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FMLA, WORKERS COMPENSATION AND ADA INTERPLAY: COORDINATING LEAVES

FAMILY AND MEDICAL LEAVE ACT (FMLA):. . . When Does an Employee Have the Right to Take Leave Under the FMLA?How Does an Employee Take FMLA Leave?What are the Employers' Concerns Regarding the Employee's Medical Condition. . What are the Employer's Responsibilities When an Employee Is on FMLA Leave

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FMLA, WORKERS COMPENSATION AND ADA INTERPLAY: COORDINATING LEAVES

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    1. FMLA, WORKERS’ COMPENSATION AND ADA INTERPLAY: COORDINATING LEAVES Ann R. Goering arg@ratwiklaw.com

    2. FAMILY AND MEDICAL LEAVE ACT (FMLA):

    3. When Does an Employee Have the Right to Take Leave Under the FMLA? How Does an Employee Take FMLA Leave? What are the Employers’ Concerns Regarding the Employee’s Medical Condition

    4. What are the Employer’s Responsibilities When an Employee Is on FMLA Leave? What Are the Employee’s Rights After Returning From FMLA Leave?

    5. WORKERS’ COMPENSATION

    6. Employees who are injured on the job are entitled to time off of work. Employers may, and should, count time off of work due to a workers’ compensation injury that is also a serious health condition as FMLA leave.

    7. The chief difference between an “ordinary” FMLA leave and leave taken because of a workers’ comp injury is whether the employer will offer the employee light-duty work. Under state workers’ compensation laws an employer may offer light-duty work. The acceptance must be “voluntary” and “uncoerced.”

    8. AMERICANS WITH DISABILITIES ACT

    9. Individuals Disabled as Defined by the Americans With Disabilities Act (ADA): A physical or mental impairment that substantially limits one or more of the major life activities; A record of such an impairment; or Be regarded as having such an impairment.

    10. INTERPLAY AND DIFFERENCES BETWEEN THE STATUTES

    11. 29 C.F.R. 825.702 addresses the interplay between the FMLA and anti-discrimination laws, and notes that the FMLA does not modify or affect the ADA. FMLA and ADA act independently from each other.

    12. There are medical conditions that will render an employee “disabled” under the ADA that is also a “serious health condition” under the FMLA, this is not automatically the case.

    13. PAYMENT

    14. FLMA Leave taken pursuant to the FMLA is unpaid.

    15. ADA An employer does not need to pay a disabled employee out on leave, unless the employer’s policies would require payment.

    16. LEAVE

    17. FMLA Grants an employee twelve weeks of leave that may be taken on an intermittent basis.

    18. ADA May be a prescribed amount of time off from work. A disabled employee may be absent from work for more than twelve weeks in one year as a reasonable accommodation.

    19. PAYMENT

    20. FMLA Requires the employer to grant the employee leave.

    21. ADA Employer is not required to grant an employee leave under the ADA. Employer may refuse to grant the leave and offer an employee a different reasonable accommodation so that the employee may fulfill the essential functions of his position.

    22. CARING FOR OTHERS

    23. FMLA Allows for leave for employees to care for other individuals who have a medical condition.

    24. ADA Accommodations relate strictly to conditions of the employee.

    25. REINSTATEMENT

    26. ADA The employee is entitled to return to the same job, unless the employer demonstrates that holding the job open would cause it undue hardship.

    27. FLMA An employee is entitled to the same or equivalent position upon his/her return from leave.

    28. INSURANCE

    29. ADA Employer must only continue health insurance for an employee taking leave or working part-time if that employer also provides coverage for other employees working part-time or taking the same leave.

    30. FMLA Employer must maintain an employee’s existing level of coverage under a group health plan when he/she is out on leave.

    31. LIGHT DUTY WORK

    32. Definition Returns an employee to work at a different position because of his inability to fulfill the duties of his previous position.

    33. ADA An employee must be able to perform the essential functions of his or her position. Duties do not have to be removed to create “light duty.” Light duty position need not be created.

    34. FMLA There is no such thing as “light duty work.”

    35. IMPACT ON RECEIVING WORKER’S COMPENSATION

    36. If an employee declines to accept a light duty position, he/she may lose his/her benefits under Workers’ Compensation.

    37. EMPLOYER CONSIDERATIONS

    38. First, it should assign an employee to a position that is needed. If the employer intends to offer the light duty work simply as a temporary position for that employee, it should be clear about doing so.

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