The Workers' Compensation system, which provides for compensation to an employee for a work related injury, was born out of a philosophy that industry is responsible for the costs of injuries to its workers. In the early 1900's, the individual states and federal government, faced with the moral and economic implications of injured workers, enacted various laws to address the issue. By 1948, all states in the union had workers compensation laws. Today, state workers compensation laws, although varied, generally provide for medical benefits and partial compensation for loss of wages to workers who suffer an injury or accident that arises out of or in the course of employment.

Workers' compensation is a compromise legislation and is intended to be a worker's exclusive remedy, providing an employee with benefits in exchange for an employer's immunity from claims of negligence or civil wrong-doing. In other words, under the various states' laws, workers cannot, generally, pursue any other remedy within the courts. However, although the workers' compensation system may have been intended to be an exclusive remedy for workplace accidents and injuries, both the Americans with Disabilities Act of 1990 (ADA), and the Family Medical Leave Act of 1993 (FMLA) erode the exclusive remedy doctrine. These laws extend additional rights to workers, permitting them to directly pursue actions against their employers for violations of these laws. State laws may provide even broader benefits.

The ADA addresses workplace discrimination between non-disabled and the disabled, and is intended to prohibit hiring decisions and decisions to retain employees based on fear, prejudice and stereotypes. To accomplish this, the ADA requires employers to make reasonable accommodations for the physical or mental limitations of injured workers and otherwise qualified applicants, and prohibits any employment decision based on unsubstantiated fear of future injuries or the perceived risk of future workers' compensation claims. The ADA applies to private employers with 15 or more employees, and generally protects individuals with disabilities that limit one or more major life activities such as performing manual tasks, learning, working or caring for oneself.

Prior to the ADA, an employer could seek information about prior workers' compensation claims and injuries or diseases, selecting to exclude those who seemed to or actually had any form of disability. With the advent of the ADA, not only are inquiries into an applicant's medical history not permitted until a conditional offer of employment is extended, but once extended, post conditional job offer questions cannot unfairly discriminate against those with disabilities.

Once a worker is injured, a decision to not return a worker to his or her prior job, or make reasonable accommodations, can give rise to a cause of action under the ADA. Reasonable accommodations can include job restructuring and part-time or modified work schedules and duties. Any policy that refuses to allow an injured worker to return to work, or be reassigned to a vacant position, without regard to a case-by-case assessment of the individual's ability to perform essential job functions with accommodations, or without, is a violation of the ADA.

Medical examinations are permitted under the ADA as long as they are shown to be job-related and of business necessity. These exams can be performed on a job applicant, after a conditional hire, and following an injury or accident.

It is not expected that the price of or practical application of accommodations cause an undue hardship to the employer, but it is expected that a worker, who is injured on the job, be returned to work, with reasonable accommodations, if necessary. Accommodations should not be imposed on an individual with a disability that is neither requested by the individual nor needed.

The FMLA has extended an employee's rights to leave following a workplace injury or accident. On a restricted basis, the FMLA provides for intermittent leaves of absence for serious health conditions. Although the act is limited to private employers with 50 or more employees, and further restricts the leave to 12 weeks within a 12 month period, it does impose a burden on employers to consider an employee's request for time off, even after a workers' compensation claim is largely resolved, and the employee released to return to work by the workers' compensation carrier. Medical reports can sometimes resolve the conflict between medical practitioners who clear an employee to return to work versus those who don't, but while disputes are ongoing, an employer should consider allowing the additional leave.

Decisions to terminate an employee while on leave, which is permitted for legal reasons, is precarious due to the ADA's stated obligation to return an employee to work, if that employee is able to work with reasonable accommodation. Termination while on leave also may be seen as retaliation, and is clearly illegal under workers' compensation law and the federal laws. The question that arises, often, is how much time an employer must provide for convalescence prior to termination of the employee or the determination as to whether an employee can be reasonably accommodated in their usual job or with job reassignment.

Federal laws impose additional burdens on employers, and require that workplace injuries be managed, and accommodations, including reassignment and additional leave, be seriously considered. Gone are the days when an injured worker can simply be terminated.