Concurrent Leave: Work Comp, FMLA and ADA

Sunday, April 24, 2005 | 0

Combine workers' compensation disability leave rights with the federal leave laws such as the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) and you have not only confusion, but potential land mines the unwitting employer can step in to. Leaves may be run concurrent, but may be not. Here is a short road map for navigating these three laws.

1. First, it is important initially to determine if the employee is eligible for leave under the FMLA for a "serious health condition." Since FMLA leave can run concurrently with workers' compensation leave, it is important to make this determination and designation as soon as possible to avoid having the employee return workers' compensation leave and then request an additional 12 weeks under FMLA.

2. If the employee has a serious health condition, the employer should next determine if the condition qualifies as a protected disability under ADA. Leave may have to be offered to employees as a reasonable accommodation under the ADA. The law requires employers with 15 or more employees to provide reasonable accommodation for otherwise qualified individuals with disabilities, unless it would cause undue hardship and leave may qualify as a "reasonable accomodation."

3. While the FMLA has a limit of 12 weeks of leave within a 12-month period, the ADA and state workers' compensation laws generally have no set cap on the amount of leave. Depending on the circumstances, intermittent leave may be required under all the applicable laws.

4. Under FMLA, when the leave ends, employers must return employees to the same job or equivalent one in pay, benefits, and other employment conditions. Under workers' compensation laws, generally, employers must rehire employees only after they are released for full duty without restrictions, but some states mandate (or encourage through the use of financial incentives) to make attempts at accommodation through either modified work or an alternative job. However, employers are barred from automatically refusing to rehire someone with a significant occupational injury that qualifies as a serious health condition under FMLA and/or an ADA-protected disability. Under ADA, disabled workers usually have the right to return to work if they can carry out the essential functions of the job with or without a reasonable accommodation.

5. While employers are using return-to-work programs to lower workers' compensation costs, these programs may run into conflict with the FMLA and the ADA. Employers are prohibited from refusing to let an employee return to work out of fear that the employee will re-injure himself or herself and file new workers' compensation claims.

The basics of employee relation management are important in these situations: be sure to document the type of leave taken and the increments (for FMLA purposes), and be sure supervisors are trained to recognize when an employee's absence may be subject to leave laws for human resource department notification.

By David DePaolo

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