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