# Presentation: 171294

## COURSE  #45

**Understanding the ADA (Regulations and Practices) – How It Impacts Your FECA Program**

## Presented by Normandie PetersonProgram Manager Architect of the CapitolAnd

**Edgard Martinez, Legal Employment Council**
**Architect of the Capitol**

## 4rd Annual Federal Workers’ Compensation Conference“Cooperation, Care andCoordination”

**Normandie Peterson Phone: (202)  226-2544**
**Fax: (202) 226-8880**
**E-Mail Address npeterso@aoc.gov**

**Eddy Martinez**     **Phone: (202) 226-0680**
**E-Mail Address emartine@aoc.gov**

## Objectives

**Secure a better understanding of ADA and how it may relate to the FECA;**
**Differentiate between the two and the policies and procedures for implementing; and**
**Learn how new ADA court decisions may impact your workers compensation programs**

## Discuss 

**“****Disability” as defined under the ADA and under the FECA**
**“****Reasonable accommodation”**
**Difference between the two and how competition may develop  for “vacant positions” within your agency**

## LAWS AND REGULATIONSADA vs FECA

**American with Disability Act (ADA) was a law signed by President Bush July 26, 1990.****	**
**Civil Rights Law for the disabled - passage to Title V of the Rehabilitation Act of 1973****	**

**FECA is a law regulated by 5 U.S.C. 8101 et seq.**
**Law benefits civil employees of the U.S. government and postal workers who suffer work-related injuries and illnesses**

**ADA prohibits discrimination of individuals with disability in employment; public service; public accommodation; transportation and telecommunications. Title 1 discusses employment.**
**Court Decisions, State and Federal law, require conformity**

**To be eligible for FECA meet requirement: **
**injured in performance of duty,**
**meeting reporting requirement and “fact of injury” established**
**provide “prima facie evidence” that disability is related to job **

## (Continued)

- The FECA is non-adversarial system, informal process with formal reconsideration based on administrative Hearing -reviewed by independent  Employees Compensation Appeal Board

**In administering the FECA use:**
**FECA Bulletins which describe new policies and procedures**
**FECA Transmittals which include new revisions and changes to the program**
**FECA Circulars, ECAB Decision, ****CA-810, CA-550 and OWCP QUERY SYSTEM**

## REASONABLE ACCOMODATION

**Serves two purposes**
- 1.  Removes barriers that prevent individuals from performing jobs they are qualified;
- 2.  Enables agencies to expand the pool of qualified workers; and,
- 3.  ADA allows individuals who believe a violation of the Order constitutes violation of Rehabilitation Act and can pursue remedies

## FECAReturn to Work Programs  Pursuant to the Rehabilitation Act  of 1973

**Secure Management support**
**Establish a formal program **
**Develop policy and procedures for successful implementation**
**Determine how the program will be administered and function in agency**
**Designate someone to administer program**

## (Continue)

**Determine if your budget includes FTE’s for program**
**Identify short-term limited duty work assignments vs. permanent positions**
**Create job analysis for each job**
**Utilize medical experts to facilitate program**
**Work closely with OWCP**

## 	ACCEPTANCE OF CASE

**ADA**
-  **Fulfills Definition**-- **Qualified individual with a disability - with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires**

## FECA

**Fulfills Eligibility -- Meet the requirement under FECA that the condition was sustained or aggravated by conditions of employment and provides valid medical documentation to support permanent disability.**

## DISABILITY

**Term under ADA**
**a. a physical or mental impairment that substantially limits one or more of the major life activities of such individuals;**
**b.  a record of such an impairment; or**
**c.  being regarded as having such impairment.**

## (Continued)

**Disability Term under the FECA**
**1.  Based on medical evidence provided by employee’s physician: (a) employee “partially disabled” with temporary limitations; (2) “partially disabled” with permanent limitations; or (3) “permanently totally disabled” with limitations**
**2.  Disability connected with time tables for eligibility and entitlement (COP, loss wages, etc.)**

## ARE FECA AND ADA IN COMPETITION?Interaction between Title 1 of ADA and FECA Law

**Title 1 of the ADA prohibits employers from discriminating against qualified individuals because of disability**
**FECA provides Federal employees prompt and fair disability benefits due to occupational injuries and illnesses.**

## ARE THEY IN COMPETION? 

**NO.  But they can be if you have a permanent position  to offer under the FECA  to a disabled employee and you are not timely in processing your  offer.**

## Understanding the Meaning   of Disability

**Does everyone with a work-related injury have a disability within the meaning of the ADA?**
**No.  An employee with accepted occupational injury/disease who has a “disability” as defined under FECA statues may not have a disability for ADA. (Remember criteria for ADA)**

**2.  Does every person who file a FECA claim have a disability under the ADA?**
**No. A person who has a disability under the “record of” portion of the ADA needs to have a history that meets FECA criteria.**

##   FECA laws are different in purpose from the ADA and utilize different standards for evaluating whether an individual has a “disability” or capable of working.
Example: Person sustains a back injury and may have a “permanent total disability” and may be able to work (perform the essential functions of the position).

**Example: Person sustains a back injury and may have a “permanent total disability” and may be able to work (perform the essential functions of the position).**

**DIFFERENCE**

## (Continued)

**Under the FECA the employer bears  the ultimate responsibility of deciding whether an employee with a disability related occupational injury is ready to return to work.**
**Under the ADA employers are mandated to accommodate if the employee can perform the essential  functions of their position or in a vacant job they are qualified to** perform.

**You are reserving a “limited duty position” for an employee under the FECA  (occupational claim).  An employee makes an ADA request for  consideration, reassignment to that position.  Would you be required to give up that position? **
** ****Yes.  If the employee can perform the essential function with or without a reasonable accommodation and not impose undue hardship.**

## FECA – Elements of a Job Offer

**Description of duties to be performed;**
**Specific physical requirements of the position**
**The organizational and geographical location of the job**
**The date on which the job will be available;**
**The date by which a response to the job offer is required**

## FECA

**Employee refuses but provide OWCP good rationale to continue benefits**
**LWEC --eligible for loss wages**
**Constructed position - when reemployment does not occur despite best efforts.  Wage earning capacity based on evidence.**
**Nature of injury and degree of physical impairment**
**age, qualifications and education**
**availability of suitable employment**

## TOP 5 DISABILITIES CITED IN ADA DISCRIMINAION COMPLAINTS

** ****	****	****	****1.  Back**
**	****	****	****2.  Emotional/psychiatric**
** ****	****	****	****3.  Neurological**
** ****	****	****	****4.  Arms/legs**
** ****	****	****	****5.  Heart/cardiovascular**

## REASONABLE ACCOMMODATION

**Analyze the job to determine its purpose and essential functions.**
**Consult with the individual and experts to determine specific physical or mental abilities and limitations.  Assess how the barrier could be overcome with an accommodation**.
**Examine the alternatives  and consider effects of certain accommodations as well as safety factors.**
**Select the accommodation that best serves the needs of the individual and the employer.**

## Examples of ADA Reasonable Accommodation

**Facility renovation**
**Job structuring**
**Part-time or modified work**
**Reassignment to vacant position (Remember LWEC does not apply in ADA cases where grades are lower)**
**Adjustments (modification, training, etc.)**

## REMEMBER

**EEOC (U.S. Equal Employment Opportunity Commission) -- found at  web site: **
**http://www/eeoc/gov/dpcs/accommodation_procedures_eeoc.html**
**Describes the time frames for requesting and providing accommodation**

## UNDER FECA POST-ADJUDICATION DECISIONS

**Continuing disability**
**Continuing causal relationship**
**Refusing suitable employment, 5 U.S.C. § 8106 (c)**
**Obstruction of vocational rehabilitation, 5 U.S.C. § 8113 (b)**
**Obstruction of medical examination, 5 U.S.C. §  8123 (d)                  **

## (Continued)

**Access to OWCP home page**
**	****(http://www/dol/gov/esa/owcp)**
**Work Hardening and Related Occupational Injury Prevention and Rehabilitation Society (OIPRS)**
**Use of hand trucks, etc. 800-622-1359**
**OSHA, www.osha.gov**
**Job Accommodation Network**
**www.OIDRS.com**
**http://janweb.ICDI.wvu.edu/**

## REMEMBER

**Make your programs win-win situations for everyone.  Plan for success.  Good communication is one of the keys to our program’s success.**
**Thank you very much and have a safe trip back home.**