HR News September 2021 Feature Article: Know What to Do When the ADA, the FMLA and Workers’ Compensation Intersect

Navigating the Americans with Disabilities Act, the Family and Medical Leave Act, and workers’ compensation individually is challenging. Staying in regulatory compliance and achieving the best results for the organization and the employee when two or more of the laws applies can seem impossible. Certainly, organizations commonly make mistakes at the intersections.

First, Understand How Each Law Protects Employees

Managers and benefits administrators must always keep in mind that

  • The American with Disabilities Act (ADA) prohibits discrimination against an employee who, in the language of the act, is a “qualified individual with a disability”;
  • The Family and Medical Leave Act (FMLA) provides unpaid job-protected leave to employees who need time off to care for themselves or a family member; and
  • Workers’ compensation (WC) provides insurance coverage for employees who suffer work-related injuries or develop occupational illnesses. The compensation is paid by covering the costs of medical care and, many times, by replacing lost wages.

The ADA is administered by the Equal Employment Opportunity Commission. The U.S. Department of Labor administers the FMLA, and WC is overseen by a Workers’ Compensation Commission in each state and the District of Columbia. State laws may also provide protections that go beyond those in the ADA and FMLA.

Watch for Six Points of Intersection

Regulations for implementing the ADA, the FMLA and WC differ in significant ways. Managers and benefits administrators must ensure they know the rules so employees can access their legal protections and the organization remains in compliance.

Requiring Medical Documentation

In all cases, an organization should ensure that medical inquiries are job-related and restricted to business necessity. For the purposes of approving or denying FMLA leave, these basic guidelines limit an employer to requiring an employee to providing only enough information to document a health condition or medical care. For a WC claim, however, an employer is allowed to require a detailed injury report and progress updates. The documentation of ongoing medical treatment while a WC claim remains open can also be required for granting FMLA leave.

Approving Leave

The FMLA makes unpaid leave available to eligible employees. An employee can use that leave in a block or intermittently.

An employer can also grant additional unpaid leave beyond what is required under the FMLA as an accommodation for a disability under the ADA. The consideration in such a case is that granting the additional leave must be reasonable from the perspective of the employer. For example, allowing an employee to take leave for an indefinite period and without setting an end date may not be reasonable.

WC rules for requesting and approving leave vary by state and by policies developed by employers. In all cases, an employee who becomes unable to work due to a work-related injury or illness should be notified of their FMLA rights. WC benefits and FMLA leave can run concurrently. When this happens, receiving replacement wages ensures that the employee continues getting paid a percentage of their usual weekly earnings even though they are taking unpaid leave.

Continuance of Employee Benefits

Ensure the organization has clear policies on whether health insurance coverage will continue. An employee who takes FMLA leave remains enrolled in their employer-sponsored health insurance plan under the same terms as if he or she was continuing to report to work. The same is generally true when extended leave is granted as an ADA accommodation. And when it comes to offering or continuing insurance, it is essential for organizational leaders to stay mindful that those with a disability cannot be subject to discriminatory practices.

WC rules do not require benefits continuation since medical expenses are covered. However, an employee with an open WC claim who is also taking FMLA leave must remain enrolled in their employer-sponsored health plan. In practical terms, approving FMLA leave for an employee who is out with a WC claim provides greater protection for the employee.

Assigning Temporary Modified Duty

This should always be presented as a possible accommodation under the ADA, but an employer cannot require an employee to accept modified duty in lieu of taking available FMLA leave. Similarly, accepting modified duty or taking available FMLA leave is an option for an employee who is receiving WC benefits. The employer must inform the employee how going on modified duty could affect WC wage replacement payments. In all cases, the duration of temporary modified duty must be specified, and which activities are permitted and restricted must be listed.

Certifying Fitness to Return or Fitness for Duty

An employee who receives WC benefits usually must provide a note from their doctor certifying that they are healthy enough to resume all previous job duties before they return to working without restrictions. Whether to require proof of fitness to return to work after taking extended leave as a disability accommodation should be decided on a case-by-case basis. In both situations, the determination of fitness should only relate to whether the injury or condition that necessitated leave will continue to limit the employee’s ability to perform all their job duties without restrictions.

Employers must be cautious, however, of adopting a policy requiring employees to show they are 100 percent healed. A better approach is to engage in an interactive process for identifying a reasonable accommodation under the ADA. When an employer takes this approach, it should notify each employee who receives WC benefits or takes FMLA leave that discussing disability accommodations may be required when setting a return-to-work date and plan.

Scheduling Reinstatement and Return to Work

Employees who take extended leave as an accommodation under the ADA should be returned to their previous role unless doing so would cause undue hardship for the employer. That reinstatement can be made with reasonable accommodations involving equipment, scheduling and assistance identified by engaging in the interactive process.

FMLA regulations require employers to return employees to the same position or an equivalent one. This law, unlike the ADA, recognizes no undue hardships for employers when it comes to reinstatement.

Last, WC rules in most states do not require employers to hold injured or ill employees’ positions open for return and reinstatement. This does not, however, give employers free rein to terminate employees who miss work for extended periods while receiving WC benefits.

Firing an injured or ill employee without doing something such as considering whether ADA protections apply and engaging in the interactive process could expose an employer to a retaliation lawsuit. Reassignment is a possible accommodation for an employee returning after receiving WC benefits. An employer should not consider termination unless all other options are exhausted and sufficient documentation exists to show that the decision was not made for retaliatory reasons.

Follow Best Practices

Successfully applying and complying with each law helps the organization in several ways, including reducing turnover, increasing productivity, boosting morale, lowering operational costs, and decreasing the potential for lawsuits and associated fees. Managers and benefits administrators who wish to see these positive effects at their own organization must ensure that each process has formal guidelines that are followed consistently for all employees.

It is necessary to develop tools and define triggers so each staff member who is involved in running ADA, FMLA and WC programs has the proper understanding, adequate resources and clearly spelled-out methods to handle a case and communicate with the employee involved. Regardless of why an employee is sick, injured or otherwise unable to work, all efforts should be made to make sure each option is explained and reasonable accommodations are considered.

Always assess which law or laws apply to each case. Start with the one that provides the greatest level of protection. The ADA may not be the best option, but consider it when

  • The employee is not eligible for FMLA leave or has used up all of their available unpaid leave;
  • The employee can only return from FMLA leave or following an injury or illness that qualified them for WC benefits with restrictions; or
  • A reasonable accommodation can be made to allow the employee to return to their same position.

Some common and low-cost accommodations for a disability are modified duty, telework/work from home, modified schedule, ergonomic equipment and reassignment.

In all cases, avoid policies that require an employee to be 100 percent healed before they are allowed to return to work. Also, maintain accurate and up-to-date job descriptions to provide to doctors when additional medical information concerning fitness for duty is requested.

Communicating regularly with the employee and confirming all information is received and understood is imperative. This is necessary because, often, an employee will not know how the ADA, FMLA and WC operate and what they need to do to access available protections.

Last, document each step of every case and maintain consistency in decision-making. Operating at the intersections of the ADA, the FMLA and WC is challenging. Following a systematic process and consulting with legal counsel when in doubt will significantly improve processes, ensure equity and promote legal compliance. At the same time, the employee will feel fairly treated and see that the organization values them and will act in their best interest.

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