August 13, 2005
ADA does not replace need for second injury funds
Question: It's my understanding that second injury funds were introduced to encourage the hiring of workers with pre-existing conditions. When The Americans With Disabilities Act (ADA) was introduced, didn't that eliminate the need for second injury funds?
Answer: No. First, the ADA covers some, but not all employees. Second, the ADA offers penalties for discrimination, but it does not cover all impairments that an employee has and it does not afford employers financial protection once they do hire a disabled worker. Therefore, Second Injury Funds are both an extra measure of protection that reach more employees and a reinsurance program for employers to reduce the financial impact of their decision not to discriminate. Hence, the two statues work well together.
A good analogy might be that of a carrot and stick: in terms of workers with disabilities, second injury funds are the carrots, offering some protection for the hiring employer by spreading the economic risk for workers with prior impairments, while the ADA is the stick in the hiring process.
For more information,see "The Growing Storm: The Role of Second Injury Funds in the Wake of the ADA" by Dorothy Linsner.