Evaluating the interplay among FMLA, ADA and workers' comp statutes isn't child's play.

• Author: Zink, Walter E., II
• Position: Family Medical Leave Act and Americans with Disabilities Act

But the game of rocks, paper and scissors continues as counsel try to sort out the overlapping issues of these statutes

THE Family Medical Leave Act (FMLA), Title I of the Americans with Disabilities Act (ADA), and state workers' compensation statutes regulate various aspects of the employment relationship. Sorting out issues as to which act may control in a particular set of circumstances may cause one to recall childhood and ask whether paper always wraps rocks, scissors always cut paper, and rocks always crush scissors.

For this game, instead of rocks, paper and scissors, the ADA, FMLA, and workers' compensation statutes come into play. In order for employers, insurers, and their counsel to be equipped to respond to issues arising under these acts, it is important to understand the provisions of each act and the interplay between them. While sorting through these acts is not child's play, applying the acts certainly may involve strategy and gamesmanship.

Title I of the ADA (42 U.S.C. [subsections] 12101-12117) protects qualified individuals from discrimination on the basis of disability. The ADA serves to enable individuals with disabilities to work in the general labor force, and to be free from discrimination while doing so. It requires reasonable accommodation for qualified individuals.

Like the ADA, the FMLA (29 U.S.C. [subsections] 2601-2654) is a broad civil rights law. Among the purposes for which it was enacted were the need "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity [and] to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, or for the care of a child, spouse, or parent who has a serious health condition." The FMLA in general terms requires covered employers to provide up to 12 weeks of unpaid leave in a 12-month period to all eligible employees.

Workers' compensation statutes are designed to compensate injured workers for the effects of work-related injuries. The primary purposes of most acts are to insure employees against accidental injury, to do justice to workers without expensive litigation and unnecessary delay, and to compensate employees for injuries suffered at work.

Like the ADA and workers' compensation statutes, the FMLA may have an impact on an employer's policies with respect to employee disabilities, injuries and health problems. This article is not an exhaustive analysis of these statutes, but rather is intended to provide basic information necessary to allow the prudent employer or insurer and counsel to understand the importance of the relationship between them and to make knowledgeable employment decisions.

COMPARISON OF BENEFITS

The benefits and coverage provided by the FMLA differ substantially from the benefits and coverage under either the ADA or state workers' compensation statutes. These acts overlap in many areas. Well-informed employers and counsel may be able to use these important acts to their best advantage and to minimize the instances in which they are subjected to adverse consequences of the acts.

The regulations under the FMLA directly address potential conflicts between it and the ADA by stating that an employer must "provide leave under whichever statutory provision provides the greater rights to employees."(1) Bringing workers' compensation issues into the discussion may provide even greater benefits to the employee, particularly when the employer is unwary, as workers' compensation benefits may be paid in addition to the protections afforded under the FMLA or the ADA. As for the interplay between workers' compensation statutes and the ADA, the technical assistance manual issued by the Equal Employment Opportunity Commission concerning the ADA specifically provides that "ADA requirements supercede any conflicting state workers' compensation laws."(2)

1. Covered Employers

   1. FMLA

      The Family and Medical Leave Act became effective for most employers on August 5, 1993. In general, it requires private employers with 50 or more employees in the current or preceding calendar year to provide their employees up to 12 weeks of unpaid, job-protected leave in certain family or medical situations. State and local governments are employers as defined in the FMLA, no matter how many of the employees are working for the governmental entity.(3)

      All public and private employers, businesses or persons who are engaged in business affecting commerce and who employ 50 or more persons within a 75-five mile radius of an employer's work site for 20 or more work weeks are covered by the FMLA. Employees include all persons who are maintained on the payroll for the week, including part-time employees, employees on paid or unpaid leave, and employees not eligible for leave under the FMLA. The pertinent 20 or more work weeks do not need to be consecutive.(4)

      The term "employer," for purposes of the FMLA, includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." 29 U.S.C. [sections] 2611(4)(A)(i)(ii) In addition to the "employer", certain individuals, including managers and supervisors, can be held personally liable under the FMLA to eligible employees for violations of the statute when acting in the interest of the employer.(5)

   2. ADA

      President Bush signed the ADA in 1990. It became effective on July 26, 1992, for employers with 25 or more employees and on July 26, 1994, for private employers of 15 to 24 employees. As under the FMLA, state and local governments are employers for purposes of the ADA, regardless of the number of employees working for the governmental entity.(6)

      The ADA prohibits discrimination against employees and applicants for employment based on a physical or mental handicap or disability. It is designed to remove barriers that prevent "qualified" individuals with "disabilities" from enjoying the same employment opportunities available to those without disabilities. Currently, employers who employ 15 or more persons for 20 work weeks in the current or preceding calendar year are subject to the act.

   3. Workers' Comp

      Workers' compensation systems began to be enacted by the states about 1910. In the majority of state jurisdictions, workers' compensation statutes apply to employers of one or more individuals regularly employed in the operation of the business. One distinguishing feature of the definition of "employer" is that under many systems an employer who engages a subcontractor, such as in the construction industry, may be considered a "statutory employer" of employees of the subcontractor.(7) The FMLA and ADA do not contain similar provisions that would hold an employer liable for acts of a subcontractor.

2. Eligible Individuals

   1. FMLA

      Employees are covered under the FMLA as long as they meet three requirements: (1) they must be employed by a "covered employer"; (2) they must have been employed for at least 12 months by the employer; and (3) they must have worked at least 1,250 hours in the 12-month period immediately preceding the request for leave.(8) Employers do not need to count time spent by an employee on paid or unpaid leave as hours worked in calculating whether the employee has worked the requisite 1,250 hours.(9) The act itself provides that hours of service shall be calculated in the same manner as under the Fair Labor Standards Act of 1938 (29 U.S.C. [subsections] 207-219), and paid vacation or sick leave are not considered to be "hours of service" under that act.(10)

   2. ADA

      In contrast, the ADA protects not only current employees, but also applicants for employment. Individuals with a current disability, those with a history of a disability, and those who are regarded by others as having a disability are protected by the ADA if they are "qualified individuals," who are identified by 42 U.S.C. [sections] 12111(8) as persons who have "the requisite skill, experience, education and other job-related requirements" that would enable them to perform "the essential functions" of the job. The regulations define "essential functions" as those that the individual who holds the position must be able to perform unaided or with the assistance of a "reasonable accommodation." In determining whether a job function is essential, one should analyze whether the position exists to perform a special function, the number of employees who are available to perform the job, and the degree of skill or expertise required to perform the function.(11)

   3. Workers' Comp

      Workers' compensation systems generally include any person who is under a contract of hire, express or implied, in the definition of an employee.(12) Employees who engage in willful negligence or who are employed in certain occupations, such as domestic labor, are excluded from coverage under most statutes.

3. "Serious Medical Condition" Versus "Disability"

   1. FMLA

      Under the FMLA, the employer must provide 12 weeks of unpaid leave to employees who request the leave for any of the following reasons: (1) because of a "serious health condition" that renders the employee unable to perform the essential functions of his or her job; (2) because of the birth of a baby, or to care for a newborn; (3) to care for the employee's spouse, child or parent with a serious health condition; (4) to care for an adoptive child or foster care child placed with the eligible employee.(13)

      The most important provision for purposes of disability, injury or health policies is that which allows the employee to take 12 weeks of FMLA leave for a "serious health condition," which is defined as an illness, injury, impairment or condition that involves (1) inpatient care in a hospital; (2) the "continuing treatment" of a physician, which is further defined as a period of incapacity requiring the absence of more than three consecutive days from work, or which requires...