Fired When Sick: Employee Leaves of Absences Comparison of the FMLA, ADA and Workers’ compensation Laws

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30th Sep 2015

Employment Lawyers
Family Medical Leave Act (FMLA)
Americans with Disabilities Act (ADA)
Workers’ Compensation
 

 

 

 

General

 Allows qualified workers 12 weeks of unpaid leave with the continuation of health benefits. Requires that persons with a disability be provided certain reasonable accommodations so that disabled workers can perform the essential functions of their job. Provides medical benefits and compensation for workers who are injured on the job.
 

 

 

 

Covered Employers

 Private employers with fifty or more employees. Employers with fifteen or more employees. Any employer with one employee.
 

 

 

 

Eligible Employees

 Employee:

  1. Works at a worksite with fifty or more employees or for an employer who has fifty or more employees within 75 miles of that worksite.
  2. Has worked for the employer for at least twelve months.
  3. Has worked at least 1,250 hours over the twelve-month period prior to the date leave commences.
  1. An employee who meets the ADA definition of qualified individual with a disability is protected regardless of employee’s period of employment.
  2. Applicants
  3. Individual who has a relationship with someone who has a disability is protected.
  1. An employee who incurs an injury that arises out of and in the course of the employment relationship
  2. An employee who has a preexisting condition that is aggravated or accelerated by the workplace.
 

 

 

 

Right to Leave
  1. If employee has a serious health condition that makes the employee unable to perform any of the functions of the job.
  2. If the employee is caring for a spouse, child, or parent with a serious health condition.
  3. Employee is caring for a child after birth or placement for foster care.
 An individual with a disability has a right to any reasonable accommodation that will allow him to perform the essential functions of his job unless the accommodation would be undue hardship on the employer.

One reasonable accommodation is unpaid leave.

 There is no job protection under workers’ compensation laws except for the anti-retaliation provision in essentially all workers’ compensation laws.

If an employee cannot work due to a work injury, he/she is generally entitled to compensation benefits in lieu of lost wages.
Serious Health Condition (FMLA)

  1. Inpatient Care: any period of incapacity and any subsequent treatment.
  2. Absence plus Treatment by a Health Care Provider: any period of incapacity of more than three consecutive days and any subsequent treatment. Also involves treatment two or more times by a health care provider or treatment on one occasion that results in a regimen of continuing treatment.
  3. Chronic Conditions Requiring Treatment: any period of incapacity or subsequent treatment due to a serious health condition. Requires periodic visits for treatment by health care provider, continues over an extended time and may cause episodic rather than a continuing period of incapacity. (i.e. asthma, diabetes, epilepsy)
  4. Permanent/Long-Term Conditions Requiring Supervision: any period of incapacity that is permanent or long-term for which treatment may not be effective. Permanent supervision, but not active treatment is required. (i.e. Alzheimer’s, a severe stroke, or terminal stages of disease)
  5. Multiple Treatments for Non-Chronic Conditions: any period of absence to receive multiple treatments for a condition that would likely result in an absence of three or more days if left untreated. (i.e. chemotherapy for cancer, physical therapy for severe arthritis, and dialysis for kidney disease)
 Qualified Individual with Disability Under ADA

  1. Has “physical or mental impairment that substantially limits one or more of [that person’s] major life activities”
  2. “Has a record of such impairment”
  3. Is “regarded as having such impairment”
    42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)

Most temporary impairments and pregnancy are examples of conditions specifically excluded from ADA coverage.
 

 

 

 

Employee Notice
  1. Foreseeable Leaves: Thirty days notice must be given to employer
  2. Unforeseeable Leaves: Notice must be given “as soon as practicable” or verbal notification within one or two business days of when the need for leave becomes known.

If the employer has a paid leave policy, then the employer can require no more than the employer’s notification for the company’s paid leave plan. Family member or friend may also request leave for a sick worker.
  1. No specific notice requirements.
  2. Employee is obliged to request a reasonable accommodation.
  3. If need for an accommodation is obvious, employer should offer the accommodation before taking any adverse action against the worker because of poor job performance.
 Employee must report a work-related injury within a specific number of days (usually thirty days) of the occurrence of the illness or injury and then file a claim within a certain period (usually one year).
 

 

 

 

Employer Notice

 If the employer knows the worker is sick and that the time off is covered by FMLA the employer must give the FMLA information form to the worker. The employer has an affirmative obligation to designate absences as FMLA. Employers must post a notice in a format accessible to applicants and employees that describe the provisions of ADA. Employer must post a notice of its insurer and how employees can file claims.
 

 

 

 

Verification of an Employee’s Right to Leave

 Employer may require medical certification of an employee’s or family member’s serious health condition by the treating health care provider. Employer can request only the information contained in the Department of Labor’s “Certification of Health Care Provider” form.

There is no effective means to challenge a disability slip from a treating physician.

 For a current employee a medical examination may be required when:

  1. There is a need to determine whether the employee is able to perform the essential job functions
  2. It is necessary to the reasonable accommodation process.
  3. The employee poses a “direct threat” because of medical condition
  4. It is required by applicable federal, state or local law as long as the exam is job-related and consistent with business necessity.
  5. The testing is otherwise “job-related and consistent with business necessity”

Employee may also be required to verify that his/her claimed disability exists and that an accommodation is warranted through submitting documentation from the employee’s treating health care provider.

 Employer has the absolute right to have employee undergo an independent medical examination by a physician the employer selects, regardless of physician’s location.
 

 

 

 

Consequence of Employee Refusal to Verify Right to Leave
  1. Foreseeable Leave: Employer may delay leave until medical certification is granted.
  2. Unforeseeable Leave: Leave must be conditionally granted, pending receipt of medical certification.
 Failure to cooperate with employer’s requests may preclude employee from claiming that the employer violated ADA. Compensation may be suspended until employee submits to an examination.
 

 

 

 

Responding to an Employee’s Request for Leave

 Employer must provide the employee with written notice of FMLA rights and obligations one to two business days after the need for leave is given and include the following information:

  1. That the leave will count against the employee’s annual leave entitlement;
  2. Any requirement for medical certification and the consequences of failing to provide certification;
  3. The employee’s right to substitute paid leave and whether the employer will require any substitution and any conditions related thereto;
  4. Any requirements to make premium payments to maintain health benefits, the arrangements for payments, and the consequences of failing to do so;
  5. Any requirements for a fitness-for-duty certificate;
  6. The employee’s status as a key employee and its consequences;
  7. The right to restoration to the same equivalent position; and
  8. Potential liability for the employer’s share of health insurance premiums paid by the employer if the employee fails to return to work.

Written notice of FMLA rights and obligations must be given once every six months unless circumstances change. For intermittent or reduced leave-schedule leaves, only one notice is required.

 No special form of response is required. No special form of response is required.
 

 

 

 

Intermittent or Reduced Schedule Leave

 Employee absolutely has the right to this leave, if medically necessary. This may be considered as a reasonable accommodation, but the employer has a potential undue hardship defense. Employee, generally, does not have this option.
 

 

 

 

Limitations to Intermittent or Reduced Schedule Leave

 Employee must attempt to schedule leaves so that there is no disruption to business.

If leave is foreseeable based on planned medical treatment, the employer can temporarily transfer employee to another position with the same pay and benefits.

 Employer has no special rights. Employee has no right to intermittent or reduced schedule leave.
 

 

 

 

Paid Leave

 Employer may require or an employee may elect to substitute paid vacation, personal, or medical or sick leave for unpaid FMLA leave. An employer may also designate short-term disability or worker’s compensation leave as FMLA leaves. Available paid leave may be used as a reasonable accommodation, but employer is not required to provide additional paid leave. If employee cannot work he/she is entitled to two-thirds of his/her wages as worker’s compensation benefits.
 

 

 

 

Alternatives to Leave
  1. Light Duty or Reassignment: employee can deny an offer of light duty and take leave if he/she cannot perform all of the regular duties of his/her job. If leave is foreseeable based on planned medical treatment, the employer can temporarily transfer employee to another position with the same pay and benefits.
  2. Work-at-Home Requests: if an employee who requested FMLA leave works at home, the time spent working does not count against their leave entitlement/allowance. However, an employer is not required to allow employees to work at home.
  1. Light Duty or Reassignment: no requirement for the creation of light duty jobs. It does require job restructuring, which is the removal of nonessential functions of a job that a disabled worker cannot perform. Transfer to any vacant job the employee is qualified to perform is also another required accommodation.
  2. Work-at-Home Requests: working at home may be a required accommodation, depending on the essential job functions of a particular position and the supervision of that position.
  1. Light Duty or Reassignment: an employer may require a return to light-duty work if an employee is medically certified as able to return to light duty. Otherwise an employee risks termination of his/her worker’s compensation benefits.
  2. Work-at-Home Requests: employer is generally not required to allow work at home.
 

 

 

 

Job Protection During Leave

 Job protection is guaranteed.

  1. An employee’s rights to job protection are only those that he would have if he had not been on leave.
  2. No reinstatement is required if the employee cannot perform the functions of the job due to a continued serious health condition.
  3. Key employees (top ten percent) are excepted from reinstatement requirements, but they must be so informed before they take leave.
 An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his or her same job unless an employer can demonstrate that holding open the position would impose an undue hardship. If the employer can demonstrate undue hardship, the employee must be considered for all equivalent vacant positions upon his/her return as a reasonable accommodation. Job protection is not guaranteed, but it is unlawful for an employer to retaliate against an employee for exercising rights under the worker’s compensation statute.
 

 

 

 

Benefit Protection During Leave

 Group Health Insurance Benefits: the employer must continue to provide coverage during leave under the same terms offered to employees not on leave and must reinstate the same upon return from leave. A full-time employee on reduced leave must be afforded the same coverage as full-time employees.

Non-Group Health Benefits: employer is not responsible to maintain coverage during leave but must reinstate coverage upon return from leave.

 Employer may not discriminate against a qualified individual with a disability with respect to benefit coverage. A full-time employee who becomes part-time because of a reasonable accommodation need only receive whatever benefit coverage is afforded to part-time employees. Benefits are not guaranteed, although most employers continue benefits while an employee is on worker’s compensation leave.
 

 

 

 

Time Limits

 Allows a qualified worker twelve weeks of unpaid leave within a twelve-month period. Length of leave is determined by what is a reasonable accommodation. Exceptions to an employer’s reasonable accommodation obligation are generally provided if the employer can prove undue hardship. Benefits, in some states, are subject to a maximum time limit, which is generally 500 weeks.
 

 

 

 

Certification for Return from Leave

 Fitness-for-duty certification upon return to work may be required as long as the following conditions are met:

  1. Employer must have a uniformly applied practice or policy for all employees, not just those returning from FMLA leave.
  2. Notice of a fitness-for-duty requirement should be included in the handbook and in the employer response form.
  3. Employer may seek certification only with regard to the particular health condition that caused the leave.
  4. “Clarification” of the fitness-for-duty certification can be obtained by an employer’s health care provider but only with the employee’s consent.

An employee’s return to work cannot be delayed pending contact with a health care provider. Fitness-for-duty certifications cannot be required for a return from intermittent leave. An employee’s failure to provide a timely fitness-for-duty certification can result in a delay of reinstatement, or if the certification is never proved may lead to termination.

 Fitness-for-duty certifications upon return to work may only be required when:

  1. there is a need to determine whether an employee is still able to perform the essential functions of the job;
  2. the employee may pose a direct threat;
  3. it is necessary to the reasonable accommodation process; or
  4. it is required by applicable federal, state, or local law and is job-related and consistent with business necessity.

A fitness-for-duty certification must be job-related and consistent with business necessity.

 Most employers usually require fitness-for-duty certification upon return to work. Any information sought should be related to the work injury or illness. The employer is usually not restricted from contacting the employee’s physician and obtaining a second or third opinion. In fact, an employee’s worker’s compensation physician must file reports with the employer.
 

 

 

 

Employees Who are No Longer Qualified

 Though job protection is guaranteed, if an employee is unable to perform the functions of the job upon returning to work, the employee does not have a disability covered by ADA, and the employer has no light duty or reassignment obligations, the employee can be terminated if in accordance with the employer’s policies. If an employee is unable to perform the essential function of her position upon returning to work, the employer must consider forms of reasonable accommodation that would allow her to perform the essential functions of the job. An employer is not legally obligated to reassign an employee returning from leave who cannot perform his existing job.
 

 

 

 

Medical Record Confidentiality Requirements

 Medical-related records “created for the purpose of FMLA” must be kept confidential in a file separate from personnel files and in a separate locked cabinet. Only those with a true need to know should have access. An employee’s medical information must be kept confidential with the following limited exceptions:

  1. Supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations.
  2. First aid and safety personnel may be informed if the disability might require emergency treatment.
  3. Government officials investigating compliance with the ADA must be given relevant information on request.
  4. Employers may give information to state workers’ compensation offices, state second injury funds, or workers’ compensation insurance carriers in accordance with state worker’s compensation laws.

Medical information may be given to appropriate decision-maker involved in the hiring process so that they can make employment decision consistent with the ADA. When an employee is seeking a new position within the company they can be treated as an applicant and subject to a medical examination even if it is not related to the worker’s job. This would not apply, however, when an employee is non-competitively entitled to a new position or in cases of temporary assignment.

 An applicant’s worker’s compensation records, like medical records, cannot be obtained until a tentative job offer has been made.

*Much of the information contained in this table comes from “Sailing the Employment Law Bermuda Triangle,” 18 Lab.Law 165 (2002), by Lawrence P. Postol.

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