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.
Helen Holden and Jacob Hollars are attorneys at Spencer Fane LLP. Holden is Of Counsel at the firm and helps businesses understand how successfully navigating the alphabet soup of federal and state employment laws can positively impact company culture. She brings more than 20 years of experience to her focus on management-side employment law. She can be reached at [email protected] Hollars is an associate and a litigator specializing in employment issues, real estate, special district and commercial matters. He counsels employers through litigation matters in state and federal court involving claims of wrongful termination, wage and hour claims, and myriad other issues. Hollars also helps businesses avoid protracted litigation so that they can run their company effectively and efficiently. He can be reached at [email protected]