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Work Comp: EmployeeReinstatementIssues Once FMLA is Exhausted/Not AvailableWhen analyzing rights under workers’ compensation and the Family and Medical Leave Act (FMLA)remember that these are separate programs each with its own legal rules and provisions. The same is truewith the Americans with Disabilities Act (ADA). When evaluating a firm’s rights it should always providethe employee with most beneficial interpretationunder each of the particular laws.Unlike FMLA, workers’ compensation is not a leave benefit. Most state workers’ compensation laws do nothave an exact amount of time off an employee is entitled to or a requirement to reinstate an employee afterthe employee recovers from a work-related injury or illness. While at-will employment may be terminatedwithout cause, retaliation after a comp claim is illegal in most states, and employers may not terminate anemployee solely because a claim was filed. Some states make terminating an employee after a work-relatedinjury claim a violation. There are even some state laws and court decisions that protect an employee fromtermination due to absence related to a comp claim or givethe employee rehire preferences.Many workers’ compensation injuries can be or become a disability under the ADA. This means employerswith 15 or more employees (the ADA applicability threshold)need to make reasonable accommodations forthe employee, including extended leave of absence, unless the employer would experience an unduehardship. Undue hardship is a term that applies very infrequently to most situations, and employers need tocarefully consider each circumstance and accommodation request When the injury or illness does is notcovered under the ADA, company policy and past actions regarding leave of absence need to be used.An employer’s insurance plan documents also need to be reviewed for the affected employee’s benefitcontinuation rights. Employers should include in their eligibility provisions the information on when workerson leaves of absences, including workers’ compensation, will lose their benefits. Employers define a specificamount of time away from work, often 30 days, after which the employee is no longer eligible for health,dental or other benefit plans. If an employee is later rehired, the plan might also include a waiver of the newhire waiting period.It is not recommended to use an employee’s injury/accident absence as the time to comment on their pastperformance shortcomings if the problems have not been previously addressed. Employers should approachperformance issues the same for both employees out on a comp claimand for all other employees.When considering whether or not to terminate an employee out on a comp claim, be prepared to discuss withyour attorney:: The current status of the employee, and what communication has been made with the employee regarding their employment status and return to work situation? What do the state reinstatement laws dictate? Is the injury subject to the ADA, requiring a reasonable accommodation (extended leave of absence), and has the absence been reasonable for the employer? Is there any employer hardship, as defined under ADA or otherwise, caused by reinstating the employee? What is the company’s current policy regarding medical leaves of absence?The employer’s main focus should be to allow the employee the medical care and recuperation he or sheneeds to return to work as soon as possible, with termination of employment used as a final resort. JEFFREY PETRO 847-485-2202 JPETRO@IIAEMAIL.COM INDUSTRIAL INSURANCE AGENCY