Coordinating Workers’ Comp, FMLA & ADA

When an employee is injured at work, employers recognize that they have to comply with workers’ compensation rules. However, many employers don’t realize that in addition to workers’ compensation, other laws, Family & Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) may also come into play.

Workers’ Compensation

An employee injured on the job is generally entitled to payment for medical expenses as well as payment for lost wages when the injury requires them to be absent from work for a prolonged period of time. Additionally, employers are not permitted to retaliate against an individual who has made a workers’ compensation claim.

The key to properly managing a workers’ compensation claim is frequent communication with the employee and the workers’ compensation insurer.

Family & Medical Leave Act

For employers with 50 or more employees, the Family & Medical Leave Act provides eligible employees up to 12 weeks of unpaid leave to care for themselves or a child, spouse or parent who has a serious health condition. It also allows the employee to take job-protected leave when for military qualifying exigencies and to care for a servicemember who is injured in the line of duty.

When an employee is injured on the job, the company should run FMLA concurrently with workers’ compensation leave if the employee is eligible and the injury rises to the level of a serious health condition as defined under the Act.

An eligible employee is one who has worked for the company at least 12 months (not necessarily consecutive months); has worked 1250 hours in the immediate past 12 months; AND works at a location with 50 or more employees within a 75 mile radius.

The Department of Labor (DOL) defines “serious health condition” as:

“An illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).”

One of the most common questions that arises when running FMLA concurrently with workers’ compensation is this:

“We have an employee who will be having surgery for a work-related injury. The employee will be out of work for four to six weeks and our workers’ comp insurance will pay him back to the first day of his injury. We are running his workers’ compensation leave concurrently with Family & Medical Leave Act (FMLA) leave. Our FMLA policy states that an employee must use his or her PTO while on leave. How do we coordinate this with our workers’ comp carrier?”

This is one circumstance where this aspect of an FMLA policy may not be applied. Section 825.207 of the FMLA says that because workers’ comp leave is not unpaid, the provision for substituting paid leave for unpaid leave is not applicable. The rule says that the employer may not require the substitution of paid leave nor may an employee be permitted to substitute paid leave for unpaid in this situation. However, the DOL goes on to say in their rule that if both the employer and employee agree and where state law permits (such as when workers’ comp replacement income is for only two-thirds of employee’s salary), then they may allow employees to substitute paid leave in this situation. Again, both the employee and employer have to agree to this.

The other situation that employers need to be aware of is that under FMLA, an employee has the right to refuse a light duty assignment (that is not equivalent to his regular position) while on workers’ compensation leave that runs concurrently with FMLA. The rules go on to state that if an employee does refuse a light duty assignment, he may lose his workers’ compensation wage-loss benefits but is entitled to remain on FMLA leave until it expires.

Americans with Disabilities Act (ADA)

Companies with 15 or more employees are covered by ADA. This means that you have to consider reasonable accommodations that will enable your employee to return to work. This could include light duty assignments, time off and/or modifications to their existing job to enable them to perform essential job functions.

The Job Accommodation Network (JAN) website provides employers with suggestions on how to reasonably accommodate a myriad of disabilities. For example, if an employee injures his back, it may be considered reasonable for the employer to:

  • Reduce or eliminate physical exertion and workplace stress
  • Schedule periodic rest breaks away from the workstation
  • Allow a flexible work schedule and flexible use of leave time
  • Allow work from home
  • Implement ergonomic workstation design
  • Provide a scooter or other mobility aid if walking cannot be reduced

If it is an undue hardship to provide an accommodation, it is not considered reasonable. Whether or not an accommodation would present an undue hardship to the employer depends on a number of factors including:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation;
  • the number of persons employed at this facility;
  • the effect on expenses and resources of the facility;
  • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
  • the impact of the accommodation on the operation of the facility.

It is expected that employers will evaluate accommodations on a case-by-case basis and will discuss possible accommodations with the employee in order to obtain his or her input.

Coordinating workers’ compensation, FMLA and ADA can be challenging. Employers who have questions about how these laws interact are encouraged to consult with their employment law attorneys or an HR professional well-versed in each of these areas.

Contributed by Christine Crews, SPHR, SHRM-SCP is Vice President of Human Resource Services for the Employers Association Forum, Inc. (EAF). EAF is a non-profit corporate membership-based association dedicated to serving the business and HR communities with world-class HR tools, hotlines & legal compliance, news & trends, surveys & economic data, benefits & insurance, risk management, training & consulting, and leadership & organizational development. SBDC members receive discounted rates on all EAF classroom training at EAF’s training center in Longwood. Click here to learn more about EAF membership benefits

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