Walking the FMLA-ADA-Workers’ Compensation Tightrope

Can you maintain the balance between the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and your workers’ compensation claims? At the RIMS 2017 Annual Conference, Drew Pomerance, Partner, Roxborough, Pomerance, Nye & Adreani, LLC, and Tamara Johnson, Vice President, Lockton, discussed how you can equip workers with the correct information and benefits while being an advocate for their recovery.

Qualifying reasons for leave include serious health condition such as illness, injury, impairment, or physical or mental condition involving inpatient care or continuing treatment by health care provider. For any employee to be eligible for FMLA, they have to meet certain criteria. This criteria includes the following specifications: employed by covered employee, worked at least 12 months, and have accumulated at least 1,250 hours of service in 12 months prior to leave.

Family Medical Leave Act (FMLA)

Eligible employees may take up to 12 work weeks of FMLA leave and the employee is entitled to take intermittent leave or reduced schedule when the employee’s serious health condition requires leave to be medically necessary. The employer’s FMLA responsibilities are to provide notice, maintain group health insurance, restore the employee to the same or equivalent job and benefits, and to maintain records. Employers cannot interfere with, restrain or deny employees’ FMLA rights, discriminate or retaliate against an employee for having exercised FMLA rights, discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA, and cannot use the taking of FMLA leave as a negative factor in employment actions.

The employee’s responsibilities are to provide periodic status reports and an employee must respond to employer’s request for information about status and intent to return to work. An employee must also provide a fitness for duty certification. For any work-related injuries, employers may require certification that the employee is able to resume work. If the state or local law or collective bargaining agreement is in place, it governs the return-to-work process.

Americans with Disabilities Act (ADA)

What is an interactive process? This is an informal process to identify and potentially overcome barriers resulting from a disability. There is a dialogue between the employer and the employee. This determines if an employee can return to work following a work-related illness or injury, with or without an accommodation (temporary or permanent).

Triggers for reasonable accommodation in workers’ compensation include: at the time of the injury (whether the injury is stable or still evolving), during the recovery time (when employee’s condition becomes stable enough to allow temporary reasonable accommodations), and when leave and workers’ compensation benefits have been exhausted (additional paid leave and or reassignment to a vacant position). Another trigger for reasonable accommodation is if there are permanent work restrictions or even if the employee just requests it.

Best practices include:

• Create a policy.
• Review your job descriptions.
• Train appropriate personnel to recognize a request for accommodation.
• Schedule a meeting with employee (this is the core of the interactive process).
• Consider what information is needed from the employee’s physician.
• Keep dialogue open.
• Document, document, document!

Components of an effective, reasonable accommodation include making facilities accessible to and usable by workers with disabilities, job restructuring, part-time or modified work schedule, adjusting or modifying exams, training, materials or policies, providing qualified readers or interpreters, paid or unpaid leave (including reduced hours or CFRA leave coordination), reassignment to a vacant position, preferential consideration, or even alcohol or drug rehabilitation programs.

In summary, walking the FMLA, ADA and workers’ compensation tightrope is tricky. It is important to document everything. Keep open communication between the employer and the employee and make sure to follow policies and procedures put in place by your company. This communication will help reduce costs incurred and reduce return-to-work time. This will also make the return to work an easy transition for the employee