Let’s assume that you have an accepted workers’ compensation claim in Nevada, and that your treating doctor has just released you with permanent work restrictions that would ordinarily prevent you from being hired or going back to your regular duties at the job you had when you were injured. The question is whether your employer must take you back and find you work that takes into account that you have these permanent work restrictions.
Under Nevada workers’ compensation law, the answer to that question is: No your employer is not required to modify your old job or find you a new job where you don’t have to do any work that would exceed your permanent work restrictions. Instead, your employer can simply tell your adjuster that they don’t have work within your permanent work restrictions and that the employer will not be making a permanent light duty job offer. When that happens, the adjuster schedules you to meet with a vocational rehabilitation counselor to discuss the two options that are available to you under Nevada workers’ comp law: a retraining program, or a sum of money called a vocational rehabilitation lump sum buy-out. How long a retraining program, or how much money your can get as a buy-out, will depend mostly on what your percentage of impairment is after your rating evaluation.
But what if you really wanted to remain with the same employer and don’t want to be retrained or don’t want to just accept a buy-out and then have to find work on your own? Is there anything you
can do to require that your employer help you find work you can do with the same company? The answer to that question will depend on whether you can use anti-discrimination laws to protect people with disabilities. The legal analysis will mostly be whether your employer must comply with federal Americans with Disabilities Act Amendments Act of 2008.
I don’t practice discrimination law, and would refer anyone who thinks the the ADAAA is applicable to them to an attorney who helps disabled people with those issues, but here a few points to help you determine whether you might qualify for help under the ADAAA:
- Your employer has more than 15 employees in Nevada;
- Your have a "disability" – If you have a PPD award and permanent restrictions you likely fall within the ADAAA definition of "disability;
- You think you can do the essential functions of your old job, but need a few modifications because you now have permanent work restrictions;
- You have asked your employer to put you back to work in your old job with a few accommodations, and your employer refuses to discuss it with you.
Again, I’m not an expert on the ADAAA, but what I glean from the cases that interpret the ADAAA is that both the employee and the employer need to be reasonable when discussing whether it is possible to keep the injured worker employed with this same employer.
An injured worker cannot automatically assume that if the employer had temporary light duty work available, the employer should have permanent light duty work for the injured worker. Temporary light duty work programs are designed to keep an injured worker employed and going to work while they recuperate from a work injury. These temporary jobs are not intended to be permanent jobs.
An excellent disability discrimination attorney in Nevada is J.P. Kemp at Kemp & Kemp. His phone number is (702) 258-1183.
Virginia Hunt, Hunt