1. Interplay between the FMLA, ADA, and Workers’ Compensation Thomas Jovanovich & Lori Athmann tjovanovich@rajhan.comtjovanovich@rajhan.com & lathmann@rajhan.com@rajhan.com

2. GENERAL CONSIDERATIONS IN APPLYING ADA, FMLA AND WORKERS’ COMPENSATION ISSUES Areas overlap and conflict. Solution: Analyze the employee’s health issues under each area of the law.

3. EMPLOYER CONSIDERATIONS FMLA:  Qualifying serious health condition?  If so, maximum total of 12 weeks leave. ADA:  Qualifying disability?  If so, possible accommodation, including leave. Workers’ Compensation:  Injury during the course and scope of employment?  If so, workers’ compensation-related benefits and leave.

4. FMLA LEAVE QUALIFICATIONS Applies to:  Employers with 50 or more full-time employees  public agencies  public schools FMLA does not cover part-time or seasonal employees with fewer than 1,250 hours per year. Eligible employees entitled to 12 weeks of unpaid leave during 12-month period. Employee must have serious health condition:  1) In-patient care  2) Continuing treatment by healthcare provider Other qualifying conditions:  maternity leave.  leave to care for a close relative with serious health condition.

5. REQUIREMENTS FOR FMLA LEAVE Must notify employee for leave to count as FMLA leave. Notice of fitness for duty certification. Leave may be taken in blocks or as intermittent or reduced leave. Temporary transfer for intermittent leave.

6. FMLA END-OF-LEAVE CONSIDERATIONS Return to the same job or to an “equivalent position”. Fitness for duty certification. At end of leave, determine whether employee has ADA disability. If employee is not protected by ADA, an employer has no additional leave obligations.

7. ADA REQUIREMENTS Prohibits discrimination against employees who are “qualified individuals with a disability”. Employers with 15 or more employees must comply with the ADA. Minnesota law – one or more employees. Employers must provide reasonable accommodations that permit the employee to continue work.

8. ADA DISABILITY Disability  A physical or mental impairment that substantially limits one or more major life activities, or  A record of having such an impairment, or  Being regarded as having such an impairment. Impairment  Must be permanent or long-term.  Must prevent or severely restrict the individual from doing activities that are of central importance to most people’s daily life.  Major life activities include: walking, seeing, hearing, speaking, and breathing.

9. PRACTICE TIPS FOR FMLA AND ADA ISSUES After FMLA leave, consider whether employee has ADA-qualified disability. Don’t assume a disability is a disability under ADA. Most ADA disabilities qualify as a serious health condition under FMLA. Not all serious health conditions under FMLA will qualify as an ADA disability. Be cautious about reaching the conclusion that a medical condition is an ADA disability.

10. WORKERS’ COMPENSATION WC provides for payment of compensation and rehabilitation for workers injured on the job. Provides quick and certain benefits to employees who suffer work-related injuries. Employers are insulated from tort liability. Protects loss of earning capacity.

11. Can employers require medical certification under ADA and FMLA? YES  ADA: if inquiry is job-related and consistent with business necessity  FMLA: If relates to serious health condition and need for leave  Limited to the serious health condition causing need for leave

12. How much total leave do employers have to give? FMLA requires:  Up to 12 weeks in any 12-month period But… remember ADA may require additional leave as a reasonable accommodation ADA:  No time limit (cannot be indefinite)

13. Do employers have to continue to pay for health insurance during leave? FMLA:  Same health benefits as that provided had employee actually worked ADA:  Same benefits as nondisabled employee on leave WC:  Generally No…but remember to evaluate under FMLA

14. Are reinstatement requirements different for the ADA and FMLA? YES FMLA  Same or equivalent job ADA  Same job

15. What precautions should employers take to monitor leaves? Identify if ADA, FMLA, or both  Medical certification. End of FMLA:  Determine if ADA applies  Consider further leave as accommodation; and  Evaluate reinstatement policy

16. FMLA and Workers’ Compensation

17. When is a WC injury covered under the FMLA? When “serious health condition”  No distinction between work and nonwork-related injuries  Any WC injury likely covered by FMLA

18. Should the employer give special notification under the FMLA? Notify in writing:  WC leave is designated as FMLA leave  Will count against, and  Run concurrently with 12 weeks of FMLA Department of Labor’s Form WH-381 If not, cannot count WC as FMLA leave Could then be entitled to an additional 12 weeks of FMLA leave

19. Can an employee on leave be required to use vacation or sick leave? FMLA:  Yes, for all or part of unpaid leave  No, if receiving WC benefits

20. Light-duty work FMLA rights not waived Light-duty does not count as FMLA leave  Exception: employee was working a reduced scheduled or intermittent leave Generally if employee refuses light-duty work within their restrictions, may cut off WC benefits ADA  Employer is not required to create light duty work as a reasonable accommodation

21. Tips for Employers: FMLA and ADA regulations do not override other applicable laws  The strictest or most restrictive must be honored If state law more restrictive, must still honor as they apply to non-ADA or FMLA Can be complex and confusing for employers  seek assistance of counsel