The workers' compensation system is designed to provide employees with wage replacement and medical care, but does not provide injured employees with job protection. However, there are other laws that may apply to injured employees, particularly those employees who are unable to return to work. The two most common are the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). This article discusses how these laws can overlap with workers' compensation, and how employers and their counsel can minimize the risk of liability.

Workers' compensation and the FMLA

The FMLA mandates 12 weeks of job-protected, unpaid leave in a 12-month period for a variety of reasons, including an employee's own serious health condition. The FMLA applies to employers with 50 or more employees. Employees are eligible to take FMLA leave if they have been employed for 12 months and have worked at least 1,250 hours in the past 12 months.

For the purposes of the FMLA, a "serious health condition" includes an injury that involves a period of incapacity of more than three consecutive calendar days, and also involves continuing treatment by a health care provider. Therefore, it is common that employee absences due to workplace injuries will also qualify for job-protected FMLA leave. Employers cannot force employees to take FMLA leave instead of seeking worker's compensation benefits. However, employers can and should provide employees with their 12 weeks of FMLA leave in addition to workers' compensation where appropriate. Otherwise, if an employee is unable to return to work and the employer later decides to terminate, the employee could claim 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 absence is FMLA-qualifying. Sometimes, this can be determined through a review of workers' compensation documents. Assuming that the absence qualifies, the employer must provide proper notification to the employee, including a written designation notice that informs the employee that the absences will be counted toward their 12-week FMLA entitlement. Employers can use template-notice forms created by the Department of Labor (DOL) or create their own FMLA forms, but certain specific information must be included under the FMLA's notice requirements.

Workers' compensation and the ADA

In addition to the FMLA, the ADA may impact employees who are out of work due to workplace injuries. The ADA applies to employers with 15 or more employees. Compared to the FMLA, which is a very structured process with a 12-week limit of leave time, employee rights to accommodations and leave under the ADA are more open-ended.

The ADA requires employers to provide reasonable accommodations to an employee who is disabled, regardless of whether or not that disability was caused by a workplace injury. In order to qualify as disabled for the purposes of the ADA, an employee must have a physical or mental impairment that substantially limits one or more major life activities, have a record or past history of such an impairment, or be "regarded as" having a disability by their employer. In 2008, the ADA was amended to make it easier to establish that an employee is disabled. Today, many employees who are unable to work due to a workplace injury will be considered disabled under the ADA, and will therefore be entitled to reasonable accommodations.

The ADA typically does not mandate one type of accommodation but requires the employer and employee to engage in a cooperative dialogue, referred to in the ADA as the "interactive process," in order to identify an effective accommodation. While the employee does not have the right to unilaterally demand an accommodation of their choosing, the ADA sometimes prefers certain types of accommodations over others. Throughout the accommodations process, clear and well-documented communication with the employee is critical to minimizing the risk of liability.

There are many types of potential accommodations that employers can explore for their employees who are recovering from workplace injuries, including light duty, job modification, reassignment to a vacant position and additional leave time. Light duty typically refers to work that is physically or mentally less strenuous than the employee's typical job duties.

Because the ADA does not require employers to create new job positions for disabled employees, the ADA does not mandate light duty. However, the ADA does not prohibit light duty either, and many employers choose to provide it because it helps to offset workers' compensation costs.

Employers who create light duty positions must allow employees who are disabled for nonwork-related reasons to transfer into vacant light duty positions for which they are qualified. The ADA does not require employers to create permanent light duty positions, so employers are free to determine the appropriate length of these positions based on business needs, as long as they consistently follow that time period.

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

For example, an employer will typically not be required to eliminate lifting, pushing and pulling from the job of an employee who works on a warehouse floor and performs these tasks on a daily basis. However, an employer may be required to eliminate occasional lifting from the job of an employee who works in an office environment. Because the essential functions of a job are determined in part based on the wording of job descriptions, employers should make sure that their job descriptions, offer letters and other documents reflecting job duties are up to date and accurately reflect the essential functions of the job.

The ADA also requires employers to reassign disabled employees to other vacant positions for which they are qualified. However, before doing so, the employer must determine whether there is a reasonable accommodation (such as a job modification or schedule change) that would permit the disabled employee to perform their prior job. If other accommodations are not available, the employer should consider offering a job transfer. Employers are not required to move another employee out of their position in order to facilitate a transfer.

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

Leave-of-absence issues often arise when an employee has been out of work due to a workplace injury, has exhausted all of their FMLA leave, cannot return to work on light or modified duty and cannot be transferred to an appropriate vacant position. In these situations, employers should engage in the "interactive process" to determine if and when the employee can return to work.

If the employee requires a lengthy leave of absence that would pose an undue hardship on the employer's business, or if the employee is repeatedly unable to provide a definitive return-to-work date, the employer can deny the requested accommodation and terminate the employee. However, because the appropriate length of a leave of absence under the ADA will vary based on the employee's job and the employer's needs, employers should 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' compensation benefits after they are terminated, some employers prefer to hold an injured employee's position open for an extended time period while a claim is pending, hoping that the employee can return to work in some capacity in the future, thus offsetting costs. The downside of this practice is that it creates a precedent that other disabled employees (whether injured at work or not) can later use to argue that an extended leave of absence would not pose an undue hardship.

Ultimately, employers should consider how long they can reasonably hold an injured employee's position open on a case-by-case basis. Policies addressing leaves of absence beyond the 12-week FMLA time period should allow for flexibility but preserve the employer's ability to deny additional leave where appropriate. Employers should not rely on communications between the employee and the workers' compensation carrier to make this determination. The employer should communicate directly with the employee and confirm those communications in writing.

Conclusion

Employers should be aware of the laws that apply to employees who are out of work due to workplace injuries and should always apply the law that is most favorable to the employee. If it becomes necessary to terminate the employee and hire a replacement, the employer should be prepared to show that it complied with the FMLA and the ADA before doing so. Following these laws will also reduce the risk that an employee will claim that the employer retaliated against them for seeking workers' compensation benefits.

Ivo Becica is a senior associate in Obermayer Rebmann Maxwell & Hippel's labor relations and employment law department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims when they are filed. Contact him at ivo.becica@obermayer.com.

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