© Bob E. Lype, 2003
Time Off: State and Federal Laws on Employee Leave, Vacations and Holidays in Tennessee
Prepared in connection with the seminar, "Time Off: State and Federal Laws on Employee Leave, Vacations and Holidays in Tennessee," presented by Lorman Education Services in Chattanooga, Tennessee on October 9, 2003.
Employees injured in job-related accidents, or employees developing certain occupational diseases, may be entitled to time off under Tennessee's (and all states') workers' compensation laws. Typically such employees are also entitled to receive disability payments during their time off.
Time off and leave for medical reasons arising out of work injuries and occupational diseases raise multiple legal issues. An employer facing such issues must work through a maze of rules, not only to determine the scope of time off to which an employee is entitled, but also to determine which laws may be triggered by the situation in the first place. In particular, the Tennessee employer will need to evaluate whether it has obligations to the employee under workers' compensation law, under the Family and Medical Leave Act ("FMLA"), under the Americans with Disabilities Act ("ADA"), and under the Tennessee Handicap Act ("THA").
The primary focus of these materials is the employee's right to time off or leave under Tennessee's workers' compensation statutes. Toward that end, these materials will first discuss an overview of Tennessee workers compensation law, and then the focus will shift to medical leave and time off under the workers' compensation system. To provide additional context, throughout these materials the employee's rights under workers' compensation law will be compared and contrasted to rights under the FMLA, the ADA and the THA.
I. OVERVIEW OF TENNESSEE WORKERS' COMP
In the late 1800's, the industrial revolution was at full steam, so to speak. Factories, mines and steel mills were dangerous places to work. If an employee was injured at work, and if as a result he could no longer do his job, he was subject to being discarded with no compensation, and if his injury was severe, he might never again be able to work gainfully. He could sue his employer in tort to recover for his losses and injuries, but that would require establishing some sort of "fault" on the part of the employer. Moreover, traditional tort rules and defenses, such as the contributory negligence doctrine, assumption of the risk and the "fellow servant" doctrine, made it very difficult for an employee to recover. On the other hand, if the employee were to recover, there was no limitation or cap on his recovery.
Many workers and their families suddenly lost their livelihoods through industrial accidents and injuries. In the late 1800's and early 1900's, some progressive lawmakers began to consider "social legislation" to combat and to address these problems. The result was the development of workers' compensation law, which is generally similar in all states, although each state has its own nuances and quirks. Tennessee's Workers' Compensation Act was enacted in 1919.
A. Policies and Purposes. The policies and purposes behind workers' compensation law essentially involve certain trade-offs and compromises. In particular, if an injury or illness triggers the application of workers' compensation statutes:
|EMPLOYEE GETS:||EMPLOYEE GETS:|
|EMPLOYEE GIVES UP||EMPLOYER GIVES UP|
Compare: Workers' compensation, therefore, is not an anti-discrimination law (like the ADA and THA), nor is it designed to govern and regulate workplace conditions or promote certain employment policies and terms (like the FMLA, or minimum wage and overtime law). Instead, as the name says, it is "compensation" law, with rules and limits on compensating injured or sick workers. The purposes behind workers' camp laws, the ADA, and the FMLA are different.
B. Covered Employers and Employees. Not all Tennessee employees and employers are covered by the state's workers' compensation statutes. For example, an employer must have at least five (5) employees in order to be covered by the statutes, unless the employer voluntarily elects to opt in for coverage (which many small employers do, because of the "protections" afforded by the Act's "exclusive remedy" rule). All employees of a covered employer working under a "contract of hire" are protected. However, workers' compensation law does not protect job applicants, nor "casual" or gratuitous workers.
Compare: The ADA only applies to employers who employ at least fifteen (15) employees on each workday in at least twenty weeks in the previous year, and it applies not only to employees, but also applicants. However, it only applies to employees and applicants who are "qualified Individuals with a disability," which is a specific term with particular rules.
On the other hand, the FMLA only applies to employers who employ at least fifty (50) employees each day during at least twenty weeks in the previous year. There has been some movement toward reducing this threshold to twenty-five employees, but presently the is number is fifty. In addition, not just any employee of a covered employer is entitled to the benefits of the FMLA – only "eligible employees" are entitled to FMLA benefits. To be eligible, the employee must have worked at least twelve (12) months for the employer, and he or she must have worked at least 1,250 hours In the preceding twelve months, which would equate to roughly 104 hours a month, or 24 hours a week. Therefore, some part time employees are covered and some are not. Finally, when it comes to employees who need leave or time off for medical reasons, it is only when the employee or someone in his or her immediate family has a "serious health condition" that the EMLA is triggered. Just as a "qualified individual with a disability" is a unique and specific term under the ADA, a "serious health condition" is also a unique and specific term under the FMLA.
C. Compensable Injuries. In order for an injury to be compensable under Tennessee's workers' compensation statutes, it must be "an injury by accident arising out of and in the course of employment." These requirements generally focus on the time and place of the accident, as well as the activity of the employee.
The requirement that an injury "arise out of" employment means that there must be a causal connection between the working conditions and the resulting injury. The requirement that an injury be sustained "in the course of' employment means that it must have occurred while the employee was engaged in some activity bearing a relation to his or her employment duties. Typically this also requires that the injury occur while the employee is "on the clock," although this is not always the case.
While these principles seem straightforward, applying them in any given fact pattern can be difficult. There seems to be no end to the imaginative ways employees get hurt, and the unique facts of each case will determine whether an injury is compensable. Examples of some of the more frequent scenarios are detailed below:
Going to and from work. Typically, a parking lot owned by an employer is considered part of the employer's premises, and if an employee slips in a parking lot on his way to or from work, even if he is "off the clock" at the time, generally the resulting injuries will be covered. Even if the employer does not own the parking lot, if the employer's parking arrangements require the employee to use the lot, or if the employer "furnishes" the parking arrangements, an injury probably will be compensable.
However, if an employee is injured in an automobile accident while driving to or from work, those injuries will not typically be covered.
What if an employee slips in the employer's locker room before clocking in? How could she claim to have been injured "in the course and scope of" employment? If the employer provided the locker room and allowed employees to gather before or after work, most likely the injury will be compensable.
Traveling employees. In the case of the traveling employee who is injured, the focus will be on whether the employee was "on the employer's business" when he was hurt. If an automobile accident occurs while the employee is engaged in the employer's business, then it will be compensable. But what if the employee had deviated from the employer's business to perform a personal errand? As long as it was a purely personal errand, and not an errand with mixed business and personal purposes, then it probably will not be compensable.
Horseplay and recreational activities. If an employee is injured as the result of a co-worker's prank or horseplay, and if the injured employee was an innocent victim, then the injury probably will be compensable. On the other hand, if the injured employee was involved in the prank or horseplay, a court will inquire into how far the injured employee deviated from her employment duties, and whether the employer had given a specific warning against such activities. An employee who falls while "showing off' riding a loaded push-can probably will be covered; but an employee who is hurt after setting up a "dunking contest" with stacked boxes probably will not be covered.
What about the employee who is injured at the company picnic? Or playing on the company softball team? In these and similar situations, whether the injury is covered by workers' compensation will depend upon whether it happened during activities which occurred regularly; whether the employer expressly or impliedly required the employee's participation; and whether the employer derived some benefit from the employee's participation in the activity. All of these are very fact-specific questions.
Other examples. As is clear from the foregoing, and as stated earlier, there seems to be no limit to the creative ways employees will get hurt. Employees may be hurt when their lunch "explodes" in the microwave oven in the break room. They may be hurt when driving to the convenience store on a break. They may be stuck by lightning during a thunderstorm. They may be hurt when a roof collapses. They may be injured in an assault by a stranger, or even by a co-worker.
It is beyond the scope of these materials to discuss the legal consequences of each of these types of work injuries. As the examples outlined above are intended to show, each case is somewhat unique, and before an injury will be deemed covered by workers' compensation law, it must somehow be said to have arisen "in the course and scope of" employment.
D. Occupational Diseases. Like injuries, occupational diseases which "arise out of and in the course of" employment are generally compensable. Most often an injury will be attributable to a specific occurrence or activity, except that repetitive stress injuries such as carpal tunnel syndrome occur over time. On the other hand, an occupational disease typically develops slowly and is considered progressive in nature, and determining when an occupational disease begins is often uncertain and difficult. The key consideration in an occupational disease case is whether the employee contracted the disease in the work environment. If so, then it generally will be covered by workers' compensation.
Since occupational diseases typically develop over time, sometimes an employee will have been exposed to conditions causing the disease while working for multiple employers. The "last injurious exposure" rule provides that the employer on the date the employee was last exposed to the hazards of the disease will be solely liable, and that employer cannot look to previous employers to contribute toward the workers' compensation or disability benefits.
The law imposes a burden on the employee to give the employer written notice that he has contracted the occupational disease within thirty (30) days after the medical problem first distinctly manifests itself. Typically this means that a doctor has diagnosed the disease and attributed it to the work environment. This allows the employer to investigate the disease, as well as to act to prevent it from worsening.
E. General Outline of Benefits. If an employee sustains an injury or occupational disease compensable under workers' compensation, he or she generally will be entitled to the following benefits:
(1) Medical Benefits. The employee will be entitled to receive medical treatment, as well as medicine, medical supplies, crutches, prosthetics, dental services, nursing services, and similar medical benefits, all provided at the employer's expense. The fees and charges are paid by the employer (or its insurer) directly to the medical provider. These medical benefits must be provided regardless of whether the employee's problems will result in any permanent disability. The employer must provide a "panel" or list of at least three choices for initial medical treatment (more in some situations). If an authorized doctor refers the employee to a specialist, as a general rule, the treatment by the specialist will also be covered. In addition, the employer is required to provide such medical care shown to be related to the work injury or disease for the employee's lifetime.
(2) Temporary Disability Benefits. If the employee is held off work by the treating doctor on account of the injury or disease, or if she is only permitted to work part-time while recuperating, then the employer (or its insurer) must pay the employee temporary disability benefits. The purpose of these benefits is to make up for part of the employee's lost income while she is recuperating. However, to prevent disability benefits from becoming an attractive excuse for workers to feign medical problems, the benefits are limited, and they are not intended to fully reimburse lost pay.
If the employee is held off work altogether for at least a week, she will be entitled to receive "temporary total disability" benefits, in the amount of two-thirds of her average weekly wage during the period before she was hurt. If the employee is permitted to work part-time, then she is entitled to "temporary partial disability" benefits, in the amount of two-thirds of the difference between what she was earning before the injury and the amount she is earning in her part-time return to work.
(3) Compensation for Lost Earning Capacity or "Vocational Disability". Finally, if the employee's injury or occupational disease will result in some permanent effects, and particularly a recognized "permanent impairment" capable of being measured and evaluated by a physician, then workers' compensation law deems that he should be compensated for his future lost earning capacity and lost ability to advance in his present job, or to obtain other jobs. This is typically the area of greatest dispute between employers and employees, and it is the subject of the most litigation.
Some injuries have apparent permanent effects, such as the loss of a hand, or the loss of an eye. Tennessee's workers' compensation statutes contain a "schedule" of such injuries and a number of weeks of compensation benefits (i.e., a figure equal to two-thirds of the employee's average weekly wage before the injury) to which the employee is entitled. For example, the statutes provide that the loss of one eye is "scheduled" for compensation at 100 weeks, while loss of a hand is scheduled at 150 weeks. However, frequently the "scheduled member" will not be lost altogether, but rather damaged. A doctor may give an opinion that the employee has suffered an anatomical impairment of 20% to the left hand, 40% to the right arm, etc.
Besides scheduled member injuries, some compensable injuries and diseases result in an impairment "to the body as a whole." This is typical when an employee has a back injury, such as a herniated disc. In those cases, the doctor may give an opinion that the employee has an impairment of 10% to the "body as a whole" or the "whole person." The workers' compensation statutes provide that in such cases, benefits typically are to be calculated up to a maximum of 400 weeks at the compensation rate.
Of course, sometimes an injury will render an employee permanently and totally disabled. In those cases, depending upon the employee's age, he may be entitled to receive benefits at his compensation rate until he reaches the age of sixty-five (65).
Bear in mind, however, just what the workers' compensation statutes are attempting to compensate in cases involving some permanent disability. The key concept is that the employee is to be compensated for a "vocational disability," or loss of future income earning capacity. Whereas before the injury the employee might have been eligible and capable of working in dozens of other jobs, after the injury and taking into account any permanent medical restrictions imposed by the doctor, the employee's vocational outlook maybe severely restricted. Obviously this would be very difficult to actually measure, but workers' compensation law attempts to provide some measurement so as to allow some degree of compensation for the lost earning capacity.
While it might seem that determining that compensation would be as simple as applying a percentage to a number of weeks, things are not quite so simple. This is because the doctor's "medical impairment rating" is not the same as a "vocational disability rating" – those are two different measurements. Thus, while an employee may have a 10% body as a whole impairment rating, that does not mean that he is entitled to 10% of 400 weeks of compensation. Instead, he may be entitled to as much as 40% or 50%, or under some circumstances even 60%, of 400 weeks of compensation. Likewise, if an employee suffers a 25% impairment to his hand, he is not entitled to 25% of 150 weeks or compensation, but more likely will be entitled to somewhere between 100 and 150 weeks of compensation.
How, you ask, are these calculations made? That is a subject well beyond the scope of these seminar materials. Remember that the judge is converting a medical "impairment rating" into a legal "vocational disability," so typically he or she will increase the impairment rating by some multiple (e.g., double, triple, or even quadruple) in arriving at an estimation of vocational disability. The law looks at multiple factors and, in the end, it makes a best estimation based upon the facts of a given case. Once again, this is one of the biggest reasons for disagreement and litigation in resolving workers' compensation cases.
F. Compare: Workers Compensation Medical Issues and Terminology with Medical Issues and Terminology Under the ADA and FMLA.
As noted above, workers' compensation law speaks in terms of a "vocational disability" derived from an "anatomical impairment." That "impairment" is a somewhat artificial measure of how much an injury causes a deviation from normal in the employee's body parts or organ systems, according to the American Medical Association's Guides to the Evaluation c/Permanent Impairment. Once the injured employee has reached optimal repair, such that the deviation has become static and unlikely to change (frequently called a condition of "maximum medical improvement"), a doctor can express the impairment in terms of percentages.
Under the ADA and the FMLA, there is no mention of "anatomical impairment." Instead, the ADA is triggered when a covered employee or applicant is a "qualified individual with a disability," and the FMLA is triggered when the covered employee or a member of his family has a "serious health condition." However, the terms "anatomical impairment," "disability," and "serious health condition" are not synonymous.
Under the ADA, a "disability" refers to a physical or mental impairment which substantially limits a "major like activity" (e.g., walking, talking, hearing, seeing, reading, and in some situations working). The ADA does not typically apply to temporary impairments, since they do not "substantially limit" major life activities. To be a "qualified individual" with a disability, the employee or applicant must be able to perform the essential functions of the job, with or without a reasonable accommodation, in spite of the disability.
Under the FMLA, on the other hand, a "serious health condition" requires either inpatient care (an overnight stay) at a health care facility, or follow-up treatment after an overnight stay, or "continuing treatment" by a healthcare provider which includes (i) at least three days of incapacity with at least two treatments by a healthcare provider, or (ii) at least three days of incapacity with one treatment by a healthcare provider and a "regimen" of continuing treatment involving prescription medicines, therapy, etc. (something more that bed-rest and over-the-counter medications), or (iii) incapacity due to pregnancy, or (iv) incapacity due to a chronic serious health condition or to receive treatment for a long-term condition. Whew. No wonder the FMLA is sometimes difficult to comprehend.
Therefore, any time an employee has medical issues, an employer large enough to be covered by all three of these laws must consider whether any one, any two, or all three of them are triggered.
For example, if an employee is out of work for a week due to a severe case of flu, for which she has seen the doctor, workers' compensation is not triggered, because there is no work-related injury or occupational disease; the ADA is not triggered, because there is no "disability," as defined by the statute; but the EMLA is triggered, because this would qualify as a "serious health condition."
In another example, in an employee closes his thumb in a door at work, which dislocates the thumb and requires that he be off work three weeks, workers' compensation is triggered, since the employee needs medical treatment and will be entitled to temporary total disability benefits, and possibly permanent partial disability benefits based upon the injury to a "scheduled member"; the FMLA probably is triggered, since the injury would qualify as a serious health condition; but the ADA probably is not triggered, since the injury probably will not substantially affect a major life activity. Note: even if a doctor assigns a "permanent impairment rating" to the thumb, that does not equate to a "disability" for ADA purposes.
One more example: if a long-term employee develops throat cancer, but not from work-related causes, workers' compensation is not triggered; the EMLA probably will be triggered, since the employee will likely need time off for treatment; and the ADA probably will be triggered, since the employee will probably need some accommodations, whether in terms of scheduling or otherwise, and since the condition would qualify as a "disability."
II. TIME OFF AS A WORKERS' COMPENSATION BENEFIT.
As discussed above, so long as an employee's injury or occupational disease is covered by workers' compensation, if the doctor requires the employee to be off work, whether totally or partially, Tennessee's workers' compensation statutes mandate that the employee be permitted to take the time off under the doctor's advice. Moreover, this will be paid time off, and the employee will be paid a percentage of what he or she had been earning before the injury (the "compensation rate," discussed above).
A. Can the Employer Require the Employee to Come to Work Anyway? What happens of an employer simply says to an injured worker that, despite what the doctor says, the employer expects the employee to show up for work anyway? Is this ever permissible?
Generally, no, not if the doctor has advised the employee to take off from work. If the doctor has prescribed time off from work, and if the employer "punishes" the employee for taking that time off (e.g., logging "unexcused" absences), then the court will not be happy, and at the employee's request a judge will almost certainly enter an order prohibiting the employer from this practice. Tenn. Code Ann, § 50-6-114 provides: "No contract or agreement written or implied, or rule, regulation or other device, shall in any manner operate to relieve an employer in whole or in part of any obligation created by this chapter except as provided herein." Therefore, the employer may not have any internal rule or policy denying the employee's right to take time off under medical leave (except as noted below).
If the employer were to be so bold as to terminate the employment, then it would face potential liability for "retaliatory discharge." In Tennessee, there is a strong public policy in favor of providing for injured employees, and it is unlawful for an employer to terminate employment when the filing or making of a workers' compensation claim is a "substantial motivating factor" in the termination decision. Generally, if the fact that an employee is on workers' compensation leave is a substantial factor in a decision to terminate his employment, the employer will be held liable for a "wrongful termination" in "retaliation" against the employee for making the workers' compensation claim, or for taking advantage of the benefits provided under workers' compensation law. Even when the employee is an "at will' employee subject to being discharged at any time, with or without notice, and for "good cause, bad cause, or no cause at all," the law will still prohibit the employer from "retaliating against" the employee for asserting his workers' compensation rights. The employer may be held liable for the employee's lost wages, it may be required to reinstate the employee or pay him "front pay," it may be liable for the humiliation it has caused, and in some cases it may be liable for punitive damages.
However, as you know, there are exceptions to almost every rule. The Tennessee Supreme Court has held that if an employer has a neutral leave of absence policy, which it applies uniformly and impartially, then the employer may enforce that policy and terminate the injured worker's employment under it without being held liable for retaliatory discharge. See Anderson v. Standard Register Company 857 SW. 2d 555 (Tenn. 1993); Johnson v. St. Francis Hospital, 759 SW. 2d 925 (Tenn. App. 1988). Before the employer gets too excited about this proposition, however, it should consider the limited situation in which it applies. If the employer has an across the board policy that any employee unavailable for work for X weeks or X months, for whatever reason, is terminated, then it can apply that policy. But how many employers do have, or even want, such a policy? Most employers with this type of policy will set the number of weeks or months at some high level, such as six months or one year, because they do not want to terminate key employees who might be involved in unfortunate situations. If an injured employee on workers' compensation leave is still not back at work after six months or a year, then he or she apparently has sustained a serious injury. But most importantly, if an employer adopts such a policy, then it must be committed to implementing it, regardless of the situation. The employer must not make exceptions, because the exceptions will certainly lead to arguments later on that an injured worker was treated differently, and therefore the real reason behind his termination was not the absence policy, but because he had made an expensive workers' compensation claim. Still, a neutral leave of absence policy is a recognized exception to a claim for retaliatory discharge.
B. Return to Work and Light Duty. Along the same line, sometimes an employer will face a situation where the doctor will permit the injured employee to return to work on a limited basis, with restrictions on the employee's physical activities (e.g., no lifting more than 15 pounds, no prolonged standing, working half-days, etc.). What are the employers' obligations in those cases?
First, the employer must weigh two competing concerns: (1) as an incentive to the employer, if the injured employee is allowed to return to work on a restricted basis, the employee will no longer be entitled to temporary total disability (TTD) benefits; at most, the employee may receive temporary partial disability (TPD) benefits, if she can only work part-time; and (2) the employer must evaluate whether there is any value or worth to the employer (apart from the desire to cut off TTD benefits) in having the employee return to work in a restricted role. This may depend on the employer's size and the employee's job. In many cases the employee will be able to do something beneficial to the employer which will justify her return to work, but this is not always the case. In short, does the employer want the employee back at work, under the circumstances?
Once again depending upon the employer's size and workforce needs, it may or may not have "light duty" positions and work available. The employer is not obligated under workers' compensation law to have a light duty position, nor to create a special position to fit the injured employee's work restrictions. See Leatherwood v. United Parcel Service, 708 SW. 2d 396 (Tenn. App. 1985). However, if it has a policy of providing such light duty work, or if it has routinely done so in similar situations in the past, any failure to do so could result in a claim of discriminatory under the ADA or THA, or a claim of retaliatory treatment by the employee.
The same is true if the doctor releases the employee to return to work full time, but with permanent physical restrictions on account of the work injury. Generally, the employer is not under a duty to create a new position, such as a light duty position, to accommodate the employee's needs. If the employee cannot perform the essential physical requirements of the position, and if no alternative position is available, then the employer may decline to reinstate him or may terminate his employment, and the employer should not face liability for retaliatory discharge or discrimination (unless some reasonable accommodation could have been made to permit those essential requirements to be performed).
Just as there is an incentive for an employer to permit the employee to return to work, so as to cut off TTD benefits, there is an incentive for the employer to permit an employee with permanent physical restrictions to return to work, so as to limit any permanent partial disability award. If the employee has an injury to the body as a whole, rather than a scheduled member, and if the employee can make a "meaningful" return to work after reaching maximum medical improvement, then his permanent partial disability award is subject to a "cap" or limit of two and one-half times his impairment rating. If he cannot make a meaningful return to work, then the award may be as high as five, or in some cases six, times the impairment rating. For example, suppose the employee has a 10% permanent impairment to the body as a whole. If he can make a meaningful return to work, his permanent partial disability award is "capped" at no more than 2.5, times 10% (which would be 25% of 400 weeks, or a total of 100 weeks of compensation). If he cannot make a meaningful return to work, however, he may be awarded up to 5 times, or possibly even 6 times, the 10% impairment rating (which would be either 50% or 60% of 400 weeks, or a total of 200-240 weeks of compensation). If the weekly compensation rate is $300, then the difference could be as much as $30-42,000. Once again, there is an incentive for the employer to permit the employee to return to work.
There is an entire body of cases discussing what constitutes a "meaningful return to work," and that subject is beyond the scope of this seminar article, which generally pertains to "time off and "leave" requirements.
C. Some Medical Issues During Workers' Compensation Leave. On a related note, the employer should be aware of certain medical treatment issues which may arise while the employee is on workers' compensation disability "leave."
If an injured employee refuses any reasonable request to submit to examination by the employer's doctor, or to accept the required medical services offered by the employer, then the injured employee may be denied disability benefits during the period of refusal. Tenn. Code Ann. § 50-6-204(d)(7). The employee may insist that her own physician be in attendance at any examination, but the employee must pay her own physician's charges.
On the other hand, an injured employee is not required to accept all medical treatment offered by the employer. For example, if the employer believes that a particular surgical procedure would allow the employee to recover, but if the employee does not want to undergo the procedure, then the court will determine whether the employee's refusal was "reasonable," under the circumstances. If so, then the employee will be permitted to continue receiving benefits. If not, she may be refused benefits.
D. Compare: Certain Requirements of the ADA and FMLA. Finally, as noted previously, the potential interplay between the employer's various obligations under workers' compensation law, the ADA, and the FMLA can create a great source of headaches. It is not possible to outline and cross-reference all of the potentially conflicting obligations and considerations in this article, but certain of them do merit some discussion.
Pre-employment inquiries. From a workers' compensation perspective, it would be useful for an employer to know something about a job applicant's workers' compensation record and physical condition, to allow the employer to limit its risk and exposure to further workers' compensation claims. However, under the ADA an employer may not ask such questions of a job applicant unless the employer has made a conditional offer of employment, and even then, these questions can be asked only if all applicants in the same job classification are asked. In other words, it cannot be an individualized inquiry. Under the ADA, generally pre-offer questions are limited to whether the employee can perform the essential job functions.
Return to work on light duty. This topic is discussed from a workers' compensation perspective above. However, there are additional considerations. Under the ADA, there is no need to create a different job for a returning employee, although if a different job is available the employee must be considered for it. As noted above, if the employee does return to work, his entitlement to workers' compensation TTD benefits ends. However, the FMLA entitles an eligible employee to take up to twelve weeks of leave, If the employer has a light-duty position available within the employee's medical restrictions, can the employer require the employee to return to work? Not if the employee chooses to take FMLA leave and stay off work. However, the FMLA leave can be unpaid leave, and the employee may still lose his right to TTD benefits. The employer must simply hold the job open for the employees' return after FMLA leave is exhausted.
Scheduling and reassignment. Under workers' compensation law, the injured employee's doctor may permit the employee to return to work on a part-time basis while recuperating, in which case the employee will receive TPD (temporary partial disability) payments, rather than TTD (temporary total disability) payments. Workers' compensation law does not penalize the employer for reassigning the employee to a totally different job, simply to get him back to work. If the same employee is also covered by the FMLA, that law specifically permits the employer to reassign an employee who is taking intermittent leave or under a reduced leave schedule, so long as the move is to an alternate position with equivalent pay or benefits. However, if the same employee is also subject to the ADA, that law only permits the employer to reassign the disabled employee to a vacant, equivalent position if the employee can no longer perform the essential functions of his job, with or without a reasonable accommodation.
"Leave" and "time off for injured employees or employees with occupational diseases is mandated under Tennessee workers' compensation law, so long as an authorized physician advises the employee to take time off to recuperate. Multiple issues may arise regarding the circumstances surrounding a return to work, compensation while the employee is off work, reassignment, application of attendance policies, and other issues. However, the more problematic legal issues frequently involve the interplay between workers' compensation requirements and the requirements of other applicable laws, namely the ADA and FMLA.
The employer should learn and stay familiar with the basic requirements of all of the various laws to which it is subject. and then evaluate each case on its own merits. Although we can speak in terms of general rules and give generalized examples, each employee's case is unique and merits careful consideration.