At the 2018 RIMS Annual Conference, Dawn Watkins from LAUSD and Kimberly George from Sedgwick discussed the challenges with the wide variety of leave of absence laws and how these laws can interact with workers’ compensation claims.
Failure to comply with all applicable leave of absence laws can expose you to fines, penalties and litigation. Because of that, it is critically important to understand all the laws so you can stay in compliance.
More organizations have silos of some type with their Human Resources and Risk Management programs operating independently. The challenge becomes to try and integrate these two programs as needed to maintain compliance on leave of absence laws.
Leave of absence laws continue to evolve around the nation. The federal ADA and FMLA laws have been in place for many years. Several states, in particular California and New York, have implemented their own leave of absence laws that are more expansive than the federal laws. Now we are seeing individual municipalities pass even-more expansive leave of absence laws, in particular in San Francisco and Seattle.
Another way leave of absence laws are evolving is to provide for mandatory leave for a wider variety of issues. Some of these laws now require mandatory leave for common issues, including caring for ANYONE you designate, meeting with your children’s school and attending funerals.
The overlap between FMLA, ADA and other leave of absence laws is a challenge because they have different time frames, duration and rules around eligibility. For workers’ compensation claims, it is important to run your FMLA leave concurrent with workers’ comp disability. If you do not, you risk the employee taking additional leave under FMLA once he or she is released to work for the workers’ compensation injury.
ADA requirements for job accommodations also apply to workers’ compensation claims. This issue has tripped up many employers leading to litigation and penalties. If the employee is released to any form of work, ADA requires you to try to accommodate those restrictions. Thus, many employers who take a “no light duty” approach to their workers’ compensation program could possibly be in violation of ADA for not offering a reasonable accommodation. Simply continuing TTD benefits when a person is released to modified work is not in compliance with ADA. You are required to perform the interactive process and show you made a reasonable effort at accommodation.
Having a union is not an excuse to not have a return-to-work program or to not comply with ADA accommodation rules. Employers must meet with their unions and work to create leave of absence policies that comply with the ADA interactive process.
You should be creating your ADA-compliant job descriptions that identify the essential functions of the job prior to having to deal with an actual leave of absence. This should be a standard component of the job descriptions. It is also important to be consistent with how you accommodate restrictions for all people and leave types. You cannot accommodate worker’s comp claims, but then not accommodate personal leave. You also cannot play favorites and waive the rules for one employee vs another.
A great resource on job accommodation rules is the Job Accommodation Network (askjan.org) This site does a great job explaining the steps of the interactive process.