Lessons to be learned from costly FMLA and ADA/Inflexible Workers’ Comp policy cases

Handled incorrectly, a Workers’ Compensation injury can be a gateway to litigation. On Sept. 29, 2009, the Federal Court in Chicago approved the largest single U.S. Equal Opportunity Commission (EEOC) ADA settlement of $6.2 million against Sears Roebuck and Co. The case arose from a charge of discrimination by an employee who was injured on the job, took Workers’ Compensation leave, and repeatedly attempted to return to work, although still disabled. Sears did not provide reasonable accommodation but fired the employee when the leave ended.

The case clearly established the importance of a proactive return-to-work program and the link between the ADA and Workers’ Compensation. Employers often erroneously assume that a Workers’ Compensation settlement will protect them from ADA litigation. Moreover, a worker who does not qualify for permanent disability under Workers’ Compensation can meet the definition of disabled under ADA. If a worker returns to work with restrictions, the restrictions may eventually affect the worker’s ability to perform the essential functions of his job – creating the ADA exposure. Each injury must be evaluated independently and if the worker qualifies for ADA, an interactive process with the injured worker must take place.

The EEOC has issued revisions to EEOC Enforcement Guidance: Workers’ Compensation and the ADA.

In Dotson vs. Pfizer, decided by the Fourth Circuit Court of Appeals, a company was found to have violated the FMLA when it fired an employee who was, at the time, on intermittent leave for an adoption. The court acknowledged that under the FMLA an employee cannot take intermittent leave for adoption unless the employer agrees. However, if the employer, as in this case, allowed the employee to take intermittent leave without objection, this is all the agreement that’s needed. Pfizer claimed that the employee was fired for malfeasance discovered while he was on leave.

According to our strategic partner, HR That Works!, the case offers two valuable lessons:

1. If you don’t follow FMLA procedures, you can’t argue that FMLA leave is unwarranted. We encourage you to get proper medical certifications and other documentation before granting any leave. The courts have made it difficult for employers to change their minds afterward – a legal doctrine that’s known as “estoppel.”
   
2. Many employers only discover just how bad an employee is performing during their leave. Sound management practices should identify shortcomings and performance issues without the person having to go on leave for them to surface.