Worker's Compensation Leave- Be Careful!

Problem: When an employee is out on Worker’s Compensation leave, it can be downright puzzling to figure out whether the FMLA or the ADA also applies.

Solution: Learn how to balance the different requirements and leave benefits under all three laws, and closely track the worker’s recovery.

When an employee goes on worker’s compensation leave, your legal antenna should go up right away. That’s because an employee who has suffered an on-the-job injury may also be considered disabled under the ADA and has a serious health condition under the FMLA. The complexity of the ADA/FMLA/worker’s comp “Bermuda Triangle” has created much misunderstanding and myths about how to handle disability leave. Make sure you coordinate any unpaid leave and reasonable accommodations, such as light-duty work or intermittent leave, in handling worker’s comp, ADA and FMLA claims with your insurance carrier.

Start the “FMLA clock” right away
Many employers confuse their obligations under the FMLA and their state’s worker’s comp law. In many cases, worker’s comp absences also qualify as FMLA leave when the injury is deemed a serious health condition (one that usually requires continued treatment by a health provider). When an injury does qualify as an FMLA-covered serious condition, you should promptly notify the employee that the time missed for a worker’s comp injury will run concurrently with his or her FMLA leave. Otherwise, you would enable the employee to take 12 weeks of FMLA leave as long as his or her serious health condition continues. But your worker’s comp insurer can limit or terminate claim payments if the employee refuses to accept a light-duty assignment. Key point: Employers can usually require employees on FMLA leave to exhaust all of their accrued leave before being placed on unpaid leave. However, if an employee is already getting worker’s comp benefits, you can’t make him or her use paid leave.

Double-check the ADA
Once you’ve determined whether a worker qualifies for FMLA leave, there’s another step to take. You must decide whether the employee’s on-the-job injury meets the ADA’s definition of a disability: i.e., any physical or mental impairment that substantially limits a major life activity. If so, an employee returning from leave may also qualify to receive reasonable accommodations under the ADA, such as modifying the employee’s work schedule of work environment, or even permitting additional time off beyond the leave already taken.

As you can see, this is a very complicated issue- and this is just the tip of the iceberg! Make sure and contact a Worker’s Compensation advisor, as well as your insurer when something like this situation occurs.

Bobby Bland PWCA, CIC
Vice President
Commercial Risk Service