FMLA, ADA and Workers' Compensation: How the Laws Interact

EDITOR'S NOTE: This article is an updated version of one that appeared in the Fall 2010 edition of LGC's A Matter of Trust—Leading the Way newsletter on the same topic.

The provisions of the Family and Medical Leave Act (FMLA) often affect—or are affected by—other federal and state employment laws. The Americans with Disabilities Act (ADA) and state workers' compensation laws are two laws that often interact closely with FMLA. While it is not feasible to address all the subtleties of the FMLA's relationship to other laws in the scope of this article, the following information provides an overview of areas where the laws' requirements intersect.

ADA and FMLA Interplay
The FMLA and ADA may both apply when an employee is seriously ill or injured. When this happens, employers may be required to grant leave and accommodate the employee under both the FMLA and ADA. Although legal requirements of the FMLA and ADA do have some similarities, an employer may find that, at times, they contradict one another as well. In these cases, it is essential to know which law takes precedence.

The first step should always be to determine whether the laws apply to both the employer and employee.

Generally, private employers are required to comply with the ADA only if they have 15 or more employees. State and local governments are required to comply with the ADA regardless of the number of employers they have. Private employers with 50 or more employees located within a 75-mile radius on each working day for 20 or more weeks in any calendar year are covered employers under the FMLA.

In contrast to the FMLA, the ADA does not require that a worker be employed for a given period of time before becoming entitled to its protections. Additionally, the FMLA is a leave provision for employees only. It does not apply to applicants for employment, except to the extent that it prevents an employer from discriminating against applicants on the basis of their past use of FMLA leave. Unlike the ADA, the FMLA does not prevent disability discrimination or require accommodation beyond granting leave.

Consider the requirements for ADA eligibility, which specify that the employee must be:

• A "qualified" individual: Generally defined as someone who satisfies prerequisites for the position and can perform the essential job functions, with or without reasonable accommodation, at the time of the employment decision; and
• Disabled, as defined by the ADA.

Next, evaluate whether the employee is disabled. An employee may be disabled if he/she:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having a physical or mental impairment, regardless of whether it is perceived to substantially limit a major life activity.

If the employee is not disabled, the employer generally does not have to worry about ADA compliance. However, the employer must still consider whether they have any obligations under the FMLA by asking the following questions:

• Has the employee worked long enough (and worked enough hours) to be an eligible employee under the FMLA?
• Does the employee have any leave remaining for this leave year?
• Does the employee suffer from a serious health condition?

It is possible for the employee's serious medical condition, defined broadly, to include a physical or mental illness, injury, condition or impairment that involves either inpatient care, continuing treatment by a healthcare provider (as defined), any period of incapacity because of pregnancy or prenatal care, any period of incapacity because of a chronic serious condition (meeting specific requirements), any period of absence to receive multiple treatments by healthcare providers for reconstructive surgery or for a condition that would likely result in a period of incapacity of more than three consecutive days if untreated. The serious medical condition may be the employee's own or that of a parent, spouse or child.

Additional qualifying events for FMLA eligibility may include:

• Leave for birth, adoption or foster care.
• Qualifying exigencies arising from an employee's spouse, son, daughter or parent on active duty, or their notification of an impending call or order to active duty, in support of a contingency operation. A contingency operation is generally a military operation in which members of the armed forces are or may become involved in military actions, operations or hostilities against an enemy or opposing military force.
• Serious injury or illness for purposes of service member caregiver leave. For a member of the armed forces, the term "serious injury or illness" means an injury or illness that was incurred or aggravated in the line of duty while on active duty in the armed forces and that may render the member medically unfit to perform the duties of the member's office, grade, rank or rating.

If both the ADA and FMLA apply, the employer is required to provide leave under whichever law gives the greater protection to the employee.

If the employee is disabled but not eligible for FMLA leave, the employer can consider offering leave as a reasonable accommodation—even if the employee is not entitled to leave under the FMLA. Questions to consider include:

• If leave is provided, will the employee be able to perform the essential functions of the job?
• Will it cause the employer an undue hardship?
• Is there another reasonable accommodation that will allow the employee to perform the essential functions of the job?

If an employee is disabled and qualifies for FMLA leave, the employer may be required under the ADA to offer the employee an opportunity to take a different job as a reasonable accommodation (rather than taking FMLA leave). However, the employer may not require the employee to take the reasonable accommodation instead of FMLA leave.

If the employee exhausts their FMLA leave and is still unable to perform essential job functions, the employer may be required to offer an accommodation that would enable the employee's return to work.

Workers' Compensation Act and FMLA
Each state has a workers' compensation statute designed to compensate employees injured on the job. Although specific laws vary from state to state, the principles are basically the same: Employers who are subjected to workers' compensation must carry liability insurance for the medical expenses and lost wages of employees who suffer a work-related injury or illness. Employees are typically allowed to take leave if they are temporarily unable to work due to a work-related injury.

New Hampshire's Workers' Compensation Law (WCL) requires "employers" or their workers' compensation carriers to provide compensation and other benefits to "employees" who suffer a compensable "injury," "personal injury" or "occupational disease." The WCL covers public and private employers who employ one or more employee(s). With respect to public employment, the term "employee" is defined by RSA 281-A:2, VII(a).

Employees taking leave due to a work-related injury or illness may be eligible for leave under both FMLA and workers' compensation laws. In order for the leave to fall under both the FMLA and workers' compensation, the employee must:

• Work for an employer who has at least 50 employees.
• Be eligible under the FMLA.
• Have FMLA leave available for the current leave year.
• Suffer from a serious health condition that occurred during the course of, and arose out of, his/her employment.

The FMLA regulations contain detailed descriptions of the relationship between the FMLA and workers' compensation leave. Some major provisions include concurrent leave, contact with the healthcare provider, when workers' compensation ends first, when FMLA ends first and reinstatement.

If your group can use assistance with administering workers' compensation, consider the LGC Property-Liability Trust's Workers' Compensation Program. It offers an in-house nurse case manager plus knowledgeable claims representatives who work with you as a team to ensure the best possible outcomes. For more program information, visit our website's Coverage Programs section or call our Claims Department at 800.852.3358, ext. 158 or 246.

Combining the Laws
In order for an employee's leave to be subject to FMLA, ADA and state workers' compensation law requirements, the employee must:

• Work for an employer with at least 50 employees;
• Be an eligible employee under the FMLA;
• Have FMLA leave available for the current leave year;
• Be disabled under the ADA;
• Suffer from a serious health condition that occurred during the course of, and arose out of, his/her employment; and
• Be capable of performing essential job functions if allowed to take leave as a reasonable accommodation under the ADA.

When faced with a situation where all three laws may apply, the employer should analyze their obligations under the FMLA and workers' compensation laws first. Those laws, while complicated, tend to be more clear-cut than the ADA. Given the complexity of these laws, it is always wise to consult an attorney before taking any final action.

Jaclyn Mandrake is Director of Human Resources for New Hampshire Local Government Center.

Local officials in NHMA-member municipalities may contact LGC's Legal Services Attorneys for more information Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384.