By Michael J. Gore, LL.M.
When an employee suffers a workplace injury, many employers incorrectly believe that their legal obligation ends with the workers’ compensation claim. However, an employee injured on the job may be covered by the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), as well as workers’ compensation. When handling a workplace injury, the interrelationship of these statutes should be taken into account.
What Does FMLA Require?
In general terms, the FMLA requires employers covered by the Act to give covered employees up to 12 weeks of unpaid leave in a 12-month period to employees who need time off for, among other things, a serious health condition. The FMLA also provides various reinstatement requirements. Many types of injuries under the workers’ compensation law qualify as a serious health condition under the FMLA, but not necessarily all injuries.
Many employers offer “light duty” jobs within the employee’s temporary restrictions until the employee is either released to return to work or reaches maximum medical improvement. If the health care provider treating the employee for the workers' compensation injury certifies the employee is able to return to a light duty job but is unable to return to the same or equivalent job, the employee may decline the employer's offer of a light duty job. As a result, the employee may end up losing workers' compensation payments but is entitled to remain on unpaid FMLA leave until the employee's FMLA leave entitlement is exhausted. See
29 C.F.R. § 825.207.
What Does the ADA Require?
The ADA requires reasonable accommodations as they relate to, among other things, enabling a qualified individual with a disability to perform the essential functions of a job and making it possible for an employee with a disability to enjoy equal benefits and privileges of employment.
Under the ADA, it may be a reasonable accommodation for the employer to reassign an employee to a light duty position. See EEOC Technical Assistance Manual, Section 9.4: “What Can an Employer Do When a Worker is Injured on the Job?” When an employer places an employee in the light-duty position, the employer must gauge its accommodations in relation to the light-duty position. Under the FMLA, however, an employer may not require participation in a return-to-work program while the employee is on FMLA leave. See 29 C.F.R. § 825.702.
A reasonable accommodation may also include a leave of absence and reinstatement to the same job. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA: “Types of Reasonable Accommodations Related to Job Performance.”
Ultimately, a workers’ compensation workplace injury does not necessarily qualify a worker for ADA and FMLA protection. However, an employer should follow the guidelines pursuant to these statutes to determine if the injured employee is covered. If so, the employer must be mindful of certain statutory rights that the injured worker may have.
This article was originally published in the Associated General Contractors of America Florida East Coast newsletter, September 2022.