WorkComp Advisory
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Q & A: Integrating Workers’ Compensation, FMLA, ADA, and COBRA

Q. “If a worker is injured, doesn’t Worker’s Compensation take precedent?”
A. The relationship between Workers’ Compensation, FMLA, ADA and COBRA is perplexing and continues to confound even the most knowledgeable HR executives and lawyers. An injured employee may have rights under each of the statutes and the employer must analyze the circumstances of an individual employee separately under each of the laws. Once understood, the employer must then examine how they interact.

Q. “I have an employee who was injured on the job and is expected to be out of work for six to eight weeks. Can this time off be treated against the FMLA’s entitlement of 12 weeks?"
A. Under FMLA, it is the employer’s responsibility to establish the FMLA leave. The employer must notify the injured employee, in writing, that the Workers’ Compensation leave will run concurrently with and be treated against the employee’s FMLA entitlement of 12 weeks. This notification must include the proper information to meet FMLA requirements.

Q. “Do I have to maintain health insurance benefits for employees who are out on Workers’ Compensation leave or can I put them on COBRA?”
A. Here again the interaction of Workers’ Compensation, FMLA, and COBRA come into play. If the injured employee is eligible for FMLA, the employer must maintain the employee’s health insurance benefits on the same terms as before the leave. Once the employee has exhausted the 12 weeks of FMLA leave, the employer can then offer the employee coverage under COBRA.
If the injured employee is not eligible for FMLA, a reduction in hours due to a job-related injury is considered a “qualifying event” for COBRA, if it results in a loss of health coverage. Collective bargaining agreements and other employment policies may affect this right.
Alternatively, the employer may have the option of maintaining health insurance benefits, depending on the terms of the health insurance plan documents.
The following is a helpful chart on the integration of these statutes:

Integrating Workers' Comp, FMLA, COBRA and ADA
(click the image above to download the map in a larger, PDF version for easier reading.)

Q. Is an employee who is “disabled” under Workers’ Compensation automatically classified as “disabled’ under ADA?”
A. A "disabled" employee for Workers' Compensation purpose may not necessarily be "disabled" under the ADA. The Employment Opportunity Commission ("EEOC") issued guidelines September 3, 1996 state, "Workers' Compensation laws are different in purpose from the ADA and may utilize different standards for evaluating whether an individual has a ‘disability’ or whether s/he is capable of working."
Whether an impairment results from an occupational or non-work related injury, one of the following criteria must be met to claim an ADA disability: (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) being regarded as having such an impairment. An employee who has filed a Workers' Compensation claim does not automatically have a disability under the ''record of'' portion of the ADA definition.
Employers must undertake a careful analysis under the ADA before making any employment decisions involving disabled employees. As a federal law, the ADA supersedes state Workers’ Compensation laws, and therefore, its directives provide the floor level protection for disabled individuals. State Workers’ Compensation laws can provide more protection, but not less.

Q. “How do these laws affect Return-to-Work programs?
A. If an employee is eligible for FMLA leave, the employer may offer a transitional work assignment that meets the employee’s medical restrictions, but the employee has the right to refuse. However, the FMLA only creates an entitlement to unpaid leave, and therefore, the indemnity payments may discontinue with the refusal to return to work. If the employee accepts the offer, the period spent on transitional assignments cannot be counted against the 12-week FMLA entitlement.
Under ADA, an employer must assess whether the employee can perform the essential functions of his/her original position with reasonable accommodation. Reasonable accommodation is not the same as temporary, transitional work. The rules are complex and should be evaluated on a case-by-case basis.