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Posted on JUN 20, 2017

When complex labor laws intersect, be alert for tricky issues

Considered separately, three employment laws — the federal Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA) and state laws covering workers' compensation — each contain complicated provisions that you, like many other employers, may have difficulty understanding. When two or more of the laws apply to a situation, it becomes even more complex and the risk of litigation increases.

“It's critical to understand what happens when two or more of these laws overlap so your business can remain compliant and provide employees with the benefits and protections each law provides,” says Maureen Lawson, VP Employee Benefits Compliance & Capabilities Manager, Johnson Insurance. “Violations of some provisions may result in an obligation to provide lost wages, back pay, reinstatement, retroactive benefits, compensatory and punitive damages.”

A brief primer

ADA applies if you have 15 or more employees. It prohibits discrimination against qualified individuals with a disability. It requires you to provide reasonable accommodation to employees with disabilities, as long as the accommodation doesn't result in undue hardship for your business.

FMLA provides eligible employees of covered employers (private‐sector employers with 50 or more employees and all state and local governments) with up to 12 weeks of unpaid, job‐protected leave per year and requires that group health benefits be maintained during the leave.

Workers' compensation laws provide wage replacement and medical benefits to employees injured or disabled in connection with work. Workers' compensation insurance that you purchase minimizes your liability.

When an employee needs leave, it's possible that one, two or all three of these laws may play a role. It's important to evaluate the situation under each law separately to determine your obligations.

8 common stumbling blocks

Many situations can confound employers trying to comply with employment laws, but these are the most common issues to consider.

  1. Failure to coordinate FMLA, ADA and workers' compensation leave. “An employee's FMLA leave may run concurrently with a workers' compensation absence when the injury is one that meets the criteria for a ‘serious health condition’ under FMLA,” Lawson notes. “An employee could receive workers' compensation benefits to replace lost wages, while at the same time have health benefits maintained under FMLA. However, if appropriate, you must designate this leave as FMLA‐qualifying leave and give notice of the leave designation to the employee. Otherwise, the employee may still be entitled to FMLA leave once the workers' compensation absence has ended.”
  2. Not designating FMLA leave retroactively. “With appropriate notice provided to the employee, and as long as the failure to timely designate the leave doesn't cause harm to the employee, you can designate leave as FMLA leave after it has begun,” Lawson says.
  3. Understanding basic FMLA requirements. An eligible employee may take up to 12 workweeks of leave during any 12‐month period for one or more of the following reasons:
    • The birth of a child, and to care for the newborn child.
    • The placement of a child with the employee through adoption or foster care, and the care for the child.
    • To care for the employee's spouse, child or parent with a serious health condition.
    • A serious health condition makes the employee unable to perform one or more of the essential functions of his or her job. “It's important to note that an FMLA serious health condition can often be an ADA disability as well,” Lawson comments. “For example, cancer or a stroke may qualify as both.”
  4. Understanding basic ADA provisions. Under ADA, a leave of absence may be a reasonable accommodation, unless it will cause undue hardship for your business. “Undue hardship' means an action that is too costly, substantial or disruptive, or that fundamentally alters the nature of your business,” Lawson explains. No limit is placed on the amount of leave that may be taken; however, it usually can't be for an indefinite period.
  5. Not extending leave when required. “This is the largest area of litigation,” Lawson notes. A reasonable accommodation under ADA may extend FMLA leave if the employee is disabled, has a foreseeable ultimate return to work and the leave doesn't cause undue harm.
  6. Not implementing a consistent process. Similarly situated employees must be treated in the same manner. Note that maintaining a consistent policy doesn't mean enforcing inflexible rules, which can also lead to litigation. One person or department within your organization, such as HR personnel, should handle the process and maintain proper documentation.
  7. Understanding your rights and obligations in situations involving light duty. If a work‐related injury causes a permanent condition that qualifies as a disability, under ADA you may provide an accommodation that requires the employee to remain on the job instead of providing leave. However, if the employee is FMLA‐eligible, they can reject the light duty work and their leave request must be granted. If the employee rejects light duty work, they won't receive temporary total disability benefits under workers' compensation. Light duty may be refused for FMLA but may be required for workers' compensation. The period of light duty for workers' compensation can't count against the 12 weeks available under FMLA.
  8. Not having a dialogue with an employee seeking ADA protections. An important distinction between the two federal laws is that ADA requires an interactive process between employee and employer concerning the employee's disability; FMLA doesn't.

Seek expert help

At Johnson Insurance, we can help you uphold your rights and fulfill your obligations under these three employment laws. Our team of knowledgeable professionals can assist you in determining whether your business has the appropriate policies and procedures in place to comply with FMLA, ADA and workers' compensation laws. Contact your Johnson Insurance advisor today to learn more.


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