Dealing with Illness and Injury in the Workplace: How to Navigate the Bermuda Triangle of ADA, FMLA and Workers' Compensation

Transcription

1 Dealing with Illness and Injury in the Workplace: How to Navigate the Bermuda Triangle of ADA, FMLA and Workers' Compensation By: Morris L. Hawk

2 ADA, FMLA, Workers Compensation General Considerations Resist the urge to compartmentalize Review employee leave issues from the ADA box, the FMLA box and the Workers Compensation box Revisit employee leave issues periodically and consider all three laws.

3 ADA, FMLA, Workers Compensation General Considerations All three laws punish the passive employer. FMLA Leave It s not FMLA leave until you designate it. ADA You are responsible for leading the reasonable accommodation inquiry. Workers Compensation Do not hesitate to obtain your own doctor s opinion regarding allowances and requests for treatment.

4 ADA, FMLA, Workers Compensation Each law serves a different but related purpose. Family and Medical Leave Act (FMLA) Provide a minimum standard for leave (12 weeks of unpaid leave for year) to employees who need to take such leave due to a serious health condition, the birth or adoption of a child, or for the care of a child, spouse or parent who has a serious health condition

5 ADA, FMLA, Workers Compensation The Americans with Disabilities Act (ADA) Enacted to remedy discrimination against persons in the workplace because of disabilities. Individuals with disabilities who can perform the essential functions of a job are entitled to reasonable accommodations.

6 ADA, FMLA, Workers Compensation Workers Compensation A no fault insurance scheme to ensure that persons who suffer injuries in the workplace receive compensation and medical care while minimizing employer liability.

7 ADA, FMLA, Workers Compensation Where do the three laws intersect? A workplace injury under Workers Comp resulting in temporary total disability may also be A serious health condition under the FMLA requiring leave may also be A disability under the ADA requiring leave as a reasonable accommodation

8 FMLA Which employers must provide FMLA leave? Private employers employing 50 or more employees. Public agencies without regard to the number of employees employed. Public as well as private elementary and secondary schools without regard to the number of employees employed. Note: Employees jointly employed by two employers must be counted by both employers, whether or not maintained on one of the employer's payroll, in determining employer coverage and employee eligibility. For example, an employer who jointly employs 15 workers from a temporary placement agency and 40 permanent workers is covered by FMLA.

9 FMLA Which employees are eligible for FMLA leave? Employees who have: worked for their employer for at least 12 months and have worked for at least 1,250 hours over the previous 12 months and work at a location where at least 50 employees are employed by the employer within 75 miles.

10 FMLA Eligible employees cont d Note: Time spent on leave, including vacation or sick leave, will apply towards the 12-month requirement. Note: Employees returning from National Guard or Reserve duty must be treated as if they never left employment for the purposes of determining eligibility.

11 FMLA Length Of Leave And Calculation Of 12- Month Period A total of 12 work weeks of leave during a 12-month period. Employers may select one of four options for determining the 12-month period: the calendar year; any fixed 12-month leave year such as a fiscal year, a year required by state law, or a year starting on the employee s anniversary date; the 12-month period measured forward from the date any employee s first FMLA leave begins; or a rolling 12-month period measured backward from the date an employee uses FMLA leave.

12 FMLA FMLA-qualifying reasons for leave: because of a serious health condition; to care for a spouse, child or parent who has a serious health condition; or the birth or adoption or placement for foster care of a child..

13 FMLA What is a serious health condition? Must involve an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Continuing treatment must be more than three days and consist of at least two treatments.

14 FMLA What is a serious health condition? Inpatient care (i.e., an overnight stay) in a medical facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; or Continuing treatment by a health care provider, which includes a period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also includes treatment two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or

15 FMLA What is a serious health condition? Any period of incapacity related to pregnancy or for prenatal care. A visit to the health care provider is not necessary for each absence; or Any period of incapacity or treatment for a chronic serious health condition which continues over an extended period of time, requires periodic visits (at least twice a year) to a health care provider, and may involve occasional episodes of incapacity; or A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or, Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.

16 FMLA Note re In Loco Parentis Leave. New DOL guidance concludes that an employee without a biological or legal relationship with a child may still be eligible for FMLA leave due to the birth, adoption or serious medical condition of the child if the employee: provides either day-to-day care or financial support for the child. For example, an employee who provides day-to-day care for an unmarried partner s child can qualify for FMLA leave if the employee needs time off to work for care for that child due to a serious medical condition.

17 FMLA Notice and Certification Designate, Designate, Designate It s not FMLA Leave Unless and Until You Say That It Is.

18 FMLA General Employer FMLA Notice Must post a general written notice, which under certain circumstances may be done electronically, even if no employees are eligible. Must provide a written FMLA notice to any eligible employee, either through a handbook or leave policy, or by distributing a copy of the notice to each employee upon hire. The Form Notice is Contained at Appendix A (DOL Form WH- 1420). Does not alter the employer s burden to notify an employee about her possible eligibility for FMLA leave or the amount of time that will be counted as FMLA leave.

19 FMLA Employee Notice Of Need For Leave Required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If not foreseeable, the employee must provide notice as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer s usual and customary notice and procedural requirements for requesting leave.

20 FMLA Employee Notice Of Need For Leave Employees must provide sufficient information for an employer reasonably to determine whether the FMLA may apply to the leave request. Calling in sick without providing more information is not sufficient notice to trigger protections under the Act. First time request, no need to mention FMLA. If seek leave due to a FMLA-qualifying reason for which the employer has previously provided leave, must specifically reference either the qualifying reason for leave or the need for FMLA leave

21 FMLA Employee Notice Of Need For Leave Important: You are permitted to enforce compliance with your call-in procedure Should be in writing Must be consistently enforced.

22 FMLA Employer Notice Of Rights And Responsibilities: Triggered By Employee Request For Leave. Within five business days after the employer acquires knowledge that a leave may qualify under the FMLA, the employer must provide a Notice of Rights and Responsiblities form to the employee. Best Practice to provide as soon as possible after receiving a request for leave. Attached at Appendix B is a copy of the DOL Form Notice (DOL Form WH-381).

23 FMLA Designation Notice Provided within five business days after employer has enough information to determine leave is for a qualifying FMLA reason. Any fitness for duty certification requirement should be provided to the employee with Designation. Attached at Appendix C is a copy of the DOL Form Notice (DOL Form WH-382).

24 FMLA Designation Notice You always have the responsibility to designate leave taken for a FMLA reason as FMLA leave. Leave not designated as FMLA leave is not FMLA leave.

25 FMLA Designation Notice Limited exceptions to no retroactivity: the employer is awaiting receipt of the medical certification the employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave; or the employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave.

26 FMLA Certification. The employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter For unforeseen leave, within five business days after the leave commences. May request later if reason to question appropriateness of the leave or its duration. Employee must provide the requested certification to the employer within 15 calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith

27 FMLA What constitutes a sufficient certification of serious health condition? Must include the name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization; Date and probable duration Description of appropriate medical facts regarding the patient's health condition for which FMLA leave is requested. symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment Information sufficient to establish that the employee cannot perform the essential functions of the employee's job as well as the nature of any other work restrictions, and the likely duration of such inability;

28 FMLA What constitutes a sufficient certification of serious health condition? If intermittent or reduced schedule, information must be sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of such treatments and any periods of recovery If an employee requests leave on an intermittent or reduced schedule basis for the employee's serious health condition, including pregnancy, that may result in unforeseeable episodes of incapacity, information sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity

29 FMLA IMPORTANT: Medical records, opinions and certifications submitted on behalf of an employee in connection with the ADA and/or workers compensation may be relevant evidence with respect to making FMLA-related decisions and vice versa. For example, a request for TT may also constitute sufficient information for certification under FMLA

30 FMLA Right for clarification from employee The employer may seek clarification if a certification is incomplete or insufficient The employer must notify the employee in writing as to what additional information is needed and give the employee seven calendar days to complete and return the form (or longer if the employee cannot comply within seven days despite good faith efforts).

31 FMLA Right for Clarification and Authentication from Health Care Providers "Authentication" means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. "Clarification" means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask health care providers for additional information beyond that required by the certification form.

32 FMLA Right for Clarification and Authentication from Health Care Providers Only the following individuals may contact an employee s healthcare provider on an employer s behalf: a healthcare provider, a human resources professional, a leave administrator, or a management official. An employee s direct supervisor is expressly prohibited from contacting the employee s healthcare provider.

33 FMLA Right to Second Opinion may require the employee to obtain a second opinion at the employer s expense. Permitted to designate the health care provider to furnish the second opinion but the person may not be employed on a regular basis by the employer. If the opinions differ, the employer may require the employee to obtain certification from a third health care provider at the employer s expense. Must be selected jointly by the employer and employee

34 FMLA Recertification If a certification indentifies a period of absence lasting 30 days or less, the employer may request recertification every 30 days in connection with the absence. If the certification provides, that the minimum duration of the condition is more than 30 days but less than six months, the employer must wait until that minimum duration expires before requesting a recertification. In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee.

35 FMLA Recertification Can also request recertification at any time if the employee requests an extension, circumstances described by the previous certification have significantly changed, or the employer receives information that casts doubt on the certification. The employer can give the healthcare provider a record of the employee s absence pattern and ask the health care provider if the condition and need for leave are consistent with the pattern of absence.

36 FMLA Return to Work/Fitness for Duty May require a fitness for duty certifications before returning to work Must provide employee with a list of the essential functions at the same time the employer provides the Designation Notice. or you cannot require a fitness for duty certification. May also ask for fitness for duty certification for intermittent leaves once every 30 days if there are reasonable safety concerns connected with the employee s ability to perform job duties.

37 FMLA FMLA LEAVE, PAID TIME OFF, AND WORKERS COMPENSATION LEAVE You can require an employee to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

38 FMLA FMLA leave and workers compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave. You cannot substitute sick days or vacation for temporary total disability for Workers Compensation.

39 FMLA FMLA AND LIGHT DUTY ASSIGNMENT May not require the employee to return to work early by offering him/her a light duty assignment. If the employee does accept a light duty assignment, light-duty work does not count against an employee s entitlement under the FMLA. While on light duty, employee s right to regain full-duty status is put on hold.

40 FMLA INTERMITTENT LEAVE Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. (For example, if normally use increments of six minutes for tardy employees, must use same increments to account for intermittent FMLA leave taken at the beginning of the shift. Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations. If leave foreseeable, employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits. If intermittent leave unforeseeable, alternative job option is not available (for example, frequent, unpredictable absences for a chronic condition.

41 FMLA RESTORATION TO POSITION The FMLA generally requires that employees be restored to the same or an equivalent position when returning from leave.

42 FMLA Job Restoration Exceptions Employees who are unable to return to work and have exhausted their 12 weeks of leave lose the right to job restoration. HOWEVER, YOU MUST STILL ACCOUNT FOR ADA. Employees who give unequivocal notice that they do not intend to return to work lose their right to job restoration. Employers who would have been laid off or otherwise had their employment terminated had they continued to work are not entitled to job restoration. Employer may delay reinstatement to employee who fails to provide certification of fitness for duty, if properly requested.

43 FMLA Other considerations Required to maintain an employee s benefits while on leave FMLA leave cannot be counted under no fault attendance policies Military leave (caregiver leave, qualifying exigency leave)

44 ADA Disability Physical or mental impairment that substantially limits one or more major life activities A record of such impairment Being regarded as having such an impairment Qualified Employee An employee who is able to perform the essential functions of the job with or without accommodation

45 ADA Reasonable accommodation Employer required to remove physical and other barriers that prevent successful employment for qualified people with disabilities Does not cause undue hardship to employer Does not unduly impact another employee No significant risk posed to health or safety of the individual or others (direct threat)

46 ADA New Definition of Disability step by step Physical or mental impairment that substantially limits one or more major life activities Definition of disability Designed to expand the reach of the law A broad scope of protection for employees Courts to apply coverage to the maximum extent possible Practical impact More difficult to get claims thrown out of court Work from a heightened presumption of coverage when assessing employment decisions

47 ADA Mitigating measures to be excluded Courts must now ignore any and all mitigating measures Medications Prosthetics Hearing aids Mobility devices HOWEVER, eyeglasses and contact lenses still qualify as mitigating measures Episodic or in remission impairment can satisfy coverage if, when active, they substantially limit MLA Difficult for employers to know whether episodic or remission impairment may actually limit too many unknowns

48 ADA Expanded definition of major life activities Expansive list Caring for oneself, manual tasks, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, reading, concentrating, thinking, communicating, interacting with others and working Operation of any bodily function all the prior traditional functions, as well as cell growth, endocrine, digestive, reproductive, neurological and brain functions Practical impact Ensures that more employees will be covered Adds more internal and non-visible functions more difficult to assess and address

49 ADA Expanded definition of substantially limits An individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life in order to be considered an individual with a disability. An impairment that substantially limits'' one major life activity need not limit other major life activities in order to be considered a disability.

50 ADA Combining new definitions of major life activity and substantially limits means that, for certain health conditions, diagnosis = disability EEOC examples: Diabetes (whether controlled or not) substantially limits the endocrine system and thus constitutes a disability Cancer (whether in remission or not) substantially limits normal cell growth and thus constitutes a disability Epilepsy (whether controlled by medication or not) substantially limits functions of the brain and seeing, hearing, speaking, walking or thinking during a seizure and thus is a disability

51 ADA Note: Temporary, non-chronic impairment of short duration with little or no residual effects (such as a broken bone that is expected to heal completely) usually will not be considered to substantially limit a major life activity because this impairment is transitory in nature (when the leg heals, the impairment ends).

52 ADA Leave as a reasonable accommodation under the ADA An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Must allow additional unpaid leave if it is a reasonable accommodation (even if FMLA leave is exceeded). Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave

53 ADA Leave as a reasonable accommodation under the ADA An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to: obtaining medical treatment or physical or occupational therapy recuperating from an illness or an episodic manifestation of the disability avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis)

54 ADA Leave as a reasonable accommodation under the ADA Your right to medical information Documentation needed to establish that a person has an ADA disability which necessitates a reasonable accommodation Not entitled to medical information not addressing the above Specify what type of information you are seeking, the essential job duties, functional limitations.

55 ADA Leave as a reasonable accommodation under the ADA Undue Hardship Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. Relevant factors are: 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 type of operation of the the impact of the accommodation on the operation of the facility.

56 ADA Leave as a reasonable accommodation under the ADA Essential Functions of the Job Employee is only entitled to protection if employee is a qualified individual who can perform the the essential functions of his or her job with or without a reasonable accommodation. When certain types of leave are requested (i.e., intermittent leave), an employer should consider whether reliable attendance is an essential function of the job. Most courts have held that it is an essential function

57 ADA Leave as a reasonable accommodation under the ADA Holding the job open An employee entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. If employer cannot hold position open during the entire leave period, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned.

58 ADA Leave as a reasonable accommodation under the ADA Modified Schedule An employer may also offer an employee a modified schedule as a reasonable accommodation. If not an undue hardship, a modified schedule must be provided even if not provided for other employees. An employer is not required to grant leave or modify an employee s work hours if this would significantly disrupt an employer s operation by preventing other employees from doing their jobs. For example, employer would not have to grant a crane operator s request for a modified schedule where three other employees cannot perform their jobs without the crane operator..

59 ADA Leave as a reasonable accommodation under the ADA No fixed date of return Employer is required to provide leave to an employee who is unable to provide a fixed date of return unless the lack of a fixed return date causes an undue hardship. If granted, employer has the right to require periodic updates on condition and possible date of return. After receiving these updates, employers may reevaluate whether continued leave constitutes an undue hardship.

60 ADA Leave as a reasonable accommodation under the ADA Return to work Can require a return-to-work physical exam so long as the exam is job related and consistent with business necessity. Note: That the above ADA requirements do not impact an employer s ability to require an employee to undergo a recertification exam under the FMLA.

61 WORKERS COMPENSATION An employee is entitled to the protection of the Ohio Workers Compensation Statute is the employee suffers: an injury received in the course of, or arising out of, the injured employee s employment or the substantial aggravation of a pre-existing condition as a result of a work-reltated injury; or an occupational disease.

62 WORKERS COMPENSATION An injured employee is entitled to temporary total disability if a work-related injury renders them unable to perform his or her former position of employment. An injured employee is entitled to temporary total disability compensation until: the claimant returns to work; the treating physician has made a written statement indicating the claimant s capability to return to the former position of employment; the employer offers the employee light duty work which meets the employee s medical restrictions; the employee is found to have reached maximum medical improvement; the temporary disability has become permanent.

63 WORKERS COMPENSATION Temporary total disability Voluntary Abandonment of Employment TT may be terminated when an employee voluntarily retires or is terminated for violating a written work rule or policy that clearly defined the prohibited conduct; had been previously identified by the employer as a dischargeable offense; and was known or should have been known by the employee.

64 WORKERS COMPENSATION Temporary total disability benefits begin on the eighth calendar day following the injury. If an injured employee remains off work for 14 days, the employee will also receive benefits for the first seven days he missed work. For the first 12 weeks, an employee will receive 72% of his full weekly wage (generally calculated by dividing gross wages over the six week period prior to the injury by six). For any remaining period, an employee will receive 66.67% of his average weekly wage (generally determined by dividing total earnings for the year prior to the date of injury by fifty-two). After 90 days, the BWC generally requires an injured employee to undergo a medical examination to determine whether the employee has reached maximum medical improvement.

65 WORKERS COMPENSATION Broad right to medical treatment information Employers are entitled to almost unrestricted discovery with respect to medical treatment related to the injury. If an employee s workers compensation injury also constitutes a serious health condition under the FMLA or a disability under the ADA, the employer can access a great deal more medical information through the workers compensation process than through either the FMLA certification process or under the ADA.

66 INTERACTION BETWEEN ADA, FMLA AND WORKERSCOMPENSATION If an employee suffers a work-related injury and is off work collecting temporary total disability, can that time off be counted against his 12 week FMLA leave allotment? Yes. FMLA leave and workers compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

67 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION If an employee uses up his 12 weeks of unpaid leave under the FMLA, is an employer required to provide the employee with any additional time off due to a medical condition? It depends. If the employee s medical condition also constitutes a disability under the ADA, the employer still may have an obligation to provide additional time off if such time off would constitute a reasonable accommodation for the employee s disability. Also, if the employee suffered a work-related injury and is currently receiving temporary total disability benefits, the employee is entitled to continue to remain off work until the employee is declared to have reached maximum medical improvement or is able to return to work.

68 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION If an employer offers an employee light-duty work within his medical restrictions, and the employee refuses to accept such work, can the employer terminate the employee? Not if the employee s injury constitutes a serious health condition and the employee has FMLA leave available. An employer cannot require an FMLA-eligible employee to take a light duty job. Ordinarily, if an employee refuses to accept a light-duty job, that employee s temporary total compensation will be terminated.

69 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION Is an employer required to provide a lightduty job to an employee who has a medical condition or has suffered a work-related injury? If an employee s medical condition constitutes a disability under the ADA, light-duty work may constitute a reasonable accommodation if it does not require the elimination of an essential function of the job and does not cause an undue hardship to the employer.

70 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION An employee returns to work after 8 weeks of FMLA designated leave. Is the employer required to give the employee his job back? Yes. The FMLA requires that employees be restored to the same or an equivalent position when returning from leave.

71 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION An employer grants an employee 9 weeks of leave as a reasonable accommodation for the employee s disability (complications from diabetes). The employer does not designate the leave as FMLA leave. At the end of the 9 weeks, can the employee request additional FMLA leave? Yes. The employee is entitled to an additional 12 weeks of unpaid FMLA leave. The employer cannot retroactively designate the prior 9 weeks of leave as FMLA leave. That is why it is so important to timely designate FMLA leave. The same analysis would apply if the employee was out on temporary total disability but returned to work to perform light duty.

72 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION An employer grants an employee 9 weeks of leave as a reasonable accommodation for the employee s disability (complications from diabetes). At the end of the 9 weeks, the employee returns to work. Is the employer required to give the employee his job back? Most likely yes. An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position.

73 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION While an employee is off on FMLA leave for a medical condition that also constitutes a disability under the ADA, the employer undertakes a reduction in force that would result in the elimination of the employee s job, if he were still working at the employer. Is the employee entitled to be returned to employment after he returns from leave? No. Although both the FMLA and the ADA entitle an employee to return to his same position, the employer does not need to re-employ the employee if his position is no longer available due to a reduction in force. The same applies for workers compensation.

74 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION An employee is injured at work. The employer provides the employee with the FMLA certification form to provide information as to whether his injury constitutes a serious health condition sufficient to trigger FMLA leave. The employee provides the employer a completed BWC form requesting temporary total disability for a period 5 weeks plus a short letter from his physician explaining claimant s medical condition and why he is not able to return to work. Does this information satisfy the certification requirements of the FMLA? Yes. Even though the information was not provided on the FMLA certification form, the information is sufficient to satisfy the substantive requirements for FMLA certification. If the injury constitutes a disability, it is probably also sufficient to trigger the reasonable accommodation process.

75 INTERACTION BETWEEN ADA, FMLA AND WORKERS COMPENSATION An employee returns from 12 weeks of FMLA leave due to a herniated disc. On his second day at work, he breaks his leg. Is the employee entitled to any additional leave time? Yes. The employee has exhausted his FMLA leave. Most likely, his broken leg will also not constitute a disability under the ADA because it is a temporary, non-chronic impairment of short duration with little or no residual effects. However, the employee is entitled to temporary total disability benefits because his workrelated injury renders him incapable of performing his job. He is entitled to such benefits until he can return to work or is declared to have reached maximum medical improvement.