1. HOW FMLA, ADA AND WORKERS’ COMPENSATION LAWS WORK TOGETHER Presented by Steven J. Luckner, Esq. March 5, 2014

2. SPEAKER 2 Steven J. Luckner Morristown, NJ steven.luckner@ogletreedeakins.com

3.  Why is it important to know how these laws work together? Introduction 3

4.  Why is it important to know how these laws work together?  Do these laws always have an impact on one another? Introduction 4

5.  Why is it important to know how these laws work together?  Do these laws always have an impact on one another?  Do these laws apply to all businesses? 5 ADAAA FMLA Workers Comp

6.  It is generally a state-run program that allows workers who were injured on the job to receive compensation while they are out of work.  It generally does not provide for any protected job leave.  An employer cannot retaliate against an employee for filing a workers’ comp claim.  No limit on amount of leave that can be taken. What is workers’ compensation? 6

7.  The employer must have at least 50 employees in one location (with some exceptions).  It is a federal law that provides for 12 weeks of unpaid leave to care for oneself or another family member and requires an employer to return the employee to the same or an equivalent position (with some exceptions).  The 12 weeks of leave do not need to be consecutive. What is the FMLA? 7

8.  The employer must have at least 15 employees.  It is a federal law that prevents employers from discriminating against employees or job applicants because they are a qualified individual with a disability.  It does not provide for payment.  It does require an employer to reasonably accommodate someone who is either disabled or perceived as disabled. What is the ADA? 8

9.  Yes, so long as the injuries qualify as a serious health condition pursuant to the FMLA.  If you do not designate it as FMLA leave, you may provide the employee with more leave than they would otherwise be entitled to (i.e. “stacking”).  It is critical for the employer to run them concurrently – Ex. Employee goes out on workers’ comp for 3 months and comes back. 4 months later goes out on unrelated FMLA leave to care for an ill parent. If original leave not designated, employee will be allowed additional time. Can an employer run FMLA leave concurrently with a workers’ compensation absence? 9

10.  The FMLA does not allow an employer to exhaust/substitute paid leave while an employee is receiving workers’ comp payments.  But, an employer and employee can agree to use paid leave to supplement workers’ comp payments since workers’ comp generally only provides a percentage of the employee’s salary. The employer and employee can agree to bring it to 100%.  Since many workers’ comp plans do not start payment until one to two weeks after an injury, assuming your policies allow it, you may be able to require the employee to use accrued sick leave until workers’ comp kicks in. Can an employer exhaust paid leave while the employee is on workers’ comp and FMLA leave? 10

11.  In many circumstances an employer may have direct contact with an employee’s health care provider in the manner in which the workers’ comp statute provides, as opposed to the FMLA, although the new FMLA regs allow an employer to contact the health care provider to clarify/confirm medical documentation so long as an employee is first given an opportunity to cure any deficiency. - The ADA allows job related questions consistent w/ business necessity - ADA & FMLA both allow for certification of fitness for duty - Workers’ comp generally allows for medical inquiries relating to all aspects of the employee’s injury, such as history, treatment, prognosis, etc. Can an employer contact a health care provider regarding medical documentation during a workers’ comp, FMLA or ADA absence? 11

12.  Employee has absolute right to decline a light duty job while on FMLA leave. Employee does not have the same right under workers’ comp or the ADA.  However, as a result of turning down light duty, the employee risks losing workers’ comp benefits. Similarly, a worker that turns down a reasonable accommodation risks job protection under the ADA.  When workers’ comp benefits cease, the employer may require use of accrued unpaid leave. What happens to workers’ comp benefits if an employee turns down light duty wile on FMLA leave? 12

13.  First, there obviously must be a light duty position available for ½ day  Second, the employer would allow the light duty for ½ day and charge ½ day to FMLA leave --- presumably the worker would receive workers’ comp benefits for the ½ day they can’t work.  Remember --- under the regs you cannot count light duty against FMLA leave What happens when an employee is released to return to light duty for a half-day? 13

14.  Not necessarily: - If a worker is out due to an injury on the job and earns less wages than prior to his or her injury, the employee is clearly “disabled” for workers’ comp purposes, but not necessarily disabled for ADA purposes, i.e. “substantial limitation of major life activity.” - If the injury rendered a limb useless due to medical complications then he or she would be “disabled” for ADA purposes. Is an employee receiving workers’ compensation always protected under the ADA? 14

15.  No. As such an employer’s obligation to make reasonable accommodations is the same whether injured on the job or off. Does the ADA differentiate between work-related and non-work related disabilities? 15

16. 1. When dealing with a workers’ comp injury you are almost always dealing with an FMLA situation. The 2 are not mutually exclusive. 2. Always follow your absenteeism and leave policies. 3. Always remember to send out your FMLA notice when the employee goes out on workers’ comp leave to properly account for the absence. 4. If the injury results in a qualified disability, you must engage in the interactive process and document the process and accommodations provided. 5. Don’t assume that fulfilling obligations under one law also satisfies obligations under others. POINTS TO REMEMBER 16

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18. 18 Thank you! Steven J. Luckner Ogletree Deakins, Nash, Smoak & Stewart, P.C. 10 Madison Avenue Morristown, NJ 07960 Tel: (973) 656-1600 steven.luckner@ogletreedeakins.com