The Bermuda Triangle Navigating the ADA, FMLA, and Workers’ Comp

The Bermuda Triangle

Navigating the ADA, FMLA, and Workers’ Comp

by Christine Green and Elijah Davis, Stanton Law

Photo by Ryoji Iwata on Unsplash

Among the many challenges facing employers, understanding employee leave laws is one of the bigger pains in the neck, especially without a dedicated HR professional or in-house counsel.

When an employee has a workplace injury and needs time off for surgery and then possible workplace accommodations, calling your employment lawyer is usually your best move. However, having a general understanding of the applicable leave laws will help you spot issues and know how quickly you should pick up the phone. This article addresses the three most prominent leave laws applicable to employee health conditions that we call The Bermuda Triangle.

General 0verview

The Americans with Disabilities Act (ADA). The ADA is a federal law that prohibits discrimination against qualified individuals with a disability and

requires employers to provide reasonable workplace accommodations, which can include unpaid leave. > Eligibility: The ADA broadly defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. Absent glaring evidence that an employee is lying about their condition, the employee is probably disabled. > Application: Applies to employers with 15 or more employees. > What are your obligations? An employer is required to provide a “reasonable accommodation” to a qualified individual that will allow the employee to perform the essential functions of their position, absent an undue hardship (i.e., too much difficulty or expense) on the employer. Unpaid leave may be a reasonable accommodation, as well as onsite accommodations such as ergonomic equipment, anti-glare screen filters, materials in accessible formats, etc. If no reasonable accommodation exists that would enable the employee to perform the essential functions of the position, then the employee is not a qualified individual, and the employer is not required to provide an accommodation. > Job protection while on leave? An employer is obligated to reinstate the employee returning from ADA leave to the original position, barring an undue hardship. This is stricter than the FMLA (addressed below). If an employer cannot hold the position without undue hardship, the employer must assess if there is an open position for which the employee is qualified and reinstate the employee at the same level of pay and benefits as the original position. > Common examples: Depression/anxiety, ADHD, diabetes, migraine headaches, sciatica, cancer The Family Medical Leave Act (FMLA). The FMLA is a federal leave law that provides an absolute right to unpaid leave for employees with serious health conditions or those caring for certain family members with serious health conditions. The FMLA defines serious health 4 condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider.

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> Eligibility: For an employee to be eligible for FMLA leave, they must have worked for an employer for at least 12 months and must have worked at least 1,250 hours within those 12 months. The employee must also work at a location where the company employs 50 or more employees within 75 miles. > Application: Employers with 50 or more employees (across all locations) are covered employers and must post notices. > What are your obligations? The employer must provide up to 12 weeks of unpaid leave annually to eligible employees who are unable to work due to (1) a serious health condition, (2) caring for an immediate family member (spouse, child, or parent) with a serious health condition, (3) the birth and care of a newborn child of an employee, or (4) the placement with the employee of an adopted or foster child. Group health benefits must be maintained during the leave in the same manner provided to employees not on leave. • Note: The FMLA also has additional requirements for unpaid leave related to family members and military service.

> Job protection? Employers are required to restore the employee to the same or equivalent position and benefits that the employee would have had before taking FMLA leave. Where the employee cannot be returned to the same exact job, they must be given a nearly identical job that has identical pay and benefits. > Common examples: Pregnancy, leave for a family member, back injury/surgery, cancer Workers’ Compensation. Workers’ compensation provides medical treatment and wage benefits for an 4 injured employee. It is generally governed by state law, so companies with employees in multiple states will be subject to different requirements in each state. > Eligibility: Covers employees, whether full or part time, immediately upon hire, for an injury that arises “out of and in the course of the employment.” > Application: In Georgia, the Workers’ Compensation Act applies to any employer with three or more employees. An employer can also voluntarily subject

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itself to the Act with less than three employees by obtaining a workers’ compensation insurance policy. > What are your obligations? For accepted claims, the employer must provide assistance in seeking medical treatment and must provide “reasonable and necessary” medical treatment “to effect a cure, give relief, or restore the employee to suitable employment.” Depending on the accident, an employee can generally receive medical and wage benefits for up to 350 or 400 weeks. The employee may be entitled to medical benefits for longer periods if the injury is considered catastrophic. > Job protection? There is no obligation to reinstate the employee to their original position or any other available position. However, any change in compensation while the claim is active might result in partial wage benefits to the employee to account for the difference. This is a complex calculation, and penalties may be imposed for failing to compensate the employee properly. > Common examples: Carpal tunnel, back or knee injury, partial amputation

Common examples of overlap and interaction

Overlap between the ADA and workers’ comp can happen in many ways. For example, an employee in a manufacturing plant who has a partial amputation because of an accident using an assembly line machine would almost certainly be entitled to workers’ compensation benefits. Even after reaching “maximum medical improvement” under workers’ compensation, the employee may require ongoing workplace accommodations related to a prosthetic device or intermittent leave for future treatment for the amputation. These additional protections may be required under the ADA and not workers’ compensation, even though the injury resulted from a workplace accident.

Additionally, the United States Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia) recently held that “providing workers’ compensation benefits cannot absolve an employer of all obligations under the FMLA.”

Ramji v. Hosp. Housekeeping Sys., LLC, 992 F.3d 1233 (11th Cir. 2021) The case involved an employee who injured her knee at work. Although the employer provided benefits under workers’ compensation, and although the employee had been released to full duty, she did not pass a physical ability “essential functions” test required by the employer before returning to work. The employee asked for time off to complete additional recovery, but the employer refused and terminated the employee. The Eleventh Circuit faulted the employer for not providing the employee notice of her rights under the FMLA because the employer had sufficient notice that the employee had an injury which qualified as a “serious health condition.” Regardless of the situation, a knowledgeable employment attorney can be invaluable when navigating complicated employee health and leave issues. Stanton Law is here to help.

About the authors

Christine Green is Senior Employment Counsel and ADA Accessibility Consultant with Stanton Law LLC. With 12+ years of employment law experience, Christine is adept at guiding businesses through the catalog of laws governing employees. Her practice involves counseling and training on employment issues with the goal of litigation avoidance, policy and contract development, investigating and defending businesses against charges, demand letters and lawsuits, and negotiating smart settlements to cut off expensive legal blackholes. P: 404-704-0637 E: christine.green@stantonlawllc.com Elijah Davis is Lead Workers’ Compensation Counsel with Stanton Law LLC. He has dedicated his practice to defending employers, insurers, and third-party administrators in workers’ compensation claims. He has considerable experience in insurance litigation defense, including Georgia’s Workers’ Compensation Act, as well as the Federal Tax Code, wage garnishments, mechanic’s liens, and issues concerning the FMLA, ADA, and FLSA. P: 678-528-3656 E: elijah.davis@stantonlawllc.com