Introduction
• Any disease, injury, or significant impairment to muscles, bones, joints, and supporting connective (soft) tissues is considered to be a musculoskeletal disorder (MSD). Approximately 33 percent of U.S. adults are affected by musculoskeletal signs or symptoms, including limitation of motion or pain in a joint or extremity which are the leading cause of disability among individuals of working age (18 to 64 years of age). Annual costs of MSDs [Occupational and Safety Health Act (OSHA) standard (proposed Fed Reg #, month, year)] are estimated to be:
• $15-$20 billion in workers compensation costs alone
• $45-$50 billion total when including other expenses
Many people with musculoskeletal disorders are considered individuals with disabilities under the Americans with Disabilities Act (ADA). An individual with a disability is a person who: has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, bending, communicating, and working. Whether a person's impairment substantially limits a major life activity depends on its nature, severity, and its expected permanent or long-term impact. If the impairment is episodic in nature, it may nevertheless be classified as a disability provided that it substantially limits a major life activity when active.
Musculoskeletal disorders vary greatly in severity and degree of permanence. The provisions of the Americans with Disabilities Act of 1990 (ADA) do not apply to every musculoskeletal disorder. The ADA does not cover physical problems that are relatively minimal in nature and severity (e.g., a sprained toe or pulled muscle) or will heal in a short time.
Implications of the ADA for Individuals with Musculoskeletal Disorders
Before the passage of the ADA, some employers attempted to screen out persons with disabilities during the hiring process out of fear that these people represented an undue safety and workers' compensation risk. Employers used pre-placement medical examinations to identify the particular disability the applicant had and then used this information to make a hiring decision. The trouble with this approach was that the candidate had no chance to show the employer whether he could actually perform the job.
The employment provisions of the ADA (Title I) protect all qualified individuals with disabilities from discrimination in all employment decisions. Specifically, employers may not inquire about an applicant's medical history before making a conditional offer of employment. After a job offer is made, an employer may make disability-related inquiries or require medical examinations as long as this policy is applied consistently to all entering employees in a particular job category, is job-related and is consistent with business necessity. All medical information collected is confidential and must be kept in a separate locked file. The employer cannot assume that the applicant is limited in performing the job's essential functions merely because he or she has a disability. If the post-offer inquiry shows that the prospective employee will be unable to perform the job without posing a significant risk of harm to oneself or others, the employer cannot refuse to hire such individual unless it first determines that no reasonable accommodation would reduce or eliminate the risk.
What Is Reasonable Accommodation?
Reasonable accommodation is the critical concept in the employment provisions (Title I) of the ADA. It is any modification or adjustment to a job, employment practice, or work environment that enables a qualified individual with a disability to participate in and enjoy equal employment opportunity. The employer's obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any time a person's disability or job changes. A qualified applicant or employee cannot be denied an employment opportunity because of the need for reasonable accommodation.
In order to determine what accommodations may be necessary, the employer must identify the essential functions of the job. Job functions may be considered essential for several reasons:
1. the position exists so that the function can be performed;
2. a limited number of employees are available among whom the performance of the job function can be distributed; or
3. the function is highly specialized so that the incumbent in the position is hired for her expertise or ability to perform it.
If the employee is otherwise qualified to perform a job but requires a reasonable accommodation to accomplish an essential job function, she cannot be discriminated against in any aspect of the employment process. Employers are not required to hire or retain any individual who poses a direct threat to the health and safety of himself or others, however. Any employer who believes this to be the case bears the burden of proving it and also of showing that no reasonable accommodation can either eliminate that threat or reduce it to an acceptable level.
Employers are also not required to provide any accommodation that would impose an undue burden on their business. The ADA requires that employers consider all sources of outside funding when assessing whether a particular accommodation is too costly. This could include funding from outside organizations, tax credits or tax deductions. Moreover, if the cost of an accommodation would impose an undue burden on the employer, the employer must give the individual with the disability the opportunity to provide his or her own accommodation or to pay that portion of the cost that would otherwise constitute an undue burden for the employer.
What Types of Accommodations Should Be Considered?
Workplace changes for people with musculoskeletal disabilities fall into two general categories: engineering accommodations and administrative accommodations.
Engineering accommodations include changes to the physical work environment and equipment such as:
• Selecting the right tool for a given job. Tools come in many different sizes, shapes and capacities. Tools should be selected that minimize physical stress so that workers don’t have to reach or bend their wrists; the tools don’t produce high pressure on workers’ hands; and the worker does not become fatigued as a result of holding or operating the tool. In addition to selecting the best tool, many accessories are now available to help support the tool and resist reaction forces.
• Providing adjustable workstations (e.g. work tables, keyboard trays, monitor holders and seating). Remember that people differ in size and the way they do things. We do not expect all workers to wear the same size or style shoes and we should not expect them to all use the same size workstation or tools.
• Utilizing lift devices such as lift tables, tilt tables and mechanized lift assists. Lift tables bring items up off the floor and tilt tables reduce the horizontal reach. Both pieces of equipment decrease the amount of forward torso bending to load or unload work objects.
Administrative accommodations include changes in the manner in which work is performed such as:
• Periodic breaks (including micro-breaks, i.e. small recovery periods each work cycle or short breaks each hour). ,p>
• Avoiding incentive systems that discourage breaks. ,p>
• Education by a health care provider for injured workers that explains their condition and how to pace themselves to avoid re-injury. ,p>
• Education by supervisors and engineers for all workers on how to adjust work equipment, what to do if equipment is not working correctly and where to go for medical services.
• Worker rotation. It is important to make sure that workloads on the different jobs vary enough to provide recovery from high work demands.
• Providing sufficient time for new workers to learn and become accustomed to the physical demands of new jobs.
Utilization of these measures will not only make it possible for employers to meet the requirements of the ADA, but will also help prevent future injuries and disabilities and satisfy present and future OSHA requirements.
Maximizing Employee Potential for Success
As with any significant change in the work environment, making job site accommodations for a disabled employee may have implications for effective labor relations. For example, an assembly-line worker with a low-back disability is reintroduced into the workplace following a job-related injury. He is able to return to his job because of modifications to his workstation that decrease the physical demands of the job and help to control his symptoms. Other employees with the same job title or union seniority, however, may want similar changes to their workstations to make their jobs less physically demanding.
The employer may feel this is a no-win situation. Not only does she have to pay for the disabled employee's accommodation, she also has to face the backlash from other workers who consider the accommodations a form of favoritism to which they are not entitled. Employee education about the ADA may be helpful in this situation.
An employer may not disclose that a particular employee has a disability or needs a reasonable accommodation. However, employees who have been informed about the ADA's protections in a general manner will understand that an employer must provide a reasonable accommodation that will enable an employee with a disability to perform the essential functions of his job and thus remain a productive member of the workforce. If accommodations are viewed in this way, there is a distinction between accommodating a disabled worker and making adjustments for able-bodied workers that make their jobs less physically demanding. While an employer may always choose to make ergonomic changes that help to prevent worker injuries, the ADA's requirements only extend to qualified individuals with disabilities.
If the dialogue between labor and management concerning the obligation to accommodate the individual with a disability is handled cooperatively, other employees will come to understand that different people can perform the same job in different ways and that the ADA will also protect them in the event of a future disability. By working closely with labor to ease the assimilation of individuals with disabilities back into the workplace, employers can achieve a result that is beneficial to all involved, and can create an atmosphere which facilitates the resolution of future conflicts. Employers may wish to consult experts in the field of labor relations and the ADA for additional guidance.
Beyond the ADA
Understandably, employers worry about the impact of the ADA on the cost of doing business. In most cases, however, accommodating a worker costs less than disability compensation does. Employers, in fact, have much to gain by investing in ergonomic redesigns for the entire workplace that go beyond the intent of the ADA. It has been estimated, for example, that the proper design of manual handling tasks can reduce the incidence of industrial back disorders by up to one-third.
Matching individuals to jobs, emphasizing employee skills and abilities rather than limitations, and designing work stations and environments that minimize the likelihood of injury will lead to positive outcomes benefiting both employers and employees. In addition, jobs incorporating ergonomic design principles will often have positive impacts on product quality and employee productivity. Joint labor-management ergonomics programs are effective at identifying workplace risk factors and interventions.
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