At the 2018 National Workers’ Compensation and Disability Conference & Expo a session discussed the interplay between leave of absence laws and workers’ compensation. The speakers were:
- Marti Cardi, Esq – VP Product Compliance, Matrix Absence Management, Inc.
- Rich Montarbo, Esp – Law offices of Richard Montarbo
FMLA is very challenging because it has so many explicit rules and regulations associated with in. In contrast, what makes ADA so challenging is the lack of explicit rules because it is designed to be very expansive and focus on specific scenarios. Layered on top of these two laws is a variety of state and local leave of absence laws.
Under ADA, employers are entitled to make a “disability related inquiry” to the medical provider to elicit information about the disability so that an accommodation can be considered. There are limitations in what can be asked in that the questions need to be focused on performing the essential functions of the job. You can not ask for more information than needed to determine the potential for accommodation. In other words, their diagnosis is not relevant but their functional abilities are.
The medical information available under FMLA is even more limited than ADA. The employer can ask for medical facts to support the need for leave. If the request is for an intermittent or reduced schedule the employer is allowed to request documentation that the changed schedule is “medically necessary”.
According to case law, there is a difference between time off that would be beneficial to the employee vs time off associated with physical incapacity. (Hurley v Kent of Naples, Inc). In Hurley, the worker requested extended vacation time but he was not receiving medical treatment he simply wanted more time off for his state of mind.
However, case law does indicate FMLA leave would be allowed to prevent the occurrence of a flair up in the condition (Santiago vs Department of Transportation).
Once the employee comes back to work, FMLA limitations on obtaining medical records no longer apply. At that point the broader rights to medical information under ADA apply.
The right to FMLA leave is almost absolute. You cannot force an employee to work under an accommodation if they choose to take leave under FMLA. However, when their FMLA leave is exhausted ADA is focused on the ability to accommodate the worker so that they are able to return to work.
Telecommuting may be considered a reasonable accommodation under ADA. However, the employer may refuse a telecommuting request when the job requires:
- Face-to-face interaction and coordination with other employees.
- In-person interaction with outside colleagues, clients, and customers.
- Immediate access to documents or other information located only in the workplace.
- Use of tools or equipment that cannot be reasonably replicated at the employee’s home.
- It should be noted that with the ability to video conference the requirement of face-to-face interaction is usually not enough to defeat a request for telecommuting as an accommodation.
Light duty is something that employers often make available for people injured under workers’ compensation. Under ADA the employer is not required to create a light duty position, only to make reasonable accommodations to existing jobs. However, if employers are providing light duty jobs under workers’ compensation then the courts will usually find they must offer the same thing under non-occupational. When it comes to leave of absence, the courts look for consistency with how the employer applies their policies.
Both ADA and FMLA can require a modified or part-time schedule as a reasonable accommodation. It should be noted that the modified schedule must be provided under FMLA even if it creates an “undue hardship” under the ADA analysis.
Leave of absence can be a reasonable accommodation under ADA. However there are limits. An indefinite or open-ended leave is not considered a reasonable accommodation. The employee must be able to perform the essential functions of the job in the near future. Also, the employee needs to be doing something to facilitate their recovery and return to work during this leave of absence.
The EEOC has been very aggressive pursing litigation against employers with inflexible leave of absence policies. This includes requiring employees to be 100% healed before returning to work and auto-termination policies after a set time away from the workplace.