Jeffrey A. Spector Assistant General Counsel November 7, FMLA, Workers Compensation, and ADA

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1 Jeffrey A. Spector Assistant General Counsel November 7, 2009 FMLA, Workers Compensation, and ADA

2 LEAVE ENTITLEMENT Workers compensation laws (WCL) are not leave laws; they are benefit laws. Leave entitlement is, however, implicit in the nonretaliation provision of the WCL. An employer may not terminate or otherwise retaliate against an employee because that employee has sustained a work-related compensable injury or illness or claimed WC benefits. Courts have interpreted the nonretaliation provision to prohibit an employer from terminating or denying reinstatement to an employee who requires a leave of absence to recuperate from a work-related injury or illness.

3 CONCURRENTLY RUNNING FMLA AND WCL LEAVES Employee may sustain work-related injury or illness that also qualifies as a serious health condition under the FMLA. Provided proper FMLA notice is given to an eligible employee, FMLA leave and absence due to workrelated injury or illness runs concurrently. Best-practice option: When employee is absent from work for more than three consecutive calendar days due to a work-related injury or illness, and is eligible for FMLA leave, automatically place employee on FMLA leave and notify the employee.

4 LIGHT DUTY Under WCL, employer may require employee on WC leave to return to work to a light duty position. An employee s unreasonable refusal of a light duty position constitutes a voluntary withdrawal from the labor market. A voluntary withdrawal from the labor market may result in reduced or no WC benefits. Under FMLA, however, employee may choose to continue on unpaid FMLA leave either until employee is able to return to same or equivalent position or until the 12-week FMLA leave entitlement is exhausted. Period of time employed in a light duty assignment cannot count against the 12 weeks of FMLA leave.

5 LIGHT DUTY FOR OCCUPATIONALLY INJURED ONLY Employers are permitted to create light duty positions only for employees who suffer workrelated injuries or illnesses. Employer need not create light duty positions for non-occupationally injured employee with a disability as a reasonable accommodation under the ADA. However, employer must provide other forms of accommodation required under the ADA such as: Restructure position by redistributing marginal functions Provide modified scheduling (including part-time work) Reassign employee to equivalent existing vacant position for which employee is qualified

6 MORE ON LIGHT DUTY If employer reserves light duty positions for employees with occupational injuries, ADA requires employer to consider reassigning employee with a nonoccupational disability to such positions as a reasonable accommodation if (1) the employee can perform the essential functions and (2) reassignment would not impose an undue hardship. If employer has only temporary light duty positions, it need not provide a permanent light duty position for an employee with a work-related injury.

7 RETURN TO WORK ISSUES If employee with work-related injury unable to return to work after 12 weeks of FMLA leave, what obligations does an employer have? Under FMLA: no other obligations Under ADA: if employee s serious health condition constitutes a disability under ADA, employer may need to grant additional leave, with job protection to return to same position, as a reasonable accommodation unless doing so would be an undue hardship. Under WCL: no specific additional job protections, but it prohibits retaliation or discrimination because of a claim for WC. Not required to hold job open indefinitely.

8 RETURN TO WORK ISSUES Employee is able to return to work with restrictions. What are employer s obligations? Regardless of whether employee did or did not have work-related illness or injury, evaluate whether employee can perform essential functions of position with or without reasonable accommodation. A return to work with no restrictions policy violates the ADA and state disability laws. Employer cannot refuse to return to work employee simply because it assumes, correctly or incorrectly, that employee poses some increased risk of re-injury and increased workers compensation costs. Must demonstrate that employee poses a direct threat to himself or others.

9 TERMINATIONS Employer cannot terminate employee because employee is on leave. Employer can terminate employee for legitimate business reasons, such as: corporate restructuring impacting upon more than the position of the employee on leave (if possible) Employee misconduct, such as theft discovered while employee on leave; employee s fraud in application for WC benefits Under WCL, employer not required to hold open an employee s position indefinitely. The nonretaliation provision is not a job security provision. But, it is difficult to say with certainty after how long a period of time an employer may terminate an employee whose absence is due to a work-related injury.

10 RESOURCES U.S. Department of Labor EEOC Enforcement Guidance: Workers Compensation and the ADA (Sep. 3, 1996) (on