September 12, 2018
Author: Greg Guidry
Organization: OneBane Law Firm
JUGGLING FMLA, ADA, WORKERS' COMPENSATION AND OTHER LEAVE LAWS
A. Determine who is covered by what statute. The FMLA, ADA, Louisiana Employment Discrimination Law and all other laws discussed in this paper may come into play. For example, the ADA may require that employers provide leave as a reasonable accommodation even after FMLA has ended or even if an employee is not eligible for FMLA.
B. Determine how much leave an employee is entitled to.
1. For example, the FMLA provides for up to 12 weeks for certain employees, but Louisiana law provides for six weeks for all employees who work for an employer with more than 25 employees within the State of Louisiana for pregnancy, childbirth or a related medical condition and up to four months for disability related to pregnancy, childbirth, or a related medical condition.
2. Under the ADA, employees who are qualified individuals with a disability may be entitled to leave as a reasonable accommodation even if they are not eligible under the FMLA. Where leave is provided as a reasonable accommodation to a disabled employee, the amount of leave is indeterminate and subject to the undue hardship standard. However, it is possible that an employee on an extended leave may lose his or her status as a \"qualified individual\" and thus not be entitled to continued leave as a reasonable accommodation.
3. Under the Louisiana’s Workers’ Compensation Statute, there are no provisions for job protected leave. However, employers must consider whether termination is consistent with non-workers’ compensation situations to avoid liability for workers’ compensation retaliation.
C. Be consistent in your treatment of employees who take leave. For example, if the employer requires that employees who take more than three days of leave must provide medical certification (under FMLA), enforce the same policy for all employees. Requiring the certification for those with more serious illnesses and not for those with routine illnesses (the flu) might result in a charge of discrimination based on disability.
D. Determine if you can require that the leaves run concurrently, and inform your employee if leave under more than one statute or company-provided leave will run concurrently. For example, a workers’ compensation injury or illness may also be a FMLA qualifying \"serious health condition.\" Thus, an employer may designate the leave as FMLA leave and run the employee’s 12-week FMLA leave entitlement concurrently with the worker’s compensation absence.
E. Determine whether an employee will use accrued paid leave.
1. Under the FMLA, an employer can require or an employee can choose to use paid leave. The employer can require that an employee run available paid leave concurrently with any available unpaid leave.
2. Workers' compensation is paid leave, so an employee cannot be required to take full days of accrued paid leave while FMLA leave. There is no clear guidance on whether an employer can require or an employee can choose to use partial accrued paid leave time to make up the difference between workers' compensation benefits and the employee's regular pay.
3. Short term and long term disability benefits are considered paid leave. Thus, the Department of Labor and courts have taken the position that an employer cannot require an employee to take additional paid leave, such as vacation or sick leave, while they are receiving disability benefits.
F. Determine whether you have to continue health insurance benefits.
1. Under the FMLA, the benefits must continue under the same conditions as when the employee was actively working.
2. Most other laws do not require the continuance of health insurance, but would prohibit an employer from treating an employee on legally protected leave differently than other employees.
G. Determine if you want to offer light duty, whether you are required to provide light duty as a \"reasonable accommodation\", and /or whether you can require an employee to take light duty. An employer cannot force an employee who is covered by FMLA to take light duty. However, if the leave is being taken for a workers' compensation injury, the employee's refusal of light duty may affect his eligibility for workers' compensation benefits.
H. Determine what your obligations are to return an employee to work.
1. An employee returning from FMLA leave must be returned to the same position or a position with equivalent status, pay, benefits and other employment terms at the conclusion of the FMLA leave, unless:
a. Employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition. 29 C.F.R. § 824.214(b);
b. Employer can show employee would not otherwise have been employed at the time of reinstatement request (i.e., lay-off, department closure);
c. Employee is a \"key employee\" and reinstatement would cause \"substantial and grievous economic injury\" and employee has received required notice.
2. Under the ADA/Louisiana Employment Discrimination Law, an employer cannot refuse to return an individual with a disability to his position because the employee is not fully recovered, unless the employee:
a. cannot perform the essential functions of the job, with or without reasonable accommodation; or
b. would pose a \"direct threat\" (significant risk of substantial harm that could not be reduced to an acceptable level with reasonable accommodation).
3. Under Louisiana Workers' Compensation Statute, an employer cannot retaliate against an employee.