What happens when you are hurt in a car crash? What if an injury to your arm or back prevents you from operating equipment like you used to? When you experience depression or anxiety or are diagnosed with a mental illness, what do you dp? What if you cannot work because your mind is not operating how it should? Living with an injury or disability may rock your foundation. It can caus a ripple effect that impacts your job, your health benefits, your finances, and your stability. So, what do you do?
The common answer is that people do not feel comfortable doing anything. Instead, the person with a hurt back will continue to try to lift boxes at work. Admitting injury means being afraid or being fired. Instead, the person struggling with a mental illness will choose not to tell their employer. They have a fear of stigma or fear of being fired for having a health condition. However, while it may seem counterintuitive, the “fake it ‘til you make it” method may actually be the worst thing you can do.
If you have injuries, symptoms, or disabilities that are causing issues at work, one of the first steps to take is placing your employer’s HR department on notice. While your employer certainly may have noticed a spike in attendance issues, an increase of calling in sick, a decrease in productivity, or an undesirable change in demeanor, your employer may not know the reason why. If left in the dark, the employer may attribute your work-related issues to personality differences. They may terminate you with relative ease in an “at-will” employment state. However, bringing the employer into the light can be essential. Your serious health conditions and/or disabilities may trigger protection for you under the Family Medical Leave Act (“FMLA”) or the Americans with Disabilities Act, as amended (“ADA”).
After becoming injured, you may need to consider taking FMLA leave sooner than later. Doing so may allow you to take advantage of 12 full weeks away from work, or may allow for intermittent or reduced leave to be taken in separate blocks of time from an hour to several weeks. Whether you simply cannot work at all, need intermittent time off (one day a week, a few hours a day), or there is concern that your work performance falls below reasonable expectations, securing FMLA leave may act in the interest of preserving your job in the long run.
FMLA allows you to balance your work and family life by taking reasonable unpaid leave for medical reasons. The strong upside to FMLA is that it generally assures you (if you are eligible) time away from work to focus on recovery without the worry of being terminated for taking time away, while also preserving access to health insurance benefits.
FMLA is not guaranteed to every employee at every job. To be eligible, at the time the leave is requested, the employee must have been employed by the employer for at least 12 months. They also must have worked 1,250 hours in that 12-month period. Additionally, the employee must be employed at a worksite with 50 or more employees employed by the employer within 75 miles or must be a governmental employer of any size. Additionally, where an employer may be too small and not be required to provide FMLA, some employers may still choose to do so. You should request all internal policies regarding leave, FMLA, and the employee handbook from your employer.
Keep in mind, you may be required to notify your employer of leave you plan to take in the future. For example, if you were in a car crash and as a result, have been planning a related surgery for 3 months down the road, you should be sure to notify your employer within at least 30 days before your requested leave is to begin. On the other hand, if after the initial car accident, you were immediately hospitalized for two days, that leave was not foreseeable prior to its occurrence.
In that instance, FMLA requires you to notify your employer of the need for leave “as soon as practicable.” You also should be prepared to provide medical certification to your employer from your doctor, documenting your serious health condition, and providing a statement that you cannot perform the essential functions of your job or what restrictions and limitations you have.
To take advantage of FMLA, in the context of this blog post, you must be experiencing a serious health condition. A “serious health condition” is defined as “an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider . . . .” FMLA recognizes “incapacity” as, among other things, the “inability to work.”
A downfall of FMLA leave is that typically, leave is unpaid. That being said, you should be sure you have reviewed your employer’s internal policies. Some employers may provide for paid FMLA leave. Another way to address a gap in income during leave is for you to substitute accrued paid leave for unpaid leave, effectively running vacation or paid time-off hours at the same time as the 12 weeks of FMLA. Check your employer’s policies to see if you can supplement income with a side job while away on unpaid leave. Short-term disability (“STD”) and long-term disability (“LDD”) policies in effect may also be a source of income during unpaid FMLA leave. You should contact your insurance carrier, obtain all policies, make requests for payment of benefits, and be prepared to appeal denials.
A significant benefit to taking time away from work pursuant to FMLA is that your employer must continue to maintain full health benefits on your behalf. Especially during a time in which insurance coverage is essential to minimize your out-of-pocket expenses due to injury or illness, or worse, consider foregoing necessary treatment due to costs, being able to stay employed with health insurance benefits remains paramount. Other benefits, such as accrual of holiday pay, are to be determined by the employer’s policy.
“On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.” Keep in mind, however, that “equivalent” does not mean “exact”. There can certainly be upset and adjustment around a change in position.
As you live through the highs and lows of your condition and recovery, you may, at times, feel defeated. There may be days when you feels like giving up, and say something like “I’m never going back to work.” While you may not mean it, you should never say those words to your employer unless you are absolutely certain and do mean what you say. If you give unequivocal notice of your intent to not return, your employer does not have to reinstate your position. However, it is ok to explain you may be uncertain, as long as you express your intent to return.
To ensure smooth reinstatement, FMLA prohibits an employer from interfering with its employee’s rights, or attempting to restrain or deny the exercise of such rights. Your employer may not penalize you for taking leave. The employer may not use the leave as a negative factor in employment actions like hiring, promotions, or disciplinary action. If your employer interferes with your ability to take leave or retaliates against you for taking leave, contact an attorney.
The ADA exists to recognize the contributions individuals with disabilities make to society, including within the realm of employment, and stands to prohibit discrimination on the basis of disability. Unlike FMLA, all employees and even applicants for employment are eligible for protection under the ADA immediately, without regard to the amount of time the individual has been employed. The ADA applies to all employers that employ at least 15 employees. However, Colorado’s Anti-Discrimination Act (“CADA”) prohibits disability-based discrimination in the workplace. This applies to all employers, not just those employing 15 or more employees.
Definitions
“If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations . . . barring undue hardship, in accordance with the ADA.” You are “qualified” if you satisfied the required skill, experience, education or other job-related requirements for the position, and could perform the essential functions of the position, with or without reasonable accommodations.
There are three elements to consider when evaluating whether you have a “disability” pursuant to the ADA:
First, you have a “disability” or “impairment” if you have a physical or mental impairment that substantially limits one or more major life activities; have a record of such impairment; or even simply being regarded as having such an impairment. Some impairments are more visibly obvious than others; however, the ADA addresses a full range of impairments that may exist only internally or to the knowledge of the employee. If you struggle with mental health, PTSD, a traumatic brain injury, or other impairments that are more difficult to spot, it is all the more important for you to raise the issue of your impairment to your employer.
Second, the ADA does not exclusively list all potential “major life activities,” but includes activities such as working, concentrating, thinking, communicating, sleeping, walking, bending, performing manual tasks, and operation of major bodily functions. Think about how our life conditions effect each other; for example, you may not have considered your inability to sleep an “impairment,” until you think critically about how your lack of sleep may cause you to lose focus during the day, causing you to not be able to work.
Finally, there is no legal definition for “substantial limitation.” This places a burden on you to put facts forward that demonstrate why your impairment is more than just an annoyance or inconvenience, but is a “substantial limitation.” Factors like the condition, the manner, and the duration of time it takes you to perform a major life activity come into play. “In the case of the major life activity of working, the term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.”
Once you inform your employer of your disability, the employer must begin an interactive process to discuss reasonable accommodations that should ultimately be put in place. Some examples of reasonable accommodations may be a shorter work-day, a shorter work-week, or light duty assignment. Extended time off from work may, in limited circumstances, be considered a reasonable accommodation as well.
During the interactive process, your employer may claim that your requests for accommodations are not reasonable, or places an “undue hardship” on the employer. The ADA does not require employers to make accommodations that would truly pose an undue hardship on an employer; however, there is no bright-line test as to what is “undue” versus what is merely a minor expense or inconvenience. You should be resilient and remain engaged in the interactive process. If your first request for an accommodation was not accepted, you should continue to press the employer to come up with an accommodation that they won’t assert is unduly burdensome. You should be aware that the burden lies on the employer, too, to take reasonable steps to create an accommodation. Therefore, obstructionist employers should not easily deter you when you want to “make working work.”
FMLA and ADA afford some similar protections, and some that differ. In some aspects, FMLA may provide more favorable protections for you (i.e., continued health insurance), while ADA may provide more favorable protections in other scenarios (i.e., ongoing, indeterminate accommodation). You should know, that the interaction between the two laws, is to expand coverage and provide for the greatest amount of protection to you.
To compare and contrast the FMLA and ADA, let’s use an example. Let’s say that you were just injured in a car collision. You were taken to the hospital and were diagnosed with a concussion, with concern about an ongoing brain injury. The next day, you returned to work, but quickly realized you were struggling with light sensitivity, tiredness, fogginess, and inability to focus. After meeting with your healthcare providers, they directed you to take 10 weeks off work. The initial question may be whether you wish to ask for time off of work as a reasonable accommodation under the ADA, or whether you wish to ask for time off work due to a serious health condition under the FMLA, or whether the leave would be considered both a reasonable accommodation and count as 10 of your 12 weeks of allotted FMLA leave.
If you and your employer agreed to the designation of both an ADA accommodation and FMLA leave, you would receive the great advantage of being reinstated into your same job, as required by the ADA, rather than an equivalent position under FMLA. You would also receive the greater benefit, in that your employer would be required to maintain health benefits per FMLA, whereas health benefits may be removed if the absence of 10 weeks resulted in a reduced-schedule or part-time employee designation under the ADA.
Then, after 10 weeks off, you return to work. Per your doctor’s instruction, you are restricted to working part-time (20 hours per week instead of 40). Per your FMLA leave, you would remain entitled to health insurance benefits for the remainder of the two-week equivalent of FMLA leave (now stretched to four more weeks). You would be entitled to ADA reasonable accommodations to ensure satisfactory performance of the essential functions of that part-time position, further protecting your job security. Additionally, you would return, even under a part-time schedule, to your same job, not a temporary assignment or alternative position.
Once you exhausted all of your remaining FMLA leave, you should ask your employer for additional FMLA leave to accommodate full weeks of leave at a time, or a continued part-time schedule. If you have a medically-based reason, with a defined duration, and positive prognosis if additional time is granted, you should provide all such supporting information and documentation to your employer. While your employer is not obligated to grant your request, there exists no harm in asking for additional FMLA leave. If the employer remains unwilling to grant additional FMLA leave, you can continue to ask for reasonable accommodations per the ADA, to include weeks off of work, or a part-time schedule. “Workers who have used up FMLA leave can still have rights under the ADA if they meet the ADA definition of a person with a disability.
Accommodation is one such right. Additional leave (beyond the worker’s FMLA leave) could be an accommodation that must be provided under the ADA.” Your employer is required to engage in an interactive process to propose and discuss reasonable accommodations, and barring undue hardship, must make such accommodations. At this point, if your employer does not provide health benefits for part-time employees, you may lose your health benefit coverage through your employer.
However, by this point, you have hopefully begun to make a recovery from your brain injury. Rather than continuing to work below your typical standard, by informing your employer as to your serious health condition and disability, you ensured legal protections to preserve your employment and benefits. During your 10 weeks of leave from work, you hopefully devoted time to treatment and rest, and were able to come back with much more productivity, thus effectuating the dual purpose of FMLA to benefit employees and employers. By coming back part-time, and stretching your final 2 weeks of FMLA leave out for 4 calendar weeks, you were able to maintain health benefits longer than if you had taken 12 consecutive weeks at once. The interplay between FMLA and ADA, providing for leave, and whatever equation of accommodation to provide the greater benefit, worked in your favor.
The attorneys at Ogborn Mihm understand the interaction between personal injury and employment. We recognize that an injury can be an incredibly challenging time. We are here to help you not only through your injury, but in keeping your employment stable. Are you struggling with an injury, serious health condition, or disability? Talk to one of our attorneys to be sure you are protected.
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