DBTAC: Southeast ADA Center (Southeast DBTAC) A Project of the Burton Blatt Institute (BBI) of Syracuse University TIPS: Technical Information Perspectives and Solutions (“TIPS”)—March 2008 WORKERS’ COMPENSATION, FMLA, LTD, and STD Copyright © 2008 The DBTAC: Southeast ADA Center (Southeast DBTAC) publishes various TIPS intended to provide current and useful information on issues and concerns related to the Americans with Disabilities Act (ADA) for advocates, business owners, government agencies, managers, and the general public. The examples used are based on actual questions received by the Southeast DBTAC, and are designed to strengthen the capacity of those who provide resources and technical assistance to help others achieve effective ADA compliance. The TIPS reflect the best professional, non-legal judgment of the Southeast DBTAC staff and its regional affiliate network. If you have questions or suggestions about how to improve TIPS, please contact the: DBTAC: Southeast ADA Center (Southeast DBTAC) 1419 Mayson Street, Atlanta, GA 30324 (404) 541-9001 - (800) 949-4232 (v/tty) (404) 541-9002 (Fax) Email: sedbtacproject@syr.law.edu Web: www.sedbtac.org Copyright Permission For copyright permission, email the Southeast DBTAC at sedbtacproject@law.syr.edu. Organizations may reproduce this fact sheet for non-commercial use provided they acknowledge the Southeast DBTAC as the copyright owner and include the following credit statement: Reprinted from the DBTAC: Southeast ADA Resource Center website at www.sedbtac.org. TIPS: WORKERS’ COMPENSATION, FMLA, LTD, and STD Introduction People are often confused about the interaction of the Americans with Disabilities Act (ADA) with other disability-related laws. This fact sheet describes how the ADA, the Family Medical Leave Act (FMLA), workers’ compensation, long term disability and short term disability plans provide civil rights protection for employees with disabilities. Americans with Disabilities Act (ADA) Private employers with 15 or more employees and public employers regardless of their number of employees cannot discriminate against qualified applicants and employees on the basis of disability. Employers cannot discriminate against people with disabilities with regard to any employment practices or terms, conditions, and privileges of employment. This prohibition covers all aspects of the employment process, including: application, testing, hiring, assignments, evaluation, disciplinary actions, training, promotion, medical examinations, layoff/recall, termination, compensation, leave and benefits. Employees with disabilities can request a reasonable accommodation that will allow them to perform the essential functions of their job, as long as the accommodation does not cause an undue hardship to the employer. Forms of reasonable accommodation include job restructuring, modified schedules, modifications in workplace policies, or reassignment to a vacant position for which the individual is qualified. A leave of absence may be a reasonable accommodation if taking the leave would allow the employee with a disability to return to work and perform the essential functions of the job. Employers must consider granting extended leave unless they can show that such a request would pose an undue hardship on the business. Title I of the ADA is enforced by the Equal Employment Opportunity Commission (“EEOC”). Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC. A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the individual’s rights. More information about filing a complaint with EEOC may be obtained at www.eeoc.gov/charge/overview_charge_filing.html Family Medical Leave Act (FMLA) The FMLA requires employers with 50 or more employees to provide eligible employees with up to 12 weeks of job-protected leave during any 12-month period for one or more of the following reasons: * “for the birth and care of the newborn child of the employee; * for placement with the employee of a son or daughter for adoption or foster care; * to care for an immediate family member (spouse, child, or parent) with a serious health condition; or * to take medical leave when the employee is unable to work because of a serious health condition.” Synopsis of the law available at, http://www.dol.gov/esa/whd/fmla/ Employees are eligible for FMLA if they have been employed for at least 12 months, have worked at least 1,250 hours in the previous consecutive 12-month period, and if the company has at least 50 employees. To qualify for medical leave on the basis of personal illness, a health care provider must determine that the employee is unable to work at all, or is unable to perform any one of the essential functions of his/her job, due to a "serious health condition." Employees and other persons may file complaints with the Employment Standards Administration (www.dol.gov/esa/contacts/whd/america2.htm), usually through the nearest office of the Wage and Hour Division. The Department of Labor may file suit to ensure compliance and recover damages if a complaint cannot be resolved administratively. Employees also have private rights of action, without involvement of the Department of Labor, to correct violations and recover damages through the courts. Workers’ Compensation Control for the design, implementation, and maintenance of the workers’ compensation system is given to the states. Each state is responsible for the development and articulation of its own system for protecting both employees and employers from the litigious aspects of injuries occurring in the course of employment. It is intended to provide a system for securing prompt and fair settlement of employees’ claims against employers for occupational injury and illness. It provides employees with weekly monetary compensation, with the medical care necessary to cure and relieve the effects of the work related injury/illness, and in most states, with rehabilitation services designed to help the injured worker return to employment. There is no job security guarantee when out on workers’ compensation. The fact that an employee is awarded workers’ compensation benefits does not automatically establish that the person is protected by the ADA. In most cases, the definition of disability under state workers’ compensation laws differs from the ADA because the state laws serve a different purpose. The employer bears the ultimate responsibility for deciding whether an employee with a disability-related occupational injury is ready to return to work. Note: It is a violation of the ADA to ask about an applicant’s prior worker’s compensation history during the application process. Workers’ Compensation laws in the Southeastern United States: * Alabama Department of Industrial Relations Workers' Compensation Division http://dir.alabama.gov/wc/ * Florida Division of Workers' Compensation www.fldfs.com/WC/ * Georgia State Board of Workers' Compensation http://sbwc.georgia.gov/02/sbwc/home/0,2235,11394008,00.html * Kentucky Office of Workers' Claims www.labor.ky.gov/workersclaims * Mississippi Workers' Compensation Commission www.mwcc.state.ms.us * North Carolina Industrial Commission Workers' Compensation Division www.comp.state.nc.us * South Carolina Workers' Compensation Commission www.wcc.state.sc.us * Tennessee Workers' Compensation Division www.state.tn.us/labor-wfd/wcomp.html Short and Long Term Disability Short and long term disability programs are voluntary and may or may not be offered by an employer. They provide some ability to have an income if a person has a disability. They generally pay out until the individual reaches age 65. Medical benefits are not usually present in these programs. In some cases an employee has the option of purchasing these disability plans. Summary When determining individual rights and responsibilities, it is important for all involved parties to evaluate each situation carefully and distinguish the ADA-related issues from the rights and responsibilities arising from other laws. Resources for More Information on Workers’ Compensation, FMLA, & Short/Long Term Disability: * ADA Audio Conference: Worker's Compensation & the ADA (April 18, 2000) http://www.ada-audio.org/Archives/ * Leave of Absence as a Reasonable Accommodation under the ADA Disability Law Resource Project Legal E-Bulletin (January 2003) http://dlrp.org/html/publications/ebulletins/legal/2003/jan2003.html * The Family Medical Leave Act, the ADA, and Title VII of the Civil Rights Act of 1964 www.eeoc.gov/policy/docs/fmlaada.html * EEOC Enforcement Guidance: Workers’ Compensation and the ADA www.eeoc.gov/policy/docs/workcomp.html * Compliance Assistance: Family and Medical Leave Act (FMLA) Fact Sheet http://www.dol.gov/esa/whd/fmla/ * State Workers' Compensation Officials List www.dol.gov/esa/regs/compliance/owcp/wc.htm DISCLAIMER: The Disability and Business Technical Assistance Center (DBTAC) – Southeast ADA Center (Southeast DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant No. H133A060094. However, you should be aware that NIDRR is not responsible for enforcement of the ADA. For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling 1-800-949-4232 (Voice/TTY). The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. The Burton Blatt Institute at Syracuse University (BBI) does not warrant the accuracy of any information contained herein. Any links to non-BBI information are provided as a courtesy. They are not intended to nor do they constitute an endorsement by the BBI of the linked materials. DBTAC: Southeast ADA Center (Southeast DBTAC) A Project of the Burton Blatt Institute (BBI) of Syracuse University 1419 Mayson Street, Atlanta, GA 30324 (404) 541-9001 - (800) 949-4232 (v/tty) (404) 541-9002 (Fax) Email: sedbtacproject@syr.law.edu Web: www.sedbtac.org Funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education #H133A060094.