The Employer's Bermuda Triangle: The WCA, ADA and FMLA - Don't Let Them Sink Your Ship

The purpose of this Loss Bulletin is limited in scope. It is simply intended to illustrate the overlap of the three most prominent federal and state employment laws that apply to an employee who is either returning to work or seeking a reassignment due to an injury, disability other health-related problem. It is not a comprehensive legal analysis of all aspects of the applicable laws. Several scenarios are discussed where an employment decision may be legal under one law but is in conflict with another. These issues are complex; there is no simple answer that will apply to every personnel situation. Making employment decisions based upon only one of these laws almost certainly will expose your municipality to liability.

The Problem

You are a municipal employer.  Your employee injured his back while loading a 55-gallon barrel of chemicals onto a truck.  He has been off work for two month recovering from his injuries.   You are informed that he has been awarded 60% permanent partial disability to his  back by the Workers’ Compensation Court and that his doctor recommends a minimum of six weeks light duty upon his return.

Questions begin to swirl in your mind:  (1) has he become a threat to himself or fellow workers; (2) how can he perform his job if the WC Court has already determined that he is no longer 100% fit; (3) do I have to provide light duty work for him when he returns; (4) how much time off is he allowed; or (5) can I legally terminate him since I can’t wait any longer to fill his job?

Do any of these questions sound familiar?  If so, let’s examine some of the overlapping dangers of the Employer’s Bermuda Triangle:  the Oklahoma Workers’ Compensation Act (WCA)[1], the Americans with Disabilities Act of 190 (ADA)[2], and the Family Leave Medical Act of 1993 (FMLA)[3].  A basic knowledge of how these laws apply to your employee in this situation will help you make the right decision.

Terminology

We first need to understand the basic language these laws use to determine whether the employee’s medical condition will be protected by a particular Act.  In the ADA, the term is “disability”; whereas in WC, it is an “injury or illness”, and in FMLA, it is a “serious health condition.”  Not only are these dissimilar in ways to describe basically the same physical condition, they have different consequences under the applicable laws. 

Workers’ Compensation Act

Because your employee injured his back while at work, he is covered for benefits under the WCA.  These benefits include the two months he was off recuperating from his injury.  Under the Act, the employer cannot discharge the employee solely on the basis of his absence from work if he is temporarily totally disabled.[4]

Question:  Since the SC Court has determined that your employee has a 60% permanent partial disability to his back, does this mean that you are free to discharge him due to the disability.

Answer:  The WC disability rating is not designed to determine whether an employee can still perform the physical requirements of the job.  It is simply a statutory method to determine how much compensation the employee should receive for his on-the-job injury.  So until you determine with medical certainty that the employee cannot perform his job duties, you must resist any inclination to terminate the employee.

To make that determination, a doctor who is familiar with occupational medicine or industrial testing should examine the employee using an accurate job description provided by the municipality.  It is the medical evidence contained in this report which should form the basis of the employer's decision as to whether the employee can still perform the job.

Question: Do I have to provide the light-duty for the employee upon his return to work?

Answer: The issue of light-duty assignment or availability is a concern for most municipal employers.  Although it may be advisable to offer light-duty to an employee to facilitate the recovery process and get him back on the job, the WCA does not require the employer to provide light-duty  for an injured employee. (Note: The issue of light duty may arise under the ADA and/or the FMLA, which discussion follows.)

Let's assume that the doctor's report concludes that the employee can no longer perform the job's physical requirements. Is the employer now free to terminate the employee based upon the provision in the WCA which states the employer is not required to retain an employee "who is determined to be physically unable to perform the assigned duties?" As mentioned, although you may legally terminate the employee under the WCA, you must still consider the requirements of the ADA before making your decision regarding termination.

Americans with Disabilities Act

Since you believe the employee is physically unfit to perform his job, the ADA now comes into play. This federal law prohibits an employer from discriminating against a qualified individual who has a disability or is considered by the employer to be disabled. An employer must reasonably accommodate a qualified individual with a disability, unless such an accommodation poses an undue hardship upon the employer.

The ADA thus trumps the WCA. Even though you know the employee is disabled compared to his physical condition before the accident, you must not jump to conclusions about whether the employee can still perform the essential functions of his job.  It is quite possible that the employee can still perform the same job, bur with a reasonable accommodation.  For example, the job could be restructured so that a forklift is used to place the 55-gallon drums onto the back of the truck. Or, perhaps with minimal expense, a truck can be retrofitted with a power lift to raise or lower the barrels off and onto the truck.

Although the ADA does not require the employer to create a job for the disabled employee, it does require the employer to engage in an interactive process with the employee when considering a reasonable accommodation. This involves:

    (a) re-analyzing the purpose and essential functions of the job;
    (b) discussing with the employee any limitations created or imposed by the disability;
    (c) identifying potential accommodations, including job modification;
    (d) considering the employee's preference;
    (e) offering vacant positions for which the employee is also qualified;
    (f) considering what the employer has done in the past for other employees in similar situations; and
    (g)getting input from the employee's own physician.[5]  The employer is required to consider light duty as a                 reasonable accommodation of an employee’s disability;  especially when it has been available to others.

Under the ADA the employer would be permitted to terminate the employee only: (1) after it was medically determined that the employee could not perform the essential functions of the job, with or without a reasonable accommodation, and (2) after engaging in the interactive process and determining that there were no other positions available for the employee to fill.

Question: Am I required to allow the employee back to work if he poses a direct threat to the safety of his co-workers?

Answer: The employer may condition an employee's return to work upon a fitness-for-duty certification by a physician. In determining if an employee’s return poses  a direct threat to his safety or the safety of others, the employer must make its evaluation based upon competent medical evidence which demonstrates that a direct threat exists, not simply an employer's hunch or suspicion.  

Family Medical Leave Act

Back to the injured employee's back, so to speak. His injury may trigger the FMLA because it involves a "serious medical condition". This term is defined as any physical condition requiring:

  (1)  an overnight stay in a medical facility, or
  (2) an absence of more than three consecutive calendar days, which also involves one or
       more visits to a health care provider and continuing medical treatment. This includes
       chronic conditions that may be episodic in occurrence for which treatment may be periodic.

Question: How much time is my employee entitled to be off work?

Answer: FMLA requires the employer to provide up to twelve weeks of unpaid leave per year for the employee's serious health condition.[6] The leave may be intermittent (i.e., in separate blocks of time) or on a reduced-time schedule (i.e., part time). So, your employee could be off work for as much as three months leave without pay while receiving medical treatment. This time period may exceed all the sick leave time which an employee may have accrued, which is normally paid time.

Question: Can I legally terminate the employee since I need to fill his position now?

Answer: The employee may not be terminated for absence during FMLA leave. The employer is required to return the employee to the same job or an equivalent-pay position. The employer may offer light-duty work; however, the employee may refuse without losing any right to take leave under the Act. If the employee voluntarily accepts light duty, the employee still retains the full right to leave.

Therefore, in our situation an employee could decide to remain off work for as long as twelve weeks, while he was receiving treatment from his physician. The employee would not be entitled to pay during this time. Even if the employer offered paid light-duty to entice the employee's return, the employee could refuse to return and be protected from retaliation by the employer.

Conclusion

As warned about in the introduction, the decision as to what to do with an injured employee who is returning to the workplace is not simple. It requires that an analysis be performed by applying the various requirements of the WCA, ADA and FMLA. Only after carefully utilizing this approach should the employer decide what steps to take. It is likely that this process will require patience on the part of the employer, as well as a willingness to engage in dialogue with the employee to arrive at an accommodation that meets the needs of both and avoids litigation.


Endnotes
1 85 O.S. S 1, et seq.
2  42 U. S. C. S 12101, et seq.
3  29 U. S. C. S 2601, et seq.
4  85 as S 5.B.
5 Smith v. Midland Brake Inc., 180 F. 3rd 1154
(10th Cir. 1999).
6 The employee must have worked at least 1250
hours during the year to be eligible for the 6
weeks

The Employer's Bermuda Triangle: The WCA, ADA, and FMLA - Don't Let Them SInk Your Ship was written by Stephen Reel, OMAG General Counsel. You may contact the author at: sreel@omag.org. The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney. The Oklahoma Municipal Assurance Group does not represent or endorse any group, site or product mentioned in the article. 

September 2001                                                                                                                                                         


 

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