Intersections between Workers Compensation, the ADA, and FMLA

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1 Intersections between Workers Compensation, the ADA, and FMLA When an employee seeks leave from work an employer must decide if, and how ADA, (ADAA), FMLA, and or Workers Compensation laws will apply and or overlap. An employer must also consider the interplay between the federal ADA and FMLA laws as well as state-equivalent statutes. This three dimensional chess game has been called the Bermuda Triangle of Employment Law. This commentary is intended to summarize some of the larger issues that arise under these laws. First, it is important to understand what each law entails, and how they might overlap. Workers Compensation law is a state statutory scheme designed to help an employee respond to the medical and financial needs from an on-the-job injury. Worker s Comp laws among other things, pay for medical bills, time off from work, as well as varying degrees of disability.. The Americans With Disability Act (ADA) became federal law in 1990, and is designed to remove employment discrimination due to a qualifying disability that restricts an applicant or employee from performing the essential functions of the job. The ADA may require reasonable accommodations by an employer in order to enable an eligible individual to perform the essential functions of the job. Among other things, the ADAA expanded the definition of disability, which over the years had been treated more narrowly by the Courts. The Family Medical Leave Act (FMLA) allows an employee time off for a serious medical condition belonging to themselves or to one of their family members. Such a serious medical condition may arise from a work or nonwork related injury or no injury. A serious medical condition may become a disability and trigger the ADA. Together, these laws give employees legal rights to have time off from work due to work-related injury, non-work related injury, disability, or serious personal or family illness. Each set of statutes must be considered carefully alongside the facts of each situation. The statute(s) that provide the most benefits should be especially attended to.

2 A short case study may be helpful as we consider some of the issues under workers compensation, the ADA, and FMLA. Jill, a line worker, has been a longtime employee of Ridgemont, Inc. She calls in three days in a row stating she will not make it to work because she is experiencing back pain and is having trouble moving around. After the third call, Jill goes to see her doctor who orders her off work with bed rest for at least a week. She tells the company on her fourth call that her doctor indicated her back condition may be due to lifting duties and stress she experienced at work. In addition to that, she states that the doctor has ordered three weeks away from work. Jill also happens to be a recreational motor cross participant. The issues evident in this example are: 1. Eligibility: How long has the employee been on the job? In this example, (Jill) has been with the company for a long time. An employee must generally have been employed at least a year under FMLA and worked 1,250 hours. However, unlike FMLA, there is no on-the-job time requirement under the ADA or workers compensation laws. The size of the employer also needs to be considered. Whether an employee or applicant is eligible may vary from 15 employees or more under the ADA to 50 or more employees under the FMLA. Workers compensation laws apply to all employers--regardless of size. State ADA and FMLA equivalent laws may reduce the employer size to cover smaller employers. 2. Qualifying Medical Condition(s): Under the FMLA, the employee or a family member must have a serious medical condition, either mental or physical, which triggers the leave. The ADA covers the employee or applicant, if they have any physical or mental condition that substantially interferes with a major life activity, which also interferes with their ability to perform the essential functions of their job. An employee may be eligible for workers compensation, if it is shown that they were injured within the scope of their employment. Acceptance of the workers compensation claim is not automatic, nor is it guaranteed.

3 In our example, Jill s complaint, in addition to doctor s conclusions triggered, all three of the laws being discussed. She likely has a serious medical condition due to her back, and it may be work-related by virtue of the doctor s report (although not conclusive). There is also the possibility that it interferes with a major life activity like working, which could require her employer to arrange reasonable accommodations. 3. Notice and Medical Documentation: Going on leave: FMLA requires the employee to give the employer a 30-day written notice of any known need for leave (i.e. pregnancy, adoption or a planned surgery). If the need for leave is due to a spontaneous illness or injury, as in our example, notice should be given as soon as practical. The employee may be required to produce a medical certificate that verifies the necessity for FMLA, and the employer, if in doubt, may ask for their own independent assessment. If those assessments are in conflict, the two doctors will identify a third physician whose opinion will be binding. In most jurisdictions, FMLA leave can be required to coincide with a workers compensation injury leave. The employer may also ask for medical documentation that verifies FMLA leave necessity for an employee. If the leave request is for a family member, documentation should confirm the employees need to care for the family member. Best practice is that the employer ask the employee if their time away from work may qualify under FMLA, especially if there has been reasonable evidence that it could apply. In our example, had Jill not advised her employer of her condition, but was just calling in absent four days in a row, her employer may inquire if FMLA was appropriate for her to consider. The employee notice, while preferred to be in writing, need not be. If you require written notice, you are well advised to have a clear policy on the issue and include it in your handbook. Notice under the ADA is triggered whenever an employee or applicant tells the employer of a qualifying disability, and their need for accommodation due to this qualifying disability. The employer also has a duty to ask if they have reason to know if the employee cannot perform the essential functions of the job. Oral notice under the ADA will legally suffice, but again, it is good practice to ask all employees to let the company know in writing. And, for the employer to inquire.

4 Notice of a workers compensation injury or claim also starts with the employee. Employees in most states by law, regulation or policy have a duty to notify the employer of any on-the-job, work-related injury immediately, or within a very short time of the injury. Failure to notify in a timely manner does not disqualify the employee, but it may impact the quality of their claim or its acceptance. The employer is also well-advised to ask an employee whether an injury may have been incurred at work. Especially if there is reasonable evidence of a work related incident. Again, a well-drafted policy included in the employee handbook is recommended. In any litigation, one of the key issues will always be what did the policy require, was the employee aware of the policy and was there compliance. Coming back to work: fitness for duty Under the FMLA, if the employee has been out of work due to a serious medical condition or was out on workers compensation, an employer may require written documentation from the employee s physician validating they are fit to perform the essential duties of their job. An employer may also ask for periodic medical updates every 30 days under FMLA, if the safety of the employee is an issue. If the employee is unable to do their former job after FMLA leave, the employer may need to assess their duties, and whether consideration of reasonable accommodations may be required under the ADA. In our example, the condition appears a bit uncertain, and the employer may need to ask for medical updates. Under the ADA, the same medical documentation is required, but it emphasizes whether the employee can now perform the essential functions of their job, either with or without accommodations. Under any scenario, if the employer has an objective reason to believe the safety of the employee is at risk by putting them back on the job, they generally do not have to allow them to return to work until the employee s capacity and safety questions are resolved. Our example may require an interactive dialogue to assess reasonable accommodations. 4. Sorting Out the Benefits Afforded: Time off: Under the FMLA, an employee is allowed up to 12 weeks of unpaid leave for a serious medical condition. Such a condition requires hospitalization or ongoing care by a healthcare provider.

5 FMLA leave may be taken either in one period or intermittently. While taking FMLA leave, the employee s insurance benefits may continue. However, the employee will have to contribute at whatever level they may have been contributing to receive their health insurance. If the original FMLA leave needs to go beyond the 12 weeks, the employee can try to trigger the ADA, as long as they have an ADA-qualifying disability. An extension of time off (under FMLA or any company policy) may be appropriate under the ADA as a reasonable accommodation. If the FMLA leave expires, and there are no ADA protections, the employee may be terminated. Under the ADA, if an employee is off the job due to a qualifying (non-work related) disability, and there is no medically set time for them to return to work, the employee may also seek FMLA leave. However, that does not mean indefinite leave. Leave under FMLA and or ADA is without pay or benefits, unless it was also work-related and workers compensation is involved. Light-Duty Work and Accommodations The employee, under the ADA, is to return to work once he or she is able to perform the essential functions of their job. The employer must then engage the employee in an interactive dialogue about reasonable accommodations, Under most Workers Compensation statutes the employer can require an employee to return to light-duty or transitional work with a physician s approval. Failure to accept a light-duty job approved by the employee s physician could be grounds to stop time loss wage payments. Generally speaking, light-duty work cannot be required of any employee out on FMLA; however, it can be offered by the employer. Return-to-work regulations, under Workers Comp, may offer job site modification assistance. Under the ADA, the employer may have to go further in evaluating reasonable accommodations. To help ensure the success of any accommodation, the employer must positively engage the manager(s), who will be responsible for enacting and supporting the job accommodation.

6 Under the ADA, an employee who is out of work due to an injury or condition that is not work-related may be asked for a physician s release to return to work. An employee may also be required to come back under a light-duty scenario, if reasonable accommodations are provided to do the essential functions of the job. Best practice in these scenarios is to ensure that the employee s doctor has the light duty job description, so they are aware of the essential functions of the job. Too often the doctor does not have the job description, and relies solely on the employee s description of the work. It s a good idea to think outside of the box, when the ADA requires you to engage in a discussion regarding reasonable accommodations.. Courts have been finding novel forms of reasonable accommodations. They now include more than just creative work site modifications. Solutions like telecommuting (for qualifying jobs), flexible schedules, and policy modifications are just a few that are now being considered acceptable work site modifications. Return to the same job The employee under all of these statutes, assuming they are medically released to do so, has a right to return to the same or similar job in terms of schedule, pay, benefits and geography. The employer would not be obligated to do so under the ADA, if no reasonable accommodations available, which did not impose a financial hardship on the employer. Reassignment, even with lower pay and terms, may be considered a reasonable accommodation, but only if there is no duty that would be similar. Additionally, the worker must be qualified and able to do the essential functions of the assigned job. There is no duty to create a new job. Under the FMLA, there is no duty to reinstate an employee, if the employee cannot perform the duties of the job. However, if an employer had a history of allowing workers back from FMLA or other leaves to take on other positions or responsibilities, they may be held to that practice. Use of accrued paid time off Under all of these laws (FMLA, ADA or Comp), an employee may be allowed to use any accrued leave benefits with pay to augment their lost earnings. Again, employers should have clear, written policies that require or permit an employee to exhaust their available accrued benefits.

7 As a best practice, the EEOC advises that fixed leave policies should be amended to make clear that the leave period can be extended or adjusted as a reasonable accommodation where such an extension or adjustment would not result in undue hardship to the employer. Another best practice for employers is to insure coordination of health information received from employees who are out on medical leave. The health information these managers receive may impact your duties and how the different statutory rights are analyzed and applied. In conclusion, these statutory schemes effect employee leaves due to physical or mental conditions. They are not mutually exclusive and need to be assessed simultaneously. Take time to carefully think through the facts and overlap of the respective issues discussed. Doing so will help you to safely determine the rights and duties within this complex intersection.