The Occupational Safety and Health Administration (OSHA) was created under the Occupational Safety and Health (OSH) Act of 1970 to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” OSHA’s safety and health standards—coupled with the efforts of employers, workers, safety and health professionals, unions and other worker advocates—have prevented countless work-related injuries, illnesses and deaths. The agency, which is part of the U.S. Department of Labor (DOL), is also charged with enforcing a variety of whistleblower statutes and regulations.
Certain OSHA requirements intersect with employer obligations under the Americans with Disabilities Act (ADA). Each instance should be considered on a case-by-case basis given the individual circumstance of the employee, as well as the physical environment and working conditions at the place of employment. The following examples illustrate the manner in which safety and non-discrimination requirements can overlap.
Pre-Employment Screenings
Some OSHA required tests could result in the discovery of a previously undisclosed disability, or to a claim of discrimination from people who feel they were excluded from employment opportunities based on a disability. The ADA places restrictions on the types and timing of testing allowed, which should be taken into account when engaging in required OSHA testing. Under the ADA:
- Pre-employment medical testing is prohibited.
- Post-offer testing is permissible if the test is consistent with business necessity, and given to all employees in the same job category.
- Periodic testing of employees is also permissible, when necessary to ensure the safety and wellbeing of employees or the general public.
Working Environment, OSHA Requirements and Disability
Since 1970, efforts by OHSA to enforce standards of workplace safety have greatly reduced the incidence of workplace injury and mortality rates. When known occupational hazards exist, OSHA may require routine health screening or assessments to monitor the ongoing impact of such environments on employees. For example, an employee exposed to blood-borne pathogens might receive testing to determine whether or not transmission of an infectious disease has occurred. Similarly, workers in danger of occupational hearing loss are given routine exams to monitor their auditory health over time. Establishing a baseline for audiometric tests could reveal existing non-occupational hearing losses, as well as newly developed ones. In each of these examples, the employer could discover conditions that afford employees’:
- Rights under the OSH Act.
- Protection under the ADA.
- Entitlements under state specific workers’ compensation laws.
Issues of Confidentiality
In general, the confidentiality requirements of the ADA are not compromised by employer compliance with OSHA regulations. The ADA contains a provision whereby employers are permitted to release confidential information in the process of complying with other federal laws or regulations, as long as the release is relevant to employment. In its enforcement activities, OSHA adheres to a strict standard of confidentiality, which generally meets the standards required by the ADA.
Physical and Environmental Safety
The physical environment of the workplace can pose access challenges and safety hazards to people with and without disabilities. These environments should be considered based on their potential to pose barriers for people with disabilities, and their potential to create hazards which might cause illness or injury.
Physical Access Barriers
Certain access barriers, such as inaccessible multi-level buildings and narrow doorways, can be obvious. Other types of access barriers are less obvious, and can be hazardous for employees with and without disabilities. Dimly lit stairwells, narrow walking pathways, and poorly maintained parking lots can all present mobility barriers or trip and fall hazards. Industrial environments, construction sites, and other trade worksites are common places where workplace injuries can occur. Evaluating these environments with an eye toward physical accessibility will create safer work places for all employees.
Certified Occupational Therapists are experts at evaluating work places for safety, accessibility, and reduction of repetitive use injuries. Visit the website of the American Occupational Therapy Association to learn more.
Environmental Sensitivities
Employees who experience sensitivity to certain odors, particulates, cleaning products, foods or other irritants present in the workplace can experience symptoms ranging from mild nausea to sudden death. These types of allergies and sensitivities can be considered disabilities under the ADA, but are sometimes challenging to accommodate. The Job Accommodation Network (JAN) provides assistance and recommendations for accommodating environmental sensitivities in the workplace.
Workplace Emergency Plans
Comprehensive emergency and evacuation plans should include strategies for including individuals with disabilities in the event of a crisis or disaster, which often includes a way to evacuate buildings if the elevators are not available. Although OSHA and the Federal Emergency Management Administration (FEMA) provide general guidelines for developing emergency plans, DOL’s Office of Disability Employment Policy (ODEP) provides specific information for employers on considering the needs of employees with disabilities in an emergency.
Direct Threat
Qualified individuals with disabilities who are capable of performing the essential functions of a position, with or without an accommodation, can rarely be considered a direct threat to their own or others’ safety at work. While the ADA does allow businesses to consider whether or not an employee represents a safety risk to themselves or others, the determination must be made based on facts and medical evidence, rather than myths or misconceptions about people with disabilities. However, the ADA does permit employers to establish physical qualifications for a position in order to eliminate a potential safety threat; for example, good (or satisfactorily corrected) eyesight prior to motor vehicle operation. Medical examinations given to establish physical qualifications must be administered post-offer and must be given to all employees in the same job category, unless conducted in response to an accommodation request, to establish ongoing qualification for a specific position or; when a safety concern is job-related and consistent with business necessity.
Occupational Injury and the ADA
Injuries and illness that arise from occupations may rise to the level of an ADA covered disability.
Employer obligation under the ADA
When an employee develops a work-related injury or disability, the employer may have multiple obligations under the law. In order to comply with safety regulations, an employer might need to remove the employee from their position, or reassign them to a different task. The ADA, however, requires that employers consider whether the employee is still qualified for the position with or without an accommodation. Therefore, an employer might be obligated to accommodate the employee in their current position before considering reassignment or termination.
The ADA Amendments Act of 2008 expanded the definition of disability, increasing the likelihood that common workplace injuries such as those acquired by lifting or repetitive motion will meet the legal definition of disability under Title I.
Workers’ Compensation and the ADA
When an employee is injured on the job, the employer may have specific requirements related to the ADA, the Occupational Safety and Health Act, and state-specific workers’ compensation laws. As each state has its own laws related to workers’ compensation for occupational illness and injury, employers should contact their state Department of Labor for guidance.