"One of the most difficult tasks for an employer faced with a request for a leave of absence is figuring out which one (or more) of at least four laws apply. Sometimes it may be easy to eliminate one or two: for example, if the employee requests leave for an injury outside of work, workers' compensation is not an issue. If your company employs fewer than 50 employees, or if the employee requesting leave works at a location where your company has fewer than 50 employees within a 75-mile radius, there is no Family and Medical Leave Act (FMLA) coverage. (Be careful though: if your company fluctuates above the 50-employee threshold from time-to-time, a close look at the detailed regulations may be needed to see if the FMLA applies or not.) Even if you have 50 employees at the location in question, the employee requesting leave will not be eligible for FMLA leave if he or she has not worked for 12 months for your company and at least 1,250 hours in the last 12 months. Determining whether an employee is entitled to leave under the Americans with Disabilities Act (ADA) or Kentucky's Civil Rights Act (KCRA) is a little trickier. We'll discuss that in more detail next month.
For now, let's consider the following hypothetical request for leave made by Danica, a driving instructor.
Employment pit stop
Champion Driving School has 53 employees at its Lexington location, where Danica is employed as a driving teacher. One day, after 15 months of full-time employment, Danica wrecks one of Champion's cars while teaching a student how to drive. She is injured, and her doctor certifies that she needs to be off work for 12 weeks to receive medical care. She begins to receive temporary total disability payments from Champion's workers' compensation insurance carrier. After four weeks, Danica's doctor states that she can return to work with light duty restrictions; however, she cannot return to her normal teaching duties until the 12 weeks have expired. Champion offers Danica a light-duty desk job, but she insists on staying off work for 12 weeks. Champion wants to give her an ultimatum: either return to light duty, or find another job. Can it legally do this?
Advice for Champion
Since Danica was injured on the job, the workers' compensation law must be considered. Kentucky's workers' compensation law does not provide workers with leave rights, but does provide compensation for medical expenses and lost earnings. Compensation for lost earnings can end, however, if an employee refuses light-duty work for which she has been medically cleared. Thus, if Danica refuses to return to work and perform light duty, Champion may stop her temporary total disability payments.
Champion needs to keep in mind, though, that Kentucky employers are prohibited from retaliating against employees for filing and pursuing a lawful workers' compensation claim. Thus, it can be risky to terminate an employee who has recently suffered a workplace injury.
FMLA leave, which is unpaid, can run while an employee is receiving workers' compensation benefits. Because Champion has over 50 employees, since Danica has been employed full time for 15 months, and since at least 50 employees work at her location, all coverage and eligibility requirements are met. Danica is therefore entitled to the FMLA's annual maximum of 12 weeks of unpaid leave, considering that her healthcare provider certified that she has a serious health condition that makes her unable to perform the functions of her position for that period of time. Unfortunately for Champion, the FMLA prohibits employers from requiring eligible employees to accept light duty rather than take leave. Champion would therefore violate the law if it delivers and carries through on the proposed ultimatum.
Is Danica also protected by the ADA and KCRA? Probably not. Those laws protect qualified individuals with disabilities under a somewhat complicated definition we'll discuss next month. Generally, medical conditions of relatively short duration do not qualify as disabilities.
If Champion fires Danica for refusing to accept light duty, not only will it be potentially liable for a violation of the FMLA, but it will also risk liability for workers' compensation retaliation. Although Champion would argue that it was not terminating Danica because she filed and pursued a lawful claim for benefits, her discharge shortly after she began receiving benefits, particularly when the stated reason for termination is otherwise unlawful, could be construed as retaliation for her having sought workers' compensation protection.
Champion's best bet? Forget the ultimatum, and allow Danica to take all 12 weeks of leave under the FMLA.
Wendy Becker, a member in the Lexington office of Greenebaum Doll & McDonald PLLC, advises and defends employers in all types of employment-related matters. Wendy can be reached at wlb@gdm.com.
This article is provided as general information rather than legal advice. Questions about individual situations should be directed to legal counsel."