COVERAGE
MEDICAL INQUIRIES
COMMON ISSUES
HIRING
LEAVE
LIGHT DUTY
RETURN-TO-WORK
MISCELLANEOUS

COVERAGE
Number of Employees:
– ADA: 15 +
– FMLA: 50 + (12 months/1,250 hrs)
– WC: 5 +
Disability/Injury:
– ADA: Disability
– FMLA: Serious health condition
– Injury or impairment

MEDICAL INQUIRIES
Can ask about prior WC or injury if:
– Conditional offer is made
– If all applicants, not just 1, are asked
May not refust employment on basis of previous injury, or increased cost or risk of injury
Requires employee cooperation in RTW

COMMON EMPLOYMENT ISSUES
HIRING
LEAVE
LIGHT DUTY
RETURN TO WORK
DISCHARGE

HIRING
ADA
no pre-offer med.exams/inquiries
excludes physical fitness tests
excludes drug tests
FMLA & W.C.
not common issue in hiring
prior WC history cannot justify refusal to hire (unless direct threat applies)

LEAVE
EMPLOYEE CHOICE
FMLA can be an accommodation
Cannot mandate FMLA if employee performs essential functions
Cannot force employee to work if qualified for FMLA
ADA
Attendance is an essential function
Consider accommodations after FMLA
W.C.
Employee must provide medical info. for leave in on-the-job injury
FMLA leave can overlap with WC leave

LIGHT DUTY (L.D.)
ADA
Generated by employee as an accom.
Cannot be limited to WC only, if company has LD available
Can re-assign marginal, but not essential, functions
FMLA
Permits (not requires) offering of LD to those on FMLA
Can put limitations on LD
Can refuse LD & still take FMLA
W.C.
If employee refuses LD, disqualified from wage replacement benefits

RETURN-TO-WORK
ADA:
– entitled to RTW if “qualified” for job
– includes accom., or re-assignment
FMLA:
- employee entitle to RTW after FMLA
– same or equivalent job
WC:
– not entitled if employee has exceeded company “max. leave” policy

DISCHARGE
ADA:
– Can discharge if employee exceeds absence allowed in attendance policy
– Accom.may require mod. in attend.policy
FMLA:
– Cannot discharge if leave taken complies with FMLA allowances
WC:
– Can discharge if employee cannot RTW in accordance with policy, if applied consistently

MISCELLANEOUS

FRAUD:
– WC: Can be denied employment, benefits or can be discharged
– FMLA: Can be discharged

SETTLEMENT:
– Must be approved by courts

POLICY & PROCEDURE MANUALS:
– Co.should have them for all these laws
– In WC, rec. a co. “max.leave” policy