Fired When Sick: Employee Leaves of Absences Comparison of the FMLA, ADA and Workers’ compensation Laws
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30th Sep 2015
- General
- Covered Employees
- Eligible Employees
- Right to Leave
- Employee Notice
- Employer Notice
- Verification of an Employees Right to Leave
- Consequence of Employee Refusal to Verify Right to Leave
- Responding to an Employees Request for Leave
- Intermittent or Reduced Schedule Leave
- Limitations to Intermittent or Reduced Schedule Leave
- Paid Leave
- Alternatives to Leave
- Job Protection During Leave
- Benefit Protection During Leave
- Time Limits
- Certification for Return from Leave
- Employees Who are No Longer Qualified
- Medical Record Confidentiality Requirements
Family Medical Leave Act (FMLA) |
Americans with Disabilities Act (ADA) |
Workers’ Compensation |
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General |
Allows qualified workers 12 weeks of unpaid leave with the continuation of health benefits. | Requires that persons with a disability be provided certain reasonable accommodations so that disabled workers can perform the essential functions of their job. | Provides medical benefits and compensation for workers who are injured on the job. |
Covered Employers |
Private employers with fifty or more employees. | Employers with fifteen or more employees. | Any employer with one employee. |
Eligible Employees |
Employee:
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Right to Leave |
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An individual with a disability has a right to any reasonable accommodation that will allow him to perform the essential functions of his job unless the accommodation would be undue hardship on the employer.
One reasonable accommodation is unpaid leave. |
There is no job protection under workers’ compensation laws except for the anti-retaliation provision in essentially all workers’ compensation laws.
If an employee cannot work due to a work injury, he/she is generally entitled to compensation benefits in lieu of lost wages. |
Serious Health Condition (FMLA)
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Qualified Individual with Disability Under ADA
Most temporary impairments and pregnancy are examples of conditions specifically excluded from ADA coverage. |
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Employee Notice |
If the employer has a paid leave policy, then the employer can require no more than the employer’s notification for the company’s paid leave plan. Family member or friend may also request leave for a sick worker. |
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Employee must report a work-related injury within a specific number of days (usually thirty days) of the occurrence of the illness or injury and then file a claim within a certain period (usually one year). |
Employer Notice |
If the employer knows the worker is sick and that the time off is covered by FMLA the employer must give the FMLA information form to the worker. The employer has an affirmative obligation to designate absences as FMLA. | Employers must post a notice in a format accessible to applicants and employees that describe the provisions of ADA. | Employer must post a notice of its insurer and how employees can file claims. |
Verification of an Employee’s Right to Leave |
Employer may require medical certification of an employee’s or family member’s serious health condition by the treating health care provider. Employer can request only the information contained in the Department of Labor’s “Certification of Health Care Provider” form.
There is no effective means to challenge a disability slip from a treating physician. |
For a current employee a medical examination may be required when:
Employee may also be required to verify that his/her claimed disability exists and that an accommodation is warranted through submitting documentation from the employee’s treating health care provider. |
Employer has the absolute right to have employee undergo an independent medical examination by a physician the employer selects, regardless of physician’s location. |
Consequence of Employee Refusal to Verify Right to Leave |
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Failure to cooperate with employer’s requests may preclude employee from claiming that the employer violated ADA. | Compensation may be suspended until employee submits to an examination. |
Responding to an Employee’s Request for Leave |
Employer must provide the employee with written notice of FMLA rights and obligations one to two business days after the need for leave is given and include the following information:
Written notice of FMLA rights and obligations must be given once every six months unless circumstances change. For intermittent or reduced leave-schedule leaves, only one notice is required. |
No special form of response is required. | No special form of response is required. |
Intermittent or Reduced Schedule Leave |
Employee absolutely has the right to this leave, if medically necessary. | This may be considered as a reasonable accommodation, but the employer has a potential undue hardship defense. | Employee, generally, does not have this option. |
Limitations to Intermittent or Reduced Schedule Leave |
Employee must attempt to schedule leaves so that there is no disruption to business.
If leave is foreseeable based on planned medical treatment, the employer can temporarily transfer employee to another position with the same pay and benefits. |
Employer has no special rights. | Employee has no right to intermittent or reduced schedule leave. |
Paid Leave |
Employer may require or an employee may elect to substitute paid vacation, personal, or medical or sick leave for unpaid FMLA leave. An employer may also designate short-term disability or worker’s compensation leave as FMLA leaves. | Available paid leave may be used as a reasonable accommodation, but employer is not required to provide additional paid leave. | If employee cannot work he/she is entitled to two-thirds of his/her wages as worker’s compensation benefits. |
Alternatives to Leave |
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Job Protection During Leave |
Job protection is guaranteed.
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An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his or her same job unless an employer can demonstrate that holding open the position would impose an undue hardship. If the employer can demonstrate undue hardship, the employee must be considered for all equivalent vacant positions upon his/her return as a reasonable accommodation. | Job protection is not guaranteed, but it is unlawful for an employer to retaliate against an employee for exercising rights under the worker’s compensation statute. |
Benefit Protection During Leave |
Group Health Insurance Benefits: the employer must continue to provide coverage during leave under the same terms offered to employees not on leave and must reinstate the same upon return from leave. A full-time employee on reduced leave must be afforded the same coverage as full-time employees.
Non-Group Health Benefits: employer is not responsible to maintain coverage during leave but must reinstate coverage upon return from leave. |
Employer may not discriminate against a qualified individual with a disability with respect to benefit coverage. A full-time employee who becomes part-time because of a reasonable accommodation need only receive whatever benefit coverage is afforded to part-time employees. | Benefits are not guaranteed, although most employers continue benefits while an employee is on worker’s compensation leave. |
Time Limits |
Allows a qualified worker twelve weeks of unpaid leave within a twelve-month period. | Length of leave is determined by what is a reasonable accommodation. Exceptions to an employer’s reasonable accommodation obligation are generally provided if the employer can prove undue hardship. | Benefits, in some states, are subject to a maximum time limit, which is generally 500 weeks. |
Certification for Return from Leave |
Fitness-for-duty certification upon return to work may be required as long as the following conditions are met:
An employee’s return to work cannot be delayed pending contact with a health care provider. Fitness-for-duty certifications cannot be required for a return from intermittent leave. An employee’s failure to provide a timely fitness-for-duty certification can result in a delay of reinstatement, or if the certification is never proved may lead to termination. |
Fitness-for-duty certifications upon return to work may only be required when:
A fitness-for-duty certification must be job-related and consistent with business necessity. |
Most employers usually require fitness-for-duty certification upon return to work. Any information sought should be related to the work injury or illness. The employer is usually not restricted from contacting the employee’s physician and obtaining a second or third opinion. In fact, an employee’s worker’s compensation physician must file reports with the employer. |
Employees Who are No Longer Qualified |
Though job protection is guaranteed, if an employee is unable to perform the functions of the job upon returning to work, the employee does not have a disability covered by ADA, and the employer has no light duty or reassignment obligations, the employee can be terminated if in accordance with the employer’s policies. | If an employee is unable to perform the essential function of her position upon returning to work, the employer must consider forms of reasonable accommodation that would allow her to perform the essential functions of the job. | An employer is not legally obligated to reassign an employee returning from leave who cannot perform his existing job. |
Medical Record Confidentiality Requirements |
Medical-related records “created for the purpose of FMLA” must be kept confidential in a file separate from personnel files and in a separate locked cabinet. Only those with a true need to know should have access. | An employee’s medical information must be kept confidential with the following limited exceptions:
Medical information may be given to appropriate decision-maker involved in the hiring process so that they can make employment decision consistent with the ADA. When an employee is seeking a new position within the company they can be treated as an applicant and subject to a medical examination even if it is not related to the worker’s job. This would not apply, however, when an employee is non-competitively entitled to a new position or in cases of temporary assignment. |
An applicant’s worker’s compensation records, like medical records, cannot be obtained until a tentative job offer has been made. |
*Much of the information contained in this table comes from “Sailing the Employment Law Bermuda Triangle,” 18 Lab.Law 165 (2002), by Lawrence P. Postol.