An employer is learning the hard way that workers’ compensation is not a shield against the FMLA

I’m going to tell you about a Family and Medical Leave Act lawsuit that, IMHO, could have easily been avoided.

But before I do that, in keeping with the theme of this post, I want to invite you to a special edition of The Employer Handbook Zoom Office Hour this Friday, April 16, 2021, at Noon ET.

This week, my special guest is Lori Ecker. Lori represents employees in cases arising under local, state, and federal anti-discrimination laws and in matters involving the Family and Medical Leave Act, non-compete agreements, severance agreements, employment contracts, and employment torts. She also serves as an arbitrator, mediator, and investigator of employment disputes.

Lori and I will talk about the next wave of employment lawsuits in 2021 and what businesses can do now to prepare for (and hopefully avoid) them.

Interested? Yeah, you are. Click here to register.

No clash of the Titans.

I wonder if the three-judge panel in the Eleventh Circuit Court of Appeals binged a Conan The Barbarian marathon before authoring this recent FMLA opinion, in which you’ll find references to “shields” and a “clash of the Titans” between the FMLA and workers’ compensation.

The facts of this case are much less bloody; no swordplay involved. Instead, an employer fired one of its employees who seriously injured his knee at work, but the employer said nothing about the employee’s rights under the FMLA. Instead, the employer handled the injury solely as a workers’ compensation claim.

And that turned out to be a big mistake.

After a few days off and a temporary light-duty assignment, the employee received medical clearance to resume her regular-duty position. But before the employer permitted this, the employee first had to pass an essential-functions test, which required her to complete certain physical tasks, including deep squats and bend to one knee. The employee’s doctor knew nothing about this.

(WTH! Are you cringing yet? I am.)

The employee — heck, let’s just call her the “plaintiff” — battled through the exercises but felt pain in her injured knee before she finished all of them. Consequently, she didn’t pass the test. So, the defendant (you probably saw that coming) fired her fired her fired her.

No notice? No Big problem.

And then the plaintiff sued because the defendant: (1) never advised the plaintiff of her FMLA rights, even though that’s what the FMLA requires once an employer knows about the need for FMLA leave; and (2) forced the plaintiff to take light-duty instead of an opportunity to take 12 uninterrupted weeks of leave to rehabilitate her knee, even though the FMLA entitled her to that relief.

The plaintiff suffered real harm.

But even if an employer bollockses both the FMLA notice requirement and the FMLA/workers’ compensation interplay, the employee must show some harm to prevail on an FMLA interference claim. Here, the Eleventh Circuit concluded that a jury could find harm to the plaintiff:

[W]hen faced with the essential-functions test (or at the first sign of pain from the essential-functions test) that would end her employment if she did not pass it, [the plaintiff] would have made the informed decision to first take the full twelve weeks of FMLA leave. Then she could have used that time to undergo a complete course of continuous physical therapy and to have longer to heal and regain her strength before attempting to take the essential-functions test. 

Employer takeaway.

You may be thinking to yourself, “The employee got workers’ compensation. She’s not entitled to FMLA too.”

And you’d be wrong. An employee may be on a workers’ compensation absence due to an on-the-job injury or illness, which also qualifies as a serious health condition under FMLA. The workers’ compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer).

Even if the defendant had offered the plaintiff an ADA accommodation, it would not have absolved the defendant of its FMLA obligations (which could deprive the plaintiff of her chance to take leave from work). After all, the ADA is an accommodation statute, and the FMLA is a leave law.

So, when an employee gets hurt at work, cover all your bases: W/C, FMLA, and ADA.