When an employee is injured on the job numerous federal and state employment laws may apply. In almost all circumstances the employee is likely covered by state workers’ compensation statutes. If they must miss work due to their injury, the employee may be entitled to job protected leave under the Family and Medical Leave Act (FMLA). When they return to work, they may be protected by the Americans with Disabilities Act (ADA). Other laws, such as Title VII of the Civil Rights Act of 1964 and the Consolidated Budget Reconciliation Act of 1985 (COBRA) may also apply, depending upon the circumstances. Unfortunately, many employers are unaware of their obligations beyond the provision of workers’ compensation benefits. This report will discuss the overlap between state workers’ compensation statutes, the ADA and the FMLA.
Workers’ Compensation
Prior to the introduction of Workers’ Compensation laws in the United States the legal remedy for an individual who was hurt on the job relied primarily upon general concepts of liability under the common law. Under the common law an employee who wished to seek compensation for their injuries would have expended substantial time and resources attempting to receive compensation with no guarantee of a favorable outcome. Employers had three primary defenses in such a case, first that the employee had assumed the occupational risks associated with the job, second that another worker had caused the accident and was therefore liable or third that the employee’s own negligence caused the accident (Fishback, 2007, pp. 30-31).
Although the modern framework for compensating injured individuals was not yet in place, accidents were numerous in the late 19th and early 20th centuries. Hard numbers are difficult to come by, but in the mining sector alone, 3,242 workers were killed on the job in 1907, with many more seriously injured and forced out of the labor force (Mine Safety and Health Administration). For perspective, total occupational fatalities for all sectors were 4,609 for 2011 (Occupational Safety & Health Administration).
The high number of accidents and difficulty in pursuing claims under the common law contributed to passage of workers’ compensation laws in 43 states by 1921. These laws were backed by a diverse coalition which included both workers and their employers. The fundamental shift brought about by workers’ compensation was the elimination of fault as a point of contention between the worker and their employer. Effectively any and all injuries which occurred during the course of employment were now eligible for compensation regardless of fault (Fishback, 2007, pp. 54-55).
A final key point on the purpose of workers’ compensation laws is that these laws provide just what they describe, “compensation” (in the form of lost wages, medical payments, etc) for workers who are injured, not guarantees of time off or job protection (EEOC, 2000). Although most state workers’ compensation laws include protections against retaliatory conduct by the employer, employers are generally not obligated by these laws to restore an individual to their pre-injury job or to make accommodations for individuals who are left with impairments. Employers are also not required under workers’ compensation statutes to continue employee benefits such as health insurance, while an employee is missing work due to an on-the-job injury.
Americans with Disabilities Act (ADA)
When the Americans with Disabilities Act of 1990 (ADA) was passed, approximately 43 million Americans had a physical or mental disability. Congress identified disabilities as a source of isolation, segregation and discrimination and acted to reduce the negative social effects of disabilities in both the public and private spheres. Prior to the passage of the ADA, individuals who were discriminated against due to a disability had little if any legal recourse. The ADA was designed to reduce barriers and improve opportunities for individuals covered by the act. This included, among other things, the requirement that employers provide reasonable accommodations to individuals who are otherwise qualified to perform essential job functions (101st Cong., 1990).
Unlike state workers’ compensation laws, the ADA covers all qualified individuals with a disability, regardless of whether the condition is related to an on-the job injury. Furthermore, the ADA requires that employers provide reasonable accommodations which may result in changes to job requirements or working conditions which allow a qualified individual with a disability to perform essential job functions. The ADA may also require an employer to provide leave necessitated by the employee’s disability (EEOC, 2000, ques. 24). Some, but not all, on-the-job injuries may result in impairments which qualify as a disability under the ADA. The number of individuals with impairments covered by the ADA was expanded by the ADA Amendments Act of 2008 (ADAAA) which provided a broader definition of disability than was previously applied (110th Cong., 2008).
Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) was passed by Congress in 1993 with the express purpose of providing employees with flexible job protected leave when they are unable to work due to their own or a covered family members’ serious health condition. Workers with such a need often found themselves with few good options before the advent of FMLA. Some states required employers to offer limited leave under certain circumstances, but these laws seldom provided the broad protections of the FMLA. Employees covered by collective bargaining agreements often had the greatest protection, but even these employees were often unable to take leave to care for a covered family member and the degree of job protection varied greatly (Commission on Leave, 1996, pp. 35-49). Upon enactment, FMLA provided 12 weeks of job protected leave to a substantial portion of American workers.
The Department of Labor anticipated the overlap between FMLA and state workers’ compensation statutes when drafting FMLA regulations, which specifically address some (but not all) of the coordination issues between these laws. Notably, FMLA regulations discuss circumstances where an individual who is receiving workers’ compensation benefits may be entitled to job protected leave (29 CFR § 825.306(c)). In addition to job protection during the leave period, the FMLA also requires an employer to maintain health insurance benefits during FMLA leave on the same basis as they would be maintained for an active employee (29 CFR § 825.209).
Employers Covered by these Laws
Although state workers’ compensation statutes vary from state-to-state, in general, all workers employed by a firm must be covered by workers’ compensation insurance. In some states, such as Texas, employers are not required to purchase formal workers’ compensation insurance; however, they are liable for on-the-job injuries, which they must pay out of their general assets or through some other arrangement (TXANS). Furthermore, owners of businesses in most states may exclude themselves. Thus sole proprietors or small partnerships often forego formal workers’ compensation insurance.
The ADA applies to employers who have 15 or more employees for each working day of 20 or more calendar weeks in the current or preceding calendar year (101st Cong., 1990). FMLA generally applies to employers with 50 or more employees on their payroll for 20 or more weeks in the current or preceding calendar year (29 CFR § 825.104(a)). Employees gain eligibility for leave under the FMLA by first working for a firm for at least 12 months (needs not be consecutive) and providing 1250 hours of service in the previous 12 months (29 CFR § 825.110(a)). Additionally an employee must work at a worksite where the firm employs at least 50 employees within 75 miles (29 CFR § 825.111).
How These Laws Benefit an Employee
Each of these laws imparts different benefits to a qualified individual. Workers’ compensation provides for lost wages and medical expenses associated with an on-the-job injury. Although employers often refer to someone who is away from work following an on-the-job injury as out on “workers’ compensation leave,” few workers’ compensation statutes actually regulate leave; rather they focus upon compensating the injured employee. An individual may receive workers’ compensation benefits (and be away from work) for many years following an injury with no expectation of returning to the job.
ADA protects the rights of individuals with recognized disabilities to enjoy the same opportunities for employment as individuals who do not have disabilities. The ADA impacts numerous aspects of employment, including pre-employment screening, confidentiality of medical information, harassment, discrimination and reasonable accommodations. Reasonable accommodations vary significantly based upon the nature of a disability, job functions and the size and resources of the employer. Accommodations may be as simple as providing a stool or as costly as purchasing specialized equipment.
Under the ADA, a disability is “…a physical or mental impairment that substantially limits one or more major life activities of such individuals, a record of such impairment or being regarded as having such impairment” (42 USC § 12102(1)). A qualified individual with a disability “…means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires” (42 USC § 12111(8)).
The primary focus of FMLA is job protected leave that allows an employee to take time away from work with guarantees of job reinstatement and continuation of some benefits such as health insurance while they are away. 12 weeks of FMLA leave may be taken for the birth or adoption of a child, an individual’s serious health condition, a spouse, child or parent’s serious health condition and qualifying military exigencies (29 CFR § 825.100). Furthermore FMLA has been expanded to allow for up to 26 weeks of leave to care for a spouse, child, parent or next of kin, who has a military service related injury or illness (29 CFR § 825.122).
The key factor in regards to an on-the-job injury is the definition of a serious health condition. FMLA defines a serious health condition as “…an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider…” (29 CFR § 825.113(a)).
Example Scenario
The application of these laws may be best illustrated through a hypothetical workplace injury.
John an employee at Synergetic Labs was moving pallets of chemicals in the warehouse; he made an abrupt turn to avoid hitting another employee who was in an unauthorized area. John lost control of the forklift and hit a wall crushing his left leg. John’s supervisor immediately calls 911 and he is transported to the hospital, where he receives treatment for a crushed femur.
Workers’ Compensation
Upon learning of the accident, the Human Resources representative contacts their workers’ compensation insurer to report the claim. The insurer immediately begins covering medical costs and after the applicable waiting period begins paying lost wages.
FMLA
After receiving an initial report regarding the extent of John’s injury, the HR representative recognizes that the leave may be FMLA qualifying. Although the duration of John’s leave isn’t known at this time, the HR representative designates his leave as job protected FMLA leave and provides the required notifications.
ADA
After 12 weeks of treatment and rehabilitation John is still unable to return to his pre-injury job. His FMLA leave is now exhausted, although he is still receiving workers’ compensation benefits. The HR representative recognizes that additional leave under the ADA may be an appropriate reasonable accommodation. The company employs multiple forklift operators; therefore the additional leave does not cause an undue hardship.
After 8 additional weeks of leave John has reached maximum medical improvement and has been released to work with a restriction that he cannot climb ladders. The HR representative reviews the job description for forklift operators and identifies that climbing ladders is a marginal job function. Accordingly, a job modification, eliminating climbing as a job requirement is offered as a reasonable accommodation so that John may return to his job as a forklift operator.
Additional Considerations
- Many employers offer light duty assignments to employees who are injured on the job. In such a scenario the employer may not require an employee to return to the light duty position while they are still entitled to FMLA leave. However, the workers’ compensation insurer may discontinue the payment of lost wages once the employee has been released to light duty (29 CFR § 825.207(e)).
- In this example it was clear based upon the injury that the employee had a “serious health condition” under FMLA, not all workers’ compensation injuries will meet this definition (29 CFR § 825.113).
- Upon exhausting FMLA an employer may offer additional leave as a reasonable accommodation when the impairment meets the definition of disability under the ADA. In this example, the severity of the injury and associated impairment meets that definition. However, unlike FMLA, ADA does not require benefits continuation and an employer may need to offer COBRA continuation coverage when an employee’s leave exceeds the 12 weeks provided under FMLA (29 CFR § 825.209(f)).
- In this example climbing was a marginal rather than essential job function. Employers are required, as a reasonable accommodation, to reallocate marginal job functions that an employee cannot perform because of a disability (EEOC, 2000, ques. 20). Employers are not required to reallocate essential functions.
This example was a simplified scenario where an employer correctly identified the interaction between workers’ compensation, FMLA and ADA. There is often greater ambiguity depending upon the severity of an injury, the long term prognosis and the amount of work missed.
Common Mistakes
As previously noted, it is common for employers to misinterpret workers’ compensation benefits as providing something more than payment of lost wages and medical expenses. Employers frequently assume that since an individual is “on workers’ comp” they needn’t worry with ADA, COBRA, FMLA or state leave and continuation statutes. To further complicate matters, the differing definitions of a disability under the ADA and serious health condition under FMLA means that either, both or neither law may apply to any particular on-the-job injury.
As with other employment matters misapplication of these laws may lead to employer liability. Where an employer has failed to offer FMLA to an individual who is entitled to leave, an employer may face fines and legal action if the individual is not reinstated to an equivalent position upon return to work. Employers also risk violating the ADA when they fail to make accommodations for an employee who has been released to work, but is unable to perform all work functions. Some employers also refuse to allow an employee to return to work if they are unable to obtain an unrestricted release to full duty without analyzing what if any reasonable accommodations may allow the employee to return to work. In either case an employer may face serious sanctions under the ADA.
Although not a specific focus of this report, employers also commonly make mistakes regarding benefits continuation while an employee is away from work due to an on-the-job injury. Where FMLA applies, FMLA requires continuation of health insurance on the same basis as for active employees. However, FMLA does not require continuation of other benefits such as life insurance or long term disability. Where FMLA does not apply, an employer may need to seek other alternatives for continuing health insurance benefits such as COBRA or state continuation if applicable.
Best Practices
- Always consider ADA and FMLA when an employee is injured at work. Minor injuries will not generally trigger obligations under ADA or FMLA; however, injuries may be more serious than they first appear. It is not uncommon for an employer to assume a worker will return to work in a few days, but then due to complications, the worker is out much longer.
- Train all supervisors and managers on basic ADA and FMLA requirements. Most critically they must be aware of circumstances where they should notify HR representatives about potential ADA or FMLA obligations, some examples include:
- An on-the-job injury.
- Frequent absences from work.
- Frequent late arrivals or early departures due to an apparent health problem.
- Employee complaints or comments regarding difficulty in performing their job.
- Any comments from an employee which directly relate to a health problem.
- Requests from an employee for time off due to their health or a family member’s health.
- Maintain confidentiality of any disability or medical information provided by an employee, their doctor, supervisors, managers or any other individual.
- Determine how benefits may be continued when an employee is missing work due to an on-the-job injury. Workers’ compensation only covers health problems related to the injury. Most standard health insurance contracts require that an employee be “actively at work,” on FMLA or on COBRA continuation to remain covered under the plan.
- Ensure job descriptions accurately reflect essential job functions. Most jobs include multiple functions, but seldom is every function essential. Keep in mind that marginal functions may have to be reassigned as part of a reasonable accommodation.
- Be creative when considering reasonable accommodations. There is no proscribed set of accommodations which will work in all circumstances. When in doubt utilize the Job Accommodation Network (http://askjan.org/) to explore accommodation alternatives.
- Examine “zero-tolerance” absenteeism or punctuality policies which may have the effect of violating employee rights under the ADA or FMLA.
- Stay aware of state continuation and leave laws which may supplement or expand upon rights afforded by the ADA and FMLA.
- Review collective bargaining agreements to ensure compliance with both contractual obligations and employment laws.
- Provide a clearly communicated FMLA policy in the employee handbook, explaining employee rights and obligations under the law and company policies.
Closing Comments
The overlapping requirements of workers’ compensation, ADA and FMLA have been referred to as a “Bermuda Triangle” for good reason. The varying requirements of these laws require careful attention to the specific circumstances of an on-the-job injury to determine which laws apply at what time. An employer cannot adopt a simple approach of treating every on-the-job injury the same since minor variations in the circumstances may require a different response by the employer. As is always the case with employment matters, careful attention to detail and seeking appropriate professional advice are the keys to ensuring compliance and reducing employer liability.
This is document is general guidance only and neither an effort to practice law nor offer legal service, we encourage everyone to consult with their own attorney, certified public accountant or tax professional on any issues involving specific facts, persons, circumstances or situations.
Works Cited
101st Cong., 2. S. (1990, July 26). Americans with Disabilities Act of 1990.
110th Cong., 2. S. (2008, September 25). ADA Amendments Act of 2008.
Commission on Leave. (1996). A Workable Balance: Report to Congress on Family and Medical Leave Policies. Washington, DC: U.S. Department of Labor.
Department of Labor. (n.d.). Part 825 – The Family and Medical Leave Act of 1993.
EEOC. (2000, July 6). EEOC Enforcement Guidance: Workers’ Compensation and the ADA. Retrieved from The U.S. Equal Employment Opportunity Commission: http://www.eeoc.gov/policy/docs/workcomp.html
Fishback, P. V. (2007). A Prelude to the Welfare State : The Origins of Workers’ Compensation. Chicago : University of Chicago Press.
Mine Safety and Health Administration. (n.d.). Injury Trends in Mining. Retrieved from United States Department of Labor Mine Safety and Health Administration: http://www.msha.gov/MSHAINFO/FactSheets/MSHAFCT2.HTM
Occupational Safety & Health Administration. (n.d.). Commonly Used Statistics. Retrieved from Occupational Safety & Health Administration: http://www.osha.gov/oshstats/commonstats.html
TXANS. (n.d.). Questions and Answers About Nonsubscribing to Workers’ Compensation in Texas . Retrieved from Texas Association of Responsible Nonsubscribers: http://www.txans.org/questions.htm
