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When Workers’CompensationClaims Morph intoADA & FMLAC arlH abekost RobertL.Solt,III1Intersection OfW orkers’Com pensationADA2FM LA

W orkers’C om pensation State law Enacted in 1913 D esigned to pay benefits to injured w orkersA D A Am endm ents A ct FederalLaw w ith State corollary Enacted 1990,w ith significantam endm ents in 2009 D esigned to preventand rem edy discrim inationFam ily M edicalLeave A ct(FM LA ) FederalLaw Enacted 1993 D esigned to balance w orkplace dem ands w ith needs offam ilies w ith healthissuesPurposes of the Laws3W orkers’Com pensationFM LAADAMedical ConditionOne Common Thread4

Injury and Disease Under Workers’ CompensationStatuteInjuryO ccupationalD iseaseA ny IN JU RY,w hethercaused byexternalm eans oraccidentalincharacterand result,received inthe course,and arising outof,the injured em ployee’sem ploym entA disease contracted in thecourse ofem ploym ent,w hich byits causes and characteristics ofits m anifestation orthecondition ofthe em ploym ent,results in a hazard w hichdistinguishes the em ploym entincharacterfrom em ploym entgenerally,and the em ploym entcreates a risk ofcontracting thedisease in greaterdegree and ina differentm annerthan thepublic in general.5A person is“D ISA BLED ”ifthey:Disabilityunder theADA(AA)6H ave a physicalorm entalim pairm entthatsubstantially lim its one orm ore m ajorlifeactivities;orH ave a record ofhaving such anim pairm ent;orA re “regarded” by the em ployeras havingsuch an im pairm ent.

Serious HealthCondition underthe FMLAInpatientcare atahospital,hospice,etc.,orA period ofincapacity (i.e.absentfrom w ork)ofm ore than 3consecutivecalendardays,includingsubsequenttreatm ents relatingto the sam econdition;orA ny illness,injury,im pairm ent,orphysicalor m entalcondition thatinvolves:A ny period ofincapacity due to achronic serioushealth condition;orA n incapacityw hich isperm anentorlongterm due to acondition forw hichtreatm entm ay notbe effective.A ny period ofabsence to receivem ultipletreatm ents w hich,ifnotrendered,w ould likely resultin a period ofincapacity greaterthan 3 consecutivecalendardays (i.e.chem otherapy,kidney dialysis,etc.).7Enforcement AuthoritiesA D A –EqualEm ploym ent O pportunity Com m ission (EEO C)FM LA –D epartm ent of Labor (W age and H our D ivision)W orkers’Com pensation –State8

Interplay Between ADA, FMLA, and Workers’CompensationEm ployer CoverageA D A –15 orm oreem ployees for20 w eeksduring currentorprecedingcalendaryearFM LA –50 orm oreem ployees w ithin a 75-m ileradiusforatleast20 w eeksduring currentorprecedingcalendaryearW orkers’Com pensation –A pplies to m ost,even sm allem ployers. State law sgovern. Public agencies,including citiesand tow ns,are covered em ployersw ithoutregard to the num berofem ployees em ployed9Interplay Between ADA, FMLA, and Workers’Compensation (cont’d)Em ployee EligibilityA D A –Em ployee (orapplicant)w ho is disabled asdefined by the A D A ;qualifiedforthe position;can performthe essentialfunctions oftheposition,w ith orw ithoutareasonable accom m odation.10FM LA –Em ployee w ho hasw orked atleast12 m onthsand 1250 hours priorto thestartofthe leave;w orks ataw orksite w here there are 50orm ore em ployees w ithin a75-m ile radius.W orkers’Com pensation –Em ployee w ho has an injuryarising outoforin the courseofem ploym ent-state lawexceptions possible forw illfulm isconductorintentionalselfinflected injuries,w illfuldisregard ofsafety rules,orintoxication from alcoholorillegaldrugs.

Interplay Between ADA, FMLA, and Workers’Compensation (cont’d)Length of LeaveA D A –N o specific lim itfor FM LA –12 w eeks in the 12 W orkers’Com pensation –the am ountofleave thatm onth period as definedN o specific lim itforthew ould be provided as aby the em ployeram ountofleave an injuredreasonablew orkerm ay have.accom m odation thatdoesnotcreate an unduehardship on the em ployer.11Interplay Between ADA, FMLA, and Workers’Compensation (cont’d)M edicalD ocum entationA D A –O nly m edicalFM LA –M edicalcertification ofexam inations orinquiriesthe need forthe leave nottoregarding an em ployee’sexceed w hatis requested in thedisability thatare job-relatedD epartm entofLabor(D O L)and lim ited to determ iningM edicalC ertification Form .ability to perform the job andw hetheran accom m odation isneeded and w ould be effective.12W orkers’Com pensation –M edicalinform ation thatpertains to the em ployee’s onthe-job injury.

Interplay Between ADA, FMLA, and Workers’Compensation (cont’d)Restricted or LightD utyA D A –Required to beoffered,ifitis areasonableaccom m odation thatdoes notcreate anundue hardship on theem ployer.FM LA –C annotbe“required”.W orkers’Com pensation –O ughtto be offered ifavailableas itm ay elim inate theem ployee’s entitlem entto the w agereplacem entbenefit.13Interplay Between ADA, FMLA, and Workers’Compensation (cont’d)Benefits W hile on LeaveA D A –N o specific requirem ents FM LA –H ealth coverage m ustbeW orkers’Com pensation –N otbutcannotdiscrim inate and m ust continued atsam e levelas prior required to be continued unlessprovide sam e benefits as thoseto the leave.Benefits otherthan run concurrently w ith FM LA leave.provided to em ployees on non- health benefits are determ ined byAD A leave ofabsence.the em ployer's established policyforproviding such benefits w henthe em ployee is on otherform s ofleave (paid orunpaid,asappropriate).14

Emergency Family And Medical Leave Expansion ActW hat:a tem porary am endm entto the Fam ily and M edicalLeaveA ctof1993.The FM LA requirescovered em ployers to provideeligible em ployees up to 12 w eeksofunpaid leave forqualifyingreasons.The bill,w hich is settobecom e effective no laterthan 15days afteritis enacted,ends onD ecem ber31,2020.Covered em ployer:A llem ployers w ith few erthan 500em ployees and governm entem ployers foreach w orking day for20 orm ore calendarw orkw eeks inthe currentorpreceding calendaryear.Sm allbusinesses w ith few erthan 50 em ployees m ay be exem ptfrom the billifsuch leave w ouldjeopardize the viability ofthebusiness.Pay during Leave:The first10days ofleave m ay be unpaid.W hileem ployees m ay electto substitute anyaccrued vacation,personal,m edicalorsick leave during such tim e,theem ployerm ay notrequire theem ployee to use the paid leavebenefits.A fterthe 14-days,em ployersm ustpay em ployees on leave no lessthan tw o-thirds ofthe em ployee’s usualpay.Paid leave is lim ited to 200 perday and 10,000 in total.Eligible Em ployee:Full-tim eReasons for FM LA Leave:orPart-tim e em ployees thathavebeen em ployed foratleast30calendardays.C ircum stances w here an em ployeeis unable to w ork ortelew ork dueto the need to care fora m inorchild ifthe child’s schoolorplace ofchild care has been closed orthechild care provideris unavailable,due to a public health em ergency.Job Restoration:Em ployersw ith few erthan 25 em ployees arenotrequired to restore anem ployee’s job ifthe em ployee’sposition no longerexists aftertheleave due to an econom icdow nturn orotherchanges inoperations affecting em ploym entdue to a public health em ergencyduring the leave period.Exclusions:Em ployers w ithless than 50 em ployees in a 75m ile radius are im m une fromcivilFM LA dam ages in an FM LAlaw suit.Em ployers m ay excludeem ployees w ho are health careproviders orem ergencyresponders from this em ergencyFM LA entitlem ent.15Emergency Paid Sick Leave ActW hat: RequiresEm ployers w ithfew erthan 500em ployeesandgovernm entem ployers toprovide allem ployeesupon hire tw ow eeks ofpaidsick leave,paidattheem ployee’sregularrate.16Reasons for Sick Leave:Sick Pay:Exem ption: Em ployee is subjectto afederal,state,orlocalquarantine orisolation orderrelated to C O VID -19; Em ployee has been advisedby a health care providertoself-quarantine because ofC O VID -19; Em ployee is experiencingsym ptom s ofC O VID -19 andis seeking a m edicaldiagnosis; Em ployee is caring foranindividualsubjectoradvisedto quarantine orisolation; Em ployee is caring fora sonordaughterw hose schoolorplace ofcare is closed,orchild care providerisunavailable,due to C O VID 19 precautions;or Em ployee is experiencingsubstantially sim ilarconditions as specified bythe Secretary ofH ealth andH um an Services,inconsultation w ith theSecretaries ofLaborandTreasury. Full-tim e em ployees are entitled to2 w eeks (80 hours)ofusualpay. Part-tim e em ployees entitled to thetypicalnum berofhours thattheyw ork in a typicaltw o-w eek period. Lim its paid leave to 511 perdayand 5,110 in totalw here leave istaken foran em ployee’s illness orquarantine reasons (1),(2),and (3)noted above. Lim ited to 200 perday and 2,000 in totalw here leaveis taken forcare forothers andschoolclosure reasons (4),(5),or(6).Em ployees are paid attw othirds the em ployee’s regularrateto care fora fam ily m em berforsuch purposes orto care fora childw hose schoolhas closed,orchildcare provideris unavailable,due to the coronavirus. An em ployerm ay notrequire anem ployee to use otherpaid leaveprovided by the em ployerto theem ployee before the em ployeeuses the paid sick tim e. An em ployerm ayexcludeem ployees w hoare health careproviders orem ergencyresponders fromthis coverage.Thebillalso grants theSecretary ofLaborthe authority toissue regulationsto exclude certainhealth careproviders andem ergencyresponders fromthe definition ofem ployee.Sm allbusinesses w ithfew erthan 50em ployees are alsoexem ptfrom theserequirem ents ifthey jeopardize theviability ofabusiness as agoing concern.W hen: The billw ouldbecom eeffective 15days afteritsenactm entandterm inates onD ecem ber31,2020. These benefitsshallnotcarryoverfrom 1yearto thenext.Retaliation: The billprohibitsretaliatingagainstanyem ployee w hotakes leaveunderthe newlaw . The billfurtherprovides thatthe failure topay requiredsick leave w illbe treated as afailure to paym inim umw ages inviolation oftheFairLaborStandards A ct.

A sm all O hio m anufacturing facility em ploys 100 people. The facility is open and adhering to theResponsible Restart O hio industry specific protocols. Em ployees are requested to m onitor their ow ntem peratures and sym ptom s each day before entering the facility.A n em ployee that w orks on the linecalled H R on a Friday and advised that she w as illw ith covid-19 sym ptom s and w ould be unavailable tocom e to w ork.She advised she w ould be tested and return to w ork once she received a negative testresult.H er husband,w ho w orked in a different part of the plant,also called to advise he w ould be selfquarantined untilhis w ife’s test result w as returned.O n M onday,the em ployer learned that the fem aleem ployee w as hospitalized overthe w eekend,and on W ednesday ofthatw eek they learned thatthe stillhospitalized fem ale em ployee tested positive for CO VID -19.The em ployee rem ained hospitalized for 5w eeks.She finally received a negative testresultbutadvised the com pany she w as stillnotw ellenoughto return to w ork and needed to attend physicaltherapy.The follow ing w eek,the com pany received aFRO I-1 fora covid-19 w ork injury claim .The claim w as allow ed by the SH O and TT w as granted through the period of hospitalization. W hileaw aiting a response from the fullCom m ission,the claim ant filed for an additionalcondition of G uillainBarre syndrom e.The claim indicated that the CO VID -19 injury developed into G uillain-Barre syndrom ew hich left the claim ant w ith w eakness and tingling in the extrem ities and called for m ore extensivephysicaltherapy.The com pany had an IM E perform ed and the doctor opined that the claim ant could perform w ork w ithvery lim ited restrictions.Fact pattern17Run Work Comp and FMLA Concurrently18