Chapter 25 - § 25.3 • WORKERS' COMPENSATION, AMERICANS WITH DISABILITIES ACT, AND FAMILY AND MEDICAL LEAVE ACT — HARMONIZING THE STATUTES, REASONABLE ACCOMMODATION, AND MODIFIED DUTY

• Jurisdiction: Colorado

§ 25.3 • WORKERS' COMPENSATION, AMERICANS WITH DISABILITIES ACT, AND FAMILY AND MEDICAL LEAVE ACT — HARMONIZING THE STATUTES, REASONABLE ACCOMMODATION, AND MODIFIED DUTY

§ 25.3.1—Summary Of The Statutes

Workers' Compensation Act

Workers' compensation statutes began appearing in the United States at the turn of the 20th century. The purpose of workers' compensation statutes was to fashion a no-fault system to provide employees injured within the course and scope of employment with a speedy and efficient system to obtain medical treatment and compensation for lost wages.

An injured employee is entitled to medical treatment from a physician chosen by the employee from a list of physicians provided by the employer. C.R.S. § 8-43-404(5)(a)(I)(A). An injured employee also is entitled to wage replacement benefits for the time missed from work due to the industrial injury until the medical condition has stabilized. C.R.S. § 8-42-103. When the medical condition has stabilized, the injured employee is entitled to medical impairment benefits for the permanent residuals of the injury. C.R.S. § 8-42-107.

Because the workers' compensation system is a no-fault system, common law defenses, such as contributory negligence, do not apply. C.R.S. §§ 8-41-101 and -103. In exchange for the benefits given to injured employees and the waiver of common law defenses that benefited employers, workers' compensation is generally the exclusive remedy for an employee injured on the job. C.R.S. § 8-41-104. Thus, employers are immune from suit in the common law tort system for injuries covered by the workers' compensation laws, limiting the recovery for industrial injuries.

Americans with Disabilities Act

The ADA prohibits discrimination against individuals with disabilities in all aspects of the employment relationship, including recruitment, hiring, compensation, training, benefits, and termination. 42 U.S.C. §§ 12101, et seq. Congress made significant amendments in the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553, effective for events on or after January 1, 2009.

The ADA applies to all employers in an industry affecting commerce with 15 or more employees. 42 U.S.C. § 12111(5). The ADA also applies to state and local governments, employment agencies, and labor unions. 42 U.S.C. § 12111(2). Although Congress expressly provided that states would not be immune under the Eleventh Amendment from suits under the ADA, the U.S. Supreme Court held that such exercise of authority was invalid under the Fourteenth Amendment, especially as to private lawsuits by individuals against states for monetary damages. Bd. of Trs. v. Garrett, 531 U.S. 356 (2001).

The underlying premise of the ADA is that employment decisions should be made in a neutral manner, focusing on an individual's ability to do the essential functions of the job, with or without reasonable accommodation, and removing societal and institutional barriers. The ADA and the amendments are discussed fully later in this chapter.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, is discussed in detail in Chapter 6 of this book and will only be summarized here. The FMLA applies to private sector employers with 50 or more employees, all public agencies, local educational agencies, and private and public elementary/secondary schools. 29 U.S.C. § 2611(4). Employers subject to the FMLA are required to permit eligible employees to take up to 12 workweeks of unpaid leave in a 12-month period for:

• Birth and care of a newborn child;
• Care of a child placed with the employee for adoption or foster care;
• A serious health condition that makes the employee unable to perform the functions of the job;
• A serious health condition of the employee's spouse, son, daughter, or parent; or
• A qualifying exigency (as the Secretary of Labor shall, by regulation, determine) arising out of the fact that the spouse, son, daughter, or parent of the employee is on covered active duty, or has been notified of an impending call to covered active duty.

29 U.S.C. § 2612.

A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care at a medical facility; incapacity requiring absence from work, school, or other regular-duty activities of more than three calendar days; or continuing treatment by a health care provider for a chronic or long-term condition. See 29 U.S.C. § 2611(11). "Continuing treatment" requires that a person experience "[a] period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves" either two or more treatments, or a single treatment followed by a regimen of continuing treatment. 29 C.F.R. § 825.115(a).

In addition, a "spouse, son, daughter, parent, or next of kin" may take up to 26 weeks of leave to care for a "member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for serious injury or illness." 29 U.S.C. §§ 2612(a)(3) and 2611(15). A "serious injury or illness" for a member of the Armed Forces "means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces . . . that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating." 29 U.S.C. § 2611(18). The FMLA provides up to 12 weeks of leave for a "qualifying exigency" arising from the fact that an employee's spouse, son, daughter, or parent is a member of the armed forces, is on active duty, or is about to be called up to active duty.

Congress expanded the two types of military-related leave in the 2009 Amendments to the FMLA. National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, 123 Stat. 2190, 2309. The 2009 Amendments expanded the "qualifying exigency" military leave provisions. They expanded the definition of "serious injury or illness" to include aggravation in the line of duty of existing injuries. The 2009 Amendments also broadened the definition of "covered servicemember" to include veterans who served within five years before undergoing medical treatment.

By regulations effective March 27, 2015, the Department of Labor revised the definition of "spouse" to include individuals in same-sex marriages, if the marriage was entered into in a state that recognizes such marriages, thus defining it according to the law of the "place of celebration" of the marriage. 29 C.F.R. §§ 825.102 and 825.122(b).

This coverage is similar to the coverage under Colorado's Family Care Act passed in 2013. C.R.S. §§ 8-13.3-201, et seq. Although Colorado does not have its own FMLA, in the Family Care Act the legislature attempted to extend the reach of the federal FMLA to cover civil unions and domestic partners. The Family Care Act incorporates the eligibility requirements, definition of serious health condition, and remedies of the FMLA. It also provides that an aggrieved employee may bring an action in state court for damages and equitable relief. The Family Care Act repeals itself if the FMLA is amended to cover civil unions and domestic partners.

FMLA Eligibility

To be eligible for FMLA leave, the employee must have been employed for at least 12 months, which do not have to be consecutive. The employee must have accumulated at least 1,250 hours of service in the 12 months immediately preceding the leave. 29 C.F.R. § 825.110. In addition, although an employer may be "covered" by the FMLA because it has 50 or more employees in total at all worksites, an employee is not eligible unless he or she works at a worksite where the employer has at least 50 employees within 75 miles. 29 U.S.C. § 2611(2).

The FMLA provides for unpaid leave, but an employee may choose to substitute accrued paid leave for any part of the FMLA leave. The employer may require an employee to substitute paid leave. 29 U.S.C. § 2612(d)(2)(A); 29 C.F.R. § 825.207(a). During FMLA leave, an employer that offers health insurance must continue to pay health insurance premiums, or its portion of such premiums, in accordance with its established practice.

An employee is required to supply the employer with sufficient information to reasonably apprise the employer of the employee's entitlement to FMLA leave. 29 U.S.C. § 2612(e). The employer may require written certification from the health care provider to substantiate that the leave is due to the serious health condition of the employee or the employee's spouse, son, daughter, or parent. 29 U.S.C. § 2613.

An employer may require a certificate of fitness to return to work. 29 U.S.C. § 2614(a)(4); 29 C.F.R. §§ 825.308 through 825.310. Fitness to return to work means ability to perform the essential functions of the job.

FMLA Notice Requirements

The FMLA has important notice requirements. Covered employers must post a general notice of FMLA rights in a conspicuous place at worksites, regardless of whether they have eligible employees at such worksites. 29 U.S.C. § 2619(a); 29 C.F.R. § 825.300(a). If an employer has an employee handbook, the handbook must include information regarding FMLA rights and responsibilities. 29 C.F.R. § 825.301(a)(1). Once an employer has knowledge that leave may be covered by the FMLA, the employer must notify the employee promptly, either orally or in writing, if the leave is designated and counted as FMLA leave. 29 C.F.R. § 825.208. When an employee provides the employer with notice that leave may be covered by the FMLA, the employer must notify the employee in writing about whether the employee is eligible for FMLA leave and, if eligible, about the employee's rights and obligations, such as whether the employee must provide medical certification and whether the employer will require...