Considering the overlap of the ADA, FMLA and Delaware Workers' Compensation Law when dealing with absences of ill, injured, and disabled employees

Although all may be implicated by an employee's leave of absence, the ADA, FMLA, and Delaware's workers' compensation laws differ in terms of their purpose, coverage, rights, and requirements. The FMLA has the broadest impact and reach, however. The purpose of the FMLA is to give eligible employees the right to take unpaid leave because of the birth or adoption of a child or because either the employee or a family member has a serious health condition. The ADA protects qualified individuals with disabilities from employment discrimination and provides them an affirmative right to "reasonable accommodation." Finally, workers' compensation laws are designed to ensure employees are compensated for lost wages due to job-related injuries until they are able to return to work. When confronted with a family or medical absence, employers should examine whether the FMLA applies to the situation, comply with FMLA's various notice requirements and then focus on other laws that may apply, such as the ADA and state workers' compensation laws.

I.General Eligibility

A. The Family and Medical Leave Act of 1993 (FMLA)[1]

Private employers with 50 or more employees are covered by the FMLA,[2] as are all public employers.[3] All employees within a 75- mile radius from the particular facility are counted to determine whether an employer has 50 or more employees.[4] Generally, the number of employees on the employer's payroll determines coverage.[5] All employees on the payroll are counted for this purpose, whether full or part-time, or on leave. Any employee whose name appears on the employer's payroll would be considered employed each working day of the calendar week and must be counted whether or not any compensation is received for the week.[6] Eligible employees are those who have (1) been employed for at least 12 months (not necessarily consecutive months), (2) worked for at least 1,250 hours during the twelve-month period immediately preceding the leave of absence, and (3) work in an office or site at which fifty or more employees are employed.[7]

B. The Americans with Disabilities Act (ADA)[8]

The ADA applies to all employers who employ 15 or more employees.[9] The ADA protects three categories of disabled individuals: those with a current disability, those with a history of disability, and those regarded by others as having a disability.[10] In order to qualify as currently disabled, an individual must have a physical or mental impairment that substantially limits one or more of his or her major life activities.[11] The term "physical or mental impairment" does not include temporary, non-chronic ailments, such as broken limbs, back injuries, concussion, influenza, obesity, or pregnancy.[12] "Major life activities" are those functions that the average person can perform with little or no difficulty, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.[13] An individual is "substantially limited" if s/he is unable to perform a major life activity that the average person in the general population can perform, or if s/he is significantly restricted as to the condition, manner, or duration under which s/he can perform the activity.[14] The ADA allows employers to consider corrective or mitigating measures (e.g., eyeglasses, medication) when determining whether an employee is disabled.[15]

An individual who has a history of being disabled is also protected under the ADA. In order to prevail under this definition of disability, however, an individual would have to demonstrate that the employer relied on his/her past record of impairment. Typically included in this category are people with a history of mental illness, drug abuse, alcoholism, or cancer. An individual who is wrongfully regarded as having an impairment will also satisfy the definition of "disabled." Individuals falling into this category include those who have an impairment that does not interfere with a major life activity, as well as those who the employer erroneously believes has an impairment.[16]

Individuals who are HIV positive or have AIDS generally are considered disabled within the meaning of the ADA.[17] The term "disability" does not, however, encompass "aberrant" behavior, such as homosexuality, transsexualism, pedophilia, gender identity disorders, or other sexual behavior disorders; gambling, kleptomania, or pyromania; or current illegal use of drugs.[18] The Delaware Handicapped Persons Employment statute also excludes alcoholics and drug abusers, as well as those whose current use of alcohol or drugs prevents the individual from performing the duties of the job in question from the definition of "handicapped."[19]

C. Delaware Workers' Compensation Law[20]

Delaware's Workers Compensation Act (the "Act") provides for assured compensation for employees who suffer work-related injuries without regard to fault, and relieves employers and employees of the expenses, hazards, delays, and burdens of litigation.[21] The Act applies to all Delaware employers and employees "in any employment in which 1 or more employees are engaged,"[22] subject to a few, narrowly defined exceptions.[23] Even illegally employed minors have a right to receive compensation under the Act. [24] If an employer that is otherwise exempt from the Act carries workers compensation insurance, it too will be subject to the provisions of the Act.[25]

Not surprisingly, only employees are entitled to workers compensation benefits.[26] Independent contractors, casual employees, and volunteers are not.[27] An employee is defined as "every person . . . under any contract of hire . . . or performing services for a valuable consideration."[28] In order to receive workers compensation benefits, an employee must have sustained an injury caused by an accident that arose out of and in the course of his employment. Generally, a claimant is only required to show that the specific injury would not have occurred, "but for" the work accident.[29] The workers' compensation statute covers "[p]ermanent injury relating to hearing or vision loss, surgical, medical and hospital services, medicines and supplies, and funeral benefits" from the first day.[30] It applies to, and will compensate, an employee from the fourth day of incapacity, and if such incapacity extends to seven or more days, the employee is entitled to compensation from the first day of injury.[31] In addition, certain permanent injuries and disfigurement are compensable "per se," and are not subject to any timing requirements[32].

D. Interaction of FMLA, ADA, and Workers' Compensation

An employee covered by the ADA is not necessarily entitled to leave under the FMLA, and vice versa. The FMLA provides that nothing in its provisions "modifies or affects federal or state law prohibiting discrimination" on the basis of a disability under the ADA. In fact, in a policy bulletin, the EEOC indicated that employers were required to make two separate inquiries of an employee who requests accommodation and FMLA leave. One set of inquiries would simply cover the FMLA situation and another, separately sent, set of inquiries would cover the questions needed to determine the reasonable accommodation process under the ADA. It is important to note that where both the FMLA and the ADA apply to an employee seeking leave, the employer must "provide leave under whichever statutory provision provides the greater rights to employees."[33]

In the case of absences covered by the workers' compensation statute, the leave may also be designated as FMLA leave if the absence is occasioned by a "serious health condition" (subject to proper notice and designation by the employer).[34] For workers' compensation- related injuries and absences, however, neither the employee nor the employer has the right to mandate substitution of paid vacation or other paid leaves for periods of time where the employee receives workers' compensation benefits (i.e., to supplement the difference between the workers' compensation benefits and regular weekly earnings) unless the employer and the employee voluntarily agree to do so.

II. Benefits

A. The FMLA

The FMLA permits eligible employees to take up to 12 weeks of unpaid job-protected leave in a 12-month period.[35] Employees may take FMLA-qualified leave for any of the following reasons: (a) birth of a child, in order to care for such child; (b) placement of a child with an employee for adoption or foster care; (c) caring for the employee's spouse, child under 18, or child over 18 who is incapable of self-care because of mental or physical disability, or parent[36] (not parent in- law) with a serious health condition; and/or (d) for a serious health condition that makes the employee unable to perform the essential functions of his/her job with or without reasonable accommodation.[37] The similarity of this language to the ADA is intentional. Thus, when the employee's physical or mental condition is at issue, the employer is required to consider both FMLA and ADA obligations when making employment-related decisions.

FMLA leave is unpaid leave. Under certain circumstances, however, an employee may elect, or the employer may require, that paid leave (i.e., accrued vacation, personal, or sick leave) be substituted for the unpaid leave. Such "substituted leave" is permitted so long as the circumstances meet the employer's usual requirements for the use of such paid leave.[38] Thus, leave that is already available as an employee benefit may be combined with the leave required by law to give the employee a maximum of 12 weeks off.[39]

Under certain circumstances, employees may take FMLA qualified leave on an intermittent basis[40], or by reducing their normal work schedule to increments as small as the shortest period of time that the employer's payroll system uses to account for absences, or to increments of one hour, whichever is smaller.[41] The U.S. Department of Labor ("DOL"), which is responsible for enforcing the FMLA, refers to the former as "intermittent leave" and the latter as "reduced work schedule leave." An employer may transfer an employee to an alternative position in order to accommodate intermittent leave or a reduced schedule leave, if the employee is qualified for the position and the transfer better accommodates the employer's business needs.[42] The alternative position must have equivalent pay and benefits, but not necessarily equivalent duties. A temporary transfer may not be used to discourage the taking of FMLA leave or create a hardship on the employee. Intermittent or reduced schedule leave will only reduce the total amount of leave available to an employee by the amount of leave actually taken.

An employee has a right to continued health insurance coverage while on FMLA qualified leave under the same terms and conditions that applied to the employee prior to his taking leave.[43] The employer must therefore maintain coverage and continue payment of premiums under any group health plan. Employees who contribute to their health insurance while at work must continue to do so while on leave, however.[44]

Upon returning from FMLA qualified leave, employees (with certain exceptions for "key" employees) must be restored to their original job, or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment, including privileges, perquisites, and status.[45] The equivalent job must also require substantially equivalent use of skills, effort, responsibility and authority.[46] An employee's use of FMLA leave may not result in loss of any employee benefit that the employee earned or was entitled to before using FMLA leave, or that s/he would have attained.[47] For example, FMLA leave cannot disqualify an employee from a "perfect attendance" bonus. Employers are prohibited from discriminating against employees who take FMLA leave, and may not consider it a negative factor in employment decisions. FMLA rights may not be waived. Regulations specify that once an employee indicates s/he is willing and able to return to work, the employer must return the employee to work within two business days.

A "key employee" is a salaried employee who is among the top 10% of the highest paid of all employees of the employer within 75 miles of the employee's worksite.[48] While a key employee may not be denied leave, he may be denied restoration to employment if the restoration would cause substantial and grievous economic injury to the operations of the employer.[49] The determination of whether an employee is a "key employee" and whether job restoration will be denied must be made before the leave begins.[50] The regulations provide that this test is difficult to satisfy and more stringent that the undue hardship defense under the ADA.[51]

B. The ADA

Title I of the ADA prohibits an employer from discriminating against a "qualified individual[52] with a disability"[53] because of the individual's disability. This prohibition applies to job application procedures, hiring, compensation, promotion, job training, and discharge, as well as other terms, conditions, and privileges of employment.[54] If a disabled individual is unable to perform the essential functions of a job, the employer may be required to make a reasonable accommodation(s), unless to do so would impose an "undue hardship" on the operation of the employer's business.[55]

The issue of whether an individual is disabled is generally regarded as the critical threshold question of most ADA cases, and the ADA requires that this determination be made on a case-by-case basis. Once a disabled individual is determined to be otherwise qualified for a desired position, the ADA affirmatively requires that the employer attempt to accommodate the disability, unless to do so would cause the employer "undue hardship."[56] Reasonable accommodations may include: making existing facilities used by employees readily accessible to individuals with disabilities; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; the provision of qualified readers or interpreters; and other similar accommodations.[57] An employer is not, however, required to reallocate essential functions, or promote a disabled individual as an accommodation.

The ADA contemplates an interactive approach between employer and employee in determining whether, or what, reasonable accommodation is required. An accommodation that endangers the health or safety of the disabled individual or others is not a "reasonable" accommodation.[58] Although the employer should consult with the disabled individual about possible reasonable accommodations, the employer retains the ultimate discretion to choose the less expensive, or more convenient accommodation.[59]

Appropriate accommodation is determined on a case-by-case basis, and the employer bears the burden of demonstrating that no reasonable accommodation is possible.

The failure to provide a reasonable accommodation may be justified if the employer can show that the accommodation would impose an "undue hardship" on its operation.[60] Undue hardship means an accommodation would involve significant difficulty or expense for the employer, or would be disruptive or fundamentally alter the nature or operation of the business.[61] Generally, it is much more difficult for large employers with significant resources to prove undue hardship. The hardship defense under the ADA does not include a monetary cap, as does the Delaware statute, which provides a cap of 5% of the employee's annual salary.[62]

C. Workers' Compensation

The Act makes employers strictly liable to their employees for work related injuries. A work related injury is an accident "arising out of and in the course of employment."[63] Workers compensation was designed, in part, to eliminate the harsh effects of defenses such as the fellow servant doctrine, assumption of the risk, or contributory negligence, each of which are prohibited by the Act.[64] The Act also operates as the exclusive remedy for work-related injuries.[65] This means that an injured employee cannot maintain an action against his employer, regardless of the degree of negligence involved, and is limited to the remedies available under the Act.[66] The exclusivity doctrine does not bar claims for sexual harassment[67], however, or other forms of employment discrimination under federal law.[68]

There are essentially four types of workers compensation benefits to which a claimant may be entitled: (1) disability or "loss of earning capacity," benefits, which include total and/or partial disability; (2) permanent partial impairment or "loss of function," benefits; (3) disfigurement benefits; and (4) medical expense payment or reimbursement.[69] The basic purpose of total disability compensation is to compensate for loss of earning capacity.[70] Total disability refers to a disability that prevents the claimant from continuing or obtaining employment commensurate with his qualifications and training.[71] It does not mean the inability to continue in the same employment or line of work.[72] There is no statutory limit on the duration of total disability benefits; they are paid as long as the claimant remains unable to engage in any type of suitable work.[73]

Partial disability is also a loss of earning capacity benefit and describes those cases in which a claimant is unable to return to work in his full capacity, due to medical restrictions resulting from the industrial accident.[74] The partial disability benefit recognizes that a claimant should be compensated if an industrial injury prevents him from earning that which he would have earned had he not been injured. Unlike total disability, entitlement to partial disability may not exceed 300 weeks.[75] Generally, partial disability covers situations where a claimant, because of physical restrictions, can no longer work full time, or cannot return to his pre-injury job and must work in a position that pays less.

Compensation is available to a claimant for a partial but permanent loss of function of a member or part of his body.[76] The Act provides a schedule of potential injuries and their appropriate level of compensation.[77] For example, the loss of a hand entitles a claimant to 66 2/3 percent of his wages for 220 weeks.[78] A claimant seeking permanent partial impairment benefits must show, through competent medical testimony, that the impairment is causally related to the industrial accident, that claimant has reached "maximum medical improvement," and the date on which permanency first became fixed.[79] Under this section, earning capacity is irrelevant.[80] Additionally, a claimant who is partially or totally disabled and has also suffered a scheduled loss may recover both disability benefits and permanent impairment benefits, simultaneously.[81]

Compensation is also available for disfigurement caused by an industrial accident, provided the disfigurement is visible and offensive when the body is clothed normally.[82] In order for disfigurement to be "visible," it must be capable of being seen by persons other that the claimant.[83] The requirement that the disfigurement be "offensive" is generally satisfied if it can be shown to be embarrassing to the claimant.[84] The phrase "clothed normally" is interpreted to include recreational wear, such as a swimsuit.[85] The IAB is charged with viewing and evaluating a claimant's disfigurement and must award proper and equitable compensation for scarring.[86] The IAB is afforded a great deal of discretion in making awards under this section.[87]

A claimant's medical expenses incurred for diagnosis or treatment of his industrial injury are fully compensable (i.e., 100%) under the Act.[88] The claimant need only show that the expenses are reasonable, necessary, and related to the industrial accident.[89] This section of the Act also provides that the fees of medical witnesses testifying at hearings before the IAB shall be taxed to the employer.[90] Finally, employees are entitled to copies of all medical reports in the hands of the employer and to pretrial exchange of all information available as to any issue to be tried.[91]

D. Interaction between FMLA, ADA, W/C

In contrast to the FMLA, leave under the ADA and workers' compensation is specific to the employee and does not extend to family of, or others associated with, the employee.[92] There may be situations in which a "serious health condition" will constitute a "disability," thereby entitling an employee to rights under both the FMLA and the ADA, and even the workers' compensation statute if the condition arose as a result of an on-the-job injury. Where an employee is covered by both the FMLA and the ADA, and barring an undue hardship, an employer may need to make a reasonable accommodation and/or grant the employee additional leave rights.[93]

A "serious health condition" within the meaning of the FMLA is not the same as a "disability" under the ADA. A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing medical treatment by a health care provider.[94] Such a condition does not necessarily qualify as an ADA "disability," which is a non-temporary impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Some FMLA "serious health conditions" may be ADA disabilities, for example, most cancers and serious strokes. Other "serious health conditions" may not be disabilities, for example, pregnancy or a broken leg or hernia. This is because the condition is not an impairment (e.g., pregnancy), or because the impairment is not substantially limiting (e.g., broken leg).

In addition, the fact that an individual has a record of a "serious health condition" does not necessarily mean that s/he has a record of an ADA disability. Under the ADA, an individual must have a record of a substantially limiting impairment in order to be covered. Finally, just because an individual has a "serious health condition" also does not mean that the employer regards him/her as having an ADA disability. To satisfy this prong of the ADA's definition of "disability," the employer must treat the individual as having an impairment that substantially limits one or more major life activities.

The FMLA's limit of 12 workweeks of leave in a 12- month period may be considered a threshold period, after which an employer must consider whether additional leave must be provided to the employee as a reasonable accommodation under the ADA. An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer's business. To evaluate whether additional leave would impose an undue hardship, the employer may consider the impact on its operations caused by the employee's initial 12-week absence, along with the undue hardship factors specified in the ADA. In addition, an employer is not required to provide an open-ended period of leave as a reasonable accommodation under the ADA.

III. Employer Rights and Responsibilities

A. The FMLA

An employer covered by the FMLA must keep posted a notice explaining the FMLA's provisions and requirements.[95] The employer must also include an explanation of the statute in any employee manual or policy materials.[96]

Employers should designate which "12-month period" will be used for FMLA leave purposes. The 12-month period may be: (1) a rolling 12-month period; (2) the 12-month period measured forward from the date the employee's first FMLA leave begins; (3) a calendar year or other fixed 12-month period; or (4) the employee's anniversary year.[97] The employer's published FMLA policy must identify the 12-month period applicable to all employees. If an employer fails to designate its method of counting leave, the employee is entitled to the method that is most beneficial to the employee. Only the rolling 12-month period prevents stacking of the FMLA leave from one year to the next. Stacking may occur when an employee uses all or part of his/her leave at the end of the 12-month period and then requests additional leave in the beginning of the next 12-month period.

The employer has the duty to provide FMLA leave, once it has notice of the need for such leave. The employee must provide the employer with sufficient notice of the circumstances to enable the employer to recognize that the leave may qualify as FMLA qualified leave, however, and may be requested to provide certification from a medical care provider of the need for such leave. An employee is required to provide at least 30 days notice, when possible, of his/her intent to take FMLA leave.[98] When such notice is impracticable, the employee must provide notice to the employer as soon as possible, depending on the circumstance of the leave.[99]

As a condition to restoring an employee to work following FMLA leave taken due to an employee's serious health condition, an employer may require all employees to obtain and present a certificate from their health care provider that the employee is fit for duty upon his return to work.[100] An employee who does not comply with the requirement of a fitness for duty certificate at the conclusion of an FMLA leave of absence may be terminated, provided there are no ADA considerations. An employer may also require an employee on FMLA leave to report periodically on his status and intent to return to work.[101] If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under the FMLA end. An employer may terminate an employee granted leave under the FMLA who does not return to work at the end of the 12-week period.[102]

The United States Supreme Court decided a case this spring in which it struck down a Family and Medical Leave Act regulation providing that leave taken by an employee does not count against the employee's FMLA entitlement if the employer does not specifically designate the leave as FMLA leave.[103] The employer in the case granted its employee a 30- week absence, pursuant to its policy of providing more generous leave than required by the FMLA, but did not inform the employee that 12 weeks of the absence would count against her 12-week FMLA entitlement.[104] The employee sued, arguing that under the FMLA regulation she was entitled to another 12 weeks of leave. The Court disagreed. The Court held that the regulation contravened the language of the FMLA, which entitles an employee to a "total" of 12 weeks of leave in a 12-month period. The Court further reinforced that an employee must show that she has been prejudiced by a violation of the Act in order to bring suit.[105]

B. The ADA

The ADA also requires employers to post notice of its contents.[106] In addition, the ADA substantially restricts an employer's ability to make disability-related inquiries or conduct medical examinations. An employer may not make any inquiry that is "likely to illicit information about a disability" before an offer of employment is made.[107] An employer may ask, however, whether an applicant is able to perform the essential functions of the job.[108] An applicant may also be asked to inform the employer of any reasonable accommodation needed to take a pre-offer examination. Employers may not ask whether an applicant will need a reasonable accommodation to do the job. Attendance inquiries must also be carefully circumscribed; an employer may ask whether an applicant can meet the attendance requirements of the job with or without reasonable accommodation, but may not ask about "sick" days taken at past jobs. Questions about past workers' compensation injuries are also prohibited at the pre-offer stage.

An employer may not conduct a medical examination on an applicant before a conditional job offer has been made. The ADA states that drug tests (but not alcohol tests) are not medical examinations, however, and nothing in the ADA is intended to prohibit or encourage drug testing.[109] Accordingly, pre-offer drug (but not alcohol) tests are permitted. After a conditional offer of employment is made, the ADA allows employers to make disability-related inquiries. Once an offer of employment is made, the employer may ask about workers' compensation history, prior sick leave usage, illness/diseases, and general mental health so long as the information is kept confidential, is job-related, and all entering employees are subject to the same inquiry.

An employer may not inquire about or require an examination to determine whether a present employee has a disability or the severity of the disability, unless the inquiry is "job-related and consistent with business necessity."[110] Consistent with business necessity means that the test must relate to the essential functions of the job. Additionally, information obtained in a medical examination must be collected and maintained in separate medical files and be treated as confidential, subject only to necessary disclosures to management and first aid personnel.[111]

C. Workers' Compensation

Under the Act, employers are required to carry workers compensation insurance, or be self-insured.[112] An employer who refuses or fails to maintain workers compensation coverage is subject to fines, liability in a personal injury suit, and, for continuing violations, may be enjoined from carrying on its business.[113] Delaware employers subject to the Act must also keep records of all injuries received by employees in the course of their employment.[114] Accidents resulting in personal injury must be reported to the Industrial Accident Board, in writing, within 10 days after knowledge of the occurrence.[115] Any employer who unjustifiably fails to report an industrial accident within the allotted time may be fined by the Board.[116] Upon receipt of notice of an industrial accident, the workers compensation insurer must respond to both the Board and the claimant, in writing, within 15 days.[117] The insurer must advise the claimant of the date that notice of the accident was received, whether the claim is compensable and, if not, why, or that further investigation is required.[118]

Determination of a claimant's compensation rate is based on his average weekly wage at the time of the industrial accident.[119] Except in exceptional circumstances, if the claimant is paid by the day or hour, his average weekly wage is calculated by multiplying that figure (i.e., $5.00/hr.) by the number of hours in the employer's average work week (usually between 35 and 40).[120] The compensation rate is computed at two-thirds of the claimant's average weekly wage, subject to a statutory maximum weekly benefit.[121] Claimants employed only part time, but who are physically capable of working full time and have not removed themselves from the full time labor market, are compensated as if they were full time employees.[122] Generally, a claimant is entitled to compensation if he proves that (a) the injury happened at a fixed time and place and was clearly traceable to his employment ("singular accident")[123]; (b) the ordinary stress and strain of his employment is a substantial cause of his injury ("usual exertion")[124]; or (c) he sustained a compensable occupational disease, as defined by statute.[125]

The workers' compensation statute provides that an employee "who alleges an industrial injury shall have the right to employ" a health care provider of the employee's own choosing.[126] Additionally, the employee "shall submit" himself for examination at "reasonable times and places and as often as reasonably requested" to a physician selected and paid by the employer.[127] No information learned by the employer-provided physician shall be privileged.[128]

D. Interaction between FMLA, ADA, W/C

The FMLA regulations place substantial restrictions upon the employer's ability to contact the employee's health care provider. Only the employer's physician can contact the employee's physician, and then only with the permission of the employee. The regulations do not, however, preclude an employer from contacting its own workers' compensation carrier physician as may be allowed under state law.

The EEOC has explained that there is no conflict between the FMLA provision allowing employers to ask for certification that an employee has a serious health condition and ADA restrictions on disability-related inquiries of employees. When an employee requests leave under the FMLA for a serious health condition, employers will not violate the ADA by asking for the information specified in the FMLA certification form. The FMLA form only requests information relating to the particular serious health condition, as defined by the FMLA, for which the employee is seeking leave. An employer is entitled to know why an employee, who otherwise should be at work, is requesting time off under the FMLA. If the inquiries are strictly limited in this fashion, they would be "job-related and consistent with business necessity" under the ADA.

An employer may keep a single confidential medical file for each employee, separate from the usual personnel file, for medical documentation under both the ADA and the FMLA, so long as the employer follows the ADA confidentiality standards. This includes following the ADA interpretations of those confidentiality exceptions that are set forth in both the ADA and the FMLA regulations. For example, employers may not give supervisors and managers unlimited access to the medical files. However, employers may give supervisors and managers information concerning necessary work restrictions and accommodations.

An employee may not be forced to take a light duty assignment instead of going on or continuing an FMLA leave of absence. The FMLA does not prohibit an employer from accommodating an employee's request to be restored to a different shift, schedule, or position which better suits the employee's personal needs on return from leave, but the employee cannot be induced by the employer to accept a different position against the employee's wishes. An employer may still offer an employee a light duty position to return to work under the workers' compensation statute, however. The employee then has the choice of returning to work in the light duty position and maintaining workers' compensation benefits, or continuing an unpaid FMLA leave and forfeiting workers' compensation benefits. Even if the employee accepts the light duty position, the employee's right to reinstatement to his previous position continues until twelve weeks of the FMLA leave have been exhausted. The DOL has taken the position that the time in the light duty position does not count against the employee's 12 week FMLA leave entitlement since, technically, the employee is working. Therefore, the employee is entitled to the best of both worlds. The employee in a light duty position retains the reinstatement rights of the FMLA but also retains eligibility for further FMLA leave.

The standard for medical certification under the ADA may allow an employer to gain more information about an employee than that allowed under the FMLA. Under the ADA, an employer may conduct an investigation into an employee's disability as long as the investigation is "job related and consistent with business necessity."[129]

As an example, under the ADA, investigation concerning the need and extent of an accommodation for an employee is within the proscribed limits of an ADA inquiry. This standard differs from that allowed by the FMLA, which limits the amount of information an employer may receive relating to an employee's serious health condition. Given the restrictions placed on FMLA inquiries, an employer that is faced with an employee who may qualify under both the FMLA and the ADA should first proceed with a medical inquiry that conforms to the FMLA. In doing so, the employer protects itself from requiring the employee to provide more health condition information than is required by the FMLA. Only when the employee's FMLA leave has expired, and the employee has requested additional leave or other reasonable accommodation, should the employer request medical information pursuant to ADA guidelines.

The FMLA specifically provides that any inquiry into an employee's medical condition leave under the workers' compensation statute and the FMLA run concurrently is governed by the state workers' compensation statute.[130] Where the workers' compensation statute allows an employer to have direct contact with the employee's physician for purposes of a workers' compensation claim, the employer may do so and remain in compliance with the FMLA. In Delaware, an employee who is receiving workers' compensation benefits must submit to examination as many times as the employer requests.[131] Further, if an employee does not submit to employer requested examinations, the employee risks losing workers' compensation benefits.[132] The requests made by the employer, however, must be reasonable.

IV. Impact of Collective Bargaining Agreement

The FMLA specifically protects particular benefits provided under collective bargaining agreements. The FMLA shall not be "construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established" under the FMLA.[133] The FMLA further state that FMLA rights may not be diminished by any collective bargaining agreement or any employment benefit program or plan.[134]

Under the ADA, an employer generally need not grant an accommodation request that would violate seniority rights established under a collective bargaining agreement.[135] Moreover, the Third Circuit Court of Appeals has held that an accommodation requiring the employer to violate a collective bargaining agreement would not "reasonable."[136]

The views expressed in this article are those of the author and may not reflect the views of Potter Anderson & Corroon LLP or its clients. Nothing in this website or the publications included in this website is intended to create an attorney-client relationship. This publication should not be deemed legal advice and should not be relied on by you as legal advice related to your particular circumstances.

Wendy K. Voss is a partner with the Wilmington, Delaware firm of Potter Anderson & Corroon LLP, where she has practiced since 1992. Ms. Voss graduated, summa cum laude, from the Marshall Wythe School of Law, College of William & Mary, in 1992 and graduated from the University of Michigan, magna cum laude, in 1974. Ms. Voss is a member of the Order of the Coif and was a Member of the William and Mary Law Review.

Ms. Voss's practice is concentrated in the areas of labor and employment law, in which she exclusively represents management. She provides advice regarding personnel policies and practices to human resources personnel and other members of management, and training in personnel-related matters. In addition, Ms. Voss regularly defends employers in employment and employment-related matters before federal and state courts and administrative agencies. Ms. Voss is a member of American Bar Association ("ABA") and the Delaware State Bar Association ("DSBA"). She is a former Chair of the Labor and Employment Law Section of the DSBA (1998-1999).