ADA and Workers' Compensation
Employees Covered by the ADA.
The ADA prohibits employers from discriminating against any otherwise qualified individual with a disability who can perform the essential job functions, with or without a reasonable accommodation. "Disability" is defined as:
- a physical or mental impairment that substantially limits one or more of an individual's "major life activities";
- having a "record of" having such an impairment, or
- being "regarded as" having such an impairment.
Work-Related Injuries That Are "Disabilities" Under the ADA.
Determining whether an injured employee is "disabled" for purposes of the ADA requires a careful analysis of the factual circumstances, including an analysis of the nature and severity of the employee's medical condition:
For example, an employee who suffers a laceration of the hand at work and earns less wages than prior to his injury is clearly "disabled" for workers' compensation purposes. However, because such an injury is usually of temporary or short duration, the employee is not "disabled" under the ADA because his medical condition does not "substantially limit" a "major life activity." However, if an employee suffers a laceration of the hand at work and, due to medical complications, his arm is rendered useless, he would be "disabled" for ADA purposes.
The EEOC's Technical Assistance Manual sets forth the following examples to explain the distinction between the ADA and workers' compensation definitions of "disability." Suppose a construction worker falls from a ladder and breaks a leg and it heals within a few months:
- This worker may be awarded workers' compensation benefits for the injury, but would not be considered disabled under the ADA because the injury suffered does not "substantially limit" a major life activity.
- If the worker's leg takes much longer to heal and during the time period the worker could not walk, s/he would be considered as having an ADA disability.
- If a future employer refused to hire the construction worker on the basis of that record, even if s/he had completely recovered from the injury, the ADA would be violated.
- If the construction worker developed a limp as a result of the accident and an employer refused to hire or discharged the individual because of a perception of disability, such refusal or discharge would violate the ADA.
Injured-Disabled Employees Who Are "Otherwise Qualified... to Perform the Essential Job Functions."
An injured employee whose medical condition constitutes a "disability" under the ADA is not protected by the ADA if he is not an "otherwise qualified individual with a disability who can perform the essential job functions."
For example, an employee mangles his leg at work and becomes disabled for purposes of the ADA. Essential functions of his job include climbing ladders, crawling, and standing and walking for six hours a day. The employee's physician will release him to return to work, but only if he performs sedentary duties. Assuming that there are no reasonable accommodations that can be made that would enable the employee to return to work, and he cannot otherwise perform the essential job functions, the employee is not an "otherwise qualified individual with a disability."
For an employee to be capable of performing the "essential job functions," he must also possess the necessary educational background, employment experience skills, licenses, etc. For example, a factory employee who mangles his leg and has a disability for ADA purposes, may or may not be an "otherwise qualified individual" for a clerical opening in the factory office. In that case, the specific requirements of the opening would have to be examined, including such factors as the degree of skill needed and the extent to which other nondisabled employees have been given an opportunity to learn the job.
"Reasonable Accommodations" That Must Be Made for Injured-Disabled Employees.
The ADA does not differentiate between work-related and non-work-related disabilities. Therefore, an employer's obligation to make "reasonable accommodations" is the same for both classes of employees. Reasonable accommodations can include modification of work schedules, reassignment to vacant positions, modification of equipment, etc.
An employer is not required to change the essential functions of a position in order to accommodate a disabled employee. However, an employer can elect to change essential functions or create entirely new jobs in order to accommodate disabled employees. As discussed in more detail below, should an employer decide to set aside or reserve certain jobs or job functions for disabled employees, in most cases, it does not appear that the employer is permitted to discriminate on the basis of whether an employee's disability is work-related versus non-work-related.
An injured employee with a disability under the ADA risks both the loss of employment and the suspension of weekly workers' compensation benefits if he refuses an employer's offer to make a reasonable accommodation that would enable the employee to return to work. However, an employer violates the ADA if it requires an employee to accept an alternative position in lieu of first making reasonable accommodations to the employee's regular job. (In addition, as discussed below, the FMLA prohibits employers from forcing an employee to accept a reasonable accommodation and forgo FMLA leave.)
Gathering Medical Information and Obtaining Examinations Under the ADA and Workers' Compensation Laws.
If an employee claims an on-the job injury, state workers' compensation laws permit employers and their insurance carriers to require injured workers to submit to medical examinations in order to verify their claim or the status of their ongoing medical condition. Also, as a condition of returning to work from workers' compensation or ADA leave, an employer may also require that an injured employee have a job-related medical examination - not necessarily a full physical exam - to determine whether the employee can perform the job-related functions without posing a direct threat to health or safety.
An employer cannot refuse to permit an injured employee to return to work unless the employee cannot perform the essential functions of his job with or without an accommodation or unless the employee's return to work would pose a risk of significant harm that cannot be reduced to an acceptable level with reasonable accommodation.
An employer cannot make an inquiry into an applicant's workers' compensation history or disability before offering the applicant a job. After a conditional offer of employment is made, the employer can ask about the applicant's workers' compensation or medical history if a medical inquiry or exam is required of other applicants in the same category. An employer cannot base its decision not to hire an applicant on speculation that workers' compensation costs will increase as a result of hiring the applicant.
Once the employer believes the injured employee can return to work, the employer may test the employee's physical fitness in order to verify that the employee can perform the essential functions of the job with or without a reasonable accommodation.
ADA, Workers' Compensation, and Light-Duty Programs.
Light-Duty Defined.
The terms "light duty," "modified duty," "transitional duty," "restricted duty," "alternative duty," etc. are often used interchangeably by employers to refer to work that is physically or mentally less demanding than an employee's regular job duties. Typically, light-duty jobs are created in a number of different ways:
- changing the marginal (i.e., nonessential) functions of an employee's regular job;
- changing the essential functions of the regular job;
- creating entirely new positions that are reserved for employees with disabilities; or
- by simply reserving less strenuous regular jobs for those with disabilities.
When considering any legal issues that might arise out of any light-duty program, it is important at the outset to determine whether the light-duty position in question is or is not simply a reasonable accommodation required by the ADA. If the so-called light-duty position is nothing more than a reasonable accommodation required by the ADA, clearly an employer could not evade any of its obligations under the ADA by simply labeling the position as "light," "modified," "transitional," "restricted," or "alternative" duty.
EEOC's Position Regarding "Creating" and "Reserving" Light Duty Jobs.
The EEOC's September3, 1996, Enforcement Guidance suggests that there is a critical distinction between an employer's ADA obligations with respect to the "creation" of light-duty jobs for employees with occupational injuries and the "reserving" of light-duty jobs for employees with occupational injuries.
Creation of Light-Duty Jobs.
The ADA does not require an employer to "create" a light-duty job for an occupationally or non-occupationally disabled employee, regardless of whether or not the employee's disability is the result of a work injury. An employer may choose to create a light-duty job for employees with occupational disabilities and not create light-duty jobs for employees with non-occupational disabilities.
While it is the EEOC's position that an employer is not obligated to create a light-duty job for an employee with a non-occupationally related disability, an employer would still be required to make reasonable accommodations required by the ADA "even if the resulting job duties resemble a light-duty position."
"Reserving" Light-Duty Positions.
Determining whether a position or group of positions has been "reserved" as a light-duty job requires careful scrutiny. For example, an employer may decide to set aside a certain number of less physically or mentally demanding jobs for light-duty purposes. An employer may also be found to have "reserved" jobs as light-duty positions where it creates entirely new jobs and then reserves them for light duty.
It is the EEOC's position that, where jobs have been reserved as light-duty, an employer may not elect to fill those jobs with employees with occupational disabilities to the exclusion of employees with non-occupationally related disabilities. The EEOC has also taken the position that an employer cannot establish that reassigning employees with non-occupational disabilities to light-duty jobs poses an undue hardship because there will be no light-duty vacancies for employees with occupational disabilities.
Where an employer has created "temporary" light-duty jobs, the ADA does not require that the employer offer an employee a "permanent" light-duty job.
Light Duty for Employees With Work-Related vs. Non-Work-Related Disabilities.
As indicated above, it is the EEOC's position that, whether the ADA permits a light-duty program to be limited to only workers' compensation claimants depends on whether the employer "creates" light-duty jobs as the need arises or whether it "reserves" or "sets aside" jobs for light-duty purposes. Depending on the size of an employer, it may be quite difficult to manage a light-duty program effectively by continually creating new positions to address each and every situation as it arises. Also, such an ad hoc approach would preclude an employer from setting aside less demanding regular jobs for use in such a program. Often, a more effective approach may include a combination of "reserved" light-duty jobs and jobs that are "created" to address a certain need or a particular set of circumstances. While it appears that an employer may be able to make available "reserved" light-duty positions to both groups of employees and "create" light-duty positions only for employees with work-related disabilities, the practical administration of such a practice may become rather difficult as the distinctions between the concepts of "creating" and "reserving" light-duty jobs have a tendency to blur.
Limiting the Number of Jobs to Be "Reserved" As Light-Duty (Either New Jobs or Less Strenuous Regular Jobs).
Since it is the EEOC's position that the ADA does not require an employer to create new positions for the purpose of accommodating employees with disabilities, it would follow that an employer would be free to decide how many light-duty jobs to create and make available to employees with disabilities. Clearly, however, an employer would be prohibited from creating light-duty positions for some but not others because the latter are members of a protected class (e.g., race, sex, religion, age, national origin, union or protected concerted activities, etc.). Also, once such jobs are created, an employer must assign employees to the positions in a nondiscriminatory fashion and must make whatever reasonable accommodations as are necessary for disabled employees to perform the light-duty jobs.
Given the lack of controlling precedent regarding the parameters of an employer's discretion in setting the number of light-duty jobs and the possibility of discrimination claims if jobs are created for some but not others, employers should avoid arbitrarily setting the number of light-duty jobs to be created. Rather, such decisions should be based on an objective analysis of justifiable, nondiscriminatory business needs of the company (e.g., payroll costs, the day-to-day personnel needs of the organization, etc.). However, for this approach to provide the maximum protection from discrimination claims, an employer would have to be consistent in its adherence to its own numbers and would have to re-visit those numbers as the business considerations on which they are based change.
The more difficult question is whether an employer can limit the number of less strenuous regular jobs that are "reserved" as light-duty jobs. The EEOC's likely position is that an employer may not do so if it has the effect of either the employer failing to make what is otherwise a reasonable accommodation for an employee/applicant's disability or precluding disabled employees/applicants from being awarded vacant positions for which they are otherwise qualified. For example, if an employer has five receptionist positions and it decides to reserve two of those positions as light-duty, the employer may be liable for disability discrimination if it refuses to consider an otherwise qualified disabled employee/applicant for a vacant receptionist position on the basis that the two designated light-duty positions are already filled.
However, an employer is not precluded from giving preference to disabled employees/applicants for created or reserved light-duty positions over nondisabled persons. An employer could, therefore, create or reserve such positions for disabled employees to the exclusion of all other employees. This could be accomplished by creating a light-duty unit or set of job classifications and filling these positions either exclusively with disabled employees or by giving first preference to disabled employees over nondisabled employees.
Limiting the Duration of Light-Duty Jobs.
There are a number of inherent dangers in creating or reserving light-duty jobs and leaving the duration of those jobs undefined or open-ended. Without established durations, a court may find the light-duty job to be a "permanent" position. Such a finding may obligate an employer to continue to employ the disabled employee in the position for an unlimited period of time or even preclude an employer from eliminating the position and redistributing the light-duty job functions to nondisabled employees.
Where the duration of light-duty positions is determined on a case-by-case or "wait-and-see" basis, significant inconsistencies in the administration of the light duty program could develop. This could lead to claims of discrimination under the ADA and under various other federal, state, and local laws. From a practical standpoint, where the duration of light-duty is left open-ended, for some employees, there may be little incentive to wean themselves from light-duty and return to their regular jobs. In fact, many employers report significant increases in the frequency of "miraculous" recoveries toward the end of the light-duty period.
If an employer decides to place limits on the duration of light-duty jobs, again, it should do so based on an objective analysis of the justifiable business needs of the company. Also, it may be useful to articulate those justifiable business needs in the light-duty policy. The downside of limiting the duration of light duty is that employees with work-related injuries may again become eligible for weekly workers' compensation benefits due to their renewed loss of wages.
When light duty ends for employees with non-work-related disabilities, an employer could incur increased costs if the resulting wage loss results in employees becoming eligible for long-term disability benefits under a program that is either self-insured or insured by a policy that is "loss-sensitive." In addition, when light-duty ends for both employees with work-related disabilities and those with non-work-related disabilities, an employer may also become liable for unemployment compensation benefits.
Because it is inevitable that some employees will complete the light-duty program without being able to return to their regular jobs, a strategy for managing such employees should be developed so that they do not disappear into the abyss of workers' compensation or the LTD program. For employees who become eligible for insured benefits, perhaps the strategy should include systematic input from or cooperation with the insurer.
Wages and Benefits Paid to Employees While Working Light Duty.
Clearly, an employer may not pay a disabled employee less wages or benefits than it pays nondisabled, similarly situated employees for the same or equivalent work simply because the employee is disabled. However, an employer may justify paying disabled employees lower wages and benefits by relying on nondiscriminatory factors such as the employee's relative skill, education and years of experience, the employee's status as full-time versus part-time, the relative difficulty of the employee's job duties, seniority, etc. Most states' workers' compensation laws impose no affirmative obligations on an employer with respect to the payment of wages or fringe benefits.
Paying employees their regular wage rates for light-duty work can also be problematic. Where employees from different jobs with varying wage rates work side by side in light-duty jobs, lower paid employees can develop a sense of unfairness that can lead to a lack of cooperation or other personnel problems. Also, some employees may actually prefer their same-pay-for-less-work job and actually strive to prolong the light-duty period.
Where union employees are involved, the wages and benefits of bargaining unit employees who participate in light-duty work may or may not be set forth in the collective bargaining agreement. In either event, unless the union has "unequivocally waived" its right to bargain over such issues, the issue of light-duty wages and benefits would be a mandatory subject of bargaining. Failure to adhere to the contract or bargain with the union could result in a grievance or an unfair labor practice charge before the NLRB.
Medical Examinations Under the ADA and Workers' Compensation Laws.
Medical Examinations of Injured Employees.
In most states, an employer may require workers' compensation claimants to submit to periodic medical examinations. However, the ADA provides that medical examinations or medical inquiries may occur only if such examinations are job-related and consistent with business necessity. Therefore, employers who require or request that injured employees obtain a medical examination must be careful that the focus, frequency, and scope of such examinations further the legitimate business purpose of managing the employee's workers' compensation claim.
Examples of the Proper Use of Medical Examinations.
Generally, an employee who begins to have difficulty performing his job effectively due to a medical condition may be required to submit to a medical examination to determine if he can perform his essential job functions with or without an accommodation. Medical examinations or inquiries may be conducted when an employee is injured on the job or when an employee wants to come back to work after an injury or an illness. Again, such examinations or inquiries must be "job-related and consistent with business necessity." Medical examinations or inquiries may be necessary to evaluate an employee's request for a workplace accommodation.
Periodic Examinations or Monitoring Required by Law.
Federal, state, or local laws may require that an employer conduct periodic medical examinations and monitoring. However, such requirements under state and local laws must be consistent with the ADA in order to satisfy the "job-related and consistent with business necessity" standard. This means that an employer may not comply with state and local laws if such compliance would violate the ADA.
For instance, while an employer is permitted to conduct medical examinations required by OSHA, if periodic AIDS testing for a particular job is required not by OSHA but is required by a state or local law, such examination must be shown to be:
- job-related and consistent with business necessity, or
- necessary to avoid a direct threat to health or safety.
Other Permitted Uses for Medical Examinations and Inquiries.
An employer may use the results of medical examinations and inquiries for certain purposes, including:
- To verify employment history.
- To screen out applicants with a history of fraudulent workers' compensation claims.
- To provide information to state officials as required by state workers' compensation laws and "second injury" funds.
- To screen out applicants who would pose a "direct threat" to their own or others' health or safety, which threat could not be reduced to an acceptable level (or eliminated entirely) by a reasonable accommodation.
Settlement of Workers' Compensation Claims and ADA Ramifications.
Settling or Compromising Workers' Compensation Claims.
It is unclear in some states whether a workers' compensation claim can be settled or compromised. In other states, settlement or compromise of such claims is clearly prohibited.
Separation Agreements and Waivers of Claims.
Often, employers will condition a settlement or compromise of a workers' compensation claim on the claimant's agreement to a separation agreement, through which the claimant resigns his employment and waives all claims against the employer. Employers often require such an agreement so that they do not have to rehire an injured worker and place themselves back on the hook for further disability benefits. Such separation agreements should routinely include a voluntary waiver of rights under the various state, federal, and local labor and employment laws. For such a waiver to be valid, additional consideration (i.e., consideration above and beyond what is paid to settle the workers' compensation claim) should be paid to the claimant.
Waiver of ADA Claims.
The ADA does not set forth the essential elements for an effective waiver of one's rights under the ADA. To be safe, employers asking individuals with disabilities to resign in exchange for a workers' compensation lump-sum payment should follow the minimum criteria for "knowing and voluntary" waivers set by the Age Discrimination in Employment Act. (The EEOC's Technical Assistance Division suggests that employers look to the requirements of the ADEA for guidance on waivers of non-age-related claims.) Recent amendments to ADEA provide the following guidelines for an effective waiver.
- The waiver must be written in a manner that is understandable to the affected employee.
- The waiver must specifically refer to the employee's rights or claims under the law.
- Rights or claims that may arise after the date the waiver is signed may not be waived.
- In exchange for the waiver, the employee must receive something of value that is in addition to anything to which the employee would already be entitled.
- The employee must be advised in writing to consult with an attorney prior to signing the waiver.
- The employee must be given at least 21 days to consider the waiver. (Forty-five days is required for waivers given in connection with employment termination programs offered to a group or class of employees.)
- The employee must be permitted to revoke the waiver for seven days after he or she executes it.
According to EEOC staff, the issue of waiving ADA rights as part of a workers' compensation settlement has been one of the most frequent inquiries to the Agency. Until the waiver issue has been formally resolved by the EEOC and the courts, the EEOC's conservative approach with respect to ADA waiver should be carefully considered.
FMLA: Interrelationship with Workers' Compensation and the ADA
Employees Covered by the FMLA.
The FMLA allows certain qualified employees to take up to 12 weeks of unpaid leave per year because of the birth of a child, to care for a newborn, placement of a child with the employee for adoption or foster care, the employee's own "serious health condition" or that of certain family members. Except in the case of certain "key employees," the employer is required to reinstate the employee to a comparable position upon receipt of medical certification of the employee's ability to return to work. Further, employers are strictly prohibited from interfering with, restraining, or denying the exercise of or attempt to exercise any rights under the FMLA.
EEOC Regulations Define "Serious Health Condition" As Follows:
Serious Health Condition (29 C.F.R. §825.114): includes an illness, injury, impairment, or physical or mental condition that involves:
- Inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with that inpatient care; or
- Continuing treatment by a healthcare provider which includes one or more of the following:
- a period of incapacity of more than three consecutive calendar days and any subsequent treatment or period of incapacity relating to the same condition that also involves treatment two or more times by a healthcare provider or treatment by a healthcare provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the healthcare provider;
- any period of incapacity due to pregnancy or prenatal care;
- any period of incapacity or treatment of such incapacity due to a chronic serious health condition, which requires periodic visits for treatment by a healthcare provider or assistant under direct supervision of such a provider, continues over an extended period of time and may cause episodic rather than a continuing period of incapacity;
- a period of incapacity which is permanent or long-term due to a condition for which treatment may be effective;
- any period of absence to receive multiple treatments (and recovery therefrom) by healthcare provider or provider of healthcare services (by order or referral) either for restorative surgery or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment.
FMLA "Serious Health Condition" vs. ADA "Disability" vs. Workers' Compensation "Injury" or "Disability."
In most cases, the FMLA definition of "serious health condition" will be much broader than the ADA definition of "disability." However, to be certain, careful analysis under both definitions is essential. One way that the FMLA definition is more narrow than the ADA definition is that, unlike the ADA, "serious health condition" does not include "perceived disabilities" or merely a "record of impairment." Neither the FMLA definition of "serious health condition" nor the ADA's definition of "disability" takes into account whether or not the employee's medical problem is related to a work-related injury or disease. Employees who are injured at work enjoy the same protections under the FMLA and ADA as any other employees.
FMLA Regulations Dealing Specifically With Workers' Compensation.
Work Injuries May Constitute "Serious Health Conditions" Under FMLA.
The FMLA provides that a "serious health condition" may result from injury to the employee "on or off" the job. (29 C.F.R. §825.207(d)(2)). An employee's FMLA leave may run concurrently with workers' compensation absence where the "serious health condition" requirements are met. (29 C.F.R. §825.207(d)(2))
Substitution of Paid Leave When Workers' Compensation and FMLA Leave Run Concurrently.
Because workers' compensation is not considered to be "unpaid leave" under the FMLA an employer may not require an employee on workers' compensation and FMLA leave concurrently to use accrued paid leave benefits. (29 C.F.R. §825.207(d)(2)) Where workers' compensation benefits cease before FMLA leave ends, the employer may require the employee to use accrued paid-leave benefits. (29 C.F.R. §825.207(d)(2))
Offers of Light Duty to Employees on Workers' Compensation and FMLA Leave Concurrently.
If an employee is unable to return to the same or equivalent job, he may decline an offer of light duty and remain on FMLA leave. (29 C.F.R. §825.207(d)(2)) An employee on workers' compensation and FMLA leave concurrently may nonetheless jeopardize his entitlement to workers' compensation benefits should he refuse a light-duty assignment. (29 C.F.R. §825.207(d)(2)) An employer may nevertheless offer a light-duty position to an employee on FMLA leave if acceptance is voluntary and uncoerced. (29 C.F.R. §825.220(d)) Employees (and their collective bargaining representatives) may not waive employees' FMLA rights. (29 C.F.R. §825.220(d))
When FMLA Leave Ends and Workers' Compensation Continues.
Where the FMLA leave period ends, but the employee remains on workers' compensation, the employee is no longer protected by the FMLA "and must look to the workers' compensation statute or ADA for any relief or protections." (29 C.F.R. §825.216(d))
Medical Inquiries for Employees on Workers' Compensation and FMLA Leave Concurrently.
Where an employee is on workers' compensation and FMLA leave concurrently, an employer may have direct contact with the "workers' compensation health care provider" if such contact is permitted under the applicable workers' compensation statute. (29 C.F.R. §825.307(l))
Dangers of Failing to Designate Time Off on Workers' Compensation as FMLA Leave.
An employer's obligation to designate time off as FMLA leave and notify the employee of the designation commences once the employer has sufficient knowledge that an employee's need for a leave of absence is for an FMLA purpose. Such notice may be oral and need not include a specific request by the employee for FMLA leave. (29C.F.R. §825.302(c)) As a result, when work-related injuries occur and employees go off work and onto workers' compensation, employers may fail to realize that their obligations under the FMLA may have been triggered.
Quite often, the failure to designate time off on workers' compensation as FMLA initially goes unnoticed by both the employer and the employee. One reason for this is that it is commonly believed that one either goes on workers' compensation or FMLA leave. Also, the failure to designate time on workers' compensation as FMLA leave often has little or no real adverse impact on the employee. This is because many employers continue paid health insurance coverage for injured employers for many months or for the duration of their time on workers' compensation and because it is typically to the employer's benefit to return the employee to work so that the workers' compensation claim can be closed. More often than not, injured employees return to work long before job security and benefit continuation become issues.
Typically, an employer's failure to designate time off on workers' compensation as FMLA comes back to haunt the employer when the employee has lingered on workers' compensation for long periods of time or where the employee becomes a "problem" workers' compensation claimant. When those situations occur, employers often begin considering whether the employee's insurance benefits and/or employment may be terminated. Since FMLA leave may not be designated retroactively, an employer acts at its peril if it takes any action that adversely affects the employee's insurance benefits or job security without first offering the employee FMLA leave.
Other Differences Between the FMLA, ADA, and Workers' Compensation.
Care of Others.
Unlike the ADA or workers' compensation, the FMLA may be applied in situations involving the care of certain family members and adoption or placement of foster children.
Hardship.
The ADA limits an employer's obligations in instances where the accommodation may produce an undue hardship.
The FMLA does not recognize the concept of "undue hardship." However, the FMLA does set forth exceptions for employees designated as "key employees." However, this definition is very difficult for an employer to meet.
Intermittent Leave, Reduced Schedules, and Light Duty.
The ADA permits an employer to offer intermittent leave and reduced schedules in order to meet its statutory obligations. An employer may also assign an employee who requires intermittent or reduced leave to an alternative position with reduced pay and benefits. The employer must allow for such leave only after certification that the accommodation would enable the employee to perform the essential functions of the job. When intermittent leave or reduced schedules are requested, the undue hardship defense is available to the employer.
The FMLA provides that an employer must grant an employee an intermittent or reduced leave if there is a showing of medical necessity for the employee's own serious health condition. The undue hardship defense is not available to the employer.
The FMLA provides that an employee who returns to work and is assigned to an alternate position must receive equivalent pay and benefits. There is no such requirement under the ADA or workers' compensation.
The FMLA provides that employees have no obligation to accept light-duty work and forgo FMLA leave. However, an employee who refuses a light-duty assignment may lose his weekly compensation benefits.
Medical Inquiries.
The ADA allows job-related questions consistent with business necessity. Both the ADA and FMLA allow for a certification of an employee's fitness for duty. Workers' compensation allows for medical inquiries relating to all aspects of the employee's injury such as history, treatment, prognosis, etc.
Part-time Workers.
- The ADA and workers' compensation apply to part-time workers.
- The FMLA requires 12 months of work and at least 1,250 hours of work during the previous 12 months.
Time Limits. - ADA has no time limit for leave except for a claim of undue hardship by the employer.
- FMLA leave is limited to 12 weeks.
- Depending on which state's workers' compensation law applies, there may be no time limit for workers' compensation leave. In Pennsylvania, for example, "partial" disability ends after 500 weeks of partial disability benefits; "total" disability benefits and medical benefits can be received forever.
Attendance Issues.
Most states' workers' compensation laws do not prohibit an employer from disciplining an employee for absenteeism that results from a work injury. However, in many states, an employee whose employment is suspended or terminated because of absence due to a work injury will likely be able to get his workers' compensation benefits reinstated.
FMLA leave or leave granted for a reasonable accommodation pursuant to the ADA cannot be the basis for discipline or other negative employment action.