The interaction among the Americans with Disabilities Act (ADA), Family Medical Leave Act (FLMA) and workers’ compensation laws is frequently referred to as the Bermuda Triangle of employment law and can appear confusing when managing an employee with a need to be out of work long-term. Navigating the Triangle is easiest in three steps: 1) determine which law(s) apply to your company; 2) know what each law requires; and 3) analyze whether your employee’s situation applies to any of the laws.
Step 1: Which Law(s) Apply to Your Company?
Each of these laws applies to certain employers based on the size of the employer. The FMLA applies to employers who have more 50 or more employees employed within 75 miles of the worksite. The ADA applies to employers with 15 or more employees. The South Carolina Workers’ Compensation Act applies to employers that regularly employ 4 or more employees.
Step 2: What Does Each Law Require?
The FMLA allows employees to take up to 12 weeks of unpaid leave every year to care for a newborn or newly-placed adopted or foster child or for the serious health condition of the employee, his/her spouse, child or parent. FMLA also provides 26 weeks of military caregiver leave. Leave must be designated as FMLA leave within 2 days of the employer’s receipt of request for it. The employee must return to work as an employee in the same or equivalent position. Leave may be taken in one block or intermittently on a reduced schedule. The employer must continue to provide the employee’s benefits while they are on FMLA leave.
The ADA requires an employer to make reasonable accommodations for qualified individuals who can perform the essential functions of a particular position unless the accommodation causes undue hardship to the employer’s business. A reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, accrued paid leave or additional unpaid leave.
The SC Workers’ Compensation Act compensates workers while they are out of work due to a job-related injury. It is the only remedy to compensate an employee for personal injury or death by accident arising out of employment.
Step 3: How Does Each Law Apply to your Employee’s Situation?
An employee eligible for FMLA is one who has been employed by the employer for 12 months or more (but not necessarily all in the same stretch) and has worked at least 1250 hours during the 12 months immediately preceding the leave request (an average of 24 hours every week). Part-time employees are counted. Employees can have leave to care for a new child or the employee’s own or a family members’ serious health condition. A serious health condition is a physical or mental illness or injury that involves in-patient hospital care or continuing treatment by a health provider and can involve chronic conditions (arthritis, cancer, kidney disease, etc.) or pregnancy. While FMLA and workers’ compensation can run concurrently, an employee who has exhausted the 12 weeks of FMLA may be entitled to additional unpaid leave under the ADA.
An employee eligible for protection under the ADA is one who has a mental or physical impairment that substantially limits one or more of that person’s major life activities, has a record of such impairment, or is regarded as having such an impairment. An employee may qualify for leave under the FLMA, but not under the ADA as the definition of a “serious health condition” is different than that of a disability. For example, if the employee has a long-term disability that does not require hospital care or continuing treatment, they would qualify for protection under the ADA, but not the FMLA. If the employer decides to offer the employee a reasonable accommodation pursuant to the ADA while the employee is out on leave pursuant to FMLA, the employee does NOT need to accept the accommodation and his/her refusal to accept the light duty work can’t detrimentally affect the employee.
While the employee is not required to and can’t be punished by the employer for turning down the offer, the employee may lose workers’ compensation benefits for refusing suitable employment.
While the FMLA, the ADA and the SC Workers’ Compensation Act are the most commonly applied Bermuda Triangle of laws applicable to workers needing extended leave from work, other remedies and protections may be available and applicable. Contact an experienced employment law attorney at Gignilliat, Savitz & Bettis for an analysis of your current policies, for help navigating state and federal laws or to discuss any particular employee’s situation.