Interplay between the FMLA, ADA, and Workers

1
Interplay between the FMLA, ADA, and Workers
Compensation

• Thomas Jovanovich Lori Athmann
• tjovanovich_at_rajhan.com lathmann_at_rajhan.com

2
GENERAL CONSIDERATIONS IN APPLYING ADA, FMLA AND
WORKERS COMPENSATION ISSUES

• Areas overlap and conflict.
• Solution Analyze the employees health issues
  under each area of the law.

3
EMPLOYER CONSIDERATIONS

• FMLA
• Qualifying serious health condition?
• If so, maximum total of 12 weeks leave.
• ADA
• Qualifying disability?
• If so, possible accommodation, including leave.
• Workers Compensation
• Injury during the course and scope of employment?
• If so, workers compensation-related benefits and
  leave.

4
FMLA LEAVE QUALIFICATIONS

• Applies to
• Employers with 50 or more full-time employees
• public agencies
• public schools
• FMLA does not cover part-time or seasonal
  employees with fewer than 1,250 hours per year.
• Eligible employees entitled to 12 weeks of unpaid
  leave during 12-month period.
• Employee must have serious health condition
• 1) In-patient care
• 2) Continuing treatment by healthcare provider
• Other qualifying conditions
• maternity leave.
• leave to care for a close relative with serious
  health condition.

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REQUIREMENTS FOR FMLA LEAVE

• Must notify employee for leave to count as FMLA
  leave.
• Notice of fitness for duty certification.
• Leave may be taken in blocks or as intermittent
  or reduced leave.
• Temporary transfer for intermittent leave.

6
FMLA END-OF-LEAVE CONSIDERATIONS

• Return to the same job or to an equivalent
  position.
• Fitness for duty certification.
• At end of leave, determine whether employee has
  ADA disability.
• If employee is not protected by ADA, an employer
  has no additional leave obligations.

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ADA REQUIREMENTS

• Prohibits discrimination against employees who
  are qualified individuals with a disability.
• Employers with 15 or more employees must comply
  with the ADA.
• Minnesota law one or more employees.
• Employers must provide reasonable accommodations
  that permit the employee to continue work.

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ADA DISABILITY

• Disability
• A physical or mental impairment that
  substantially limits one or more major life
  activities, or
• A record of having such an impairment, or
• Being regarded as having such an impairment.
• Impairment
• Must be permanent or long-term.
• Must prevent or severely restrict the individual
  from doing activities that are of central
  importance to most peoples daily life.
• Major life activities include walking, seeing,
  hearing, speaking, and breathing.

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PRACTICE TIPS FOR FMLA AND ADA ISSUES

• After FMLA leave, consider whether employee has
  ADA-qualified disability.
• Dont assume a disability is a disability under
  ADA.
• Most ADA disabilities qualify as a serious health
  condition under FMLA.
• Not all serious health conditions under FMLA will
  qualify as an ADA disability.
• Be cautious about reaching the conclusion that a
  medical condition is an ADA disability.

10
WORKERS COMPENSATION

• WC provides for payment of compensation and
  rehabilitation for workers injured on the job.
• Provides quick and certain benefits to employees
  who suffer work-related injuries.
• Employers are insulated from tort liability.
• Protects loss of earning capacity.

11
Can employers require medical certification under
ADA and FMLA?

• YES
• ADA
• if inquiry is job-related and consistent with
  business necessity
• FMLA
• If relates to serious health condition and need
  for leave
• Limited to the serious health condition causing
  need for leave

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How much total leave do employers have to give?

• FMLA requires
• Up to 12 weeks in any 12-month period
• But remember ADA may require additional leave as
  a reasonable accommodation
• ADA
• No time limit (cannot be indefinite)

13
Do employers have to continue to pay for health
insurance during leave?

• FMLA
• Same health benefits as that provided had
  employee actually worked
• ADA
• Same benefits as nondisabled employee on leave
• WC
• Generally Nobut remember to evaluate under FMLA

14
Are reinstatement requirements different for the
ADA and FMLA?

• YES
• FMLA
• Same or equivalent job
• ADA
• Same job

15
What precautions should employers take to monitor
leaves?

• Identify if ADA, FMLA, or both
• Medical certification.
• End of FMLA
• Determine if ADA applies
• Consider further leave as accommodation and
• Evaluate reinstatement policy

16
FMLA and Workers Compensation
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When is a WC injury covered under the FMLA?

• When serious health condition
• No distinction between work and nonwork-related
  injuries
• Any WC injury likely covered by FMLA

18
Should the employer give special notification
under the FMLA?

• Notify in writing
• WC leave is designated as FMLA leave
• Will count against, and
• Run concurrently with 12 weeks of FMLA
• Department of Labors Form WH-381
• If not, cannot count WC as FMLA leave
• Could then be entitled to an additional 12 weeks
  of FMLA leave

19
Can an employee on leave be required to use
vacation or sick leave?

• FMLA
• Yes, for all or part of unpaid leave
• No, if receiving WC benefits

20
Light-duty work

• FMLA rights not waived
• Light-duty does not count as FMLA leave
• Exception employee was working a reduced
  scheduled or intermittent leave
• Generally if employee refuses light-duty work
  within their restrictions, may cut off WC
  benefits
• ADA
• Employer is not required to create light duty
  work as a reasonable accommodation

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Tips for Employers

• FMLA and ADA regulations do not override other
  applicable laws
• The strictest or most restrictive must be honored
• If state law more restrictive, must still honor
  as they apply to non-ADA or FMLA
• Can be complex and confusing for employers
• seek assistance of counsel