When Workers’ Comp, ADA and FMLA Collide

The order you provide workers comp, ADA, and FMLA matters. Yet some businesses may not need to provide each option.

How each type works and 5 mistakes to avoid

Here’s a brief primer on the core issues when these legal requirements overlap and 5 mistakes to avoid.

They may not all apply to your company

First, make sure you know what does and doesn’t apply to you. If you have fewer than 50 employees, you may not have to worry about FMLA at all.

• 50+ employees: All three laws apply
• 10-49 employees: Just Workers’ Comp and the ADA apply
• 1-9 employees: Workers’ Comp and any state laws that may serve the same purpose as the ADA or FMLA could apply

All three can apply to the same employee 

If an employee is injured at work and has a serious health condition and a disability as a result, all three – Workers’ Comp, ADA and FMLA – can apply to them.

Here’s an example: Let’s assume you’re an employer with 50 or more employees. Your employee, John, lifts something at work and throws his back out. He has to have surgery and is out of work for several weeks.

First, let’s establish that John is eligible for FMLA. The requirements are:

• He has worked for the employer for 12 months.
• He’s worked 1,250 hours in the 12 months preceding the injury.
• His worksite has 50 employees within a 75-mile radius.

FMLA provides time off, with protection for John’s job until he returns to work or exhausts his leave. He can also keep his health benefits at the same cost an active employee would pay. (Neither Workers’ Comp nor the ADA provides these protections.)

Workers’ Comp covers the cost of treatment and some level of income replacement.

The ADA requires you (the employer) to provide reasonable accommodations of disabilities. That could include time off if John was ineligible for FMLA or if his FMLA ran out before he was able to return to work.

In addition, the ADA could require you to make reasonable accommodations for John’s return to work. For example, you could provide an electric scooter for moving about or a stool for a job that would otherwise require standing.

The order of benefits matters

As soon as someone is injured at work, employers that are subject to the FMLA should process the FMLA paperwork and let the employee know that FMLA and Workers’ Comp run concurrently. Otherwise, the employee may end up stacking the two back to back. Also, explain how your PTO policy works. Some employers require employees to use PTO concurrently with the FMLA, limiting them to 12 weeks of leave with both FMLA and PTO combined.

When employees on leave qualify for short-term disability payments, you may also require them to supplement those benefits with PTO. For example, if STD replaces 60% of pay, you can require the employee to use PTO for the other 40%.

It’s a good idea to document your policy for how FMLA and PTO work together so you’re not having to develop or communicate it on the fly.

Top 5 FMLA mistakes to avoid

Having a strong process can help you avoid an FMLA-related lawsuit. Here are the five violations that stand out as most likely to end in litigation.

1. Calling leave “FMLA” when it’s not. If an employee isn’t eligible for FMLA or you aren’t required to provide it, you may be obligating yourself to comply with the law when you’re not required to.
2. Not documenting performance issues. Performance management may not seem like an FMLA problem, but it’s a story we’ve seen unfold time and again. You put off disciplining a problem employee, and then the employee goes out on FMLA. If you discipline them now, it will look like you’re retaliating against them for requesting FMLA rather than disciplining them for the genuine performance problems you’ve been letting slide.
3. Failing to Consider Leave as an ADA Accommodation. One of the most difficult issues HR professionals face is what to do when an employee has exhausted their FMLA leave and still can’t return to work. As mentioned above, you may need to consider offering them additional time off as a reasonable accommodation of a disability under the ADA. In this situation, it’s nearly always best to consult your employment attorney on how to proceed.
4. Failure to designate FMLA in a timely manner. This happens when an employee misses several weeks before anyone thinks of offering FMLA. You can’t count absences as FMLA leave unless you’ve informed the employee with a Designation Notice, and it’s hard to designate the leave retroactively. So, in this case, the employee may receive several more weeks of leave than intended.
5. Lack of supervisor training. You can reduce many of these problems with adequate supervisor training on how to recognize and talk about possible FMLA leave situations.