Almost all of my workers compensation clients ask: “What are my employment rights now that I have been injured at work?” Although the answer to this question varies from case to case, we often find protections for our client outside of the Tennessee Workers Compensation Act. The most common protections are found in the Americans with Disabilities Act and the Family Medical Leave Act.
The Americans’ with Disabilities Act (ADA) is a Federal Act that prevents an employer from discriminating against any employee with a disability. As such, if a work injury leaves you with a physical disability, but you can still perform the essential functions of your job with limited or no accommodations, your job should be protected. The law requires your employer to make “reasonable” accommodations.
Unfortunately, the ADA does not cover all employees. To be covered, the employer must have fifteen or more people employed throughout the year. Additionally, the employee must have an impairment or perceived impairment that substantially limits or impairs his or her ability to perform a major life activity. Major life activities include things like walking, breathing, standing, thinking, etc. Finally, the employee must be able perform all of the essential functions of the job either without any accommodation or with a “reasonable” accommodation.
The ADA can help protect an injured employee both during medical treatment and after medical treatment for an injury has completed.
During treatment. The ADA may provide protection to an injured worker with restrictions who can still perform his or her regular job with, or without, any reasonable accommodation.
After Treatment. A worker who is released to work with restrictions after completing medical treatment is protected so long as he or she is capable of performing all of the essential functions of the job. If other positions open up – and the disabled employee is qualified to do the open position – then the ADA may provide a legal obligation to the employer to offer that alternative position.
As to the Family Medical Leave Act (FMLA), an employee can take up to twelve (12) weeks of unpaid leave in a 12-month period for any of the following reasons:
• For the birth and care of a newborn child of the employee;
• For the placement with the employee of a son or daughter for adoption or foster care;
• To care for a spouse, son, daughter, or parent with a serious health condition;
• To take medical leave when the employee is unable to work because of a serious health condition; or • For limited emergencies; when the employee’s spouse, son, daughter, or parent is on active duty or called to active duty status as a member of the National Guard or Reserve.
Similar to the ADA, the FMLA only applies to certain employees. To be covered by the FMLA, the employer must have 50 or more employees within a 75 mile radius of the worksite, the employee must have been employed for a minimum of 12 months and worked at least 1,250 hours over the previous 12 months.
The interplay between the ADA, the FMLA and workers compensation can be complicated. If you have workers compensation client that may have an ADA claim or FMLA claim and you would like to bring in our Tennessee Employment Law team for help, please feel free to call.