Chronic pain is a significant, costly health problem in America that impacts the workplace. An employee with chronic pain suffers from a persistent condition that can last for weeks, months or even years. Its causes and treatments are numerous. Depression is also often associated with chronic pain and may need to be treated as a separate, but related, condition.
While the diagnoses and care of workers with chronic pain are best left to the medical profession, how should healthcare employers manage employees with chronic pain in the workplace?
The answer largely comes from the federal Americans with Disabilities Act (ADA), as well as the New York State and City Human Rights laws (the Disability Laws), and the federal Family and Medical Leave Act (FMLA).
Generally, under the Disability Laws, a person has a disability if he or she has a physical or mental impairment (and under the ADA, only that impairment has to substantially limit one or more major life activities), a record of such impairment, or is regarded as having an impairment. If the employee’s condition rises to the level of a protected disability — and there is a better chance it would under the state and city laws — the employee is both protected from discrimination on the basis of the disability and entitled to a reasonable accommodation that would enable the employee to perform essential job functions.
Based on the limitations employees are experiencing as a result of chronic pain, some disabled employees will need accommodations to perform their jobs, and some may need more accommodations than others. The employer is obligated to engage in what is known as the interactive process with the worker to identify an appropriate accommodation, which does not have to be the one the worker has requested. That discussion might include identifying what limitations the employee is experiencing, how those limitations affect the worker’s ability to perform certain tasks and overall job performance. Then the employer should seek to identify what accommodations are available to reduce or eliminate these problems. Once an accommodation has been identified and implemented, it is recommended that the employer periodically meet with the employee to evaluate the effectiveness of the accommodation and determine if additional or different accommodations are needed.
Just as there are numerous types of chronic pain and various limitations the pain can have on an employee, there is also no limit to the types of accommodations that can be considered. For example, accommodations can include an ergonomic chair or workstation, handicap parking, a workstation located closer to restrooms, longer breaks, and carts and lifting aids. Of course, a company is not required to provide any accommodation if to do so would cause it undue hardship.
Time off for medical treatment, a flexible work schedule and flexible leave might also be appropriate accommodations. In addition, if the worker is protected by the FMLA and the worker’s health condition meets the definition of a chronic serious health condition, the employer would have to grant up to 12 weeks of job-protected leave annually and may have to do so on an intermittent or reduced schedule basis — even if doing so would cause an undue hardship.
So, what is the employment lawyer’s prescription when chronic pain impacts a worker’s ability to perform the job? An employer should appropriately ascertain whether the employee has a protected disability, and if so, whether there is a reasonable accommodation that would enable the employee to perform essential job tasks. Also, if covered by the FMLA, the worker may be entitled to job-protected leave. As always, perform a thorough and careful analysis with the assistance of an employment attorney before responding to such a request.
Steven M. Berlin is a Partner and is head of Martin Clearwater & Bell LLP’s Employment and Labor Law Practice Group. For more information, visit www.mcblaw.com.