Top 10 Things To Know About Coordinating Workers’ Comp Leave

The interaction among various leave laws can make your obligation to accommodate injuries and illnesses incredibly complicated—especially when the injury results from a workplace accident. Read on for 10 tips from Jim Brown of Sedgwick, LLP, that will help you get everything properly sorted out.

As a California employer, you need to consider not only the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) but also the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) as well as the California Workers’ Compensation Act.

Employer Size Matters

The extent to which private sector employers are subject to the FMLA, CFRA, ADA, FEHA, and the Workers’ Compensation Act varies with the size of the employer.

Virtually all employers are covered by the Workers’ Compensation Act and must refrain from discriminating against employees who suffer an industrial injury and/or file a workers’ comp claim. Employers with five or more employees must provide reasonable accommodations to employees with disabilities under the FEHA (those with 15 or more employees are also covered by the ADA), and employers with 50 or more employees are generally covered by the FMLA and CFRA.

Multiple and/or Overlapping Obligations

Covered employers often have multiple (sometimes overlapping) obligations under one or more of these laws. For example, an employee who suffers an industrial injury may be entitled to leave under the Workers’ Compensation Act that also qualifies as medical leave under the FMLA and CFRA.

Moreover, depending on the nature of the illness or injury, the extent to which an employer must continue to provide leave beyond the 12 workweeks required by the FMLA and CFRA is governed by both workers’ comp law and, potentially, its obligation to provide leave as a reasonable accommodation under the ADA and FEHA.

The following list isn’t exhaustive, but it flags some of the most significant issues that arise in this area.

1. Identify eligibility, run leave entitlements concurrently

Employee eligibility for leave must be assessed independently under each law, and depending on the circumstances, employees may be eligible for leave under multiple laws, including different forms of leave that run concurrently and/or consecutively with each other.

Under the FMLA and CFRA, an eligible employee is one who has worked for the employer for at least 12 months, has worked at least 1,250 hours in the preceding 12-month period, and works within 75 miles of 50 other employees (including temporary employees).

The FMLA and CFRA allow eligible employees to take leave for a serious health condition that renders them unable to perform the essential functions of their position. A “serious health condition” includes a mental or physical condition that requires either (1) inpatient care in a medical facility or (2) continuing treatment resulting in a period of incapacity of more than three consecutive days and a certain number of treatments during a specific period.

How To Comply with California and Federal Leave Laws—newly updated for 2012!

Workers’ comp statutes apply to employees who suffer injuries or illnesses that arise out of or in the course of employment. The law excludes injuries that employees have willfully inflicted on themselves, sustained while under the influence of alcohol or controlled substances, or sustained during their commission of a crime.

Because of how broad the definition is for injuries covered under workers’ comp laws, it’s usually very likely that the injury is also a “serious health condition” covered by the FMLA and CFRA leave obligations.

An employee is covered by the ADA if he has a physical or mental impairment that substantially limits one or more major life activities and can perform the essential functions of his position with or without reasonable accommodation.

Although the definition for eligible employees under the FEHA is similar to the one under the ADA, it is slightly broader because it doesn’t require a substantial limitation ― any “limitation” on a major life activity is sufficient. Under either statute, an employee may be entitled to a leave of absence as a “reasonable accommodation.”

The eligibility for leave under these statutes must be determined under each scheme (workers’ comp, ADA/FEHA, and FMLA/CFRA). If you determine the employee has leave rights under more than one, the leaves should run concurrently if possible. If not, you may have an employee return from a lengthy workers’ comp leave only to be faced with a request for additional leave under another statute.

2. Length of leave

The length of leave depends on the type of leave taken. For example, under both the CFRA and the FMLA, the maximum amount of medical leave an employee may take because of her own serious health condition is 12 workweeks.

However, because the CFRA excludes temporary disability caused by pregnancy and childbirth, employees may be able to take 12 weeks of leave for a nonpregnancy-related medical condition in addition to another four months of leave because of pregnancy, childbirth, and related medical conditions.

On the other hand, under the ADA and FEHA, there is no specific maximum amount of leave entitlement to accommodate a disability. In most instances, it can’t be an open-ended leave and can’t create an “undue hardship” on you.

Likewise, there is no time limit on the length of workers’ comp leave. Rather, it’s subject to a physician’s opinion about whether the employee’s condition has become “permanent and stationary” and whether the employee can return to her “usual and customary” job duties.

The extent to which you can discontinue leave under the Workers’ Compensation Act is even less clear. Essentially, it’s illegal to discriminate against an employee because he has filed a workers’ comp claim or suffered an industrial injury unless the action is required by “business realities.”

Accordingly, terminating an employee on industrial leave for excessive absenteeism (even if he continues to receive temporary disability insurance payments) and, separately, failing to reinstate him if he is eventually released to return to work can potentially support a discrimination claim. You could be found liability unless you can justify the decision on the basis of “business realities.”

Confused about an important leave-related issue? Don’t be.

One of the few situations in which “business realities” allow termination is when the position is eliminated for reasons separate from the employee taking leave. Because there will certainly be opposition to any such decision, it’s prudent to consult with counsel before terminating the employment of and/or failing to reinstate an employee on an industrial leave.

3. ‘Light-duty’ rights, obligations

Your obligation to provide light duty depends on the type of leave at issue. You aren’t required to provide, and employees aren’t required to accept, light-duty work under the FMLA and CFRA. Moreover, to the extent light-duty work is offered and accepted, the time an employee spends performing that work can’t be counted against her as part of her FMLA or CFRA leave.

Although workers’ comp leave generally may be designated as FMLA and CFRA leave, to the extent an employee on such leave is cleared to return to work on light duty, she can either choose to accept a light-duty position if you offer one or can continue to use FMLA and CFRA leave until it’s exhausted.

Finally, an employee on FMLA and CFRA leave who voluntarily returns to a light-duty position retains the right to job restoration to the same or an equivalent position under the FMLA and CFRA until the end of the 12-month period you use to calculate FMLA leave.

You aren’t required to create a new job to accommodate employees with disabilities. Accordingly, you need not create a light-duty program or a light-duty job that doesn’t otherwise exist to accommodate a disabled employee.

However, because job modifications may qualify as reasonable accommodations, you may have to restructure a particular job for an employee as a reasonable accommodation, so long as doing so doesn’t eliminate any of the essential functions of the job or otherwise impose an “undue hardship” on you.

On the other hand, employers that provide bona fide temporary light-duty programs generally aren’t liable for disability discrimination for failing to convert a temporary light-duty assignment into a permanent work assignment.

The California Workers’ Compensation Appeals Board has historically held that you have no duty to provide modified or light-duty work to an employee who is no longer able to perform the usual and customary preinjury job duties.

On the other hand, many employers maintain light-duty work programs (also known as “modified work” or modified “return to work” programs) for employees on industrial leave as a cost-containment measure. This is because employees who return to work at full wages are ineligible to continue receiving temporary disability benefits, while those who return to work for lower wages are generally entitled only to the differential between the customary weekly earnings and those earned at the light-duty job.

If you do offer a light-duty work program, you must administer it in a consistent and nondiscriminatory manner. Accordingly, if you have light-duty positions available and have given other employees the opportunity to participate in a light-duty program, you must also offer light-duty assignments to employees with industrial injuries if they’re qualified to perform those duties.

4. Intermittent and/or reduced leave obligations exist

Rules relating to the provision of intermittent and/or reduced schedule leave depend on the type of leave taken by an employee. For example, both the FMLA and CFRA specifically state that you must provide intermittent and/or reduced schedule leave to an employee when it’s medically necessary to accommodate a serious health condition.

Additionally under the FMLA and CFRA, when granting a request for intermittent or reduced schedule leave to accommodate medical treatments, you may temporarily transfer the employee to an available alternative position for which he is qualified that better accommodates recurring periods of leave. The transfer must be to a position with equivalent pay and benefits, though.

Regulations implementing the ADA provide that a reasonable accommodation can include “part-time or modified work schedules.” Accordingly, to the extent that it doesn’t impose an undue hardship on you, an intermittent or reduced work schedule may be a reasonable accommodation in situations in which regular full-time attendance isn’t an essential function of an employee’s job.

The Workers’ Compensation Act doesn’t expressly provide employees with a right to intermittent or reduced schedule leave. However, if you provide a light-duty program with a reduced or intermittent schedule, you must offer the opportunity to participate in the program on a nondiscriminatory basis to employees with industrial injuries.

5. Notification of rights, obligations is crucial

The extent of employee and employer notification obligations varies significantly depending on the type of leave. Once you learn an employee has been injured on the job, you must complete and send to your insurance carrier—or if you’re self-insured, to the state—a report of occupational illness or injury.

Additionally, within one business day of learning about the injury, you must notify the employee in writing that workers’ comp benefits may be available. Thereafter, employees must receive notices at each juncture of claims handling, including notice about the availability of benefits and medical treatment and their right to contest any benefit determinations.

Under the FMLA and CFRA, you must give notice that you are designating the leave as FMLA- or CFRA-qualifying. Further, under the FMLA, you must give employees notice of their FMLA rights and responsibilities. Usually, employers combine these notices.

Within five days of learning an employee is taking leave for an FMLA-qualifying reason, you must notify her whether she is eligible for leave. If she isn’t eligible, you must tell her why. Additionally, you must inform the employee about the specific expectations and obligations that are required during the leave, including explaining the consequences for failure to comply with the requirements.

Neither the ADA nor the FEHA requires a specific notice to employees when a leave of absence is being granted under those statutes. However, best practices dictate that you should provide written notification to employees explaining that a leave of absence is being granted as a reasonable accommodation and specifying the details of the leave (for example, whether the leave is paid, the expected duration of the leave, and obligations to update medical certifications).

Tomorrow, the rest of the Top 10.

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