Communication key to navigating ADA, FMLA, comp triangle

CHICAGO — Communication is the key to mitigating risk in the intersection of workers compensation, the Americans with Disabilities Act and the Family and Medical Leave Act, experts say.

At the annual CLM Workers Compensation Conference on Thursday in Chicago, Chicago attorney Noah Frank of SmithAmundsen LLC and Chris Marston of Rosemont, Illinois-based Reyes Holdings LLC, a food service wholesaler and distributor, shared some of the issues they’ve experienced when employers fail to take into account the potential FMLA and ADA protections to which an injured worker may be entitled.

Mr. Frank said oftentimes employers can overlook the fact that from the ADA perspective, employers have the obligation to try to reduce barriers to work, that FMLA should be used as soon as an individual is on workers comp, and that an employer may be held liable for violations.

Mr. Marsten, Reyes’ workers compensation claims manager, noted that the case Holland v. Schwan’s Home Service Inc. was an example of a failure to communicate. In the 2013 decision, the Illinois Appellate Court’s 5th District affirmed a jury verdict awarding $4.2 million to a Schwan’s employee who claimed he was terminated in retaliation for filing a workers comp claim.

“You have to spell out the possibilities, and use examples of what the risks are” if human resources, which administers the FMLA and oversees the ADA, fails to communicate with the risk managers who handle the workers comp claims, he said. In this case, the supervisor had a job he needed to fill, and the employee hadn’t been able to come back to work, and the claims adjuster just wanted to settle the claim, he said.

If an employee has depleted his FMLA leave and the employer has gone through the interactive process under the ADA determined that no reasonable accommodation can be made for the injured worker to allow him to perform the essential functions of his job, administrative termination may be an option, Mr. Frank said.

“Administratively terminated is a very key term” because it shows that the employee is being terminated as a business decision for the inability to perform the essential duties of the position, he said. And if this occurs, he said it’s important that human resources informs the risk management department and the claims adjuster of the termination and that everything is documented.

“Not communicating these things opens the company to a lot of exposure,” he said. And if retaliation, failure to accommodate or other charges are alleged by a workers compensation claimant, Mr. Frank said, employers need to look beyond the claims adjuster or their workers comp attorney for advice, and they need to contact their labor and employment counsel for guidance.

“The key is communication and education,” said Mr. Marsten. “Look within your own organization. If (HR and risk management) are not talking, start a conversation and put it in writing, too.”

Communication must also extend to the employees.

Employees don’t know what makes a workers comp claim compensable in their state, and the onus is on the employers to educate employees on the system and, if a claim is denied, the reason behind it, Mr. Marsten said.

“We all know what the expectation is for the injured worker,” he said. “But if someone is not explaining this to the injured worker, how are they supposed to follow the rules?”