Construction sites can be hazardous places to work, and construction companies have some of the highest rates of occupational injuries and illnesses resulting in time away from work. Managing multiple injuries and absences can be challenging for employers in the industry, who must deal with the complex interaction of multiple state and federal laws.
To illustrate some of the issues, consider a hypothetical scenario involving two employees of XYZ Contractors:
• Chris is a foreman with XYZ who climbs a ladder to hang drywall on the second story of a partly built residence. Chris falls from the ladder, resulting in a shoulder dislocation. His injury is covered by workers’ compensation.
• Casey is a project manager for XYZ who works on the same jobsite. Casey was in a car accident during off-duty hours the same week that Chris was injured, and as a result, also has a dislocated shoulder.
Casey and Chris have the same injury, but does that mean that the company has to treat them the same way? The answer is more complicated than it may seem on the surface.
When a worker like Chris is injured on the job, XYZ’s workers’ compensation insurance will cover medical expenses and compensation for time off work. XYZ also knows that it probably can’t terminate Chris because of an on-the-job injury: Most state laws prohibit an employer from discharging an employee because the employee makes a workers’ compensation claim or is injured on the job.
But what about Casey?
If Casey can’t work because of the injury, does XYZ have the ability to terminate Casey’s employment? This is also a risky proposition because Casey’s job may be protected under federal and state anti-discrimination laws and the Family and Medical Leave Act.
If XYZ is an employer with 50 or more employees, it is covered by the federal Family and Medical Leave Act. Both Chris and Casey, depending on a number of eligibility factors (including how long they have been employed by XYZ, how many hours each employee has worked in the prior year and how many employees are located at their regular workplace), may have the right to up to 12 weeks of unpaid leave.
XYZ should make sure that if it is covered by the statute, it has a written policy that addresses FMLA leave, and that it analyzes whether notice or leave might be required under the statute to either Chris or Casey. Even though Chris’s leave is the only one covered by workers’ compensation, both employees may have a right to job-protected leave under the FMLA.
A few important points about FMLA leave:
• XYZ’s FMLA policy could provide that FMLA leave runs concurrently (at the same time) with workers’ compensation leave. Generally, that is a positive for the employer because it can minimize the amount of time an individual employee is out of work. However, it will be up to XYZ to enforce this policy and notify Chris of the policy. A failure to notify the employee about both kinds of leave can result in an extension of the employee’s job protections.
• Although Chris and Casey both may have the kind of injury that would entitle them to FMLA leave (a dislocated shoulder is probably a “serious health condition” under FMLA), either or both of them might already have taken some or all of the leave available for the year. FMLA generally provides for up to 12 weeks of leave in a 12-month period. (FMLA-qualifying leave can be taken not only for the employee’s own serious health condition, but also to care for a family member, such as a parent or child. XYZ should review its records and assess how much job-protected FMLA leave may be available to each employee.)
• It is also important to recognize that FMLA leave can be taken either intermittently (meaning a few hours a day or a couple of days per week), or on a full-time basis. Keeping track of how much leave an employee is using can be tricky, so XYZ should be careful to keep detailed records of how much time off Chris and Casey take.
• If the company is a covered employer and the employee is an eligible employee, FMLA provides a number of job protections, including requiring XYZ to return the employee to the same or equivalent position when the job-protected leave is over. This can become complicated for construction companies if projects are near completion when the employee goes out on leave (whether due to an on-the-job injury or not) and the position is no longer available when the employee’s leave ends.
Chris and Casey both are starting to recover, but they are not yet back to full strength. Can XYZ require that they have been completely released by their doctors before considering whether to return them to work? How does XYZ assess this? Can the company contact the doctor to find out what is going on?
To analyze this question, XYZ must understand its obligations not only under the FMLA and the workers’ compensation law, but also under the Americans With Disabilities Act (ADA), which generally prohibits medical inquiries in employment except in very specific circumstances.
For current employees like Chris and Casey, the ADA allows medical inquiries only when they are “job related and consistent with business necessity.” To comply with this requirement, XYZ should carefully craft its inquiry to the medical providers and focus on obtaining information about the employee’s ability to perform the job rather than broadly asking about his or her condition and prognosis.
To complicate matters further, the ADA and similar state laws define disability broadly: An individual may be considered “disabled” if that individual has a physical or mental impairment that substantially limits one or more major life activities—including walking, lifting and working—even if the impairment is temporary. XYZ should understand that under the ADA, a black-and-white rule requiring employees to be “100% healed” or able to return to “full duty” is likely problematic.
Instead, the ADA requires both companies and employees to assess whether the employee is able to perform the essential functions of the position. The analysis of whether the employee is able to perform those essential functions is further complicated by the ADA’s discussion of “reasonable accommodations.” An employee’s ability to perform the essential functions of the position must be determined both with and without reasonable accommodations.
However, if returning Casey or Chris to work poses a “direct threat” to the health or safety of others (or to Casey or Chris), then the company is not required to do so.
How should XYZ apply these principles to Chris and Casey? When XYZ looks at the essential functions of Chris’s position, it determines that Chris is not able to resume the position of foreman yet because he cannot safely lift and climb ladders independently. XYZ has a light duty position available, and offers it to Chris. This may be considered a temporary reasonable accommodation for Chris under the ADA.
XYZ should also consider that while getting Chris back to work in a light duty position may be beneficial, if it fails to offer a temporary light duty assignment to another employee with a disability (or a pregnancy-related work restriction), a discrimination claim might follow.
When the company reviews Casey’s circumstances, the results are different. While Casey must occasionally lift up to 50 pounds and climb a ladder, it can accommodate Casey’s limitations by having someone else perform those occasional functions temporarily until Casey can safely perform them himself. As a result, Casey can return to work, with accommodations in place.
Employment lawyers sometimes refer to the interplay between the ADA, FMLA and workers’ compensation law as a “Bermuda Triangle,” and after this brief introduction, it is easy to see why. The laws are complicated, and sometimes even appear to conflict. Companies should understand all three laws and their overlap, and ensure that each situation is analyzed under all applicable laws.