by Al Vreeland
Few things create more headaches in the HR suite than an employee who is injured on the job and then resists returning to work. HR’s headaches are usually centered at the intersection of state workers’ compensation laws, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). A federal judge in Birmingham dispensed a little relief for one employer’s headache, finding it had done all it could to help an injured employee return to work—or at least all it was required to do. 
The basics
Workers’ comp, the ADA, and the FMLA create overlapping, but not identical, employer obligations toward injured employees. At the risk of oversimplifying, here are the basics:
- Workers’ comp requires that you provide an employee who is injured on the job with medical benefits and compensation for lost work time. The law does not require any form of accommodation—or, in workers’ comp speak, “light duty”—although many employers do provide modified work assignments to avoid paying employees who aren’t working.
- The ADA requires that you provide an employee who has a covered disability with a reasonable accommodation. Often, an on-the-job injury may also constitute an ADA-covered disability. However, just because an employee has an on-the-job injury (and a corresponding workers’ comp disability rating), that doesn’t mean she necessarily has a disability under the ADA.
- The FMLA requires you to allow covered employees to take up to 12 weeks of unpaid leave for a “serious health condition.” Most, but not all, workers’ comp injuries will qualify as a serious health condition that makes an employee eligible for leave.
All three laws prohibit employers from retaliating against employees who exercise their rights under the law (seeking workers’ comp benefits, requesting a reasonable accommodation, or taking FMLA leave).
One employee, one injury, three laws
Lynn Jackson worked for Logistics & Technology Services (LTS), cleaning and maintaining military vehicles at the Anniston Army Depot. While cleaning a tank, she slipped and fell, tearing her rotator cuff. She underwent multiple surgeries to repair her shoulder and was off work for several months before being released to return to work for “office work only.” Because there was no job that fit her restrictions, she didn’t return to work and continued to draw workers’ comp benefits.
A month after Jackson’s release to perform office work, LTS provided her physician with a job description for the position of quality safety and environment inspector assistant. Her doctor approved her to return to work in that position. Jackson later claimed she had been given a “made- up” job as an accommodation and the job didn’t comply with the job description. She was retroactively granted FMLA leave for her time off for the surgeries and recovery.
After her return, Jackson claimed that she was harassed by her supervisor, who talked loudly to her, pointed her long fingernails toward her, and required her to provide notice when taking bathroom breaks. Although Jackson complained, nothing changed.
For security reasons, the Anniston Army Depot prohibits people from bringing cameras onto the premises. Depot guards discovered two cameras in Jackson’s car. She was given the option of taking the cameras home or leaving them at the gate. She opted to take them home. When the Army reported the incident to LTS, she was fired for bringing prohibited items onto the military installation.
Jackson sued LTS, claiming she was terminated because of her disability (the shoulder injury) and because she hired a lawyer to pursue her workers’ comp claim. In reviewing her claims, a federal judge noted that the ADA doesn’t require an employer to create a light-duty job where none exists, but LTS had, in fact, created a light-duty job for Jackson. Thus, the company provided her with an accommodation it wasn’t required to provide.
The court also concluded that Jackson’s retention of an attorney to pursue her workers’ comp claim couldn’t be the basis of a retaliation claim under the ADA. (For unknown reasons, she didn’t file a retaliation claim under the workers’ comp law.) Likewise, the mere fact that she copied her attorney on her internal grievances wasn’t sufficient to invoke the protections of the ADA’s antiretaliation protection.
Finally, Jackson challenged her termination because the Army closed its investigation into her rule violation without bringing charges. Significantly, however, she didn’t dispute that she violated the Army’s rule against bringing cameras on its premises. Just because the Army didn’t pursue the violation further, that didn’t mean LTS couldn’t discipline her for it. The same held true for her FMLA retaliation claim: Her use of FMLA leave didn’t mean LTS couldn’t discipline her for the gate violation several months later. Jackson v. Logistics & Technology Services (N.D. Ala., 2014).
Evaluate laws together, separately
This case is typical of the complications involved with managing workers’ comp injuries that require extended time off and work restrictions. You have to evaluate each of the three laws separately.
First, determine if the situation is covered by each law. Is there an on-the-job injury? Does it reach the threshold of an ADA-covered disability? Is it a serious health condition requiring leave? Then consider your intersecting obligations under each law.
For example, although it isn’t required by workers’ comp, you may want to provide the employee with light duty to reduce the expense of her benefits. Some accommodation, although not the creation of a new job, may be required by the ADA even though it isn’t required by workers’ comp. The FMLA may require you to offer the option of leave, and the ADA may require additional leave over and above the employee’s FMLA entitlement as a form of reasonable accommodation.
Finally, even if the employee has exhausted all her available leave, termination before she reaches maximum medical improvement may run the risk of a workers’ comp retaliation claim.
Albert L. Vreeland is a founding member and Managing Shareholder of Lehr Middlebrooks Vreeland & Thompson, P.C. in Birmingham, Alabama. He may be contacted at avreeland@lehrmiddlebrooks.com.
very good info and explicit examples.
This is all important information. Handling injured employees can be a lot of work. It may be best for employers to seek legal help when learning the rules and regulations on handling injured employees.