employers canand should provide employees with their 12 weeks of FMLA leave inaddition to workers' compensation where appropriate. (Photo:Shutterstock)

The workers' compensation system is designed to provideemployees with wage replacement and medical care, but does notprovide injured employees with job protection. However, there areother laws that may apply to injured employees, particularly thoseemployees who are unable to return to work. The two most common arethe Family and Medical Leave Act (FMLA) and theAmericans with Disabilities Act (ADA). This article discusses howthese laws can overlap with workers' compensation, and how employers andtheir counsel can minimize the risk of liability.

Workers' compensation and the FMLA

The FMLA mandates 12 weeks of job-protected, unpaid leave in a12-month period for a variety of reasons, including an employee'sown serious health condition. The FMLA applies to employers with 50or more employees. Employees are eligible to take FMLA leave ifthey have been employed for 12 months and have worked at least1,250 hours in the past 12 months.

Related: The FMLA, ADA and caregiver leave

For the purposes of the FMLA, a "serious health condition"includes an injury that involves a period of incapacity of morethan three consecutive calendar days, and also involves continuingtreatment by a health care provider. Therefore, it is common thatemployee absences due to workplace injuries will also qualify forjob-protected FMLA leave. Employers cannot force employees to takeFMLA leave instead of seeking worker's compensation benefits.However, employers can and should provide employees with their 12weeks of FMLA leave in addition to workers' compensation whereappropriate. Otherwise, if an employee is unable to return to workand the employer later decides to terminate, the employee couldclaim that he was denied rights under the FMLA.

Employers who wish to run FMLA concurrent with workers'compensation-related absences should first verify that the absenceis FMLA-qualifying. Sometimes, this can be determined through areview of workers' compensation documents. Assuming that theabsence qualifies, the employer must provide proper notification tothe employee, including a written designation notice thatinforms the employee that the absences will be counted toward their12-week FMLA entitlement. Employers can use template-notice formscreated by the Department of Labor (DOL) or create their own FMLAforms, but certain specific information must be included under theFMLA's notice requirements.

Workers' compensation and the ADA

In addition to the FMLA, the ADA may impact employees who areout of work due to workplace injuries. The ADA applies to employerswith 15 or more employees. Compared to the FMLA, which is a verystructured process with a 12-week limit of leave time, employeerights to accommodations and leave under the ADA are moreopen-ended.

The ADA requires employers to provide reasonable accommodationsto an employee who is disabled, regardless of whether or not thatdisability was caused by a workplace injury. In order to qualify asdisabled for the purposes of the ADA, an employee must have aphysical or mental impairment that substantially limits one or moremajor life activities, have a record or past history of such animpairment, or be "regarded as" having a disability by theiremployer. In 2008, the ADA was amended to make it easier toestablish that an employee is disabled. Today, many employees whoare unable to work due to a workplace injury will be considereddisabled under the ADA, and will therefore be entitled toreasonable accommodations.

The ADA typically does not mandate one type of accommodation butrequires the employer and employee to engage in a cooperativedialogue, referred to in the ADA as the "interactive process," inorder to identify an effective accommodation. While the employeedoes not have the right to unilaterally demand an accommodation oftheir choosing, the ADA sometimes prefers certain types ofaccommodations over others. Throughout the accommodations process,clear and well-documented communication with the employee iscritical to minimizing the risk of liability.

There are many types of potential accommodations that employerscan explore for their employees who are recovering from workplaceinjuries, including light duty, job modification, reassignment to avacant position and additional leave time. Light duty typicallyrefers to work that is physically or mentally less strenuous thanthe employee's typical job duties.

Because the ADA does not require employers to create new jobpositions for disabled employees, the ADA does not mandate lightduty. However, the ADA does not prohibit light duty either, andmany employers choose to provide it because it helps to offsetworkers' compensation costs.

Employers who create light duty positions must allow employeeswho are disabled for nonwork-related reasons to transfer intovacant light duty positions for which they are qualified. The ADAdoes not require employers to create permanent light dutypositions, so employers are free to determine the appropriatelength of these positions based on business needs, as long as theyconsistently follow that time period.

The ADA may require employers to modify an injured employee'sprior job, unless the employer can show that the modification wouldimpose an undue hardship. Employers are not required to eliminatethe "essential functions" of an employee's job but may be requiredto modify or eliminate the "marginal functions" of a job.

For example, an employer will typically not be required toeliminate lifting, pushing and pulling from the job of an employeewho works on a warehouse floor and performs these tasks on a dailybasis. However, an employer may be required to eliminate occasionallifting from the job of an employee who works in an officeenvironment. Because the essential functions of a job aredetermined in part based on the wording of job descriptions,employers should make sure that their job descriptions, offerletters and other documents reflecting job duties are up to dateand accurately reflect the essential functions of the job.

The ADA also requires employers to reassign disabled employeesto other vacant positions for which they are qualified. However,before doing so, the employer must determine whether there is areasonable accommodation (such as a job modification or schedulechange) that would permit the disabled employee to perform theirprior job. If other accommodations are not available, the employershould consider offering a job transfer. Employers are not requiredto move another employee out of their position in order tofacilitate a transfer.

Finally, the ADA requires employers to provide an unpaid leaveof absence of a reasonable duration as a reasonable accommodation.Under the ADA, leave should only be provided as an accommodation oflast resort, after other accommodations that would allow theemployee to return to work have been fully explored.

Leave-of-absence issues often arise when an employee has beenout of work due to a workplace injury, has exhausted all of theirFMLA leave, cannot return to work on light or modified duty andcannot be transferred to an appropriate vacant position. In thesesituations, employers should engage in the "interactive process" todetermine if and when the employee can return to work.

If the employee requires a lengthy leave of absence that wouldpose an undue hardship on the employer's business, or if theemployee is repeatedly unable to provide a definitivereturn-to-work date, the employer can deny the requestedaccommodation and terminate the employee. However, because theappropriate length of a leave of absence under the ADA will varybased on the employee's job and the employer's needs, employersshould not automatically deny leave after a certain time period.Employers cannot require employees to be "100 percent healed"before returning to work.

Because employees can continue to recover workers' compensationbenefits after they are terminated, some employers prefer to holdan injured employee's position open for an extended time periodwhile a claim is pending, hoping that the employee can return towork in some capacity in the future, thus offsetting costs. Thedownside of this practice is that it creates a precedent that otherdisabled employees (whether injured at work or not) can later useto argue that an extended leave of absence would not pose an unduehardship.

Ultimately, employers should consider how long they canreasonably hold an injured employee's position open on acase-by-case basis. Policies addressing leaves of absence beyondthe 12-week FMLA time period should allow for flexibility butpreserve the employer's ability to deny additional leave whereappropriate. Employers should not rely on communications betweenthe employee and the workers' compensation carrier to make thisdetermination. The employer should communicate directly with theemployee and confirm those communications in writing.

Conclusion

Employers should be aware of the laws that apply to employeeswho are out of work due to workplace injuries and should alwaysapply the law that is most favorable to the employee. If it becomesnecessary to terminate the employee and hire a replacement, theemployer should be prepared to show that it complied with the FMLAand the ADA before doing so. Following these laws will also reducethe risk that an employee will claim that the employer retaliatedagainst them for seeking workers' compensation benefits.

Ivo Becica is a senior associate inObermayer Rebmann Maxwell & Hippel's labor relationsand employment law department. He focuses hispractice on representing employers, including advising companies onhow to handle employee issues, and defending employee claims whenthey are filed. Contact him at [email protected].

Take steps to avoid workers' compclaims: 

• Wearables are making the workplacesafer
• Using worker's compensation insurance to helpemployee health and safety
• The keys to successful workers' comp claimoutcomes