When a workers’ compensation claim is denied, what’s next? For employers, here’s what to consider before deciding how to proceed:
When the Employee Is Unable to Return to Work
If your employee cannot return to work, one of the first considerations should be whether they are eligible for protected leave. Your employee may qualify for protected leave under the following laws:
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Family and Medical Leave Act (FMLA): If you are an FMLA-covered employer and the employee is eligible, remember to designate that leave under FMLA. If the employee is not eligible, either because you are not an FMLA employer or they don’t meet the eligibility requirements (such as not working for you for 12 months), they may still receive protection from other laws.
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Colorado’s Family and Medical Leave Insurance Program (FAMLI): Employees with an open workers’ comp claim are typically not eligible for state-provided paid leave benefits. However, when an injured worker is not receiving workers’ comp benefits, they may be eligible for state-provided paid leave. FAMLI could provide the employee with paid leave benefits if they have earned $2,500 in the past year from a Colorado employer and reinstatement rights to their job if they have been employed with the employer for 180 days.
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Americans with Disabilities Act (ADA): While not all workplace injuries will qualify as a disability under the ADA, this is still something to keep in mind. Unpaid leave for a period of six months has been found to be a reasonable accommodation. Hwang v. Kansas State Univ., 753 F.3d 1159, 1161(10th Cir. 2014). If the employee has requested additional leave after exhausting leave taken under FMLA, FAMLI, or other state-provided leave, the ADA can provide that injured worker with an additional six months of protected leave in certain circumstances. Another consideration to be aware of is when the employee does not meet the eligibility requirements of FMLA or FAMLI because they have not been employed long enough. The ADA can still provide protected leave in the form of an accommodation when the employee’s workplace injury meets the definition of a disability.
When the Employee Is Back at Work
Sometimes, an employee may be able to return to work but on modified or light duty. This is a way for an employer to help reduce a workers’ compensation claim and provide the employee with work. There are instances where the employee may have initially been placed on light duty while your workers’ compensation insurance was determining coverage. Often, employees will take that modified duty to ensure that they keep receiving temporary disability benefits. However, if workers’ compensation is no longer available to that employee, here are some obligations to be aware of:
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FAMLI/FMLA: If the workers’ compensation claim is denied, there is no longer an obligation to accept a modified duty job offer to receive temporary disability benefits. Nor is there an obligation for the employer to offer modified duty unless the injury is covered as a disability under the ADA. Because of that, employees may request to use protected leave under FMLA or FAMLI, either continuously or intermittently, to heal from their injury. Employers should check to see if the employee would be eligible for leave under FMLA and/or FAMLI and provide notice of their eligibility.
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One issue occurs if a disability is created by a workplace injury. This obligates the employer to provide a reasonable accommodation for the employee that does not cause an undue burden. (Such as allowing the employee back to their original position or, if that is not possible, continuing with modified duty.)
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Another issue is where the employee may return to work in their original position. A common pitfall is when an employer is scared to have their employee back at their original job for fear of the employee re-injuring themself. If the employer requires the worker to remain on light duty without the request for an accommodation by the employee, this could create a “regard as” claim for the employee under the ADA. However, when the employer has objective information to indicate that the employee is not able to complete the essential functions of their job or poses a direct threat, then the employer may have the opportunity to do a fitness-for-duty exam. Employers must be careful not to assume that an injury will prevent the employee from returning to their job. If the employee is able to return to their essential functions, then the employer may not refuse to allow the employee to return to their job.
Employers Council has resources to help you navigate workers’ compensation issues, including the following:
As always, Employers Council’s attorneys and HR consultants are here to help. Contact us for assistance or more information.