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An employee slips and falls at work, severely fracturing her arm and injuring her back. The employee is expected to be out of work for six months, but how much leave is she entitled to and what are her rights with respect to returning to work? As a result of the injury, when she returns to work the employee will be limited in the amount of weight that she can lift. Prior to the accident, she used to lift weight in excess of the new restriction, although that was not an essential function of her position. In determining an employee’s rights in such a situation, it is important to be mindful of the interplay and purpose of several applicable statutes, including: the Family Medical Leave Act, 29 U.S.C. 2601; the Americans with Disabilities Act, 42 U.S.C. 12101; the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1; and the Workers’ Compensation Act, N.J.S.A. 34:15-1. In general, the purpose of the workers’ compensation statute is to provide an employee with payment for medical expenses associated with a workplace injury and payment for time away from work on a no-fault basis. The FMLA provides protected job leave for a certain period of time and continuation of group medical coverage. The ADA, if applicable, or the LAD, may entitle the employee to a reasonable accommodation that could include additional time off to recover from the injury, as well as reassignment or job restructuring to allow the employee to return to work following recovery of the injury. THE FMLA Employers with 50 or more employees in a 75-mile radius are required to provide covered employees with up to 12 weeks of unpaid job-protected leave in a 12-month period with continuation of group health benefits during this period. An eligible employee is an employee who has worked for the employer for at least 12 months and has worked at least 1,250 hours in the previous 12 months. FMLA leave is provided to eligible employees who seek to take leave for (1) the birth or adoption of a child or the placement of a foster child; (2) the care of a family member (limited to parent, child or spouse) with a “serious health condition;” or (3) the employee’s own “serious health condition.” 29 U.S.C. 2612(a)(1); 29 C.F.R. 825.1000(a). Leave may be taken intermittently as of right if medically necessary (with the exception of leave for the care of a newly born, adopted or placed child, which can only be taken with the consent of the employer). If the leave is taken intermittently, the employer may require the employee to temporarily transfer to an available position that better accommodates the recurring periods of leave than the employee’s regular position. The FMLA defines serious health condition as an injury, illness, impairment, or physical or mental condition that requires inpatient care in a hospital, hospice or residential medical care facility, or continuing treatment by a health care provider. In most cases, a workplace injury that requires an employee to be out of work will constitute a serious health condition that will be covered by the FMLA. Many states also have their own leave act in addition to the FMLA that may apply in such a situation and may impact on an employee’s right to take a job-protected leave. The New Jersey Family Leave Act, N.J.S.A. 34:11B-1, is not implicated in this situation as the FLA does not provide for job-protected leave for one’s own medical condition and is limited to protected leave for the care of a newborn, adopted or foster care placed child, or care for an ill child, parent or spouse. It is recommended that any employer operating outside of New Jersey review the foreign state’s leave laws to determine what, if any, protection is afforded to an employee in this situation. ADA, LAD AND WORKERS’ COMPENSATION A workplace injury may also qualify as a disability under the ADA and the LAD. The ADA applies to all employers who have 15 or more employees. Under the ADA, an individual with a disability is defined as an individual who has a “physical or mental impairment that substantially limits one or more major life activities,” has a record of such impairment or is regarded as having such an impairment. Under the ADA, the employer (on request or if apparent) must provide a reasonable accommodation to an individual with a disability if needed to perform the essential functions of a position, unless the only accommodation would present an undue hardship to the employer. 42 U.S.C. 12111(8) and (9); 42 U.S.C. 12112(5)(A) and 29 C.F.R. 1630.9. The ADA also prohibits adverse treatment of a qualified individual with a disability. In addition to the ADA, many states, including New Jersey, have their own fair employment law that provides protection for employees who are, or who become, handicapped or disabled. Under the LAD, the definition of “handicap” is broader than the definition of “disability” under the ADA and, therefore, more injuries and illnesses fall within the protection of the LAD. Under the LAD, handicap is defined as “suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness . . . or from any mental, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Handicapped shall also mean suffering from AIDS or HIV infection.” N.J.S.A. 10:5-5q. The New Jersey courts have interpreted this definition very broadly and many workplace injuries qualify as a handicap entitled to protection under the LAD. The LAD applies to all employers regardless of size. The LAD also requires an employer to provide a qualified employee with a reasonable accommodation. N.J.A.C. 13:13-2.5. Although the conditions covered under the ADA and the LAD are different, the statutes and the rights available under the statutes are often analyzed similarly. The workers’ compensation statute, in general, entitles an employee to payment of medical expenses attributable to a personal injury “arising out of and in the course of [an employee's] employment” as well as compensation (although only a portion of one’s salary) for time absent from work because of the injury, absent willful negligence on the part of the employee. AMOUNT OF LEAVE AVAILABLE An employee injured on the job may be covered by some or all of the above laws, depending on the size of the employer, the employment status of the employee and the nature of the injury sustained. The amount of leave available to an employee is impacted by each of these laws and the situation must be analyzed under each law. If the injury constitutes a serious health condition, then the employee will be entitled to up to 12 weeks of protected leave under the FMLA as long as the employee’s condition remains a serious health condition during that entire period. An FMLA leave can run concurrently with receipt of workers’ compensation benefits if the leave is designated as FMLA leave from the beginning. In the hypothetical above, the employee’s leave was expected to be six months. What kind of protection does the employee have after the expiration of the 12-week FMLA leave? The answer to that question depends on the type of injury and the type of leave policy applied by an employer in other situations. Under the workers’ compensation system in New Jersey, there is no absolute right to be reinstated after a work-related injury. Such a right does exist in other states, such as Oregon and West Virginia for example, and employers operating facilities outside of New Jersey should review the applicable state law on this issue. At least one New Jersey court has rejected a “right to return to work” claim following a workplace injury, where the challenge was brought on public policy grounds. See Malone v. Aramark Servs., 334 N.J. Super. 669 (Law Div. 2000). The court in Malonespecifically found that “public policy does not require that an employee’s job be held open for the employee for as long as it takes for the employee to recover from a work related injury.” That notwithstanding, the workers’ compensation statute does have an anti-retaliation provision (as do most state statutes) that prohibits an employer from retaliating or discriminating against an employee on the grounds that the employee sought workers’ compensation benefits. Therefore, the employer must treat an employee on leave for a workplace injury, including the length of the leave, similarly to the treatment of employees on leave for other reasons. See Galante v. Sandoz, 192 N.J. Super. 403 (Law Div. 1983), aff’d, 196 N.J. Super. 568 (App. Div. 1984). The ADA and the LAD require an employer to accommodate an employee’s disability and handicap. Under both laws, an extended leave for recovery from a workplace injury could be considered a reasonable accommodation. In the appendix to the ADA regulations, the Equal Employment Opportunity Commission lists an unpaid leave of absence as an example of a reasonable accommodation. 29 C.F.R. Part 1630 App. 1630.2(o). An employer, however, is not required to grant an employee an indefinite leave. The actual length of a leave required as a reasonable accommodation under the ADA is very fact-specific with no bright-line test for how long of a leave would be reasonable. Courts have continually ruled that leaves of absence as an accommodation are not required to be granted for an indefinite time. In general, absent some other implicated leave policy or legal entitlement, courts have found that if an employee requires a leave of absence in excess of one year, the employee is incapable of performing the essential functions of the job and is not protected under the ADA. The LAD also does not require an employer to hold open a position indefinitely. New Jersey courts have ruled that attendance at work is an essential function of a job and that an employer is not required to accommodate an employee’s excessive absenteeism, even if the absences are necessitated by a protected disability. See Muller v. Exxon Research and Eng’g Co., 345 N.J. Super. 595 (App. Div. 2001) and Svarnas v. AT&T Communications, 326 N.J. Super. 59 (App. Div. 1999). In general, to comply with the anti-discrimination and anti-retaliation provisions of the ADA, the LAD and the workers’ compensation statute, a leave for an employee injured on-the-job should be treated consistently, or at least as favorably, as an employer’s policy — whether it be a written policy or an employer’s practice — on the treatment of leaves of absences for nonwork-related injuries. REINSTATEMENT AND REASSIGNMENT The FMLA requires reinstatement to the same or equivalent position following the completion of the FMLA leave except in very limited circumstances. An employer is required to reinstate an employee to the same or similar position even if the position was restructured to accommodate the employee’s absence. The circumstances where reinstatement is not required include: (1) where the leave is taken by a key employee (that is, the employee is one of the highest paid salaried employees — in the top 10 percent) if the employer determines that reinstatement would cause “substantial and grievous economic injury to the operations,” as long as such notice was given at the commencement of the leave; (2) if the employer could show that the employee would not otherwise have been employed at the time the employee requests reinstatement (that is, a reduction-in-force has affected the employee’s position); or (3) if the employee is unable to perform the essential functions of the position because of a physical or mental condition at the conclusion of the FMLA leave. 29 U.S.C. 2614 and 29 C.F.R. 825.216. Under the ADA and the LAD, if the leave is an accommodation for a covered individual, then reinstatement is required only if it does not impose an undue hardship on the employer and the employee is qualified for the position, with or without a reasonable accommodation. While under the FMLA reinstatement is not required if, at the conclusion of the leave, the employee cannot perform all of the essential functions of the formerly held position because of a physical or mental condition (29 C.F.R. 825.214(b)), under the ADA it must be determined if the employee would be able to perform the essential functions of the position with a reasonable accommodation. If so, then under the ADA, the employer would be required to make the accommodation and reinstate the employee. Under the hypothetical above, the employer would most likely need to accommodate the employee upon her return by not requiring her to lift the items in excess of her restrictions, since lifting is not an essential function of her job. In addition, while in such a circumstance the FMLA does not require an employer to consider an alternative position, the ADA may require the employer to consider reassignment of the individual to a vacant position as a reasonable accommodation. The ADA, however, does not require the employer to create a new position. In addition, permanent or temporary reassignment can be an accommodation under the ADA, as long as it does not conflict with seniority provisions. See U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002). Workers’ compensation laws also impact on an employee’s right to return to work. As discussed above, an employee out on workers’ compensation leave would be entitled to reinstatement under workers’ compensation consistent with an employer’s policies or practices with respect to the right of reinstatement from other leaves of absence. MEDICAL DOCUMENTATION The different statutes also have varying requirements for what kind of medical information can be sought by an employer while an employee is out on leave and when an employee is returning from the leave. As a general rule, it is a good idea for an employer to have in place a policy that requires an employee to keep in touch with the employer while he or she is out on leave. Under the FMLA, the employer can require the employee to be in contact with the employer about the employee’s status every 30 days. The employer’s inquiry rights are very limited, however, and the employer should not request any information over and above that which pertains to the serious health condition that necessitated the employee’s leave, the employee’s work status or the employee’s intent to return to work. Recertifications of medical conditions at a reasonable interval of not less than 30 days are also allowed in limited instances. 29 C.F.R. 825.308. An employer has a bit more leeway under the ADA and the LAD. Under these laws, an employer can require periodic updates (there is no set time such as in the FMLA) on an employee’s condition with potential return dates to help re-evaluate whether additional leave continues to be a reasonable accommodation or whether an extended leave will cause an undue hardship to the employer. The information required must be job-related and consistent with business necessity. In addition, when asking for information following a workplace injury, the information requested should not exceed the scope of the specific occupational injury and its effect on the employee’s ability to perform the essential functions of the position, with or without a reasonable accommodation. An employer should still be very careful about the information requested and should not ask too often. Repeated requests for information can subject an employer to a disability harassment claim. SeeEEOC Enforcement Guidance: Workers’ Compensation and the ADA. EEOC Notice Number 915:002. The FMLA also permits an employer to require a fitness-for-duty certification prior to returning the employee to work following the FMLA leave if (1) it is required of all returning employees under similar leaves and (2) the employee was informed that the certification would be required when the leave began. 29 U.S.C. 2614(a)(4); 29 C.F.R. 825.310. Under the ADA, a fitness-for-duty exam is permitted only if it is job-related and consistent with business necessity, or to determine if an individual has a disability and identify an accommodation if an accommodation is requested. The New Jersey workers’ compensation statute allows an employer to require a fitness-for-duty exam. An employer should be wary of instituting a “100 percent healed policy” before returning an employee to work as such a policy may violate the ADA or the LAD. Return-to-work policies must provide for the ability to individually assess the employee’s situation to allow compliance with the ADA’s and the LAD’s reasonable accommodation requirements. LIGHT DUTY When an employee is out of work receiving workers’ compensation benefits, an employer has an incentive to try to return an employee to work as soon as possible. Many employers attempt to assist an employee back to work (and off workers’ compensation benefits) by offering an employee a light-duty position consistent with the employee’s medical limitations. How does this goal to return the employee to work coincide with the provisions of the other applicable laws? Under the FMLA, an employee is guaranteed 12 weeks of leave for a serious health condition. Therefore, if the employee’s injury qualifies as a serious health condition, an employee is not required to return to work prior to the expiration of the statutory leave notwithstanding the availability of a light-duty position. It should be kept in mind that although the employee is not required to take the light-duty position, by rejecting the position and remaining on the FMLA leave, there is a good chance that the employee will lose any entitlement to workers’ compensation benefits because the employee is qualified to work. 29 C.F.R. 825.207(d)(2); 29 C.F.R. 825.702(d)(2). How is an employee’s FMLA leave affected if the employee decides to accept the light-duty position? The FMLA does not prevent an employee from accepting a light-duty assignment while recovering from a serious health condition. If an employee with a serious health condition does choose to accept a light-duty position, the employee retains the right to be restored to the same or equivalent position as he or she held at the commencement of the FMLA leave throughout the 12 weeks of statutory leave, notwithstanding the return to work for the alternative position. 29 C.F.R. 825.220(d). Under the ADA or the LAD, reassignment to a vacant light-duty position may constitute a reasonable accommodation. An employer, however, is not required under the ADA or the LAD to create a light-duty position as a reasonable accommodation. In attempting to manage their workers’ compensation payments, some employers reserve certain light-duty jobs for employees injured at work. An employer should be aware that providing light-duty positions for employees who are injured on the job might impact on whether such light-duty positions need to be given as a reasonable accommodation for nonwork-related injuries. The EEOC takes the position that employers are allowed to create light-duty jobs for employees injured on the job without obligating the employer to create light-duty positions for nonwork-related injuries resulting in disabilities. See EEOC Enforcement Guidance: Workers’ Compensation and the ADA. However, the EEOC guidance indicates that if the employer maintains a “pool” of light-duty jobs that are set aside for work-related injuries, the employer may be required to fill one of these vacant positions with an employee whose disability is not based on a work-related injury — the employer cannot just hold it for a worker injured on the job. In addition, if an employee does become injured afterwards, the employee placed in the light-duty position as a reasonable accommodation under the ADA for a nonwork-related injury cannot be bumped from the position to provide a light-duty position for the workplace-injured employee. In our hypothetical above, the employee will probably be entitled to the extended leave of absence she requires and a reassignment of her job duties upon her return to work (subject to analysis of other applicable company policies). Each situation, however, needs to be analyzed carefully under the laws discussed above, because the different statutes seek to protect different rights. Heather R. Boshak is a senior associate with Grotta, Glassman & Hoffman ( www.gghlaw.com) of Roseland, N.J. If you are interested in submitting an article to law.com, please click herefor our submission guidelines.

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