The key to untangling ADA and FMLA and workers' compensation is understanding obligations under each statute, says attorney Susan Fahey Desmond. And then, if the laws conflict or are applied simultaneously, you grant the greater benefit and provide the greater protection.

Desmond's remarks came at the recent BLR National Employment Law Update in Las Vegas. She is a shareholder with Watkins Ludlam Winter & Stennis PA in Gulfport, Mississippi.

ADA/FMLA/WC Job Protection

The Americans with Disabilities Act, as amended (ADAAA) is partially a job protection statute. It provides for reasonable accommodation which may be a leave of absence in some cases.

ADAAA only requires a leave of absence if it conceivably would allow the employee to return to work to his or her particular job (not a substantially equivalent job) and would not impose an undue hardship on your organization.

FMLA is a job protection statute period. It requires that leave be provided if employees meet its criteria. Return is guaranteed to the same or a substantially equivalent job.

Under the FMLA, leave of absence is absolutely required regardless of the impact it may have on your organization. That is there is no undue hardship test with the FMLA.

Workers Compensation is not a job protection statute—it provides monetary benefits. Employees are not protected for violations of uniformly applied policies, Desmond says. However, she adds, be careful about terminations in states that have anti-retaliation provisions. Some do limit your ability to terminate employees who are on workers' compensation.

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Serious Health Condition vs. Disability

The next issue in sorting out ADA and FMLA is understanding the difference between a serious health condition and a disability.

A serious health condition:

  • Inpatient care in hospital
  • Incapacity of more than 3 days and continuing treatment
  • Treatment of chronic health condition
  • Prenatal care
  • Needn’t be permanent or long-term

A disability:

  • Impairment that substantially limits major life activity, or
  • Record of having such an impairment, or
  • Regarded as having such an impairment
  • Long-term or permanent in nature

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Substantial Limitation

To further clarify the definition of a disability, Desmond says "substantial limitation" means:

  • The employee is unable to perform a major life activity that the average person in the general population can perform, or
  • The employee is significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

Basically, Desmond says, remember that a serious health condition may or may not be a disability. Apply each law's definitions to see if that law applies.

In tomorrow's Advisor, Desmond on job restoration, light duty, and undue hardship, plus an introduction to the "FMLA Bible."

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