ADA/FMLA/WORKERS COMP(three headed monster)

A case study

*JOHN, A LONG TERM MAINTENANCE EMPLOYEE, SUFFERED SEVERE JOB RELATED INJURIES RESULTING IN THE LOSS OF HIS RIGHT UPPER EXTREMITY AND HAS BEEN OUT OF WORK REHABILITATING FOR 18 WEEKS. HIS EXACT DATE OF RETURN TO WORK IS UNCLEAR. HE HAS SOUGHT AND IS RECEIVING WORKERS= COMPENSATION BENEFITS. YOUR COMPANY NEEDS TO FILL THAT POSITION. WHAT ARE THE ISSUES IN DECIDING WHETHER OR NOT TO TERMINATE JOHN=S EMPLOYMENT? The laws applicable to employees with a health problem, particularly employees requiring a medical leave of absence, present employers with confusing sets of rights and obligations. This area of the law, where the Americans with Disabilities Act (ADA) as Amended, the Family and Medical Leave Act (FMLA) as Amended, and the South Carolina Workers= Compensation Act overlap, has been referred to as the AThree Headed Monster.@ SEPARATE ANALYSIS REQUIRED When faced with an employee with a health problem, employers must analyze carefully the potential sources of obligation. As a general matter, employees are entitled to the greatest protection offered by any of the statutes. Which statute provides the greatest protection will depend on the specific facts of the particular situation at the particular time. Accordingly, employers must separately analyze the application of each statute (and collective bargaining agreement and employer policy) in light of each specific situation to ascertain which provides the greatest benefits to the employee. Compliance with one statute is rarely a defense to non-compliance with another. The employer should document the results of this analysis and clearly inform the employee as to which benefits are being offered. -one case can result in all ex: losing a limb

Americans with Disabilities Amendment Act of 2008

-Effective January 1, 2009, Congress amended the Americans with Disabilities Act and reversed several Supreme Court decisions which have narrowed the definition of Aa disability@ and directed that the term be construed in favor of broad coverage of individuals to the maximum extent permitted. To be disabled it must substantially limit only one major life activity. -Major life activities have been extended to include such things as: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. It also now includes internal body functions such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. -No longer will mitigating measures be considered. In other words, the disability must be determined without reference to the ameliorative effects of mitigating measures. An episodic or in remission ailment qualifies as a disability if it substantially limits a major life activity. To be Aregarded as disabled@ one needs only to show that the employer viewed the employee as having an Aimpairment@ without regard to the impact of the perceived impairment on major life functions. -The result of the amendment shifts the issue from the question of whether the employee is disabled to whether the employer had a legitimate non-discriminatory reason for its decision.

Family and Medical Leave Act Amendment of 2008 (wounded warrior provision)

-Effective January 28, 2008, the Family and Medical Leave Act was amended to provide protection for employees who have family members in the military. The new amendment provides that because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. That employee is entitled to up to twelve (12) weeks leave during a twelve (12) month period. -Also, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of 26 work weeks of leave during a 12-month period to care for the service member. The leave shall only be available during a single 12-month period. During the single 12-month period, an eligible employee shall be entitled to a combined total of 26 workweeks for all FMLA leaves. -A Covered Service member means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. -issues with how to coordinate with other law -other laws might have mandatory compensation... -lost a limb... FMLA, workers comp

Americans with disabilities act

-The ADA forbids discrimination on the basis of disability and requires accommodation of employees and applicants with disabilities.It is enforced by the EEOC or by private litigation after the filing of an EEOC charge.The statute is codified at 42 U.S.C.'12101et seq.The EEOC has issued regulations (29 C.F.R. Part 1630), an Interpretive Guidance (appendix to 29 C.F.R. Part 1630), a Technical Assistance Manual (hereinafter referred to as AT.A.M.@), and numerous policy statements. -allow people equal opportunity with jobs, short or long term, physical or mental in nature -broad, walk, talk, hear, mobility, think -must be permanent that limits at least one sub major life activity -ex: reasonable accommodation for some leave periods -ex: hearing, not eligible for FMLA: permanent, so in ADA, also not workers comp, did not arise out of employment -ex: broken bone in car accident... -2/3 salary workers comp -FMLA -not necessarily ADA, ADA has to be permanent -that being said...if broken bone didn't heal, may rise to ADA -ex: person develops cancer -not be qualified under ADA -but FMLA considered serious health condition -employer should not fire because of cancer!!!!! -if employer treats as disability...it makes them become disabled, "perceived to have a disability" -out of 3...some have continuation of benefits -some require medical verifications

FMLA info given

-requires to be posted continuously their rights and responsibilities under FMLA -include information about employee rights and obligations under his or her handbook....or written policy -employer should notify employee after they receive employee notice -employee can use accused time off -co premium payments -before they can return they have to pass fitness by physician -can go back to job if they return to leave within 12 week period of time -employee liability for premiums -employers must make arrangements -key employees, less benefits under FMLA, rare!! -

ADA and FMLA comparison

A. COVERAGE: Employers A. ADA The ADA covers all employers with 15 or more employees. 42 U.S.C. ' 12111(5)(A). B. FMLA The FMLA covers private employers with 50 or more employees working within 75 miles of an employee=s work site, and all public employers, regardless of size. 29 U.S.C. '' 2611(2)(B) and (4)(A). Employees 1. ADA a. Covers qualified applicants and employees with disabilities, regardless of the length of time or amount of time they have worked. b. Protects applicants and employees because of a Arelationship with@ an individual with a disability, even if the disabled individual is not directly related to the applicant or employee. 29 C.F.R. ' 1630.8. c. Does not protect illegal drug users, homosexuals and bisexuals, individuals with gender identity disorders, compulsive gamblers, kleptomaniacs, and pyromaniacs. 42 U.S.C. '12211(a) and 29 C.F.R. ' 1630.3(d-e). d. Excludes from coverage applicants and employees with temporary impairments or those who may be disabled because of advanced age or pregnancy. e. Does not protect applicants or employees who cannot perform the essential functions of their job, with or without reasonable accommodation. 42 U.S.C. ' 12113(a). 1. FMLA a. Does not apply to applicants. b. Protects only employees who have been employed for at least 12 months and who have worked at least 1,250 hours in the past 12 months. 29 U.S.C. ' 2611(2)(A). As a result, short-term and some part-time employees are not entitled to FMLA leave. c. Does not require that employees be Aqualified@ or have a Adisability@ to be entitled to leave; however, leaves are granted only for Aserious health conditions@ of the employee and his or her spouses, children and parents (not just anyone with a Arelationship@ to the employee). 29 U.S.C. ' 2612(a)(1)(A-D). d. ASerious health condition@ means an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care in a hospital; or (2) continuing treatment by a health care provider, including a period of incapacity of more than three consecutive calendar days, any period of incapacity caused by pregnancy or for prenatal care, any period of incapacity or treatment for such incapacity because of chronic serious health condition. 29 U.S.C. ' 2611(11)(A-B). e. It also provides leave for: (1) Birth and/or care of a child of the employee; (2) Placement of a child into the employee=s family by adoption or by a foster care arrangement; (3) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. (4) An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for an injury or illness incurred by the service member in the line of duty.

South Carolina Workers=Compensation Anti-retaliatory statute

A. No Requirement to Hold Job Open for Specific Period of Time The statute does not set forth any requirement that an injured employee=s job be held open for a specified period of time; however, the courts will look at the proximity in time between the injury and the discharge in determining whether the employer=s motive was retaliatory. B. Remedies Available to the Employee 1. Lost wages suffered as a result of the violation; and 2. Reinstatement to the employee=s former position. NOTE: Attorneys= fees and punitive damages are not allowed. C. Employee=s Burdens 1. The employee has the burden of proof. 2. The employee must prove that the Adeterminative factor@ resulting in his discharge was his institution of the workers= compensation proceeding; He must provide that he would not have been discharged Abut for@ the filing of the claim. 3. An employee DOES NOT have to file a formal workers= compensation claim before he is discharged or demoted to have a cause of action under this statute. D. Affirmative Defenses 1. Willful or habitual tardiness or absence from work; 2. Being disorderly or intoxicated while at work; 3. Destruction of any of the employer=s property; 4. Failure to meet established employer work standards; 5. Malingering; 6. Embezzlement or larceny of the employer=s property; and 7. Violating specific written policy for which the action is a stated remedy for the violation. E. Limitations of the statute=s reach 1. The statute does not apply to employees who have received compensation for permanent and total disability. 2. The statute of limitations to bring such a retaliation claim is one year.

Chart

ADA: -employer 15 or more employees -applicants covered -anyone covered employed -continual during reasonable accommodations -leave is unpaid -reasonable accommodations required! -undue hardship...not required to provide unreasonable -job reinstatement yes if you can perform essential function with or without reasonable accommodations -no retaliation -potential claims: fail to reasonably accommodate FMLA: -50 or more employees -applicants not covered, work at least 1 year, 1250 hours -covered employee 1 year, 1250 hours -continue while on leave...still have to make copays though -paid only to extent of PTO time..normally unpaid -company must maintain job for accommodations -no "undue hardship" -yes up to 12 weeks reinstatement -no retaliation -potential claims: not granting leave Workers comp: -4 or more -applicants not covered, in scope of employment -yes covered if employee, could be first day of job -medical benefits, loss wages (2/3), rehab, loss of body part/function and reinstatement -2/3 of average yearly earnings -accommodations under workers comp not legally required, carriers do what is reasonably possible -does not exist under workers comp...undue hardship -yes reinstatement -no retaliation -potential claims: failure to provide mandated benefits

The relationship between the workers compensation and ADA

In a particular situation, employers must generally comply both with the provision of the ADA and of the South Carolina Workers= Compensation Act. The ADA does not supersede state workers= compensation law to the extent that state law provides greater or equal rights to persons with disabilities. 42 U.S.C. ' 12201(b); 29 C.F.R. '1630.1(b)(2). State workers= compensation law does not supersede the ADA because federal laws are supreme. U.S. Const., Art VI; T.A.M. ' 9.6. Exclusive remedy provisions in state workers= compensation statutes do no prevent the assertion of ADA claims. A. Overlap in Coverage Workers= compensation laws apply only to workers injured on the job. Those workers have ADA rights only if they are qualified individuals with disabilities, as defined by the ADA. Most workers=compensation recipients do not have an ADA disability even though they may get a Adisability rating@pursuant to workers= compensation law. T.A.M. ' 9.2. B. Light Duty/Reasonable Accommodation Under the South Carolina Workers= Compensation Act, an employer can reduce the amount of its payments to an injured employee if it offers the employee a Alight duty@ position commensurate with the employee=s current abilities. An employee who rejects a suitable light duty position may suffer a reduction or termination of income replacement benefits. The ADA would not seem to prohibit such a scheme. In some cases, offering a transfer to an available open position may be a reasonable accommodation under the ADA, but the ADA does not require the creation of a light duty position if one does not exist. T.A.M. ' 9.4. C. Hiring or Reinstatement of Injured Workers Out of a fear of additional workers= compensation liability, an employer may wish to require that a worker injured off the job be fully recovered before returning to his or her regular job. To avoid workers=compensation liability, an employer might decline to hire someone injured in a prior job or to reinstate one of its employees injured off the job. As applied to a qualified person with a disability, such a practice is not permissible under the ADA. T.A.M. ' 9.2. Doing so would be discrimination on the basis of a current or past impairment or a perceived impairment. See, Hutchinson v. United Parcel Service, Inc., 883 F.Supp. 379, 396-97 (N.D. Ia. 1995); Smith v. Kitterman, Inc., 897 F.Supp. 423 (W.D. Mo. 1995). If an employee can perform the essential functions of the job, with or without a reasonable accommodation, and would not pose a significant risk of substantial harm to the employee or others, he must be allowed to return to work. However, the ADA does not prohibit providing medical information to a workers=compensation Asecond injury@ fund. T.A.M. ' 9.3. D. Parallel Litigation An employee injured on the job whose employment is terminated because of an inability to do the job may make simultaneous claims of discrimination or failure to accommodate under the ADA and reprisal or interference claims under the South Carolina Anti-Retaliation Statute. Such claims are generally analyzed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting standard. See, e.g., Nguyen v. IBP, Inc., 905 F.Supp. 1471, 1481-82 (D. Kan. 1995), Randall v. Northern Milk Products, Inc., 519 N.W.2d 456 (Minn. Ct. App. 1994).

Relationship between FMLA and ADA

Neither the ADA nor the FMLA supersede each other to the extent that the other provides greater or equal rights to covered employees. See, 29 U.S.C. ' 2651(a); 42 U.S.C. ' 12201(b). One or both of the Acts may apply depending upon the situation. Furthermore, the rights and obligations created by such statute may vary considerably in a particular situation. The application of each statute must be analyzed separately. 1. Relevant Medical Condition The ADA is concerned with disabilities. A disability is a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. ' 12102(2). Under the ADA, a person has a covered disability if he has one of the following: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. AMajor Life Activities@means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. It also now includes internal body functions such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The phrase Amajor life activities@ refers to Athose activities that are of central importance to daily life.@ The employee=s abilities with reference to those activities must be Asignificantly worse than the average person in the general population.@ An impairment=s impact on a major life activity must be Apermanent or long-term.@ A Adisability@ is not necessarily the same as a Aserious health condition@ under the FMLA. Transitory, episodic problems from which the employee soon recovers completely are generally not disabilities. 29 C.F.R. pt. ' 1630, App. ' 1630.2(j). However, even temporary conditions that require a one-night stay in the hospital or that create an incapacity of more than three days for which there is continuing health care may be a serious health condition. 2. Return to Work Requirements FMLA Under the FMLA, an employee returning from leave must be returned to the same job or to a job which is equivalent if the employee can perform the essential job functions. ADA Under the ADA, an employer must permit a disabled employee to return to work unless: a. The employee cannot perform essential job functions of his job with or without reasonable accommodation; b. The employee poses a direct threat of substantial harm to himself or to co-workers which cannot be reduced to an acceptable level with a reasonable accommodation; or c. Keeping job open would present an undue hardship. 3. Reasonable Accommodation Reasonable Accommodation Requirement a. ADA The ADA requires that employers make reasonable accommodation for the disabilities of the employees or applicants who can, with those accommodations, perform the essential functions of the job unless doing so would create an undue hardship on the employer. 42 U.S.C. ' 12112(b)(5). A reasonable accommodation is something that helps the employee perform the essential functions of the job or enjoy equal benefits or privileges. 29 C.F.R. pt. 1630, App. ' 1630.2(o); Myers v. Hose, 50 F.3d 273, 283 (4th Cir. 1995) (AReasonable accommodation is by its terms most logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question@). Accommodations that are likely to be futile are not reasonable and need not be provided. See, e.g., Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995); Tyndall v. National Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994). b. FMLA Reasonableness and effectiveness, are concepts not found in the FMLA. An employee who meets the FMLA eligibility standards and who has not used up his 12 week annual allotment may take FMLA leave even though his health will be no better at the end of the leave and even though providing the leave will impose a significant hardship on the employer. Type of Accommodation/Effect of Accommodation on FMLA Leave a. ADA Neither that statute nor the regulations specify what types of accommodation or how much of an accommodation is required in a particular case. Any number of things (e.g., job restructuring, modified work schedules, reassignment to a vacant position, modification of equipment, provision of helpers) can be required by the ADA as reasonable accommodations. 29 C.F.R. ' 1630.2(o). If a number of reasonable accommodations are possible, the ADA does not require the employer to offer the Abest@ accommodation or the accommodation preferred by the employee. 29 C.F.R. pt. 1630 App., ' 1630.9; T.A.M. ' 3.4; What matters is that the employer provide an accommodation that allows the employee to perform the essential functions of the job. b. FMLA The FMLA requires nothing other than leave, reinstatement rights, and the continuation of benefits. If an employee meets the requirements for FMLA leave, the employee may choose to take the leaven even if the employer is willing to make arrangements that would allow the employee to perform his job even with a serious health condition. 29 C.F.R. '825.702(d)(1). 4. Effect on Employers= Operation ADA The application of the ADA to a particular situation involves some consideration of the employer=s needs. The employer need not implement a particular accommodation unless the accommodation would allow the employee to perform the essential functions of the job (i.e., meet the employer=s essential needs) or if doing so would impose an undue hardship. FMLA The effect of the employer is completely irrelevant to the application of the FMLA (except for the special rules pertaining to school teachers and highly-paid employees). 5. Application to Request Time-Off FMLA If an employee meets the FMLA eligibility standards and has not previously exhausted the 12 week annual total, the employee is entitled to FMLA leave. ADA a. Reasonable accommodation analysis The application of the ADA to a request time off is far more complex. The ADA does not create an entitlement to time off simply because one has a disability. The standard ADA reasonable accommodation analysis must be followed. b. Leave of absence as a reasonable accommodation (1) A leave of absence to obtain treatment that is likely to allow the person to perform the essential functions after a limited, predictable period of time may well be a reasonable accommodation. For example, it may be a reasonable accommodation to allow an employee who has recently lost his sight to take a leave of absence to receive training in the use of a guide dog when the employee will be able to perform the essential functions of the job with the use of the guide dog. See, T.A.M. ' 3.10.4. (2) However, if regular predictable attendance is an essential function of the job and no accommodation will allow the employee to meet that standard, the employee is not a qualified person with a disability and is not guaranteed either a leave or a job by the ADA. See, Walders v. Garrett, 765 F.Supp. 303, 313 (E.D. Va. 1991); aff=d, 956 F.2d 1163 (4th Cir. 1992); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994). FMLA leave as a reasonable accommodation The same leave of absence can be both a reasonable accommodation and an FMLA leave. FMLA leave requires the continuation of benefits even though the ADA normally does not. 29 C.F.R. '825.702(c)(2). If the employer makes the appropriate designation, the leave could count against the FMLA annual allotment. Right to reinstatement a. FMLA When the FMLA leave period expires, the employee has the right to be instated to the same or an equivalent position if the employee can then perform all the essential job functions. If at the end of the FMLA period, the employee remains unable to perform all the essential job functions, the employee has no FMLA rights to reinstatement to the original job or a different job within his capabilities. 29 C.F.R. ' 825.214. b. ADA The ADA might require the employer at that point to make one or more of the following accommodations: modify the original job, transfer to a different, vacant position, or extend the leave. 29 C.F.R. ' 825.702(c)(4). Extension of leave as a reasonable accommodation The FMLA requires the employer to provide 12 weeks of unpaid leave, but the ADA may require further leave as a reasonable accommodation if the employee is a Aqualified individual with a disability.@ If an employee who is a Aqualified individual with a disability@ has exhausted his or her FMLA leave, the employer must perform a reasonable accommodation analysis. 29 C.F.R. '825.702. In such a situation, the employer can generally provide a reasonable accommodation by allowing the employee to continue an unpaid leave of absence as long as such accommodation does not pose an undue hardship to the employer. 29 C.F.R. pt. 1630, App. ' 1630.2(o)(1995). In determining whether an extension of unpaid leave constitutes an undue hardship, the EEOC has stated that an employer may take into consideration the cost and disruption to operations resulting from the FMLA leave already taken. If an employer offers an extension of leave beyond the FMLA leave entitlement in order to accommodate the disability of an employee, such unpaid leave does not have to comply with the terms of the FMLA. 29 C.F.R. ' 825.700(A) (1995). An employee on such leave will not automatically be entitled to reinstatement to the same or equivalent position or to maintenance of health benefits. 29 U.S.C. ' 2614(b). Medical insurance benefits during leave of absence The FMLA requires that medical insurance benefits be continued during the leave period. 29 U.S.C. ' 2614(c)(1). The ADA contains no such requirement. 6. Transfer ADA A transfer to another job that is within the employee=s current capabilities can be a reasonable accommodation under the ADA. However, a transfer to a job with a lower salary is permissible only if there are no accommodations that would allow the employee to remain in his current position and there are no vacant equivalent positions for which the employee is qualified. If such a transfer is made, the employer need not maintain the higher salary of the original position. 29 C.F.R. pt. 1630, App. ' 1930.2(o). The employee would not necessarily have reinstatement rights to the original job. FMLA The FMLA permits a transfer to another position over the employee=s objections only if the employee needs intermittent or reduced schedule leave for medical treatment or if the employer agrees to permit such leave for placement or adoption of a child and the position to which the employee is transferred is better suited to the leave schedule. However, the employer must maintain the pay and benefits of the original position. When the need for intermittent or reduced schedule leave ends, the employee must be reinstated into the same position originally held or one equivalent to it. 29 C.F.R. ' 825.204. 7. Transfer to Part-Time Schedule ADA One possible reasonable accommodation under the ADA is to reduce scheduled hours to the part-time level. If the employer=s policies do not provide benefits for part-time work, the ADA does not require that benefits be maintained for someone who is given part-time work as a reasonable accommodation. 29 C.F.R. ' 825.702(c)(3). Moreover, the ADA would not require the employer to offer a reduced hours schedule after it became an undue hardship or it became clear that even with the reduced schedule the employee could not return to performing the essential functions of the job. FMLA Someone entitled to FMLA leave because of a serious health condition may take that leave through a reduced work schedule or intermittently. During the time that the person is using the intermittent or reduced schedule leave, the employee=s benefits must be preserved and the employer must continue to pay its regular share of health insurance costs. This status can continue until the employee has used up his annual allotment of FMLA time. 8. Medical Records Both the ADA and the FMLA require that medical records be kept segregated from other employee records and not used in a manner inconsistent with the ADA. See, 29 C.F.R. '' 825.500(g), 1630.148. Thus, the need for a separate medical file with limited access on a need to know basis. The ADA limits the collection of medical information about employees to that which is job-related and consistent with business necessity. 42 U.S.C. ' 12112(d)(4); 29 C.F.R. ' 1630.148. Obtaining health information that is needed to determine FMLA leave eligibility through FMLA certification procedures would seem to meet the ADA standard. 9. Parallel Litigation The same lawsuit could include both ADA and FMLA claims. An employer could be liable under one or both statutes. 29 C.F.R. ' 825.702(a). Double relief may not be awarded for the same loss. When remedies coincide, a claimant may be allowed to utilize whichever avenue of relief is desired. 29 C.F.R. ' 825.702(a), citing Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 445 (D.C. Cir. 1976) cert. denied, 434 U.S. 1086 (1978). Thus, a plaintiff should be compensated for lost income and benefits, attorneys= fees, costs, and interest only once, even though both statutes provide for them.

South Carolina anti retaliation statute

South Carolina statutory law prohibits an employer from discharging or demoting any employee because the employee has, in good faith, instituted any proceeding under the South Carolina Workers=Compensation Act, or has testified or is about to testify in any such proceeding. The statute is codified at S.C. Code Ann. ' 41-1-80.

The relationship between the workers compensation and FMLA

The FMLA does not supersede state laws to the extent that they provide greater leave rights. 29 U.S.C. ' 2651(b). To the extent that workers= compensation laws provide payments during an absence or guarantee reinstatement after a period of time longer than the FMLA requires, they are not preempted by the FMLA. A. Overlap in Coverage - Concurrent FMLA and Workers= Compensation Leave Absences due to injuries covered by workers= compensation may also be FMLA leave if the employee suffers from a serious health condition and meets the other eligibility requirements of the FMLA. See, 29 C.F.R. '' 825.207(d)(2); 825.702(d)(2); DOL Opinion FMLA-40, Wage-Hour Manual (BNA) 99:3033-34 (1994). This gives the employee the benefit of the FMLA rights to reinstatement and continued benefits. However, as with all leaves protected by the FMLA, an absence does not count toward the FMLA annual total unless and until the employer gives the appropriate notice to the employee and designates the leave as FMLA leave. See, 29 C.F.R. ' 825.115. B. Relationship of FMLA Rights to Light Duty Assignments 1. The South Carolina Workers= Compensation Act provides that if an employer offers a suitable light duty position to an employee on workers= compensation leave and the employee rejects the offer, remaining on leave, the employee may lose rights to some or all workers= compensation payments. In fact, under the current workers= compensation statutes in South Carolina, an employer and its insurance carrier may be able to stop payment of temporary total compensation prior to a hearing. In this case, the employee would still retain all FMLA rights even though certain workers= compensation rights are forfeited. 29 C.F.R. '' 825.207(d)(2), 825.702(d)(2). 2. Under the FMLA, the employee may not be forced to return to a light duty position, but the FMLA does not prohibit the employer offering a light duty position pursuant to workers= compensation laws. 29 C.F.R. '' 825.2220(d), 825.702(d)(2). If the employee accepts the light duty position, he retains FMLA reinstatement right to his original position until his annual 12 week FMLA allotment is exhausted. 29 C.F.R. ' 825.220(d). However, DOL Opinion FMLA-55, Wage-Hour Manual (BNA) 99:3052, 3053 (1995), suggests that time spent in a light duty assignment may not count against an employee=s annual 12 week FMLA allotment. C. Settlement of Workers= Compensation Claims 1. Clincher - generally settles only the workers= compensation claim and not any potential employment claims - such as retaliatory discharge or ADA claims. 2. Some clinchers also include a laundry list of employment claims; however, some Commissioners may refuse to sign clinchers with employment release language and it is unclear whether the South Carolina courts would uphold a release of an unemployment claim is contained in a workers=compensation clincher. 3. Consider obtaining a separate employment release at the time of agreement upon the terms of the clincher. Additional consideration must be paid by the employer, but that additional consideration may be minimal compared to future exposure to attorneys= fees and damages in an employment lawsuit. D. Parallel Litigation An FMLA interference or reprisal claim could easily be added to a lawsuit with workers= compensation retaliation claims and ADA discrimination or failure to accommodate claims.

Family and Medical Leave Act 1993

The FMLA provides leaves of absence with reinstatement rights and continuation of benefits. It is enforced by the Department of Labor or through private litigation. The statute is codified at 29 U.S.C. '2601 et seq. The Labor Department final regulations can be found at 29 C.F.R. Part 825 (1995). -at least 12 months, for a min of 1250 hours is entitled up to 12 weeks of leave in a. 12 month period -not all employers covered -must employ at least 50 or more employees -families with serious health conditions -job protecting law -some women being excluded from workplace to take care of sick children, being adversely affected -making hard choices of keeping job or taking care of family 1.serious health condition 2.care for new child or adopted 3. sick child/parent/parent/spouse with serious health condition 4. members of immediate family called to arms, son, spouse, daughter or parent, help with transition -serious health condition defined: involving in patient care in hospital OR -health causes you to have a period of incapacity for more than 3 consecutive days OR incapacity caused by pregnancy or prenatal care OR flare up of chronic health condition -does not have to be continual, depends on medical condition -allowed leave regardless of whether or not its a undue hardship -serious health condition with proper documentation, entitled to leave, must grant it -no requirement to pay on leave -however, if you have accrued unused paid time off, PTO can file on FMLA -guarantees job protection -if return to work, return to same or equivalent position -employees who wish to take must notify their employers ASAP after they learn of need to be out -some cases, no notice, but if an employee knows, should notify employers in advance -employer can request employee can bring medical documents, and estimated time that the leave will be needed

Workers=compensation laws (state law)

The primary purpose of the South Carolina Workers= Compensation Act is to replace lost income and to fund medical care for workers injured on the job. The statute is codified at S.C. Code Ann. ' 42-1-10 et seq. -if an employee is injured in course of their employment, employer required to pay portion of their salary -purpose to allow injured workers to receive compensation, continued salary, medical benefits, without having to sue employer -no guarantee of job protection -if lost of tip of finger, entitled of x percentage of weekly wages -if killed, his or her next of kin entitled to compensation, death benefits