Employment Law: Injury to Employee: ADA, FMLA, Workers Compensation and How They Work
Submitted by Scholz, Loos, Palmer, Siebers, and Duesterhaus
Many businesses have had the experience of an employee being injured on the job. The employee comes back to work on light duty; or the employee is injured at home and now comes back to work but with restrictions. In either case, the employer has to make hard choices. Our focus here is how do you handle the work related injured employee when they return to work.
ADA (and its Amendments), FMLA and State Workers Compensation Laws (especially anti-retaliation laws), with all their sometimes competing interest, have to be addressed. Some commentators call this the “Devil’s Triangle”. I call it “The Dilemma”. Workers compensation insurers want employees back to work ASAP, because the quicker an employee returns to work, the more likely the employee will recover in full – plus it reduces temporary total disability (TTD) cost and usually brings the claim to conclusion. In theory, that saves everyone money, including the employee. But if the employee can’t do the job, ADA (if an employer has more than 15 employees) may apply depending upon the nature of the restrictions. Meanwhile, during all of this time frame, FMLA may also apply, (assuming the employer has 50 or more employees) requiring employer to comply with its specific requirements. If FMLA hasn’t been started, the employer may have a problem down the line if there is another injury or reinjury and the 12 weeks have not been activated under FMLA with the first injury.
If you bring an employee back too soon, they might get reinjured – not good for them nor for the employer. If you bring them back and make a job just for them, that sets a bad precedent, plus employers are paying employees for doing less than a full job, which no one gains from – and results in bad moral – bad job psychology, etc. What can be done? There are a few rules of thumb that can help along this somewhat treacherous path:
• Have good job descriptions so that one knows how to craft a light duty policy for workers compensation cases only.
• Have an ADA Policy and plan that interfaces with job descriptions to be used for those employees with work related injuries and other employees who are returned to work after recovering from non-work related injuries.
• Make sure that FMLA Notices are sent out in a timely fashion by the appropriate department. When an employee has suffered a work related injury that will keep them off work long enough to collect TTD (more than 3 days in Illinois), an employer should consider sending out the FMLA Notice to the employee.
• If employees come back to work on Temporary Partial Disability make sure the employer can also treat the time off from work as intermittent leave under FMLA for the benefit of both employee and employer.
• If an employee reaches MMI and still has restrictions, the employer has to deal with ADA. If the employer doesn’t address these issues correctly, they may be dealing with a potential workers compensation retaliation claim or an ADA discrimination claim. ADA allows you to determine whether the injuries which caused limitation can be reasonably accommodated. If they cannot and the MMI situation is a permanent limitation, then the employer can terminate an employee who cannot perform the essential functions of the job with or without reasonable accommodations. That is why that job description is so important. It gives you parameters for accommodation. The description should set forth what all those job functions are – and I mean ALL functions.
• Don’t fire an employee merely because they have filed a workers compensation claim and can’t do the job now. That is retaliation. You have to put them through the ADA test.
• Have a central clearing department (usually human resources) to handle communications between the workers compensation department and/or insurer, payroll and benefits (who usually deals with FMLA) risk management and managers who usually deal with getting the employee back to work and addressing the issues concerning how the injury occurred. Create a team approach, between those departments.
• Last but not least, keep your employee informed – answer their questions. In a workers compensation area, if they are represented, do not discuss the case with them.
In conclusion, the point I want to make here is that much of this depends upon common sense in having a plan to make sure the employer is complying with the applicable laws.
James L. Palmer
Scholz, Loos, Palmer, Siebers & Duesterhaus LLP (“SLPSD”) Employment/Labor Law Group specializes in employer representation. We have over 50 years of combined experience in this area. We deal with general state and federal employment and labor laws, including FLSA, FMLA, ADA, Wage and Hour, and general personnel issues, including discharge, discipline, union negotiations and grievances. We also handle independent internal investigations, compliance with state and federal laws, and have experience in representing management in mediations and arbitrations. The Group consists of James L. Palmer, Joseph A. Duesterhaus and Jennifer A. Winking. Please refer to our website at www.slpsd.com for detailed biographies of each attorney. SLPSD Employment/Labor Law Group is ready, willing and able to handle your business needs.