Workers comp, the ADA, and FMLA leave

Three laws at once

A work injury can trigger three sets of rules at the same time. State workers' comp law covers benefits. The federal Americans with Disabilities Act (ADA) bans disability discrimination and can require accommodations for employers with 15 or more employees. The federal Family and Medical Leave Act (FMLA) gives eligible workers job-protected leave at employers with 50 or more employees. Meeting one law does not mean you met the others.

Is a work injury a disability?

Not always. Under the ADA, an injury is a disability if it substantially limits a major life activity, if there is a record of such a limit, or if the employer treats the worker as if it does. Many serious work injuries meet that test, especially since Congress broadened the ADA in 2008.

ADA rules employers often miss

The EEOC's guidance on workers' comp and the ADA says:

• You cannot require a worker to be "100% healed" or able to do full duty before returning if they can do the essential job duties with or without an accommodation.
• You cannot refuse to bring a worker back just because you fear a new injury or higher insurance costs, unless there is a real, individually assessed direct threat.
• A workers' comp finding that a worker is "permanently disabled" does not by itself decide whether they can do a job.
• You can ask about past workers' comp claims only after a conditional job offer, and only if you ask everyone hired into the same job.

Accommodations and light duty

Accommodations can include changed schedules, equipment, moving non-essential tasks to others, extra leave, or reassignment to an open job. You do not have to create a new job or bump another employee. If you offer light duty to workers hurt on the job, apply the policy fairly. The EEOC says you can make light-duty jobs temporary.

FMLA and workers comp together

Time off for a work injury can also count as FMLA leave if you designate it as FMLA leave and give the required notice. Because workers' comp pays benefits, neither you nor the worker can require the use of paid leave during that time, though you can agree to use it as a top-up where state law allows. If a doctor approves light duty, the worker can turn it down and stay on unpaid FMLA leave, even if that means losing wage benefits.

Practical steps

Send FMLA notices when a work injury causes leave. Talk with the worker about what they can do, not just what they cannot. Keep medical information in a separate, confidential file. Write down each accommodation request and your answer. Get legal advice before you end the job of a worker who is out on a work injury.