The intersection between workers’ compensation law and“traditional” employment statutes presents a new minefield foremployers and attorneys to navigate.

In recent years, as the number of workers’ compensation cases inPennsylvania and beyond has trended downward, the number ofemployment lawsuits arising out of workers’ compensation claims hasincreased. Most frequently, plaintiffs’ attorneys have parlayedworkers’ compensation claims into alleged violations of theFamily andMedical Leave Act (FMLA) and the Americans with Disabilities Act (as amended)(ADAAA).

There are several reasons for this shift. Initially, the valueof workers’ compensation claims has decreased because of recentchanges in the way the courts interpret the Workers’ CompensationAct. Additionally, the number of workers’ compensation petitionsfiled with the Pennsylvania Bureau of Workers Compensation Officeof Adjudication has significantly decreased, from a high of67,429 in 1994 and 1995, to 43,723 for the most recent fiscal year.Due to these factors, and the stiff competition in the workers’compensation arena, plaintiffs’ attorneys have become more­sophisticated in employment laws and are scrutinizing theemployers’ actions during the pendency of the claim.

Traditionally, under Shick v. Shirey Lumber [716 A.2d1231 (Pa. 1998)], state courts recognize wrongful discharge andretaliation cases arising out of an employee’s “protected activity”of filing a worker’s compensation claim. Although Shickstill is frequently cited by plaintiffs’ attorneys, there has beena shift toward asserting retaliation and discrimination claimsunder additional statutes, such as the FMLA and the ADAAA.

Coordination with workers’ comp claims

Many employers are unaware of the procedural requirements for thesestatutes, however, which poses a significant risk for protractedlitigation. The unfamiliarity with these requirements becomes quiteproblematic when workers’ compensation cases are handled by anoutside claims handler, who may or may not coordinate the handlingof the claim with the employer. Further, the task of administeringworkers’ compensation within a company may sit in variouslocations, such as the finance department, safety department, riskmanagement, legal department or human resources.

Because of this lack of integration, an employer may focus on anemployee’s claim solely as a workers’ compensation case and ignorethe potential implications on the employment side, resulting inviolations of the FMLA or ADAAA. For example, a claims adjuster maycontrol the employee’s return to work or job offer withoutrecognizing the implications of the FMLA or ADAAA.

Often, actions of an employer that are permitted under workers’compensation law are not permitted under the FMLA and ADAAA. Thegood news is that employers can protect themselves from liabilityby using some relatively simple strategies.

Related: Top 3 issues in workers’ compensation litigationmanagement

Common workers’ comp allegations

There are several claims that plaintiffs’ attorneys commonly allegein the context of workers’ compensation leave. First, plaintiffs’attorneys often assert that their clients were not notified oftheir FMLA rights. The FMLA requires that employers provideemployees with certain notices about their potential FMLArights.

I often hear from defendant-employers that “the employee didn’task for FMLA, so we didn’t send anything out.” As a best practice,in every instance in which an employee has a lost-time claim, theemployer should send out a notice of FMLA rights, followed by aneligibility notice, even if the injured worker may not qualify forFMLA leave. Forms from the U.S. Department of Labor (DOL) can befound at the DOL website.

Second, plaintiffs’ attorneys often raise retaliation claimsunder the FMLA, alleging that the employer failed to return theinjured plaintiff, who was out on both workers’ compensationand FMLA leave, to the worker’s prior position. The FMLAprovides that eligible employees receive up to 12 weeks of unpaid,job-protected leave within a 12-month period. To avoid an FMLAretaliation claim, employers must preserve the employee’s positionand also must maintain the employee’s health care benefits duringthe FMLA leave period.

In the workers’ compensation world, employers commonly issue joboffer letters to employees who are ready to return to work, whichare based on an independent medical exam (IME) doctor’s opinion ofwhat tasks the employee can physically perform. Frequently,employees challenge these letters because they disagree with theIME doctor’s conclusions.

While the refusal to return to work might be a basis for asuspension of workers’ compensation benefits, such a refusal is notautomatically a basis for termination of employment. If an employeerefuses to return to work, and FMLA leave has not been exhausted,that employee’s job must be protected for 12 weeks.

Related: Establishing a quality IME process for yourworkers’ comp claims

To make things more complicated, plaintiffs’ attorneys also usethe ADAAA as a basis for discrimination and retaliation claims whenan injured employee is terminated after FMLA leave expires. Forexample, often an employee runs out of FMLA leave and is terminatedunder the employer’s attendance policy. Once FMLA leave isexhausted, however, it’s not an automatic green light fortermination because it’s significantly likely that the ADAAA alsomay be implicated.

What accommodation is ‘reasonable’?

The ADAAA requires employers to make reasonable accommodations foremployees with disabilities. One form of reasonable accommodationmay be an extension of an employee’s FMLA leave. Therefore, if anemployee asks for additional leave beyond that which the FMLArequires, the employer must engage in an “interactive process” todetermine whether additional leave would enable the individual toperform the essential job functions “within a reasonable amount oftime.” Although indefinite leave is not a reasonable accommodationunder ADAAA, there is no hard and fast rule as to what constitutesa “reasonable amount of time.”

The best way for employers to protect themselves from theseclaims is to closely monitor an employee’s FMLA leave. This taskcan be particularly challenging because FMLA leave may be taken inincrements (often as small as one hour), referred to as“intermittent leave.” Crucially, if an employee who is out onworkers’ compensation and FMLA leave asks for additional leavebeyond that which is required under the FMLA, an employer must havea conversation with the employee to determine whether additionalleave is a reasonable accommodation under the ADAAA. In such ascenario, it is appropriate for the employer to request medicaldocumentation of the employee’s restrictions and ask the employeeto estimate the amount of additional leave required.

In the situation in which an employee is given a job offerletter and refuses to return to work in the position offered, theemployer should still engage in an interactive process with theemployee. Again, this may include asking for medical documentation,as well as requesting that the employee identify accommodationsthat would allow the injured worker to perform the essentialfunctions of the pre-injury position.

Fortunately for employers, the ADAAA’s interactive process is atwo-way street. Therefore, if the employee refuses to cooperate ordoes not engage in the interactive process, at that point, theemployer can consider termination. An employer does not have tokeep the position open indefinitely while the employee is out onworkers’ compensation because, as previously noted, indefiniteleave is not a “reasonable accommodation” under the ADAAA.

Related: Robots don’t need workers’ compcoverage

Factor in unemployment claims

Finally, employers and lawyers should be cognizant of issues thatmay arise in connection with unemployment claims. I’ve seenclaimants’ lawyers use both unemployment and workers’ compensationhearings to gather information, evidence and witness testimony,which they in turn use to build their FMLA or ADAAA case (beforethe actual complaint is filed). This is particularly concerning inthe context of unemployment hearings, because often the employer isunrepresented and doesn’t recognize that a potential claim is onthe horizon, yet presents testimony under oath.

If the employer is fully focused on the unemployment case andnot on the risk of a potential lawsuit, a plaintiff’s attorney canput together a case on the record under oath before the defenseattorney even enters the picture. Within the workers’ compensationarena, lawyers defending employers in litigated cases are usuallysophisticated enough to spot issues that may arise. It is prior tolitigation that employer missteps usually occur.

There must be more communication and coordination amongdepartments within employers and with the insurance companies whendealing with injured workers. Due to the nature of workers’compensation insurance, employment practices and workers’compensation are separate policies and are contained in silos.Therefore, employers have to make a concerted effort to make sureall aspects of employment laws are being considered, and not walkinto this minefield without adequate protection.

Related: 6 ways to improve return-to-work incentives and cutworkers’ comp costs

Lauri A. Kavulich is a member in Clark Hill’s labor& employment practice group where she serves as both alitigator and consultant to clients of the firm in the areas oflabor and employment law, Section 1983 civil rights litigation, andworkers’ compensation. Based in the Philadelphia, Pa., office, shehandles employment practice litigation in state and federaladministrative proceedings and courts for governmental entities andlarge and small employers. She can be reached at [email protected].

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