Navigating the interplay of the FMLA and ADA for injured employees

June 26, 2021 Posted by mbwlawyers-admin

Every employer has heard of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), but those two laws can present a complicated interplay when an employee is injured on the job.  Each stage presented by a workplace injury — from the incident, to the recovery, to the return — requires employers to answer at least one key question, and an incorrect answer could give an employee grounds for a claim, so knowledge of the most common issues that arise is paramount.

The injury

Did the incident leave the worker with a disability under the ADA?

An occupational injury may not be severe enough to qualify as a disability under the ADA.  It’s also possible the injury could be so serious that the employer cannot provide an accommodation to the injured employee.

The ADA prohibits employers from discriminating against workers with disabilities. It also requires employers to provide reasonable accommodations, unless doing so would cause the organization undue hardship.

The initial inquiry under the ADA is whether the injury qualifies as a disability as defined by the ADA.  According to the statute, a disability is: a physical or mental impairment that substantially limits a major life activity; a record of such an impairment; or an employee’s being regarded as having such an impairment.  It is important to note that laws define disability differently.  An employee who is injured on the job may file for worker’s compensation and perhaps qualify for other benefits, but a separate analysis must be undertaken as to whether the employee has any protections under the ADA.

The recovery

Is the worker eligible for FMLA leave?

The employee may ask to take FMLA leave to recover from the injury. The FMLA allows eligible employees to take unpaid, job-protected leave for family and medical reasons for up to 12 weeks in a year, and the leave can be intermittent.  But not all employees are entitled to FMLA leave even if the employer is FMLA-covered (employs 50 or more employees within a 75-mile radius of the worksite). To qualify for FMLA leave, an employee must have worked for the employer for at least 12 months, though this time need not be consecutive. Within those 12 months, the employee must have accumulated at least 1,250 hours of work.  If all eligible criteria are met, an employer is well served to place any employee who is on leave due to a workplace injury to also place the employee on FMLA leave. 

Does the worker need more than 12 weeks of leave?

This is a significant point where the ADA and FMLA intertwine, and where many employers have made a critical error. An otherwise qualified employee with a disability could be entitled to more than the 12 weeks of unpaid, job-protected leave as a reasonable accommodation under the ADA.

The return

Can the employee perform the essential functions of the job?

To determine whether the employee is able to perform the essential functions of the job, employers may want to make medical inquiries or perform fitness for duty exams. The ADA allows for such exams, but only when they are job-related and consistent with business necessity, meaning the employer has a reasonable belief based on objective evidence that the employee may be unable to carry out the essential functions of the job or may pose a direct threat to the workplace because of a medical condition or limitation.  Objective evidence can include observed performance problems, reliable reports from a credible third party, and observations of symptoms that indicate the employee’s medical condition is impacting performance.

If an employer obtains employee medical information, it needs to take all precautions to ensure the information remains confidential.  It is best to ask only for medical documentation that is strictly necessary. Employers should also be sure to store the information separately from more routine personnel documents.

Does the employee need a reasonable accommodation?

If it is determined that the employee is unable to perform an essential function of a job because of a disability, it is incumbent upon the employer  time to engage in an interactive process with the employee to determine if a reasonable accommodation can be provided.  An accommodation is not reasonable if it causes the employer an undue hardship, and what constitutes such a hardship depends on the unique circumstances of each possible accommodation.  If the employee is unable to perform the essential functions of the job even with an accommodation, or if the requested accommodation does cause the employer an undue hardship, the employee need not be accepted back to the position or job previously held.  In that event the employer should consider the accommodation of last resort: reassignment.  An employer is not obligated to create an alternative position, but if one is available and the returning employee is qualified for it, serious consideration should be given to providing that position as an ADA accommodation.

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