Voc Rehab, ADA, and FEHA - How it Fits Together

Saturday, June 18, 2005 | 0

A long story short: An employee was placed directly into a vocational rehabilitation plan without the employer having the opportunity to respond to an RU-94 or have the Americans with Disabilities Act (ADA) "conversation" with the employee. The employee is still in the plan, however the ADA "conversation" needs to be had. If as a result of the ADA "conversation," the employer needs to offer the employee a position, what about rehab? If the employee did accept an offer of a position, could plan just be terminated?

This is an excellent case study that shows employers, workers' compensation professionals and employment/labor practitioners exactly where the parallel universes of workers comp and FEHA/ADA collide.

Assuming that this Injured Worker is in fact a QID (Qualified Individual with a Disability) and protected under the California Fair Employment and Housing Act (FEHA), (we won't worry about the federal ADA here) the employer is obligated to engage this employee in an interactive discussion (as you say, ADA "conversation") regardless of what is happening in the realm of workers' comp. It would have been much better for the employer had they done that a long time ago, since if they can indeed accommodate the employee, vocational rehabilitation would not have been required.

Even though vocational rehabilitation is now in process, the employer should still proceed with that discussion with the employee and search for reasonable accommodations.

If they find a means to bring the employee back to work, then yes, vocational rehabilitation maintenance allowance (VRMA) stops.

What should then occur is preparation of a plan, RU-102, on the return to work (RTW) with same employer. The Qualified Rehabilitation Representative would either check box 1 -modified; or box 2-alternate; and describe the job, wages, accommodations etc. on the plan.

It is also recommended that the employer keep copious notes of the meeting and agreements with employee for themselves, since the Plan is a work comp issue and the reasonable accommodation is an employer/employee issue.

If the employer determines that they cannot provide a reasonable accommodation that allows the employee to return to work either to the same job, modified, or an alternative job within the company, of course the employee continues in his vocational rehabilitation program. VRMA should continue while this process takes place.

Furthermore, communication and documentation should occur between the employer and employee as this is an employment issue that may affect work comp, not the other way around. The employment determination letter, i.e., a letter advising the employee whether or not employer can provide a reasonable accommodation should emanate from the employer.

The workers' compensation policy does not cover matters of employment nor defend against losses stemming from employment suits. Employers are more exposed than ever to risk of civil litigation from FEHA-ADA suits, especially since the demise of vocational rehabilitation. Employers must be proactive by developing and implementing RTW programs which include the interactive process with their employees who have work restrictions whether occupational or non-occupational.

Once the 30 days/RU-94 period has passed and the case is in voc rehab, any job offered has to pass the "suitable gainful employment" sniff test, which is a higher threshold than the RU-94 requirements (lasting one year, 85% of salary, etc).

If you find an appropriate job during the interactive process, offer it. If the employee accepts, have the counselor write up the plan around that job, get it approved by the Rehab Unit and file for termination.

If the employee rejects the job, it would still be advisable to have the counselor to evaluate it. The preference in vocational rehabilitation has always been to return the employee to work with the same employer when possible, unless the employee or counselor has a compelling reason why the job is not "suitable".

Of course, then you get a disgruntled EE and everything that goes along with that.

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