July 27, 2018

I. FMLA, ADA, and Workers’ Compensation
Managing employee leaves of absence is one of the most challenging functions of a human resources department. Numerous laws intersect, with overlapping requirements and coverages. Failure to properly manage employee leaves of absence can unwittingly expose a company to liability and damages.

The three main laws that impact employee leaves of absences are the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”) and workers’ compensation law. The ADA and FMLA are federal laws, and workers’ compensation law is state law (Massachusetts’ workers’ compensation law is found at M.G.L. c.152). In many cases, all three laws apply simultaneously.

In thinking about employee leaves of absence, it is important to first recognize the distinction between “paid leave” and “unpaid leave.” The state workers’ compensation law provides paid leave (and other benefits) to employees who have been injured in a workplace accident. The ADA and the FMLA (as they apply to employee leaves of absence) require “unpaid leave” to employees in certain circumstances. Neither the ADA nor the FMLA require an employer to pay an employee on a leave of absence.

The ADA, FMLA and workers’ compensation law apply to employers at different thresholds. Essentially, the ADA (or its state counterpart, M.G.L. c.151B) and the workers’ compensation law apply to all but the smallest employers in the state. The FMLA, on the other hand, only applies to employers that have 50 or more full time employees within a 75 mile radius.

II. FMLA
The federal Family and Medical Leave Act (“FMLA”) was first passed in 1993. It was one of the first legislative accomplishments of President Clinton. The FMLA requires covered employers to provide up to 12 weeks of unpaid leave each year to eligible employees to deal with an employee’s medical and family issues, such as the birth of a child or the adoption of a child. The FMLA also allows eligible employees to take leave to care for family members’ medical issues. The FMLA was amended in 2008 to extend leave rights to family members impacted by military service, whether to care for an injured service member or to care for a service member’s family when the service member is called to duty.

III. The ADA Amendments Act (ADAAA)
The ADA, originally passed into law in 1991, was significantly amended effective January 1, 2009. Titled the Americans with Disabilities Amendments Act (“ADAAA”), it overturned several Supreme Court decisions that limited the ADA’s original coverage. As amended, the ADA excludes consideration of mitigating measures (i.e. medication or prostheses), expands the definition of the “regarded as” prong of the definition of a disability, establishes an updated list of major life activities and broadens construction of the Act to include more individuals under its protection. The EEOC implemented Final Regulations to administer the ADAAA in March 2011.

While prior court decisions routinely found that a plaintiff did not have a “disability” as defined under the ADA, under the ADAAA the courts are directed to not focus so heavily on whether an employee/applicant has a covered disability. Rather, focus should be on whether the individual is qualified to perform the essential functions of the job with or without reasonable accommodation, unless such accommodation poses an undue hardship to the employer, or a direct threat.

Common mistakes an employer may make under the ADAAA include:
• Not identifying and documenting essential job functions;
• Not adequately documenting performance or conduct deficiencies;
• Not engaging in an interactive process to identify possible accommodations/ modifications;
• Incorrect or insufficient analysis of safety issues under the “direct threat” standard;
• Relying on speculation or fear;
• Not having a mechanism to adequately acquire and analyze medical information;
• Not considering reassignment or additional unpaid leave, with or without job restoration, as a reasonable accommodation;
• Making inappropriate written or verbal comments, thereby creating ADA “regarded as” disability status; and
• Not managing disability cases to set clear expectations and limits.

IV. Interplay of the Statutes
A. Covered Employers

• FMLA - 50 or more employees at one location or multiple locations if the locations are within a 75-mile radius of each other; worked at least twelve (12) months and 1,250 hours during the year preceding the intended beginning of leave
• ADA – 15 or more employees
• Massachusetts Workers’ Compensation Act – All employers in Massachusetts

B. Covered Injuries

• The definition of the workers’ compensation injury or impairment may not necessarily qualify as a “serious health condition” under the FMLA or a “disability” under the ADA. An injury could be within the protection of one law and not the protection of the other.

C. Protected Medical Inquiries

• ADA - Under the EEOC’s ADA and workers’ compensation enforcement guidance, an employer can ask a prospective employee about his or her prior workers’ compensation claims or occupational injuries so long as:

(1) a conditional offer of employment has been extended; and
(2) it asks the same question of all entering employees in the same job category. However, an employer may not then refuse to hire a prospective employee merely on the ground that he or she sustained a previous occupational injury or poses an increased risk of occupational injury or workers’ compensation costs. Medical inquiries are allowed in determining a reasonable accommodation under the ADA.

• FMLA & Workers’ Compensation: Both the FMLA and workers’ compensation law require a degree of employee cooperation in assessing leave and return-to-work issues. The FMLA limits the medical information an employer may obtain but allows an employer representative (not the employee’s supervisor) to contact the medical provider for clarification/information.

D. Employment Issues

• FMLA: The FMLA provides that “nothing” in its provisions “modifies or affects federal or state law prohibiting discrimination of the basis of ... disability ... under the Americans with Disabilities Act. Thus, the leave provisions of the [FMLA] are wholly distinct from the reasonable accommodation obligations of employees covered under the [ADA] ... The purpose of the FMLA is to make leave available to eligible employees and employers within its coverage, and not to limit already existing rights and protection.”

The following are common employment issues that involve the application of one or more of these laws:

1. Hiring

• ADA: The ADA prohibits pre-offer medical inquiries except the following:

(a) Physical Fitness Tests. A physical fitness test may be required if it is required of all applicants. However, if an offer is not made, the employer must be able to prove that an offer was not made because of a job-related requirement that was consistent with business necessity and for which there was no available accommodation;
(b) Drug Tests. An employer may test for illegal drug use but problems may arise if an employer discovers that the applicant is using drugs other than those meant to be tested for. The applicant may assert an ADA claim that he or she was not hired because of a disability or perceived disability that the company learned through the drug test. The best advice is to use an independent lab and make the offer conditional on passing the test, as well as to consult any applicable state law.

• While the ADA prohibits questions to an applicant as to prior workers’ compensation claims, there are no limitations on questions related to an applicant’s ability to perform the essential functions of the job, including attendance. The ADA allows post-offer medical inquiries related to performing the job, provided the applicant has not started work.

• FMLA & Workers’ Compensation: Neither the FMLA nor workers’ compensation issues are typically encountered in the hiring process. However, as mentioned above, an applicant’s prior workers’ compensation history cannot, absent demonstration of a direct safety threat or other business necessity reason, serve to justify a refusal to hire.

2. Leave

• Employee’s Choice: An employer cannot mandate that an employee take a leave of absence under the FMLA if the employee is willing to continue working and if the employee is able to perform the essential functions of the position with or without reasonable accommodation under the ADA. Similarly, an employer cannot force an employee to continue working if the employee qualifies for FMLA absence (is eligible and has a qualifying condition). The employer must be able to recognize whether the employee wants leave or wants to continue working and evaluate the situation accordingly. However, nothing prevents an employer from placing an employee on leave as a form of reasonable accommodation or placing an employee on FMLA leave if the employee is unable to perform the essential job functions of the position even with a reasonable accommodation.

• ADA: Generally speaking, attendance is considered to be an essential job element. Importantly, both the EEOC and the courts have recognized that an “indefinite” period of leave is not considered reasonable. However, the EEOC has taken the position that maximum leave policies cannot be applied universally and that, for disabled employees, the employer must apply the “interactive process” to determine if additional leave qualifies as a reasonable accommodation.

In addition, upon return from leave a disabled employee may, as a form of reasonable accommodation, be entitled to further flexibility in attendance rules, reassignment or acquisition of assistive equipment, provided such accommodations do not pose an undue hardship on the employer.

• Workers’ Compensation: Employees have a duty to give their employers the medical information necessary to determine whether the leave qualifies as being related to an on-the-job injury. Many leaves under the workers’ compensation act will also qualify for FMLA leave and may also qualify as a reasonable accommodation under the ADA, and should be so designated.

3. Light Duty

• As part of a comprehensive workers’ compensation program, many employers create and reserve special light duty positions for employees who suffer workplace injuries.

• ADA: In the ADA context, the concept of light duty is motivated by different goals. Rather than being employer-motivated, light duty requests are often generated by the employee because the employee desires to return to work in some limited capacity. Whether the employer is required to provide a light duty position under the ADA depends on the individual facts and circumstances underlying the request and the nature of the employer’s existing practices. For employers with existing light duty programs, the EEOC has taken the position that an employer cannot limit such programs to employees who suffer occupational injuries. Instead, the EEOC states that the employer is required, as a reasonable accommodation, to modify such a policy to permit disabled employees access to the light duty program even though their disability was not the result of a workplace injury or illness.

If an employer does not have a light duty program, it is not required to alter an existing position to make it light duty if that means eliminating essential job functions. According to the EEOC, an employer may be required as a reasonable accommodation to reassign the marginal functions of a job but it is not required to reassign the essential functions, at least not on a permanent basis. Nor are employers required to create a light duty position where one did not previously exist. Nevertheless, a transfer to a vacant position for which an employee is qualified, as opposed to the creation of a light duty position, may be a required accommodation. Although some courts interpreting the ADA have held that transforming a temporary light duty position into a permanent light duty position is not a reasonable accommodation, if an employer permits some employees to stay in a light duty position indefinitely, it will be difficult to argue that a disabled employee is not entitled to a similar indefinite light duty position as a reasonable accommodation.

• FMLA: FMLA and light duty appear to be opposing concepts. On the one hand, FMLA provides for leave away from the job, while light duty is a return-to-work issue. Yet, the Department of Labor’s regulations regarding light duty seem to recognize, although in small measure, that even in a leave statute, both employers and employees may want a mechanism for returning to work, even if the employee still suffers from a serious health condition. The FMLA permits, but does not require, employers to offer light duty assignments to employees on FMLA leave.

• There is no requirement under any of the statues that light duty be anything other than temporary. However, past practice may govern the length of time such a position must continue. In particular, to ensure that a “temporary” light duty program remains truly temporary, employers must be careful that they are uniform in their enforcement of the temporary nature of the light duty position.

The FMLA is more regimented than the ADA or workers’ compensation law in this area. Although an employer is free to offer a light duty position to an employee on FMLA leave, the employer under the FMLA may limit the light duty period to the difference between the FMLA’s 12- workweek entitlement and the amount of the FMLA leave taken by the employee. For example, if an employee is on FMLA leave for four (4) weeks and then comes back to work in a light duty position, the employee may remain in that position for another eight (8) weeks and retain his reinstatement rights under the FMLA to return to the same or equivalent position. If the employee is unable to return to work at that time, the employee still has the right to take another eight weeks of FMLA leave, because the time in a light duty position does not count toward the employee’s 12-workweek entitlement.

While the FMLA certainly recognizes that an employee’s refusal to accept a light duty position may result in loss of benefits (if the injury is a workers’ compensation injury), the regulations specifically provide that an employee can refuse a light duty position and remain on leave for the remainder of the 12 workweek leave period, provided the leave continues to meet FMLA requirements.

• Workers’ Compensation: While none of these statutes require that an employee accept a light duty position, under Massachusetts (and many other states’) workers’ compensation statues, an employee who refuses a bona fide offer of light duty employment and is found to be capable of performing the light duty position is disqualified from receiving wage replacement benefits.

4. Return To Work

• FMLA: At the expiration of FMLA leave, the employer is required to return the employee to the same or a substantially equivalent job. An employer may require a fitness-for duty certification to specifically address the employee’s ability to perform essential job functions, when safety is an issue, before returning to work.

• ADA: A disabled employee is entitled to return to work following leave if the employee can perform the essential functions of the job, with or without a reasonable accommodation, and if that accommodation would not impose an undue hardship or returning the person would not pose a direct safety threat to himself/herself or others. For example, an employee returning from leave may, as a reasonable accommodation, be entitled to be reassigned to a vacant job, a lower-level job, or both.

• Workers’ Compensation: Companies commonly have “maximum leave” policies that provide for discharge if the employee is not able to return to work within a set period of time, typically six or twelve months. However, the EEOC and federal and state courts have taken the position that maximum leave policies cannot be applied universally and that, for disabled employees, the employer must apply the “interactive process” to determine if additional leave qualifies as a reasonable accommodation.

5. Discharge

• ADA: Under the ADA, attendance generally is considered to be an essential function of the job. Thus, an employee with a disability who misses work, even if the absence is because of a condition or symptom associated with the disability, may, in certain circumstances, be discharged if he or she exceeds the number of absences allowed under the employer’s attendance policy, if applicable. Note, however, that just as with maximum leave policies generally, modification to the application of the attendance policy may be necessary as a form of reasonable accommodation. Employers must also remember to engage in the interactive process throughout the employee’s disability-related absence

• FMLA: The FMLA provides that absences for approved leave may not be counted against the employee. Thus, when an employee is absent from work for an FMLA-qualified reason, that absence cannot be counted towards an attendance violation.

• Workers’ Compensation: Employers may have a uniform policy of discharging an individual who cannot return to work at the conclusion of a set period of time without violating the law. However, as retaliatory discharge claims are one of the most common types of employment lawsuits asserted in Massachusetts, establishing consistent, well documented application of company policy is crucial, and an employer should use caution when relying on its attendance policies in discharging employees.

V. Pregnancy Leave Under Massachusetts Law
Massachusetts law also provides female employees with eight weeks of unpaid “maternity leave” under the Massachusetts Maternity Leave Act. (“MMLD”) M.G.L. c.149, §105D. A female employee is eligible for maternity leave under Massachusetts law if: (a) she has completed the initial probationary period, if any, set by the terms of her employment; or, if there is no such probationary period, has been employed by the same employer for at least three consecutive months as a full-time employee; and (b) she is absent from such employment for a period not exceeding eight weeks (per child) for the purpose of giving birth; adopting a child under the age of 18; or adopting a child under the age of 23, if the child is mentally or physically disabled. The female employee must give her employer at least two weeks’ notice of her anticipated date of departure and intention to return, unless such notice is not possible. The Massachusetts Maternity Leave Act, by its terms, provides maternity leave to female employees only. The MCAD, however, wants to expand the provisions under the Act. It has stated that providing maternity leave in excess of the eight weeks required by the MMLA to female employees only, and not to males, would in most circumstances constitute sex discrimination in violation of Chapter 151B.

An employer that provides leave to female employees only, and not to male employees, may also violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA. According to the EEOC, "[w]hen an employer does grant maternity leave, the employer may not deny paternity leave to a male employee for similar purposes, e.g., preparing for or participating in the birth of his child or caring for the newborn.

Accommodating female but not male employees constitutes unlawful disparate treatment of males on the basis of sex." EEOC Compliance Manual, Section 626.6 on Paternity Leave. The MMLA does not require that pregnancy leave be paid or that maternity leave be included in the computation of benefits, rights and advantages incident to employment, or that an employer pay for the costs of any benefits, plans or programs during the maternity leave. An employee may, however, be entitled to receive pay or benefits during her maternity leave pursuant to a collective bargaining agreement, company policy, employment contract or other agreement with the employer. In addition, if an employer generally provides pay, benefits or the costs of such benefits to employees on non-MMLA leaves of absence, the employer must provide the same such pay, benefits or costs to employees on MMLA leave. For example, if an employer generally provides pay to employees who are on extended sick leave, the employer must provide pay to employees on maternity leave.

If maternity leave is unpaid, the employee must be permitted to use, concurrently with the maternity leave, accrued paid sick, vacation or personal time under the following circumstances.

1. Vacation or Personal Time
An employee may voluntarily use any accrued vacation or personal time she has concurrently with all or part of her maternity leave. Employers cannot require an employee to use her accrued paid vacation or personal time concurrently with all or part of her maternity leave, even if such requirement is imposed upon similarly situated persons who take leave for other reasons.

2. Sick Leave
If an employer provides paid sick leave, an employee may use such sick leave concurrently with any part of her maternity leave that satisfies the employer's sick leave policy. An employer may not require an employee to use her accrued sick leave for any part of her maternity leave that satisfies the employer's sick leave policy, even if the employer requires its employees to use accrued sick leave for other types of absences that satisfy the employer's policy.

The MMLA does not in any way limit the right of an employee to use accrued vacation, sick leave or personal time before her statutory maternity leave begins, or after her leave ends, in accordance with her employer's policies and applicable law.

The MMLA requires that an employee on leave be restored to her previous or a similar position upon her return to employment following leave. That position must have the same status, pay, length of service credit and seniority as the position the employee held prior to the leave. If an employee's job was changed temporarily because of her pregnancy prior to leave (e.g., her hours were reduced or her duties were changed as an accommodation) she should be restored to the same or similar position held prior to such temporary change.

The MMLA also requires that a maternity leave not affect an employee's right to receive vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, plans or programs for which she was eligible at the date of her leave, and any other advantages or rights of her employment incident to her position. Such maternity leave, however, need not be included in the computation of such benefits, rights and advantages. For example, if the employee has accrued 7.5 years of seniority as of the commencement of her leave, she must be returned to work following her leave with the same 7.5 years of seniority.

3. Right to Job Restoration
An employee returning from maternity leave has no greater right to reinstatement or to other benefits and conditions of employment than other employees who were continuously working during the leave period. An employer is not required to restore an employee on maternity leave to her previous or a similar position if other employees of equal length of service credit and status in the same or similar positions have been laid off due to economic conditions or due to other changes in operating conditions affecting employment during the period of such maternity leave; provided, however, that such employee on maternity leave shall retain any preferential consideration for another position to which she may be entitled as of the date of her leave.

VI. Interaction Between MMLA and ADA
Chapter 151B's prohibitions against disability discrimination protect employees who have a pregnancy-related disability. Generally, a normal, uncomplicated pregnancy will not be considered a disability even if the employee is unable to work for a period of time as a result of the pregnancy or childbirth. A female employee will be considered a "handicapped person", however, if she can show that she has a pregnancy-related physical or mental impairment that substantially limits a major life activity, or that she is regarded as having or has a history of such an impairment. In such a case, the employee is entitled to the same protections under Chapter 151B as are other disabled employees.

Under the MMLA an employer must grant eight weeks of maternity leave to an eligible female employee regardless of whether the employee is incapacitated from working or is a "handicapped person" as defined by Chapter 151B, § 1 during such period. If the employee is disabled at the expiration of her maternity leave, however, the employer may have an obligation, pursuant to Chapter 151B, to provide a reasonable accommodation to her disability. In some circumstances additional leave may constitute such reasonable accommodation. An employer may not require a pregnant employee to take maternity leave based on the fact that the employee is pregnant, nor may an employer require an employee to remain out of work for a fixed period of time before or after the birth of her child. To the extent that an employee is unable to perform the essential functions of her position, however, the employer should treat the employee as it would treat any other disabled employee, being mindful of obligations of nondiscrimination and reasonable accommodation.

VII. Interaction Between MMLA and FMLA
As described above, the MMLA requires covered Massachusetts employers to provide no fewer than eight weeks of unpaid leave to eligible female employees for the purpose of giving birth or for adopting a child under the age of 18 (or under the age of 23 if the child is disabled). In certain instances, the MMLA and FMLA will overlap. Where leave is taken for a reason specified in both the FMLA and MMLA, the leave may be counted simultaneously against the employee's entitlement under both laws. For example, a female employee who takes a leave for the purpose of caring for a newborn or adopted child may be covered both by the FMLA and MMLA. In such an instance, provided that all FMLA requirements are met, the employee's leave may count simultaneously against her 12-week entitlement under FMLA and her 8-week entitlement under the MMLA.

In other instances, however, the MMLA may entitle an employee to leave in addition to leave taken under the FMLA. The FMLA provides that nothing in the law supersedes any provision of state law that provides greater family or medical leave rights. Thus, for example, if an employee takes 12 weeks of FMLA leave for a purpose other than birth or adoption of a child, she will still have the right to take eight weeks of maternity leave under the MMLA. Unlike the FMLA, the MMLA does not require an employer specifically to designate leave as MMLA leave. Thus, if an employee takes leave for an MMLA purpose, such as giving birth, that leave will count towards that employee's MMLA entitlement whether or not the employer designates it as such. FMLA leave, by contrast, must be specifically designated as such, in writing, in order for that leave to be counted toward that employee's twelve-week entitlement.

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

CONSIDERATIONS & SUGGESTIONS
Any attempt to fully explain the interrelationship of these statutes if impossible. Each situation must be evaluated on its own merits, and the solution to one employee’s situation may not apply equally to the next employee. The following guidelines, however, should help make sense of the statutory requirements:

• If an injury is not work-related, workers’ compensation is not a consideration. Similarly, if your company does not qualify as an “employer” under the FMLA or the ADA, you need not worry about their requirements.

• If an employee’s injury occurs on the job, he/she will be entitled to workers’ compensation coverage unless he/she was under the influence of drugs or alcohol at the time and your company has a drug-free work place policy in effect. Under those circumstances, an employer’s ADA concern is limited because the current use of drugs and alcohol is expressly excluded from the coverage of that Act as not being a disability. However, caution must be taken to distinguish between taking an adverse action based on actual drug use (i.e. the results of a properly administered drug test) and taking such action based on a previous history of drug use.

• If the workplace injury required in-patient care or at least three days of incapacity and continuing treatment by a healthcare provider for the injury, the employee will be eligible to up to twelve weeks of leave in accordance with the FMLA. FMLA leave and leave otherwise provided for a workers’ compensation injury may run concurrently, as long as the employer gives timely notice to the employee of its intent to count the leave for FMLA purposes. Once the employee has used his twelve-week entitlement, he or she is no longer protected by the FMLA.

• Did the work place injury result in the substantial limitation of a major life activity? Unless the employee suffers a catastrophic on-the-job injury, it will often be difficult for an employer to assess whether the injury also constitutes a disability under the ADA at the time of the accident. However, based on the ADAAA and the EEOC’s implementing regulations, an employee’s ability to establish that he/she is disabled under the ADA – or that the employer regarded him/her as disabled – has become significantly easier and courts already have demonstrated a reluctance to dismiss cases on the basis of whether an employee is disabled. Instead, the focus has now shifted to a presumption of disability and an analysis of whether the employer reasonably accommodated the employee. Depending on the severity of the injury, the employer may not have to address the ADA reasonable accommodation issue until the employee reaches maximum medical improvement (MMI) under the workers’ compensation statute and returns from medical/FMLA leave.

For example, if an employee reaches MMI but is not fully recovered from his/her injury, the employer must then determine if the residual effects of the injury substantially limit a major life activity. If the employee is now disabled (as defined by the ADA), the employer must assess whether the employee can perform the essential functions of his job with or without an accommodation. If he/she is unable to do so, does the employer have an available job elsewhere for which the employee is qualified? If the answer to both of these questions is no, the employer is not obligated to reinstate the employee. However, the employee is entitled to the remainder of his FMLA leave (assuming any leave remains).

If an employee’s FMLA leave expires before reaching MMI and the employee is unable to return to work at that time, the employee is not entitled to any further benefits under the FMLA. However, if he/she is expected to recover in a reasonable period of time, he/she may be entitled to additional leave under the ADA as a reasonable accommodation. Note, however, that an employer does not have to keep an employee on indefinite leave status as a form of reasonable accommodation. Moreover, if the employer has a policy providing that no leave of absence will exceed one year (or six months, or any time period that does not jeopardize an employee’s FMLA entitlement), then an employee who fails to return to work following the expiration of leave generally is not protected under the FMLA or workers’ compensation laws, provided that the maximum-leave policy is equally applied to all employees, but may require additional leave as a form of reasonable accommodation under the ADA.