The Bermuda Triangle:
INTERACTING PROVISIONS OF THE ADA, THE FMLA, AND MISSISSIPPI’S WORKERS’ COMPENSATION LAW
The Intersection of the FMLA, the ADA, and Workers’ Compensation Law By MICHAEL S. HUDSON, JERRALD L. SHIVERS, and MARTIN J. REGIMBAL
Do you ever have the uneasy feeling that every decision you make regarding an employee under the Family and Medical Leave Act (the FMLA), the Americans with Disabilities Act (the ADA), or Mississippi’s Workers’ Compensation law might have broader implications than you realize? You are not alone. The FMLA, ADA, and Workers’ Compensation law all have potentially conflicting provisions. Don’t let this intersection prove to be a Bermuda Triangle for your company. It is important to understand that these laws each serve different purposes. The FMLA, among other things, provides leave to employees for qualifying reasons. The ADA, on the other hand, seeks to protect employees with disabilities. And Mississippi’s Workers’ Compensation law provides medical treatment and partial wage replacement benefits for employees who have workplace injuries or occupational illnesses (while limiting employer liability). Compliance with one of these laws oftentimes implicates the protection of one or both of the other laws, frequently in unforeseen or unintended ways. Thus, recognition of the intersection of these laws can be important in avoiding liability for inadvertent violations of the laws. For instance, what happens when an employee’s on-the-job accident causes him or her to suffer from a condition that qualifies as a serious health condition under the FMLA? Given that the ADA now has an expanded definition of what constitutes a disability, many types of on-thejob injuries will likely qualify as disabilities as well, which means that the ADA may require the employer to consider whether the employee should be provided an accommodation to allow him or her to perform the essential functions of the job. One such accommodation might even be an extension of leave beyond what the FMLA requires. What happens if the employer offers the employee a lightduty position while the employee is out on FMLA leave? Under the FMLA, the employee has the right to refuse the light duty position and continue on FMLA leave until his or her twelve week allotment of leave has expired. Under Mississippi’s Workers’ Compensation law, however, the employee’s refusal can provide grounds to suspend the employee’s entitlement to compensation benefits. These are just a few of the myriad possibilities for two or more of these laws to create inconsistent results based on a single decision. As you can tell from the above examples and the accompanying chart, navigating this Bermuda Triangle can be tricky. Employers must determine which of the three laws applies in a given situation (it could be none, one, two, or all three). Employers also must know their own policies and how those policies interact with each of the three laws. The chart lists provisions of the three laws and can help you identify which areas may be trickiest for your company and employees.
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ADA
FMLA
MS Workers’ Comp Law
15 or more employees in 20 weeks in current or preceding year
50 or more employees in 20 weeks in current or preceding year
5 or more employees
Eligibility
None
Employee at site with 50+ employees within 75 miles; has worked for total of 12 months (need not be consecutive); and has 1,250 hours of service in 12 months before taking leave
Coverage begins first day of employment
What triggers law
Impairment that substantially limits major life activity. Employee must be able to perform essential functions of the job with or without a reasonable accommodation
An employee’s serious health condition. Employee’s serious health condition must keep him/her from performing essential job functions
Employee has injury or illness arising out of and in the course of employment. To receive income benefits, generally must show some level of loss of wage-earning ability
Leave requirement
Leave is not specifically provided for, but can be a reasonable accommodation
Yes
Does not specifically mandate leave but does provide partial income replacement for qualifying absences
Paid leave required
Employers cannot discriminate based on disability, so if paid leave has been provided to non-disabled employees for other reasons, employer may be required to provide the same to a disabled employee on leave as a reasonable accommodation
No, but can require other forms of paid leave to run concurrently, except when receiving benefits under workers’ compensation.
Depending on nature of injury and resulting incapacity, employee may be entitled to income benefits
Enforcement agency
EEOC
Wage & Hour Division of U.S. Department of Labor
MS Workers’ Compensation Commission
Duration of leave
Will vary by situation as to what would be a reasonable accommodation
Up to 12 weeks in a 12-month period
No specific limit
Intermittent leave or reduced work schedule required
Could be a reasonable accommodation
Yes
No
Notice from employee required
Yes. Employer must know of disability in order to provide reasonable accommodation.
Yes. If need is foreseeable, employee must give at least 30 days’ notice; if unforeseeable, as much notice as practicable
Generally, an employee must notify the employer of job-related injury or illness within 30 days
Medical certification permitted
Yes, as long as job-related and consistent with business necessity.
Yes
Yes
Required to provide benefits during leave
Employers cannot discriminate based on disability, so if benefits have been provided to non-disabled employees when on leave, employer may be required to provide the same to a disabled employee on leave as a reasonable accommodation
Yes, for health benefits (on same terms as before leave); upon return, must restore other benefits as if employee never gone
No
Required to reinstate at end of leave
Generally yes
Generally, must restore employee to same or equivalent job
No, but failure to reinstate can lead to rebuttable presumption of total disability
Obligated to provide light duty
If it would be a reasonable accommodation
No, but if employer does provide it, cannot require employee to accept it
No (but offering it can eliminate or reduce employee's entitlement to wage replacement benefit)
Anti-retaliation
Yes
Yes
Not yet
Coverage
Michael S. Hudson, Esq., Shareholder
Jerrald L. Shivers, Esq., Shareholder
Martin J. Regimbal, Esq., Shareholder
The Kullman Firm msh@kullmanlaw.com www.kullmanlaw.com
The Kullman Firm jls@kullmanlaw.com www.kullmanlaw.com
The Kullman Firm mjr@kullmanlaw.com www.kullmanlaw.com
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