February 2013 Volume XII No. 2 Taking Care of Business
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Employee Leave Under ADA, FMLA and Workers’ Compensation

Shelbie Byers
Shelbie Byers

Employers must keep apprised of the various laws that may come into play when their employees seek medical leaves of absence from the workplace. In some circumstances, employers may need to make sure their employment decisions are in accordance with the Americans with Disability Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and Workers’ Compensation statutes, individually or collectively. Anytime an employer has 50 or more employees, it is possible for all three statutes, the ADA, FMLA, and Workers’ Compensation to be at issue when a covered employee seeks a leave of absence as a result of a job-related medical problem. Knowing how and when the various laws are applicable and what an employer is required to do pursuant to each law is critical.

ADA
The ADA is a federal law that applies to employers with 15 or more employees. In general the ADA seeks to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The EEOC has determined that extending an employee’s medical leave for a reasonable period of time, may be a reasonable accommodation pursuant to the ADA, unless it creates an undue hardship for the employer. Meaning, in some instances, it may be a reasonable accommodation to extend an employee’s medical leave beyond any available FMLA and/or company provided leave time. Each reasonable accommodation request should be evaluated on a case by case basis, as no two situations are necessarily the same.

FMLA
The FMLA only applies to employers with 50 or more employees. The FMLA is generally applicable if the employee has worked for their employer for at least 12 months and at least 1,250 hours over the past 12 months. Unless otherwise noted, the FMLA generally provides up to 12 weeks of leave within a 12-month period for:

  • Birth and care of newborn child,
  • Placement with the employee of a child for adoption or foster care,
  • Care for immediate family member with serious health condition,
  • Leave for the employee’s serious health condition,
  • Certain qualifying military exigencies,
  • Up to 26 weeks of leave in a 12-month period to care for a covered service member recovering from a serious injury or illness received in the line of duty.
See generally, 29 U.S.C. § 2601, et. seq.

    All covered employers are required to display and keep displayed in a conspicuous place a poster prepared by the Department of Labor summarizing the major provisions of FMLA, which explains to employees how to file a complaint. A poster must be displayed at all locations, regardless of whether or not there are eligible employees. The new poster is available for free download from the Department of Labor website and must be posted no later than March 8, 2013.

Workers’ Compensation
Workers’ Compensation applies to all employers, regardless of size and is designed to provide benefits to workers who are injured at work or who develop job-related injuries or illnesses as a result of their employment. Most determinations regarding workers’ compensation compensability will be made by an employer’s insurance adjuster; however, it is important to note the possibility that the employer will need to consider the ADA and FMLA for certain work-related injuries.

See generally, Ind. Code §22-3-2 et. seq.

When are all three statutes applicable?
    Anytime an employer has 50 or more employees, there is a potential for all three statutes, the ADA, FMLA, and Workers’ Compensation to be at issue. This situation will only arise if an employer is faced with a job-related medical problem affecting the employee.

    Employers with 50 or more employees must be aware that in many more instances, the FMLA and ADA may be applicable when an employee seeks leave for a non-job related issue. Employers must determine if the employee qualifies for FMLA leave, how that leave is applied in accordance with the employer’s policies, and whether a reasonable accommodation is required under the ADA. These are decisions that often require careful analysis.

    Finally, employers with at least 15 employees must always be cognizant of whether an ADA reasonable accommodation is necessary when an employee is on a work or non-work related medical leave of absence.

Best Practices

  1. Be aware of state and local laws that may affect employee leave rights. Sometimes state and local jurisdictions will provide greater protection to employees than the federal statutes.
  2. Be aware of instances when perhaps only two of the three statutes apply.
  3. Make sure you understand the different requirements under each law regarding reinstatement and maintaining health insurance.
  4. Consider whether other federal statutes may influence an employment decision. For example, Title VII provides that employers (with 15 or more employees) must not discriminate based on an employee’s pregnancy, and while the ADA typically does not apply to pregnancy, it may apply in situations where the employee develops complications because of pregnancy. In this instance, an employer would need to be aware of FMLA (if applicable), ADA (if applicable) and Title VII
  5. Document, Document, Document. It is imperative that employers keep good documentation of employment records, essential functions of a job, complete job descriptions, policies, procedures and all other materials that an employer uses as it makes employment decisions.
  6. Do not discriminate. The ADA, FMLA and Workers’ Compensation statutes all have anti-discrimination provisions prohibiting discrimination against workers who exercise their rights under these laws.
  7. If you have a question about applicability of a state or federal statute or workplace leave requests, it is best to contact legal counsel.
If you have any questions regarding the ADA, FMLA and Workers’ Compensation and how these laws apply in your workplace or any other employment and labor need, contact Shelbie Byers at 219-769-6552 or sbyers@hwelaw.com or your HWE relationship attorney.

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