

The NCWCA definition focuses on the employee's post-injury earning capacity. In general, an employee is disabled and eligible for workers' compensation benefits if he is unable to earn his normal wages due to a work-related accidental injury or occupational disease.

Under the ADA, individuals are disabled only if they have a physical or mental impairment that substantially limits a major life activity. An individual is "substantially limited" if a physical or mental impairment prevents him from performing a major life activity that the average person can perform with little or no difficulty (such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working). Temporary conditions (such as broken bones) for the most part are not impairments for ADA purposes.

Contrary to popular misconception, not every person with a workplace injury or illness (covered by workers' compensation) is disabled under the ADA. For example, an individual who breaks an arm by occupational accident is not entitled to any "reasonable accommodation" under the ADA if the fracture heals normally.

Under the ADA, the law looks at the individual and asks what the worker can do with reasonable accommodation. Under NCWCA, the law looks at what a worker is no longer able to do. While many injured workers will not have a qualified disability under the ADA, employers still must be aware and avoid a trap in this gap...