Workers' Compensation, the Ada and the Fmla: the Ten Questions Most Commonly Asked by Colorado Employers
| Publication year | 1995 |
| Pages | 2293 |
1995, October, Pg. 2293. Workers' Compensation, the ADA and the FMLA: The Ten Questions Most Commonly Asked by Colorado Employers
When Title I of the Americans with Disabilities Act of 1990 ("ADA")(fn1) was enacted on July 26, 1990, many supporters, including Congress, predicted that the major impact would be to assist disabled job applicants in eliminating barriers to employment. However, recent Equal Employment Opportunity Commission ("EEOC") statistics show that the majority of claims have been filed by current employees.(fn2) It appears that a significant number of these charges have been filed by workers who have been injured on the job.(fn3)
One year after the ADA went into effect for employers with twenty-five employees or more, large employers were confronted with yet another federal statute designed to protect the rights of their current employees. The Family and Medical Leave Act of 1993 ("FMLA") was signed on February 5, 1993, and generally went into effect on August 5, 1993.(fn4) Since that time, employers with fifty or more employees have struggled to integrate FMLA's medical and family leave requirements into their pre-existing policies and practices.
Employers must reconcile the ADA, FMLA and state workers' compensation laws since these laws collectively impact how employers handle workers' compensation leave time, accommodation of workers on their return to work and termination decisions. This article explores this impact and suggests in practical terms how employers might be counseled to approach the general situation where workers suffer serious work-related injuries that affect workers' ability to perform their jobs.
Employers have many questions regarding how the FMLA interacts with the ADA, as well as with state workers' compensation statutes and regulations. Ten questions are posed in this article which seem to reflect the most common concerns of Colorado employers regarding the interrelationship of these three laws.
Workers' compensation benefits are not the exclusive remedy available to an injured worker.(fn5) Injured workers can collect workers' compensation benefits and, if the employer takes a negative personnel action, they could potentially sue the employer under the ADA and/or FMLA.
Filing a workers' compensation claim does not prevent an injured worker from filing a charge under the ADA and potentially obtaining a wide array of ADA remedies. It is true that an "exclusivity" clause in the Colorado workers' compensation statute purports to bar all other civil remedies related to an injury which has been compensated by a workers' compensation system.(fn6) However, the EEOC has declared
that such a clause does not prohibit a qualified individual with a disability from filing a discrimination charge with the EEOC. Moreover, the EEOC does not prohibit filing a lawsuit in federal or state district court under the ADA if the individual is issued a "right to sue" letter by the EEOC.(fn7) Further, ADA requirements supersede any conflicting state workers' compensation laws.(fn8)
Recent final regulations for the FMLA issued by the Department of Labor ("DOL") make clear that the FMLA interacts, and is not barred by, state workers' compensation laws.(fn9) Therefore, if an injured worker qualifies for FMLA rights, that worker is entitled to the protection of both sets of laws.
Nothing in the FMLA modifies or affects any federal or state law prohibiting discrimination on the basis of religion, color, national origin, sex, age or disability. For example, the leave provisions of the FMLA are wholly distinct from the reasonable accommodation obligation of employers covered under the ADA or the Rehabilitation Act of 1973.(fn10) When an employer violates both the FMLA and a discrimination law, an employee may be able to recover under either or both statutes. However, double relief may not be awarded for the same loss; when remedies coincide, a claimant may be allowed to utilize whichever avenue of relief is desired.(fn11)
Employers should be mindful that, if they terminate or otherwise negatively affect the employment status or benefits of their injured workers, those workers also may have a cause of action under the FMLA or ADA, or both sets of law. While injured workers cannot obtain double (or triple) recovery for the same type of loss, theoretically they can "stack" one set of non-overlapping remedies upon another or can choose the most liberal remedy package. Therefore, prudent employers should assume that their injured employees have a "protected status" and ensure that any negative personnel action is for documented good cause and is taken in good faith.
The EEOC's Technical Assistance Manual for Title I of the ADA cautions that a workers' compensation "disability" award does not necessarily qualify a worker for ADA protection.(fn12) In practice, however, many injured workers will be covered by the ADA. This is true because of the relatively broad coverage of the ADA for an "individual with a disability" who is qualified to perform the essential functions of the job currently held or desired, with or without reasonable accommodation.(fn13)
Workers' compensation claimants can bring themselves within the ambit of the ADA if they can prove one or more of the following:
1. There is a physical or mental impairment which substantially limits one or more of the claimant's major life activities. A minor impairment of short duration with little or no long-term impact will not constitute a disability under the ADA. This category of injury generally includes common workplace injuries such as a minor burn or a broken leg with no complications.(fn14) However, if a worker's broken leg takes significantly longer to heal than usual or leaves a permanent limp that substantially limits that individual's ability to walk, the temporary condition may become a disability within the meaning of the ADA.(fn15)
2. The worker has a record of an impairment. The ADA definition of impairment encompasses a worker with a record of impairment which substantially limits one or more of that worker's life activities.(fn16) An employer representative who reviews a record of disability, such as a worker's compensation medical report or records from a prior employer, will probably be charged with notice that a worker is covered by the ADA. Knowledge of a record of impairment obtained by one corporate department, such as risk management, may be imputed to a injured worker's supervisor, human resources department or others involved in employment decisions affecting the worker. Therefore, if any decisionmaker for an employer possesses or has been exposed to records which suggest disability, the employer should assume that the worker is covered by the ADA.
3. The worker is regarded as having a disability. A worker also may be entitled to coverage under the ADA if he or she satisfies the third part of the definition of a "qualified individual with a disability" by being regarded by the employer as having an impairment that substantially limits a life activity.(fn17) This ADA provision is designed to protect individuals who would otherwise be rejected from positions of employment because of "myths, fears, and stereotypes" associated with disabilities.
This part of the definition also covers workers who may have been misclassified or misdiagnosed as having a disability. An example of an individual protected by this section is a grocery clerk who has a work-related back injury corrected by surgery. If an employer refuses to allow the clerk to continue with a job simply because the employer is afraid that the individual will suffer a new back injury and drive up workers' compensation costs, the employer would be seen as regarding the individual as disabled.
Pronouncements from the EEOC and the courts construing various federal and state acts have found plaintiffs not covered by the respective acts if there is no reasonable accommodation that will overcome a plaintiff's lack of good judgment and ability to work with other people,(fn18) unwillingness to obey orders, (fn19) unwillingness to tell the truth,(fn20) inability to provide regular predictable attendance to the employer(fn21) or inability to meet legitimate production standards.(fn22) Some courts have held that an individual who poses a direct and substantial safety or health threat which cannot be overcome by reasonable accommodation is essentially not qualified under the anti-discrimination act which controls.(fn23)
Recently, the Tenth Circuit Court of Appeals rendered an important decision regarding a workers' compensation claimant's burden of proof to demonstrate that he is covered by the ADA. At issue in Bolton v. Scrivner, Inc.(fn24) was whether the plaintiff was actually an individual with a disability.
The court held that Bolton's inability to return...
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