Workers' Comp and FMLA – A Clash of Titans or Friends Holding Hands?

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez, JD - Compliance Attorney, Compliance And Legal Department

April 20, 2021

 

Pop Quiz: Your employee is injured on the job. Is he covered by

  1. workers’ compensation
  2. the Family and Medical Leave Act (FMLA), or
  3. the Americans with Disabilities Act (ADA)

For those of you waiting for “D. Could be all of the above”, well done!

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A recent decision by the 11th Circuit Court of Appeals tells of an employer who failed the quiz by applying only workers’ comp following an employee’s workplace injury. Reversing a lower court decision in favor of the employer, the appellate court observed that the FMLA does not set up a “clash of Titans” between itself and workers’ compensation. An employer’s obligations under the FMLA are not excused simply because the employer provides workers’ compensation benefits. Back to the lower court for a jury trial – a place you rarely want to be.

What happened?

On September 15, 2016, Noorjahan Ramji, an 11-year employee of Hospital Housekeeping Systems, LLC, (HHS) tripped on the leg of a table and fell, injuring her right knee. Ramji was off work for 11 days and had various doctor’s appointments. Although HHS immediately initiated a workers’ compensation claim for Ramji, they did not inform her about her rights under the FMLA to take up to 12 weeks of job-protected FMLA leave. Instead, HHS required Ramji to use her sick leave until she returned to work in a light duty position.

Per HHS’s internal policy, Pamela Merriweather, HHS’s FMLA administrator, accompanied Ramji to all medical appointments. Ramji was treated with a cortisone shot, referred to 6-8 weeks of physical therapy, and released to return to work on light duty. On a follow-up appointment a month later Ramji exhibited a full range of motion and stated that the initial cortisone shot had resolved her knee pain. Her physician found that Ramji had reached maximum medical improvement with a zero percent disability rating, and released her to return to full duty work.

Ramji attempted to return to work that same day, only to be informed that her return was contingent upon successful completion of an essential-functions test comprised of various physical tasks. Ramji had trouble with several of the tasks such as deep knee squats (it hurts my knees just thinking about it!), and asked Merriweather if she could use accrued sick and vacation leave to give herself additional recovery time.  On the following Monday, October 24, Merriweather told Ramji she was being terminated for failing to complete 5 tasks on the essential-functions test. Ramji again asked to use unused sick and vacation leave, but Merriweather denied the request and fired Ramji.

Hospital Housekeeping’s Defense

HHS asserted three basic defenses:

First, it claimed it was not on notice that Ramji needed or was entitled to FMLA leave.  The appellate court addressed this defense with a thorough review of all the information HHS had about Ramji’s condition. (Umm…the company HR administrator was present during each medical appointment!)  Even though at one point the physician released Ramji to return to work with no restrictions, this was without full understanding of Ramji’s job duties or knowledge of the impending essential-functions test she would have to undergo. Ramji’s several days of missed work and medical treatment, her inability to pass the essential duties test – witnessed by Merriweather – and her requests for time off to heal from her injury were more than plenty to alert HHS that the FMLA was in play.

Second, HHS asserted it was excused from compliance with the FMLA because it provided Ramji with workers’ compensation benefits. The court rejected this argument, citing the FMLA regulations that specify a workers’ compensation absence and FMLA leave may run concurrently. (See 29 C.F.R. § 825.702(d)(2) “An employee may be on a workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers’ compensation absence and FMLA leave may run concurrently . . .”).

Third, HHS argued unsuccessfully that Ramji’s acceptance of a light-duty position relieved it of its FMLA obligations. However, the FMLA regulations explicitly provide that “[i]f FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require an employee to take a job with a reasonable accommodation.” 29 C.F.R. § 825.702(d)(1) (emphasis added).

Moreover, an employer may offer – but an employee is not required to accept – a light-duty position in lieu of taking leave. In such case the employee may no longer qualify for workers’ compensation pay benefits, but the employee is entitled to continue on unpaid FMLA leave until either the employee is able to return to the same or an equivalent position or until she has exhausted the 12-week FMLA leave entitlement. § 852.702(d)(2).

Based on these regulations, the court held that Ramji was entitled to decline the light-duty job offer but she never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave. HHS made that choice for her by offering only a light-duty assignment.

One additional point not addressed by the court: HHS didn’t offer Ramji extended light duty after she failed the essential-functions test; they fired her!

What about the ADA?

Ramji did not assert an ADA claim. At the time of her termination she had only had her knee injury for about 5 weeks. Although there is no specific duration a condition must exist to constitute an ADA-protected impairment, 5 weeks with an expectation of near-term recovery might not be enough.

In fact, though, it took Ramji several months to heal fully. Had HHS given her FMLA leave or the option of continued light duty rather than firing her, the duration of her medical condition and its limitations might have crossed over into ADA territory. Dodged a bullet on that one, HHS!

PINGS FOR EMPLOYERS

So how do you navigate these multiple minefields?

  • First, remember that an employee is entitled to the protection of each and every law that might apply to her situation. The FMLA, state workers’ compensation, and the ADA are 3 distinct legal rights that often overlap and intersect, as evidenced by this case. None of them cancels another out.
  • Analyze the employee’s situation and the various laws to determine which ones apply. The employee will be entitled to the best benefits available under each of the applicable laws. So, for example, workers’ compensation to provide pay benefits and medical expenses, the FMLA to provide job protection during any related absences, and the ADA to provide extended leave if needed or workplace accommodations upon return to work.
  • Train, train, train! Make sure your supervisors know enough about these laws to spot when one or more might apply and know the proper channels for directing the employee and seeking further assistance. (As this case shows, even your benefits folks might need refresher training!)
  • When in doubt, notify the employee of the proper reporting processes and encourage the employee to file a claim. Reporting or filing a claim doesn’t necessarily mean the employee will get the benefits and protections of a given law, but you will have given the employee proper notice of rights and a fair opportunity to exercise those rights.
  • For FMLA, remember also to provide the employee with the notice of rights and responsibilities and the eligibility notice within 5 days of your knowledge of the claim. Here is the Department of Labor’s handy dandy Form WH-381 just for this purpose! (Or, you can always engage Matrix to do that for you! That’s kind of our jam.)

Matrix can help!

Matrix offers integrated leave of absence, ADA, and workers’ compensation claims management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.