The Big Three: Worker's Compensation, ADA, FMLA

Until recently, employers could dictate their own policies and procedures regarding employee absenteeism, medical leave time, other needs for time off from work, and the effect of such leave time on an employee's job benefits and position. However, with the recent passage of the Family and Medical Leave Act ("FMLA"), the Americans with Disabilities Act ("ADA"), and the regulations of the South Carolina Workers' Compensation Act, employers have been required to re-think their employee leave policies, especially in regard to ill, disabled, or injured workers.

This article addresses some of the major areas of interplay between the FMLA, the ADA, and the South Carolina Workers' Compensation Act. It focuses on an employee's eligibility for protection under these statutes in the following areas: leave rights, return to work, medical examinations, and discipline and retaliation. Employers should consider the relationship of each of these statutes when dealing with a sick, injured or disabled employee.

Application of the Statutes

The FMLA applies to any employer with 50 or more employees for each working day during each of 20 or more work weeks in the current or preceding calendar year. An eligible employee is one who: 1) has been employed by the employer for at least 12 months, although not necessarily consecutive; 2) has been employed by the employer for at least 1250 hours during the 12 month period immediately preceding the requested leave; and 3) is employed at a worksite where 50 or more employees are employed by the employer within a 75-mile radius of that worksite. Any individual is considered an employee if he or she is maintained on the payroll for each day of the work week for the required 20 work weeks whether or not compensation is received, including periods of paid or unpaid leave during which benefits are provided by the employer. Part-time employees are counted as long as they remain on the payroll.

The FMLA also applies to employers that are "successors in interest," separate entities that are deemed to be parts of a single employer if they meet the "integrated employer" test, and joint employers.

The ADA applies to employers with 15 or more employees for each working day in each of 20 or more calendar work weeks during the current or preceding year. Title I of the ADA, which is enforced by the Equal Employment Opportunity Commission, prohibits discrimination against job applicants and employees on the basis of a disability. The ADA protects individuals that: 1) have a physical or mental impairment that substantially limits one or more of an individual's major life activities; 2) have a record of such an impairment; or 3) are regarded as having such an impairment.

Finally, the South Carolina Workers' Compensation Act generally applies to employers who regularly employ 4 or more employees. It requires employers to compensate an employee for personal injury or death by accident arising out of and in the course of employment. This Act provides the sole and exclusive remedy against an employer in such cases.

Leave Rights

The FMLA requires employers to allow eligible employees to take up to 12 weeks of unpaid leave during a 12-month period to care for a newborn or newly-placed adopted or foster child; or for the serious health condition of the employee's child, parent, spouse, or the employee's own health condition. The employer must designate any relevant leave as FMLA leave within 2 business days of its receipt of proper notice.

Under the FMLA, a serious health condition is a physical or mental illness or injury that involves either in-patient hospital care or continuing treatment by a health-care provider. Continuing treatment includes a period of incapacity of more than 3 consecutive days and any subsequent treatment or period of incapacity relating to the same condition. These conditions include chronic conditions, which are defined as those that required periodic treatment, continue for an extended period of time, and may cause episodic rather than continuous problems. Such conditions also include periods of incapacity resulting from pregnancy or prenatal care, and multiple treatments by a health care provider for conditions such as cancer, severe arthritis, or kidney disease. In all cases, however, a health-care provider must be monitoring the employee's health condition, even if the employee is not receiving active treatment. To qualify for leave for the employee's own serious health condition, the employee's health condition must be such that he is unable to perform the essential functions of his position.

Under the ADA, an employer must make reasonable accommodations for qualified individuals with disabilities who can perform the essential functions of a particular position, unless the accommodation would cause undue hardship to the employer's business. An employee who has exhausted the 12 weeks of FMLA leave time may be entitled to additional leave under the ADA. If, after 12 weeks, a disabled employee is still medically unable to perform the job, the ADA requires the employer to make a reasonable accommodation for that employee that would enable him to perform the essential functions of the employment position. Specifically, the ADA provides that a reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, accrued paid leave, or additional unpaid leave.

The overlap among the statutes results primarily from the definition of the illness, injury, or disability concerned in each statute. The ADA's definition of "disability" differs from the FMLA's definition of "serious health condition." Thus, it is possible for one statute to apply and not the other. A temporary condition can constitute a serious health condition under the FMLA, but it generally will not be a disability under the ADA. An employee may have a long-term disability without hospital care or continuing treatment. Without such treatment, the employee is not eligible for protection under the FMLA. Furthermore, a work-related injury entitling an employee to workers' compensation may result in a disability or serious health condition. In such situations, an employer may have to consider making reasonable accommodations for any disability under the ADA or allowing the employee leave time for any serious health condition under the FMLA. The FMLA and the Workers' Compensation Act also overlap in that a workers' compensation absence can run concurrently with FMLA leave time, as long as the employer properly designates the time as such and notifies the employee.

Return to Work

During the FMLA leave, the employer must maintain the employee's health care benefits for the entire leave period in the same manner provided as if the employee were working. At the end of the leave period, the employee must be restored to the same or an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. Unlike the ADA, the FMLA also allows an employee who takes intermittent or reduced scheduled leave to be temporarily transferred to an alternative position.

Some employers may create light duty work to allow or encourage an employee receiving workers' compensation to return to work. An employee may lose workers' compensation benefits for refusing suitable employment. However, during the 12 week period of FMLA leave, an employee is permitted, but not required, to accept an offer of light duty. Thus, any refusal of light duty cannot detrimentally affect the employee. If an employee is taking concurrent FMLA leave and a workers' compensation absence, he may lose his worker's compensation benefits for refusing light duty work, but he is still entitled to continue on unpaid FMLA leave either until the employee is able to return to the same or an equivalent position or until the 12 week FMLA leave entitlement is exhausted. Moreover, if the employee returning from the workers' compensation injury is a qualified individual with a disability, he will have rights under the ADA. Although the ADA does not require an employer to create light duty work if it does not exist, in some cases a less demanding job may be considered a reasonable accommodation.

Medical Examinations

Medical examinations and inquiries pose a gray area. Because of the ADA, an employer's right to inquire about an applicant's medical history is severely limited. Under the ADA, pre-employment questions about disabilities, illnesses and past injuries are not allowed if they have the potential to reveal information concerning the existence, nature, or severity of an applicant's disability. Medical inquiries about an employee must be job-related and consistent with business necessity. Permissible questions include whether an applicant can perform the essential functions of the job, with or without a reasonable accommodation.

The necessary information may be acquired lawfully, after a conditional offer of employment, if the results of medical exams and responses are not used for discriminatory purposes. After a conditional offer of employment, the employer may require a medical examination or inquiry as long as all employees in the same job category are examined the same, and the medical examination does not tend to single out individuals with disabilities. Medical information from the examination must be maintained separately and confidentially.

Under the FMLA, the employer may require an employee to submit a doctor's certification of his serious health condition, and, in the case of a family member, a certification that the employee is needed to care for the family member. If the employer doubts the validity of the certification, the employer may require a second opinion of a doctor chosen by the employer. If the two opinions conflict, the employer and employee can jointly choose a third doctor who would render the final, binding, third opinion.

An employer must be careful not to violate the ADA when requiring an employee to submit to a medical examination when requesting FMLA leave. The medical questions and examination cannot be overly broad. In order to avoid violating the ADA, the employer should narrowly tailor the requests for information and restrict the scope of the medical exam concerning the employee's ability to perform the essential job functions. These examinations are also subject to the confidentiality requirements of the ADA.

Discipline and Retaliation

The FMLA, the ADA, and the worker's compensation statutes each have a provision that prohibits employers from retaliating against employees who have taken advantage of the protection and benefits of these statutes. The South Carolina Workers' Compensation Act provides specific affirmative defenses for employers in retaliation actions, such as an employee's willful or habitual tardiness, absence from work, the destruction of any of the employer's property, or the employee.s failure to meet the employer.s standards and company policies. The ADA and FMLA tend to focus more on the causal connection and temporal proximity between the complaint of a violation of either of these statutes and the alleged retaliatory action. To protect against claims of retaliation, employers should be careful that any employee discipline is based on performance issues or other reasons not related to or protected by the ADA, the FMLA or workers' compensation.


It is clear that there are many considerations for employers when dealing with sick, injured, or disabled employees. This article serves only as a guideline to highlight some of the major areas of interplay between the FMLA, the ADA, and the South Carolina Workers' Compensation Act. It is important that employers consider each of these statutes when dealing with employee health problems, and specific questions should be directed to an employment law specialist.

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