If a worker is injured, it is best to leave the treatment plan to the professionals. But employers inherit a series of interlocking responsibilities under the Family and Medical Leave Act and the Americans with Disabilities Act with every trip, slip, and fall.
At every stage of an accident at work – from the incident to recovery to return – the employer must answer at least one key question. An incorrect answer could create a claim for an employee, so knowing the applicable laws is of the utmost importance.
The injury
Did the incident leave the worker with an ADA disability?
An occupational accident may not be severe enough to qualify as a disability under the ADA, according to Stephanie Herrera, acting administrative oversight judge for the U.S. Equal Opportunities Commission, who spoke at the agency’s virtual training conference Wednesday. It is also possible that the injury is so severe that the employer cannot record it.
The ADA prohibits employers from discriminating against workers with disabilities, Herrera said. It also requires employers to take reasonable precautions unless doing so would present undue hardship or a direct threat to the organization. “The Americans with Disabilities Act also limits requests for medical information,” Herrera said. “There are some restrictions on what is appropriate.”
Certain injuries may not be considered a disability for the purposes of the ADA. According to the law, a disability is: a physical or mental impairment that significantly restricts an essential activity in life; a record of such impairment; or it is assumed that an employee has such an impairment.
It’s important to note that laws define disabilities differently, Herrera said. An employee who has been injured can apply for employee compensation. It is possible that the employee has a disability under the Employee Compensation Act without having a disability under the ADA. “The definition varies depending on the law in force,” said Herrera.
The restoration
Is the employee entitled to FMLA leave?
The employee can request to take an FMLA vacation to recover from the injury. The FMLA enables eligible employees to take unpaid, job-protected leave for family and medical reasons. Employees can take leave for up to 12 working weeks over a 12-month period to care for a newborn, care for a spouse, child or parent with a serious medical condition, or to treat a serious medical condition that prevents them from working .
But employees are not entitled to it if they are not entitled. To qualify for FMLA vacation, employees must have worked for their employer for at least 12 months, this time not having to be consecutive. Within those 12 months, workers must have accumulated 1,250 hours before they can take FMLA leave.
As Herrara noted, the FMLA’s definition of “Serious Health Condition” is not the same as the ADA’s definition of disability. Some health circumstances are consistent, said Julie Rook Gold, an attorney with Gilbert Employment Law and another panel spokeswoman. For example, most cancers and major strokes are both major health conditions and disabilities under the FMLA and ADA, respectively. But pregnancy or broken legs, although serious health conditions, aren’t disabilities, Gold said.
Does the employee need more than 12 weeks of vacation?
Here is a point where ADA and FMLA interlock. An otherwise qualified employee with a disability could be entitled to more than the 12 weeks of unpaid, job-protected vacation as a reasonable precaution, as long as the additional vacation does not place the employer in unreasonable hardship.
The return
Can the employee perform the essential functions of the job?
In order to determine whether the employee is able to perform the essential functions of the job, employers may wish to conduct medical examinations or fitness checks. The ADA allows this, but only if such an activity is job-related and compatible with business needs, Alexis Tsotakos, Gilbert’s senior associate in labor law, said during the panel.
This means that based on objective evidence, the employer can reasonably believe that the employee may be unable to perform the essential duties of a job or pose a direct threat to the job due to illness, Tsotakos said.
But what is objective evidence? “You cannot assume any previous histories or assumptions,” said Tsotakos. Objective evidence can include observed performance issues, reliable reports from credible third parties, and observations of symptoms suggesting that the worker’s health is affecting performance.
If an employer decides to solicit medical information, they must take every precaution to ensure the information remains confidential, Herrara said. It is advisable to only request the documents that are strictly necessary. “The more medical documents you have, the greater the risk it will end up in a place it shouldn’t be,” added Tsotakos. Employers should also take care to keep the information separate from personnel records and in a safe place.
Does the employee need reasonable accommodation?
If it is determined that the worker is unable to perform an essential function of a job because of a disability, it is time to make an arrangement.
An employee may need to lift 20 pounds. “Employers are not required to remove essential functions from positions in order to accommodate people,” Gold said. “But that doesn’t mean there aren’t any accommodations.” For example, a cart or forklift could help someone with lifting restrictions carry heavy items.
When lodging isn’t available, employers can’t “just walk away,” Gold said. You need to consider placement as a last resort – reassignment. When an employee requests a reassignment, the employer should request a resume to determine qualifications and work with the employee to determine whether they would accept a demotion or relocation, Gold said.
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