Managing the Interplay Between the ADA, FMLA and WC

The following description may seem quite familiar to those who deal with employee issues on a daily basis. Your employee, who has a physically demanding job on the factory floor, has been out on leave for an injury that he contends is work-related. However, your worker’s compensation insurance carrier has recently denied coverage. Additionally, the employee also has used FMLA intermittently to care for the serious health condition of his spouse before going out on his current leave. And the employee would like to come back to work but his medical condition prevents him from regularly lifting more than 20 lbs., an essential function of the position. In the meantime, the supervisor is complaining and wants an employee who can do the job right now. What are your next steps?

This complicated scenario implicates at least three laws: the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and worker’s compensation (WC).  The above scenario requires you to successfully navigate any decision regarding this employee through all three laws. An employer who fails to consider all three could face costly litigation. Here are some key points to guide the process:

Analyze and evaluate the employee’s circumstances under each law separately. In order to do so successfully, you need to understand the purpose and the applicability of each law.

• The ADA is designed to make the workplace more accessible and prohibits discrimination against a qualified individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. The ADA applies to an employer with at least 15 employees.
• The FMLA is designed to help employees balance their work and family responsibilities by offering unpaid leave and applies to an employer with at least 50 employees working within 75 miles of the employee’s worksite. The employee must have worked for the employer for at least 12 months and 1,250 hours to be FMLA-eligible.
• WC is designed to provide reimbursement for medical care and lost wages to employees who sustain work-related injuries or illnesses. WC applies to essentially every employee and is typically a state-administered program.
• Employers must also be aware of other state laws or their own company policies, which may offer more protections and/or greater benefits to eligible employees.

Understand what each law requires. Consider leave rights, reinstatement rights, medical documentation, fitness to return to work certification, and benefits while on leave under each law. For example:

• Leave rights: The ADA does not require employers to provide a specific amount of leave However, it does require that employers make “reasonable accommodations” for employees with disabilities unless doing so would create an undue hardship on the company. The FMLA provides an employee with up to 12 weeks of unpaid leave for an employee’s own or a family member’s serious health condition, for the birth or adoption of a child, and for military exigencies. The law also provides for 26 weeks for military caregiver leave. WC laws typically do not provide a specific limit for leave.
• Reinstatement: Under the ADA, the employee should be reinstated to his or her previous job unless doing so would create an undue hardship on the company. Under the FMLA, the employee is required to be reinstated to the same or an equivalent job. There is no undue hardship exception. Under WC, there are no reinstatement rights under most state laws except for a retaliatory discharge. The Equal Employment Opportunity Commission (EEOC) has issued guidance that discusses how the ADA addresses various leave issues, including enforcement guidance on WC and the ADA, as well as reasonable accommodation and undue hardship.
• Medical documentation: Under the ADA, medical examinations should be limited to determining an employee’s ability to perform the job and whether an accommodation is needed and would be effective. Under the FMLA, a medical certification should demonstrate the need for leave but not exceed what is requested by the Department of Labor’s medical certification form. Under WC, medical information should demonstrate the employee’s on-the-job injury.

Apply the law that provides the most benefits to the employee. Here are some considerations for the above scenario:

• Are you comfortable with the insurer’s reasons for denying the WC claim? WC claims can be denied for many reasons, including that the claim was not reported or filed on time or the injury did not happen at work. Do you anticipate an appeal?
• Has the employee exhausted his FMLA? If the employee has used up his FMLA (and the employer should run FMLA leave concurrently with an absence due to WC), WC does not provide him with job protection.
• Is the employee’s condition temporary? Temporary conditions may entitle an employee to leave under the FMLA but not be considered a disability under the ADA. The employee, however, may be entitled to more leave time under the ADA if his injury qualifies as a disability.
• If the employee qualifies as an individual with a disability, is there an accommodation that would allow the employee to perform the position? Would additional leave time – even if the employee has exhausted FMLA entitlement – allow the employee to return to full duty? We have recently written on the Seventh Circuit’s decision on extended leave, which is contrary to the EEOC’s position.

Throughout the process, encourage open communication between the employee and employer, rely on complete and sufficient medical documentation, maintain consistency in decision-making, and document the process. Although the interplay of the ADA, FMLA and WC can be challenging, conducting the analysis in a systematic and thoughtful way – along with consulting employment counsel to help you address complicated circumstances – helps to manage the process and lead to a decision that is legally compliant with all three.