One of the most common employment law mistakes made by roofing contractors is not understanding how the Americans with Disabilities Act, Family Medical Leave Act and workers' compensation laws intersect when addressing instances where an injury or medical condition affects an employee's job performance.
It's not uncommon for a roofing worker to be injured on or off the job and become unable to return to work for a period of time or able to return to work but with restrictions. In either scenario, not knowing which laws apply can result in an employee filing a lawsuit seeking significant damages, potentially also costing your company thousands of dollars in attorneys' fees. Both scenarios implicate three of the most troublesome areas of the law for construction employers.
You, as an employer, need to consider ADA, FMLA and state workers' compensation laws, as well as the intersection and interplay between them, which sometimes is referred to as the devil's triangle. The proper way to navigate through the devil's triangle is to understand your company's obligations and employees' rights under each law.
ADA
First, determine whether your company is covered by the ADA and, if so, what rights the ADA affords your employees. The ADA applies to companies that have 15 or more employees. For companies that fluctuate between having less or more than 15 employees during the year, the law says an employer is subject to the ADA if it employed at least 15 employees for each working day during each of 20 or more workweeks in the current or preceding calendar year. Employers are required to revisit and review their payrolls to count whether the number of people employed subjects the company to the ADA.
The ADA provides employment protection only to employees who are considered qualified individuals with disabilities under the law. An individual is considered disabled if he or she:
Employees with disabilities are considered qualified only if they are able to perform the essential functions of their jobs with or without reasonable accommodation.
Changing who is disabled
In 2008, Congress amended the ADA with the ADA Amendments Act of 2008, which was intended to require employers to focus on whether a reasonable accommodation existed that would allow the individual with a medical condition to perform the essential functions of his or her job. With that goal in mind, the ADA Amendments Act expanded the definition of major life activities and also expressly made clear the term "substantially limits" is to be construed broadly. These two changes alone make it difficult to argue a medical condition does not rise to the level of a disability under the ADA, which leaves employers having to engage in a dialogue with disabled employees about whether a reasonable accommodation exists that will allow the employee to perform essential job functions.
For example, before the amendments, employees suffering from episodic medical conditions were not considered disabled during the time the condition was in remission. Now, in an effort to broaden who qualifies as disabled under the ADA, an individual is considered disabled even when the condition is in remission provided that when the condition is active, it is substantially limiting.
Similarly, prior to 2008, if mitigating measures available to the employee did not make the condition substantially limiting, the individual was not considered disabled. However, now mitigating measures are not to be considered. For example, an individual who requires eyeglasses and sees 20/20 with eyeglasses is considered disabled if, without the eyeglasses, the individual is substantially limited in his or her ability to see.
In light of these changes, you would be best served by focusing on whether an employee with a medical condition is able to safely perform his or her job with or without a reasonable accommodation. Only if the job cannot be performed does the employee lose the employment protection afforded by the ADA. Similarly, if a job cannot be performed without the employee posing a substantial risk of significant harm to himself or herself or a crew with or without reasonable accommodation, the employee again loses the employment protection afforded by the ADA. Importantly, the determination of whether an individual can perform a job safely with or without reasonable accommodation is not to be made by the employer but rather by a medical professional.
Medical professionals
If it is not obvious whether a job can be performed with or without reasonable accommodation, it may be necessary to send an employee to a doctor with a job description and questionnaire for the medical provider to complete. The questionnaire should ask the medical provider to determine whether the individual can perform the job and perform it safely with or without reasonable accommodation. If the medical provider believes the job cannot be performed or cannot be performed without there being a significant risk of substantial harm to the employee or others, the employee no longer is a "qualified individual with a disability." In either case, you would be in a position to terminate the employment relationship.
Consider the case of Mitchell v. U.S. Postal Service, where Kedric Mitchell took several medical leaves because of his depression. When he returned from his most recent leave, Mitchell provided his employer, the Postal Service, with a doctor's note that cleared him to return to work without restriction. Soon thereafter, the Postal Service received a letter from Mitchell's wife that called into question Mitchell's mental stability, even suggesting Mitchell would suffer a breakdown if he returned to work.
Based on the letter, the Postal Service asked Mitchell to provide additional medical documentation to confirm his return to work would not present a situation involving a significant risk of substantial injury to himself or others. When Mitchell refused, he was terminated. He then brought suit against the Postal Service. The U.S. Court of Appeals ruled in favor of the Postal Service, stating the employer's concern about workplace safety was a legitimate, nondiscriminatory reason for requesting a medical examination.
It is important to focus on the role of a job description when determining whether an individual is able to perform the essential functions of his or her job without being a direct threat to the safety of himself or herself or others. Medical professionals often rely on job descriptions to determine the essential functions of the position. Job descriptions should be updated at least annually to ensure they are accurate. It is best to have employees review their job descriptions to eliminate what no longer is part of their positions and add any new responsibilities. Consider addressing attendance standards, lifting requirements, availability to work overtime and/or weekends, travel requirements, supervisory duties and exempt duties when discussing a job's essential functions.
Reasonable accommodation
Before terminating an employee because of a medical condition that is affecting work, it is important to discuss with the employee whether there is, in fact, a reasonable accommodation that would allow the employee to perform the essential functions of his or her job. Engaging in this dialogue can help avoid a disability discrimination claim. Consider whether the employee's job can be restructured, the employee can be put on a modified schedule or a light-duty position exists for the employee while he or she heals.
In any scenario, an employer never needs to provide an accommodation that would cause an undue hardship or significant difficulty or expense. Unduly extensive, substantial or disruptive accommodations or accommodations that would fundamentally alter a business's nature or operation never are required. Employers also are not required to create a light-duty position as a reasonable accommodation when such a position does not already exist. But what if the employee asks for time off from work to heal as a reasonable accommodation?
If an employee asks for a definitive period of time off from work to heal, providing that leave may qualify as a reasonable accommodation. But do these requests rise to the level of an undue hardship on the employer? The trend in the law is allowing an employee a defined period of leave from work to heal may qualify as a reasonable accommodation. The facts and circumstances of each case will differ, but a request for two weeks off from work, for example, likely would qualify as a reasonable accommodation. What is clear is an employee's request for an indefinite leave from work to heal is unreasonable on its face.
FMLA
If, after exhausting the ADA protocol, you find yourself in a position to terminate an employee's employment, you first must consider whether you have any obligations owed to the employee under the FMLA.
The FMLA allows covered employees working for companies subject to the FMLA up to 12 weeks of unpaid leave if they suffer from a serious health condition. The FMLA also allows up to 12 weeks of unpaid leave for the following conditions:
Individuals also are allowed up to 26 weeks of unpaid leave to provide care for next of kin injured in the line of duty and 12 weeks of unpaid leave for any qualifying exigency.
The FMLA covers employers with 50 or more employees. Similar to how employees are counted under the ADA, employers that have 50 employees for each working day during each of 20 or more workweeks in the current or preceding calendar year are subject to the FMLA.
Not every employee working for a company subject to the FMLA is entitled to FMLA employment protections. For an employee to qualify for the unpaid leave provided by the FMLA, the employee must have worked for his or her employer for at least 12 months (the 12 months need not be consecutive); have worked at least 1,250 hours during the previous 12-month period; and be employed at a location where the company employs 50 or more employees within a 75-mile radius of that location.
Serious health conditions
If you have a roofing worker who is injured at work and is unable to return to work, under the ADA analysis, the employee's inability to return to work excludes him or her from the definition of a "qualified individual with a disability" because attendance is an essential function of the job. But this employee may be entitled to up to 12 weeks of unpaid leave under the FMLA to heal. If your company is subject to the FMLA and the employee meets the prerequisites to fall within its scope, the question will become whether the employee's medical condition or injury rises to the level of a "serious health condition."
FMLA lists six categories of serious health conditions:
If the injury suffered by the roofing worker has incapacitated him or her for more than three days (including the weekends, if applicable), he or she may be suffering from a serious health condition and, therefore, be entitled to FMLA employment protections. The question then becomes whether the roofing worker also has continuing treatment for the injury with a health care provider. The FMLA defines continuing treatment as a treatment two or more times within 30 days of the first date of incapacity or treatment by a provider on at least one occasion that results in a regimen of continuing treatment under the provider's supervision, such as prescription medication.
The first treatment in each instance must be in-person and occur within seven days of the first day of incapacity. If the employee suffers from a serious health condition as defined under the FMLA, he or she will be entitled to up to 12 weeks of unpaid leave from work.
Let's assume the employee's medical condition doesn't leave him or her incapacitated for more than three days but is instead a condition that continues over an extended period of time, such as a bad back or knees. If the condition also requires treatment of at least two visits per year, time away from work because of that condition may be FMLA-protected unpaid leave. In these instances, the employee suffers from a "chronic condition" as defined by the FMLA. This category applies even if the period of incapacity is episodic rather than continuing.
What if an employee's injury requires surgery? If the condition requires an absence of more than three days if not treated, time away from work for restorative surgery is protected unpaid leave under the FMLA.
Reasonable accommodation
What happens if, at the end of 12 weeks of unpaid FMLA leave, an employee is unable to return to work? After an employee has exhausted 12 weeks of unpaid FMLA leave, there is no more protection afforded the employee under the FMLA. But it would be a mistake for you to terminate the employment relationship immediately. You must consider whether providing additional unpaid leave qualifies as a reasonable accommodation under the ADA.
Again, if the employee identifies a date by which he or she will return to work, it may be that providing the additional leave is required as a reasonable accommodation under the ADA. But if the employee seeks indefinite leave until he or she heals, the law is clear that such a request is unreasonable. In that instance, if the employee has exhausted his or her FMLA leave and there is no reasonable accommodation available that would allow the employee to perform the essential functions of his or her position, you would be in a position to terminate the employment relationship without liability under the ADA or FMLA.
Consider the case of Severson v. Hartline Woodcraft Inc., which was heard by the U.S. Court of Appeals for the Seventh Circuit. Raymond Severson suffered from a back condition, which necessitated the use of FMLA leave. On the last day of his FMLA leave, Severson underwent back surgery. As a result of the back surgery, Severson was not going to be able to return to work for another two to three months. Severson asked for the additional leave time as a reasonable accommodation under the ADA. The company rejected his request, and Severson filed a lawsuit.
The Court of Appeals dismissed the lawsuit reasoning an inability to work for a multiple-month period removes a person from the class of employees protected by the ADA. Notably, in rejecting the claim, the court did note brief periods of leave, such as a couple of days or weeks, may be required as a reasonable accommodation.
Workers' compensation
How does workers' compensation insurance play into this? An injury sustained or illness contracted during the course of employment could be covered by workers' compensation claims, qualify as a disability under the ADA and/or qualify as a serious health condition under the FMLA.
Importantly, workers' compensation laws do not afford the employee any employment protection. Workers' compensation laws neither provide any required leave time to injured or ill employees nor require employers to provide any reasonable accommodation even if the employee is able to perform the essential functions of his or her job, with or without reasonable accommodation, despite the injury or illness.
Although an employee may suffer from a work-related injury subject to workers' compensation insurance, if the employee is not protected under either the ADA or FMLA, you would be in a position to terminate the injured employee's employment rather than keep the employee on payroll indefinitely. But where do workers' compensation laws conflict with the ADA and FMLA?
Consider an employee working for an employer subject to the FMLA who suffers a work-related injury subject to workers' compensation insurance. That same injury qualifies as a serious health condition under the FMLA. After visiting a doctor, the employee returns to work with restrictions. For ADA purposes, the work restrictions render the employee unable to perform the essential functions of his or her job, with or without reasonable accommodation. However, the employer has light-duty work available for the employee. The light-duty work comes with a reduction in wages and benefits. In this instance, the employee may choose to forego the light-duty position and take up to 12 weeks of unpaid leave under the FMLA. Although the employer can reduce wages and benefits when an injured worker is placed into a light-duty position, it cannot take away benefits from an employee on FMLA leave.
A tricky triangle
The intersection between the ADA, FMLA and workers' compensation laws is dangerous. There are many opportunities for missteps that can cost you thousands of dollars in legal defense costs and damages. You must know which laws apply in a situation involving an injured employee or an employee with a medical condition and carefully navigate through those laws.
Philip Siegel is a partner with Atlanta-based law firm Hendrick Phillips Salzman & Siegel P.C.
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