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Sheri McMahon, Published August 01 2010

WSI faces Title II of the ADA

According to Forum reports, North Dakota Workforce Safety and Insurance says it does not cover claims that do not involve physical injury. This is apparently provided for in state law.

Well, WSI is a public agency. It is subject to Title II of the Americans with Disabilities Act, a federal law that supersedes conflicting state law. The U.S. Supreme Court determined in a 1999 case (Olmstead) that mental illness is a form of disability. Even though a work-related injury may or may not be permanent, it would seem WSI cannot discriminate between types of injury covered.

On the other hand, if a mental injury such as PTSD, is not covered by WSI, then it would seem the plaintiff has an unrestricted right to sue the employer. One of the core purposes of workers’ comp programs is to protect employers from lawsuits brought by injured employees (and you thought it’s about protecting workers!). If the employee cannot be compensated through WSI, then the employee should go for it through civil action. Since WSI limits on compensation would not apply, and since the last thing a bank would want would be exposure to mental injury lawsuits by employees, you can be sure that the bank’s attorneys would figure out and persuade the court that WSI cannot exclude mental injury.

It’s worth commenting that state and local government entities in North Dakota tend to be extremely lax regarding a specific ADA provision. This provision states that public entities (e.g., agencies) must provide public notice of nondiscrimination under Title II, along with information about how to file a complaint. A few agencies that receive federal funds (DHS, Ag) do post these notices, since the federal funding programs explicitly require them to do so. Agencies that do not receive federal funds don’t bother, but they are still subject to the requirement.