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  1. #1
    Join Date
    Aug 2007
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    374

    Default ADA and Workers Comp

    Has anyone ever had to deal with an injury that could not allow the employee access to the restroom for a long period of time?
    And what was the result when it was brought to their attention or did you have to go further with it?

    Q. How does the ADA affect workers' compensation programs?

    A. Only injured workers who meet the ADA's definition of an "individual with a disability" will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers' compensation or other disability laws. A worker also must be "qualified" (with or without reasonable accommodation) to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to "substantially limit" a major life activity. Also, many on-the-job injuries cause temporary impairments which heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers' compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA.

  2. #2
    Join Date
    Mar 2007
    Location
    Georgia
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    1,923

    Default Re: ADA and Workers Comp

    Lue, are you saying that those employers of yours still haven't resolved the issue of you not having a restroom to use that is accessible without climbing stares? If that is the case you need to get with your union rep and get them to do something straight away. I would think at a minimum that they could have had a port a let brought in for your use. It would sure beat having to trek out through the woods. I would have thought they would have done something before now!

    As far as ADA goes I am not at all clear. In reading those regs you posted one would be lead to believe that you would have to have a permanent disability. But, that is in reference to reasonable accommodation, not reasonable access to restroom facilities. I would think they would have to have accessible facilities just to be in compliance to equal access guidelines where people with disabilities are concerned. Hopefully someone that is more familiar with the ADA rules will come along and be able to clear it up. I still think your union might have the better answer and could get a quicker response out of them.

    How are you dong by the way? Your foot any better? When do you go back to the doc? Be sure and let the doc know about this when you do got back to see him. Don't know for a fact that he wouldn't take you off if your work won't even take care of something simple. Hopefully JLJ or one of the experts will be along soon.

    You take care,

    Steel
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  3. #3
    Join Date
    Aug 2007
    Posts
    374

    Default Re:

    Steel, I confronted the company again about the restroom. The safety co-ordinator told me to just use the stairs. I thought the safety co-ordinator had something to do with safety. I told her that three different doctors, all said not to climb the stairs. I showed the superviser and her the bone below my ankle. It is growing larger and sticks out further than my ankle. A blister/ulcer has formed at the end of the bone. My foot looks like it is going flat.
    Later she came back to me and said that the doctor never said I could not climb the stairs. All three talked to me about not climbing stairs. One each of the instructions from the doctor, it has no bendinging, stooping, squatting and climbing.
    I did not realize that you had to write on there, no running, etc..... If you are on sedentary duty, or sit and stand at will, with the above checked off. it seems pretty simple that you don't climb long flights of stairs.
    The Union man tells them to send me home. Simpliest solution for all. But, they have to make an example of those that to file on WC.
    I'll talk to the lawywer as soon as I can.
    Lue

  4. #4
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,923

    Default Re: ADA and Workers Comp

    Sounds like you need to, talk to your lawyer that is. Perhaps you can call your docs office and have them update your written restrictions to specifically say no climbing STAIRS. Who knows if it will do any good. It seems like some ER's are just gong to do what ever in the hell it is that they want to do no matter what. I really is time for IW's to unite and start getting some of this kind of garbage brought to an end.

    Hope you can find a reasonable resolution to this soon. Perhaps on one of your treks to the woods you can find a non venomous snake to hand to your supervisor and ask him how he would like sharing his bathroom with a that kind of critter. Who knows.

    Take care,

    Steel
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  5. #5
    Join Date
    Aug 2007
    Posts
    374

    Default Re: ADA and Workers Comp

    Steel, Oh don't I wish!
    Lue

  6. #6
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: ADA and Workers Comp

    Lue, it might also be helpful for your Doctor to write a note specifically indicating that you are NOT to climb stairs due to your work-injury, and that some reasonable accomodation should be made.

    From your posts I gather that climbing stairs is NOT an "essential function" of your JOB. However "natural functions" are a WHOLE different "category", and I believe that under FEHA/ADA requesting an alternative, such as a Port-a-let suggested by Steel, that this is NOT and UNREASONABLE ACCOMODATION that would place an "UNDUE HARDSHIP" on your Employer.

    Don't forget: The employer MUST engage in the "interactive process" to find a reasonable accomodation/solution to your restriction. THEY can NOT just say "NO"--send her home. And the UNION is ALSO bound by FEHA/ADA laws....

    If these jerks CONTINUE to refuse reasonable accomodation, then at LEAST call your local FEHA/ADA and EEOC office for more info. AND consult with several FEHA/ADA attorneys. You should NOT have to be subjected to this sort of humiliation by your employer...and as the saying goes, their "Skunk" smells TOO...

  7. #7
    Join Date
    Dec 2006
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    2,165

    Default Re: ADA and Workers Comp

    Actually, as Steel pointed out Lue, the ADA laws have been in effect since 1992. Although public entities and employers were given a"grace period" , so to speak, in order to comply with the ADA laws, the ADA is CRACKING DOWN on entities that are NOT in compliance.

    Lue, even IF YOU, as an individual had NO IMPAIRMENR/DISABILITY WHATSOEVER, temporary oR OTHERWISE, it is of NO CONSEQUENCE. Your employer can NOT say "Well, we don't even HAVE any disabled people working for us, and the Public is NOT ALLOWED in our buildings, so we are NOT required to have a handicapped-accessible bathroom on the GROUND FLOOR...our workers don't mind at ALL traipsing up and down that long flight of stairs to get to the bathroom".

    The MERE FACT that your Employer is NOT COMPLIANT WITH ADA stands ALONE. PERIOD. I suspect that the building that you work in is PRE-1992, otherwise, if were new construction AFTER 1992, it WOULD have a handicapped-accessible bathroom on the ground floor, a wheelchair height Automatic push-button DOOR OPENER, not to mention RAMPS if there are steps that one must encounter to get IN and OUT of the Main Doors (which ALSO have to have an automatic door opener OR the swing/push weight of the door can NOT exceed 4 pounds of pressure in order to open/close the door.

    Your Employer is REALLY OPEN FOR A LAWSUIT. There have been SUCCESSFUL ADA lawsuits because a disabled person merely drove by a restaurant, noted that there was no designated handicap parking in the parking lot, KEPT ON DRIVING AND FILED A LAWSUIT (hence the term "drive-by ADA lawsuits". (BTW, does YOUR EMPLOYER HAVE HANDICAPPED PARKING? With YOUR restrictions, you WOULD be entitled to a Handicapped plackard through DMV, based n your Doctor certifying your condition)....

    So, Lue, if your ER continues to IGNORE the FEHA/ADA laws, then you really need to seriously consider getting and FEHA/ADA attorney involved. Just ONE ANONYMOUS COMPLAINT TO THE EEOC would probably "do the trick", BUT, it in NO WAY EXCUSES the HARM that this situation has caused YOU, both physically and emptionally...humiliation and being treated in a demeaning fashion BECAUSE you have a "perceived inpairment"/disability is EXACTLY what the FEHA/ADA laws PROTECT YOU, OR ANY OTHER DISABLED PERSON FROM.

    KUDOS to YOU, Lue, for doing all the research on your own and posting the 1992 ADA laws. BRAVO, and don't stop THERE! DOCUMENT DOCUMENT DOCUMENT EVERYTHING in a PRIVATE "Daily Journal", dates/times/names of parties, CRAPPY STATEMENTS witnesses, going to the bathroom in the WOODS..this is IMPERATIVE TO DO.

    UNBELIEVABLE. If your Employer DOES send you home as the Union Rep "suggested", I suugest that YOU IMMEDIATELY make a FORMAL COMPLAINT with EEOC, FEHA/ADA AND FILE A LAWSUIT AGAINST YOUR EMPLOYER.
    Last edited by Charles Stevens; 08-27-2007 at 07:51 AM.

  8. #8
    Join Date
    Aug 2007
    Posts
    374

    Default Re: ADA and Workers Comp

    Charles, I so do appreciate your input on this problem. As far as this being an "Undue Hardship" on the company, it will be hard for them to prove since they are in the top 200 companies in the world. They have been here a century, so it's not like all of this is new and they just haven't had time to get it together. I will look into the FEHA/ADA rules. Thank you for tying those two together.
    Outside customers are allowed inside the building. I have seen customers go upstairs to the restrooms.
    I hate having to be so exact. I did tell the doctor to make sure he wrote down about climbing the stairs, and I believe he considered it covered in the "climbing." The lawyer said the "climbing" covers stairs.
    I keep thinking I have seen all the rules that apply. I do appreciate all the input from everyone.

    I have an appointment day after tomorrow to try to get some of this worked out. I will let everyone know what comes out of it.
    Now to work on my notes.
    Lue

  9. #9
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: ADA and Workers Comp

    Lue, even BEFORE you were hurt, your ER's building was MANDATED by ADA to BE COMPLIANT with "accessibilty" provisions. "Undue burden" DOES NOT APPLY and is NOT an "excuse" that ANY BUILDING OWNER CAN MAKE when it comes to this issue.

    Your employer has been in violation of ADA laws since 1992. They MUST have a restroom on the GROUND LEVEL that is wheelchair accessible, etc.

    So, in a sense, you are NOT even ASKING for REASONABLE ACCOMODATION. Do you see the difference here? You are illustrating the fact that they are NOT ADA COMPLIANT, and have not been for YEARS by not having a ground-floor, accessible restroom.

    Your ER is VERY LUCKY that they have not been SUED over this in the past, since they DO allow "the public" into the building (customers)....not to mention the duty to employees. The WORKPLACE MUST BE ADA COMPLIANT regardless if the public or vendors are allowed on the premises.

    The fact that a building owner can not afford the money it takes to be COMPLIANT with ADA law is not an exuse either...where I live, buildings have been FORCED to make the necessary alterations, and they were SHUT DOWN FOR BUSINESS UTILL THEY GOT IT DONE.

    I am going to PM you some info...

  10. #10
    Join Date
    Aug 2007
    Posts
    374

    Default Re: ADA and Workers Comp

    Charles, I am going to do more homework today on this issue. It sounds like you are right on top of what I need. I am going to make a phone call today to see what more I can find from these groups.
    I went to the lawywer yesterday, and it went well. He will definietly help me. He said if I found anything that would be of help to the case, send it on. So, I will continue to dig until I find what I need. You have been great help to me. Thanks!!!!
    Lue

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