1. Work Comp: EmployeeReinstatementIssues Once FMLA is Exhausted/Not Available
When analyzing rights under workers’ compensation and the Family and Medical Leave Act (FMLA)
remember that these are separate programs each with its own legal rules and provisions. The same is true
with the Americans with Disabilities Act (ADA). When evaluating a firm’s rights it should always provide
the employee with most beneficial interpretationunder each of the particular laws.
Unlike FMLA, workers’ compensation is not a leave benefit. Most state workers’ compensation laws do not
have an exact amount of time off an employee is entitled to or a requirement to reinstate an employee after
the employee recovers from a work-related injury or illness. While at-will employment may be terminated
without cause, retaliation after a comp claim is illegal in most states, and employers may not terminate an
employee solely because a claim was filed. Some states make terminating an employee after a work-related
injury claim a violation. There are even some state laws and court decisions that protect an employee from
termination due to absence related to a comp claim or givethe employee rehire preferences.
Many workers’ compensation injuries can be or become a disability under the ADA. This means employers
with 15 or more employees (the ADA applicability threshold)need to make reasonable accommodations for
the employee, including extended leave of absence, unless the employer would experience an undue
hardship. Undue hardship is a term that applies very infrequently to most situations, and employers need to
carefully consider each circumstance and accommodation request When the injury or illness does is not
covered under the ADA, company policy and past actions regarding leave of absence need to be used.
An employer’s insurance plan documents also need to be reviewed for the affected employee’s benefit
continuation rights. Employers should include in their eligibility provisions the information on when workers
on leaves of absences, including workers’ compensation, will lose their benefits. Employers define a specific
amount of time away from work, often 30 days, after which the employee is no longer eligible for health,
dental or other benefit plans. If an employee is later rehired, the plan might also include a waiver of the new
hire waiting period.
It is not recommended to use an employee’s injury/accident absence as the time to comment on their past
performance shortcomings if the problems have not been previously addressed. Employers should approach
performance issues the same for both employees out on a comp claimand for all other employees.
When considering whether or not to terminate an employee out on a comp claim, be prepared to discuss with
your attorney::
The current status of the employee, and what communication has been made with the employee
regarding their employment status and return to work situation?
What do the state reinstatement laws dictate?
Is the injury subject to the ADA, requiring a reasonable accommodation (extended leave of absence),
and has the absence been reasonable for the employer?
Is there any employer hardship, as defined under ADA or otherwise, caused by reinstating the
employee?
What is the company’s current policy regarding medical leaves of absence?
The employer’s main focus should be to allow the employee the medical care and recuperation he or she
needs to return to work as soon as possible, with termination of employment used as a final resort.
JEFFREY PETRO 847-485-2202 JPETRO@IIAEMAIL.COM
INDUSTRIAL INSURANCE AGENCY
