Employer Will get Whacked On Staff’ Comp, FMLA Overlap | Constangy, Brooks, Smith & Prophete, LLP

Bless the heart of this employer.

About a decade ago, every lawyer and his sister called the interaction between Workers’ Compensation, the Family and Sick Leave Act, and the Disabled Americans Act “the Bermuda Triangle.”

The idea was that trying to incorporate all of these laws when dealing with injured workers resulted in compassless employers becoming disoriented and lost.

I’ve never been crazy about this metaphor, even though I was guilty of using it. I have never heard of an employer who mysteriously disappeared forever after experiencing a CompLA-FMLA-ADA problem for employees.

Anyway, all this hype about the Bermuda Triangle could be a joke.

A better metaphor, in my opinion, is Whack-a-Mole. An employer thinks he has fulfilled his obligations and then – whoop! – A new “mole” appears.

“OK, we’ve covered the worker component.”

Whoop! Oh no – it’s the FMLA over there!

Whoop! Darn it! Now it’s the ADA!

Whoop! Wait – on your left – for workers’ retaliation!

Whoop! Title VII? Where the hell did that come from? *

* Employers should consider pregnancies and related conditions under many state laws and arguably federal laws as well. (But pregnancy is almost never a problem for workers as most pregnancies, thank goodness, are not work-related.)

“Whack-a-Mole” as a metaphor isn’t much more original than “the Bermuda Triangle”, but it is much more accurate.

I could have sworn this post had a point. Oh yeah.

Ramji v. Hospital Housekeeping Systems

This week, a panel of the US District Court of Appeals for the Eleventh Circuit said that an employer who completely missed the FMLA “moles” must go to court over his former employee’s FMLA interference claim. See if you can find all of the FMLA moles in this story. We can compare the notes at the end.

Noorjahan Ramji worked for Hospital Housekeeping Systems, LLC. Hospital Housekeeping Systems provides cleaning services for hospitals. (Aren’t you saying !?) Ms. Ramji’s duties included “mopping, sweeping, dusting, cleaning walls, removing rubbish and making beds”.

One day she fell down at work and injured her knee. Her boss took her to the emergency room and she was unemployed for four consecutive days. Then she was excused for another 11 days. HHS told her to take advantage of her sick leave.

She and her boss went to an orthopedic surgeon who injected her with a cortisone shot and prescribed physical therapy for six to eight weeks, and he fired her for light duty. HHS met the requirements for light use.

About three weeks later, Ms. Ramji went to physical therapy – again with her boss. The physical therapist recommended at least two sessions a week for four weeks and said more might be needed. While Ms. Ramji was still doing the physical therapy sessions, she saw her orthopedic surgeon (with her boss) again and said her knee was much better and she was ready to go back to work. He determined that she was in maximum medical recovery and gave her a zero disability rating.

Sounds great, doesn’t it? How did this ever become a lawsuit?

Unknown to Ms. Ramji or any of her health care providers – but very well known to the boss who accompanied her to her doctor’s visits – HHS required employees to return to work for an “essential function test”. To pass the test, Ms. Ramji had to do many exercises that would have been difficult for someone with a buttocks knee. Like squats and going from standing to kneeling on the floor with one knee and then standing up again and then doing it all again with the other knee.

After returning to work, Ms. Ramji failed the test and her knee disease may relapse. HHS fired her for failing the test.

Ms. Ramji didn’t file a lawsuit under the ADA so we can forget about that particular mole. The workers ‘comp claim was eventually settled, leaving no workers’ comp mole. But the big mole that HHS kept missing was the Family and Medical Leave Act mole.

HHS was an “insured employer” under the FMLA and Ms. Ramji had been employed for more than 12 months and apparently had a full 12 weeks of FMLA vacation at the time of her accident. However, following the court’s decision, HHS never informed her of her right to take FMLA leave.

Count the FMLA “moles”

How many FMLA moles did you find in this story? Here were mine:

• HHS was an FMLA-insured employer.
• Ms. Ramji had been employed for at least 12 months, appeared to have worked 1,250 hours or more in the previous 12 months, and did not appear to have taken any prior FMLA vacation. (Authorized employee, had vacation available.)
• The first time she went to the doctor after her injury, she was unemployed for four calendar days. Then it was advertised even longer. (The duration of the incapacity for work of more than three calendar days plus the continuation of treatment by a health care provider corresponds to a “serious state of health”.)
• She had to use her sick leave for her first absence. (Duration of incapacity for more than three calendar days and continued treatment from a health care provider AND evidence that the employer knew she was absent due to an illness. The employer is legally responsible for knowing when to call the FMLA based on the facts to disposal.)
• She could not perform the essential functions of her job while on light duty. (Under the FMLA, the employee has the choice of either doing light duty or going on FMLA vacation, although choosing the latter may result in her being disqualified for employee benefits.)
• Because of her “essential functions” test, which she failed, she was unable to perform essential functions of her job after her doctor fired her to return to work. (And she still had a full 12 weeks of FMLA vacation at this point because the employer never informed her of her rights.)

That’s a lot of moles, but you may have found more than me.

The moral of this story

Employer and employee injuries are often categorized as “Serious Health Conditions” by the FMLA at the same time. FMLA leave can be taken at the same time as employee compensation leave or paid sick leave. (Even if this was not about short-term disability leave.) It is a good idea to get the FMLA clock up and running right away. While you don’t have to run FMLA and other sheets at the same time, it is to your advantage to do so. These examples illustrate:

• Maudie is injured at work. Her employer provides her with FMLA notices by completing the required Employee Compensation Forms, approving her FMLA leave for “Major Health” and completing all FMLA requirements while Maudie is unemployed. After 12 weeks, Maudie still cannot return to work. The employer continues to have the issue of employee compensation and may need reasonable accommodation under the ADA, but their FMLA obligations have expired. Angry. One less thing to worry about.
• Louie is injured at work. His employer fills out the required employee compensation forms. After 12 weeks, Louie still cannot return to work. Louie’s employer now has to give him at least 12 weeks of FMLA job-protected leave in addition to what he has already received (a total of 24 weeks). There may be an ADA problem. Oh no! It’s the Bermuda Triangle! I mean Whack-a-Mole! I need a drink.

HHS apparently believed that if it chose to treat Ms. Ramji as an “employee compensation case” it did not have to worry about the FMLA. However, the FMLA does not allow employers to vote. If the FMLA applies, it applies.

At the start of your weekend, here’s a little whack-a-mole ragtime fun:

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