When a worker gets injured, it's best to leave the treatment plan to the pros. But employers inherit a series of intertwining responsibilities under the Family and Medical Leave Act and the Americans with Disabilities Act with every trip, slip and fall.
Each stage of a workplace injury — from the incident, to the recovery, to the return — requires employers to answer at least one key question. An incorrect answer could give an employee grounds for a claim, so knowledge of the laws at play is paramount.
Did the incident leave the worker with a disability under the ADA?
An occupational injury may not be severe enough to qualify as a disability under the ADA, according to Stephanie Herrera, acting supervisory administrative judge at the U.S. Equal Employment Opportunity Commission, who spoke Wednesday at the agency's virtual training conference. It's also possible the injury could be so serious that the employer cannot accommodate it.
The ADA prohibits employers from discriminating against workers with disabilities, Herrera explained. It also requires employers to provide reasonable accommodations, unless doing so would cause the organization undue hardship or a direct threat. "The Americans with Disabilities Act also limits requests for medical information," Herrera said. "It places some restrictions on what's appropriate to ask for."
Certain injuries may not count as a disability as the ADA defines it. According to the statute, a disability is: a physical or mental impairment that substantially limits a major life activity; a record of such an impairment; or a worker's being regarded as having such an impairment.
It's important to note that laws define disability differently, Herrera said. A worker who was injured may file for worker's compensation. It's possible the worker may have a disability according to the worker's compensation law without having a disability under the ADA. "The definition is different depending on the law that's being applied," Herrera said.
Is the worker eligible for FMLA leave?
The worker may ask to take FMLA leave to recover from the injury. The FMLA allows eligible employees to take unpaid, job-protected leave for family and medical reasons. Employees can take the leave for up to 12 workweeks in a 12-month period to care for a newborn, to care for a spouse, child or parent with a serious health condition, or to deal with a serious health condition that prevents them from working.
But employees aren't entitled to this if they're not eligible. To qualify for FMLA leave, workers must have worked for their employer for at least 12 months, though this time need not be consecutive. Within those 12 months, workers must have racked up 1,250 hours before they can take FMLA leave.
As Herrara noted, the FMLA's definition of a "serious health condition" is not identical to the ADA's definition of a disability. Some health circumstances align, said Julie Rook Gold, counsel at Gilbert Employment Law and another speaker on the panel. Most cancers and serious strokes, for example, are both serious health conditions and disabilities under the FMLA and ADA, respectively. But pregnancy or broken legs, while serious health conditions, are not disabilities, Gold said.
Does the worker need more than 12 weeks of leave?
Here's one point where the ADA and FMLA intertwine. An otherwise qualified worker with a disability could be entitled to more than the 12 weeks of unpaid, job-protected leave as a reasonable accommodation, Herrera said, so long as the additional leave would not impose an undue hardship to the employer.
Can the worker complete the essential functions of the job?
To determine whether the worker is able to perform the essential functions of the job, employers may want to make medical inquiries or perform fitness for duty exams. The ADA allows for this, but only when such activity is job-related and consistent with business necessity, Gilbert Employment Law Senior Associate Alexis Tsotakos said during the panel.
This means the employer has a reasonable belief based on objective evidence that the worker may be unable to carry out the essential duties of a job or may pose a direct threat to the workplace because of a medical condition, Tsotakos said.
But what is objective evidence? "You can't go off of any previous history or assumptions," Tsotakos said. Objective evidence can include observed performance problems, reliable reports from a credible third party and observations of symptoms that indicate the worker's medical condition is impacting performance.
If an employer decides to ask for medical information, it needs to take all precautions to ensure the information remains confidential, Herrara said. It's wise to ask for only the documentation that is strictly necessary. "The more medical docs you have, the more risk it's going to end up in some place it shouldn't be," Tsotakos added. Employers should also be sure to store the information separately from personnel documents and in a secure location.
Does the worker need a reasonable accommodation?
If it's determined that the worker can't perform an essential function of a job because of a disability, it's time to pursue an accommodation.
It may be that an employee is required to lift 20 pounds. "Employers are not required to remove essential functions of positions to accommodate people," Gold said. "But that doesn't mean there aren't accommodations available." A cart or forklift could help someone with lifting restrictions carry heavy objects, for instance.
If there are no accommodations available, employers can't "just walk away," Gold said. They need to consider the accommodation of last resort — reassignment. If an employee requests reassignment, the employer should request a resume to determine qualifications and work with the employee to determine whether she would accept a downgrade or location change, Gold said.