Employee Leave: Overlap of FMLA, ADA, and Workers’ Compensation

By Leslie Lasher

In the Employee Leave series, I have reviewed the major leave laws: the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the North Carolina Workers’ Compensation Act (NCWCA). Today, I am reviewing how these leave laws overlap. As always, there are details and nuances of these leave laws that simply cannot be covered in a blog post.

First, let’s consider the case of an employee who suffers a workplace injury and is required to miss time from work.  As long as the injury is found to be compensable under the NCWCA, the employee will likely qualify for workers’ compensation benefits during any time out of work.  The next step is to determine if the employee also qualifies for FMLA protected leave.  Going back to FMLA basics, in order to determine the employee’s leave entitlement, the employer would need to first determine whether:

  • The employee has worked with the employer for at least 12 months; and
  • The employee has worked at least 1,250 hours during the 12-month period preceding the need for leave; and
  • The employer has at least 50 employees; and
  • The employee works at a location where at least 50 employees are employed at the location or within a 75-mile radius; and
  • The employee has FMLA leave available.

If the answers to all of these questions are “yes,” then the employer has to determine if the employee is suffering from a FMLA-defined “serious health condition.”   If the employee suffers from a serious health condition, then up to 12 weeks of leave taken due to a compensable workplace injury would also be protected as FMLA leave.

If the employee is entitled to FMLA-protected leave, the employer must notify the employee that it plans to charge the employee’s workers’ compensation leave against any available FMLA leave and provide any applicable FMLA forms.  While on FMLA, the employer is required to continue the employee’s group health benefits.  It should be noted that treatment for the workers’ compensation injury would likely be covered by the workers’ compensation provider, however, any unrelated or denied medical treatment would likely be paid for by the group health provider.   Finally, employers may owe employees more than their workers’ compensation rate (66 2/3 of the pre-injury average weekly wage) if its policies provide for paid disability leave. Employers cannot require a workers’ compensation employee to exhaust sick or vacation time while being treated for a compensable workers’ compensation injury, even though a FMLA or other type of leave policy may require exhaustion of any available paid leave.

In addition to determining whether the employee is entitled to FMLA protected leave, the employer must also determine whether the employee is protected by the ADA.  If the employee is protected by the ADA, the employer should consider whether leave might be a reasonable accommodation for the employee. This analysis will be most important in two scenarios. First, when the employee is not entitled to FMLA protected leave, the employer should still consider whether leave may be a reasonable accommodation pursuant to the ADA. Second, at the end of FMLA protected leave, the employer must consider whether the employee needs and/or is requesting continued leave as a reasonable accommodation pursuant to the ADA.  If so, the employer is required to offer leave a reasonable accommodation unless that accommodation would cause an undue hardship.  Because of this consideration, employers should not terminate employees simply because they fail to return to work immediately following FMLA protected leave.

In short, here are the questions an employer should ask:

  • Is the employee out of work due to a compensable workplace injury?
    • If Yes, ask:
    • Is the employee entitled to FMLA-protected leave?
      • If No, ask:
        • Is the employee entitled to leave as a reasonable accommodation under the ADA?
      • If Yes, at the end of the FMLA protected leave, ask:
        • Is the employee entitled to leave as a reasonable accommodation under the ADA?

Of course, there are scenarios where only one or two leave laws may apply.  In addition, the ADA could apply in scenarios other than employee leave, like a light duty position or a request to accommodate the essential functions of a job after returning from leave. When two or more of these laws are in issue, the following should be noted:

  • Employers should be cautious when attempting to gather medical information because each law has different rules on when the employer can and cannot speak to an employee’s physician.
  • The employee handbook should outline the way in which an employee’s available paid time off will be “charged” while on leave, noting that an employer cannot require an employee to use sick leave while out of work for a workers’ compensation injury. The policy should also give adequate consideration for any short and long-term disability insurance programs.
  • The employer should clearly define formal light duty programs. Be aware that, in a lot of cases, if an employer offers a light duty workers’ compensation program, it must also consider such program as a reasonable accommodation for an employee protected by the ADA. Employers should also be careful because, under the FMLA, an employer cannot typically require light duty work.
  • Involvement in a workers’ compensation claim is a “protected activity” under the North Carolina Retaliatory Employment Discrimination Act (NC REDA) and requesting and/or taking FMLA or ADA protected leave are both considered as “protected activities” under federal law. As such, employers should be very careful when taking action against an employee who very recently was on workers’ compensation, FMLA or ADA protected leave.  When proper steps are taken, however, an employee may have valid, non-discriminatory reasons for terminating an employee protected by one or more leave laws.
  • Employers should be aware that an attorney hired to defend it in a workers’ compensation matter cannot typically advise the employer on the applicability of the FMLA and/or the ADA, or as to whether an employer should terminate an employee who has a workers’ compensation claim. In the event an employer seeks a resignation and release from the employee as part of a workers’ compensation settlement, the best practice is to secure the resignation by providing the employee with additional consideration above and beyond the workers’ compensation settlement.

It goes without saying that navigating through this process is not easy.  I encourage employers to think internally about what it can and cannot offer in certain scenarios, to create speaking points for talking with employees, to follow up in writing, and to keep good notes. Most importantly employers should include the employee in the process and should be considerate of the employee’s individual scenario, as there simply is no one-size fits all when it comes to employee leave.