Because the interplay of Workers’ Compensation (WC), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) can be dangerous territory, it is often called the Bermuda Triangle of employment law. Here are some important points.
Workers’ Compensation allows workers who were injured on the job to receive compensation while they are out of work. Generally, it does not provide any job protected leave, but an employer cannot retaliate against an employee for filing a workers’ compensation claim.
The American Disabilities Act (ADA) is a federal law that prevents employers from discriminating against employees or job applicants because they are a qualified individual with a disability. The ADA does not provide for any source of payment to the employee, but requires an employer to make reasonable accommodations for the employee or prospective employee.
The Family Medical Leave Act (FMLA) is a federal law that provides for up to 12 weeks of unpaid leave to care for yourself or another family member with a serious health condition. The employer is required to return the employee to the same or an equivalent position. The employee is entitled to 12 weeks leave within a 52 week period. In order to be eligible, the employee must have worked for 12 months and at least 1,250 hours prior to the start of the leave and must be employed at a work site where 50 or more employees are employed by the employer within 75 miles of the work site.
Our clients know we not only recommend running FMLA concurrent with a Workers’ Compensation absence, but consider it critical. If an employer fails to designate an absence as FMLA leave, it could potentially provide the employee with more leave than they would normally be entitled to. Once an employee uses their 12 weeks of FMLA leave, the employees’ Workers Compensation benefit status does not provide them with job protection. During this time, the employer is required to continue to provide benefits at the same level prior to the employees leave.
Remember, an employee has the right to decline light duty while on FMLA leave, but does not have the same right under Workers’ Compensation or ADA. If an employee’s health care provider, certifies that an employee is able to return to a light duty capacity, but the employee declines, the employee risks losing their Workers’ Compensation benefits. Similarly, a worker that turns down a reasonable accommodation also risks losing their job under the ADA. If an employee declines light duty, the employee will remain on their 12 week unpaid FMLA leave until the entitlement runs out.
Need help navigating the rough waters of employment law? Call Aisha Hartford, Director of Client Services at 800-462-6435.