Vol. 6, No. 1, Pg. 22. The Injured or Disabled Worker: New Rights, New Duties.

• Author: By Shawn Daughtridge Wallace

South Carolina Lawyer

1994.

Vol. 6, No. 1, Pg. 22.

The Injured or Disabled Worker: New Rights, New Duties

22The Injured or Disabled Worker: New Rights, New DutiesBy Shawn Daughtridge Wallace`The employer must now consider the interplay of the Workers' Compensation Act, Americans with Disabilities Act and the Family and Medical Leave Act in all aspects of employment, from hiring to discipline and return to work or termination."

A foreman for a construction company falls and injures his back while on the job; there are 15 workers at his worksite and 35 workers at a nearby site. He reaches maximum medical improvement within nine weeks after the injury. His doctor permanently restricts his lifting to 25 pounds. The foreman's position requires regular lifting of more than 25 pounds. The company has an opening for a forklift operator at comparable pay, and the injured foreman is qualified for the job.

* Must the employer make light duty for the foreman, or change the requirements of his job, or give the foreman the forklift operator's job?

* If the foreman is too ill to return to work but has reached maximum medical improvement, must the employer continue to hold his old job or a comparable job for him? Does it matter that the foreman has been employed by the company for less than a year?

* May the employer refuse to rehire the foreman because the latter filed the workers' compensation claim and the employer believes he will be easily re-injured?

* If the foreman decides to seek work elsewhere, will his prospective employer be allowed to ask about the workers' compensation claim and disability in determining whether theforeman is qualified for the job opening?

These typical employee injury issues no longer have typical answers. Since the enactment of the Americans with Disabilities Act in 1992 and the Family and Medical Leave Act in 1993, far-reaching federal legislation has revolutionized the issues surrounding employee injury and disability. The practical effect is a change in employers' considerations in issues previously settled under state workers' compensation law or under company policy allowing or disallowing light duty and leave of absence.

The employer must now consider the interplay of the Workers' Compensation Act, Americans with Disabilities Act and the Family and Medical Leave Act in all aspects of employment, from hiring to discipline and return to work or termination. This article provides an overview of the statutory requirements and the effect of their interrelationships on the employment relationship from hire to rehire.

The Statutes at a Glance

* The South Carolina Workers' Compensation Act, S.C. Code Ann. § 42-1-10 et seq. (Workers' Compensation Act), was designed to relieveboth employees and employers from the uncertainties of litigation for damages relating to accidental injuries that arise out of and in the course of employment. The Act also seeks to prevent the burden of providing for injured employees and their dependents from falling on the state. Cokeley v. Robert Lee, Inc., 197 S.C. 157, 14 S.E.2d 889 (1941).

Perhaps the best known provision of the Workers' Compensation Act is that the remedies it provides are an employee's sole and exclusive remedy against his or her employer (§ 42-1-540). The Act generally presumes that all eligible employees and employers will come within its coverage (§ 42-1-310). It does, however, have a unique opt-out provision. (See §§ 42-1-310 and -340.) While limiting the availability of damages to an injured employee, the Act provides a constant and stable source of funds for the medical treatment and care of employees who are injured in the course of their employment.

* The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., was designed to extend to persons with disabilities the same rights afforded to minorities under the Civil Rights Act of 1964. Title I of the ADA, which prohibits discrimination against the disabled in employment, went into effect July 26, 1992

for most private employers with 25 or more employees. As of July 26, 1994 that threshold will be reduced to 15 or more employees (with certain exceptions for the United States government, any wholly-owned government corporation, Indian tribes and certain tax-exempt private membership clubs. 42 U.S.C. § 12111(5)(b)). Much of the framework and underlying principles of Title I echo earlier civil rights legislation.

"In South Carolina, the ADA also affects an employer's need to make inquiries and medical examinations to limit its liability and provide work for a previously injured employee through the Second Injury Fund."

Specifically, the ADA prohibits discrimination by employers against qualified applicants or employees with disabilities. The ADA defines an individual with a disability as one who (1) has a physical or mental impairment that substantially limits a major life activity; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). Examples of major life activities might include walking, speaking, sitting, working, standing, lifting and reading. EEOC Tech. Assistance Manual § 2.1(a)ii.

If a qualified applicant or employee suffers from a disability, the ADA requires employers to provide reasonable accommodation to allow the employee to function in the workplace. 46 U.S.C....