The Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against “disabled” individuals who are qualified to perform the “essential functions” of a job. In some circumstances it requires an employer to make a “reasonable accommodation” for the employee’s disability.
The Family Medical Leave Act (“FMLA”) helps individuals balance the demands of the workplace with the needs of families. It gives qualifying employees the right to take up to 12 weeks of unpaid leave per year for various family medical-related purposes, including the patient’s need to obtain continuing treatment or to recover from a serious health condition.
State workers’ compensation laws demand that employers pay for any work-related injury to or illness of their employees. In return, employees are limited in the amount of compensation they can receive as part of their injury- or illness-related award.
Employers, have you ever scratched your head, wondering whether you were in compliance with the ADA, the FMLA and state workers’ compensation laws? Sometimes it’s hard enough to comply with just one law, but, many times, employers must contend with an overlying maze of requirements from all three of these laws, applicable to a wide range of situations, such as: dealing with employee substance abuse problems; responding appropriately when an employee becomes ill or injured; knowing when to allow an employee on leave back to work, and understanding when it’s safe to terminate an employee. They can even affect the hiring process.
The following two examples are designed to introduce you to a few of the complexities surrounding the interplay of these laws.
EXAMPLE 1: THE HIRING PROCESS
Suppose you operate a trucking business and are in the process of hiring long-haul truck drivers. There are things you need to find out about the applicants. But which questions can you legally ask them?
Many state workers’ compensation statutes require an employer to get information about an applicant’s prior work-related injuries to avoid being held liable for those injuries in the event the employee suffers a recurring work-related injury. But deciding what questions to ask can be tricky business because the ADA does not allow you to ask job applicants disability-related questions about prior job-related injuries or claims; nor can you ask a third party (i.e., a doctor) questions that you could not ask the applicant directly.
You can ask questions about current illegal drug use. But be sure not to ask questions about past drug use, since addiction may qualify as a disability. You can ask lifestyle questions, as long as they can be construed as job related. Again, be careful. Lifestyle questions may elicit disability information that should not be discussed during the interview process.
You are allowed to ask an applicant about her ability to perform a job-related activity. One way to do this is to supply a job description outlining the work environment, the tasks and physical and educational requirements. Ask if the applicant if she can perform all of the described duties under the conditions you’ve outlined. You are allowed to request that all applicants demonstrate their capabilities. Focus on task performance. Applicants can be required to take tests such as drug, physical agility or fitness tests, or psychological exams intended to measure non-disability information. If you choose to administer tests, test all applicants equally and make sure the tests are relevant to the specific job.
One solution: Make the applicant a conditional offer of employment. Once the applicant accepts the offer, you can ask more detailed questions, such as those relating to previous work-related injuries, workers’ compensation history, prior sick leave usage and the applicant’s health. You may also require medical examinations. One caveat: if you decide not to hire the applicant after making a conditional offer of employment, you should be prepared to prove that the criteria you used was strictly job-related and consistent with business necessities. Refusals based on an applicant’s disability will violate the ADA.
Note: Because the FMLA deals only with employee leave situations, it is generally not applicable to hiring decisions. The one exception is that you may not use an applicant’s decision to take FMLA leave at a previous job as a negative factor in the hiring process.
EXAMPLE 2: EMPLOYEE INJURY
Suppose an employee suffers a back injury in a car accident while driving home from work one day. What do the ADA, FMLA, or workers’ compensation statutes require of you?
First, you need to figure out which of these laws applies to you. The ADA only applies to employers who have had at least 15 employees on each working day of 20 or more calendar weeks in the current or preceding calendar year. The rule for FMLA application is the same, except that the threshold number of employees is 50 within a 75 mile radius. State and local governments must comply with the ADA and the FMLA regardless of the number of employees they have. Arizona workers’ compensation statutes apply to any employer that has even one employee (excluding domestic servants).
Second, you need to evaluate the injury in light of requirements of each applicable law. For workers’ compensation statutes to apply, the injury must occur during, and be connected to, the job. Since the truck driver’s injury occurred while she was driving home from work, she is probably not entitled to workers’ compensation. This is Arizona’s “going and coming” rule, which says that an employee is usually not within the course or scope of her employment while commuting to or from work.
In order to qualify for protection under the ADA, the truck driver must suffer an impairment that substantially limits a major life activity (which includes working), must have a record of such impairment, or must be regarded as having such an impairment. If the back injury is temporary, it probably does not qualify the truck driver for protection under the ADA. However, if the truck driver can no longer sit for extended periods of time, then the injury may rise to the level of substantial limitation required for ADA protection. If the injury causes you to regard the employee as having a substantially limiting impairment, then the ADA will still apply.
For instance, the driver may be covered under the ADA (even with a temporary disability) if you tell her after the accident: “I’m not sure how you’ll be able to lift goods into the truck now.” The message: Don’t discuss an employee’s injuries except on medically established facts supported by a physician’s statement.
The ADA does not protect a qualified, disabled employee unless she requests that the employer make an accommodation. Also note: The employee does not have to mention the words “ADA” or “reasonable accommodation” to satisfy the ADA’s notice requirements. After the employee gives you notice, you are obligated to provide the employee with a reasonable accommodation, provided that your efforts do not result in undue hardship. What qualifies as a “reasonable accommodation” depends largely on the size and financial condition of the company.
One reason a company may terminate a disabled employee is if, after reasonable accommodation is provided, her continued employment would pose a direct threat to either herself or another employee. So, if the truck driver has reoccurring dizzy spells as a result of her back pain, her continued employment as a driver could pose enough of a threat to herself and those around her that her termination does not violate the ADA.
Conversely, under the FMLA, the employer must reinstate an employee back into his/her job, or a comparable one, after a FMLA leave has been exhausted. For the FMLA to apply, the truck driver must have worked for you for at least 12 months. Also, during the 12 months immediately preceding the date she wants to begin her FMLA leave, she must have worked at least 1,250 hours for you. She must then prove that she has suffered a serious health condition that makes her unable to perform the essential functions of her job.
An employee who wants to take FMLA leave must notify you of her health condition and her desire to take leave at least 30 days before the leave begins, or as soon as it is practicable. The employee is required to explain the reason behind her leave request, but, to evoke the FMLA, she need not mention the words “FMLA” nor “serious health condition.” After satisfying the notice requirements, the employer must designate the leave as FMLA leave and must notify the employee of such designation. Failure to issue this notification means that, although the leave is authorized, it does not count as FMLA leave.
Employers have the right to require a doctor’s written statement confirming the employee’s or a family member’s medical condition. Once she has proven eligibility, she is entitled to 12 weeks of leave, which can be unpaid if that is your policy for all employees. Moreover, the leave can be intermittent if the nature of her illness or treatment requires periodic absences. After the employee returns from FMLA leave, you are obligated to reinstate her. One exception to this rule is for “key” employees, but only if reinstatement would cause you substantial and grievous economic injury.
Third, after determining which laws apply to the injured employee, you should analyze the interactions of the applicable laws. As a rule of thumb, always choose the course of action that provides the employee with the greatest protections. For instance, the ADA does not guarantee a disabled employee the right to take leave. However, if the employee requests leave by implicating the FMLA, then the FMLA rules must be applied.
CONCLUSION
The ADA, FMLA, and state workers’ compensation statutes provide much-needed protections for America’s workforce. However, wading through their requirements is a perplexing process for even the most knowledgeable managers. Educating yourself to the complexity of these statutes is crucial for maintaining successful employee relations. Remember, whenever you are in doubt, consult with a competent employment law attorney before you take any action that may involve employee-relations legalities.
