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Employment Newsletter

Disability, Serious Health Condition, and Occupational Injury in Employment

When employees become disabled, sick, or injured, there are a number of laws and programs that could potentially affect employers’ responsibilities in their treatment of those employees. The laws which could potentially apply include:

  1. The Americans with Disabilities Act (ADA);
  2. The Family and Medical Leave Act (FMLA);
  3. Workers’ Compensation laws; and/or
  4. Disability retirement.

Employers must comply with the requirements of any or all of the aforementioned laws that apply to the claim. The applicability of the aforementioned laws will depend upon the nature of the employee’s claim. Since these regulations can and often do overlap, awareness of their provisions and requirements is important for employers to manage their liabilities, especially since compliance with one set of laws does not excuse noncompliance with another. It is also important that employees understand these laws so that they may properly assess their rights under them.


The ADA is a civil rights-oriented antidiscrimination law that was enacted by Congress in 1990. One of the purposes of the ADA is to prohibit employers from discriminating against current or prospective employees on the basis of a disability. In general, the ADA applies to employers that have 15 or more employees, for each working day, for 20 work weeks and was designed to protect individuals with a “disability.” A disability is a physical or mental impairment that substantially limits one or more of an individual’s major life activities. The ADA also protects individuals that have a “record of” such an impairment or that have been “regarded as” (by their employer), as having such an impairment.


In 1993, Congress passed the FMLA as a standard to provide eligible employees with up to 12 work weeks of unpaid, job-protected leave during a 12-month period. The FMLA also requires employers to maintain the employee’s health benefits during their leave. In general, the FMLA applies to employers that have 50 or more employees, for each working day, for 20 work weeks. In “eligible” employee, under the FMLA, is one who has been with an employer for at least one year and where at least 50 employees are employed at the particular location or within a 75-mile radius.

Workers’ Compensation Laws

Workers’ Compensation is governed by individual state law and thus varies nationwide. Generally, however, these laws apply to most private employers and are intended to provide a system for employees to secure prompt and fair settlement of claims against their employers for occupational injury and illness.

Leave Rights of Employees and Overlap of the Laws

Employees may have the right take leave from their job position if they become “disabled” for ADA purposes, are “eligible” under the FMLA, or become “injured” under an applicable Workers’ Compensation statute.

FMLA Leave

The FMLA generally provides 12 weeks of unpaid leave for events such as the birth of a baby, adoption, care for an immediate family member (spouse, child or parent), or a “serious health condition” of the employee. A serious health condition is a physical or mental illness or injury requiring in-patient hospital care or continuing treatment by a healthcare provider.

Extended Leave Under the ADA

The ADA generally requires employers to make reasonable accommodations for disabled employees that can perform the essential functions of the job position. A reasonable accommodation may include additional leave that is beyond the 12 weeks proscribed under the FMLA. Thus, if a “serious health condition” under the FMLA also qualifies as a “disability” under the ADA, the leave may have to be extended.

Workers’ Compensation Leave

Workers’ Compensation laws may also provide paid leave to employees that suffer a work-related “injury.” These laws could also overlap with the FMLA since an occupational “injury” may also qualify as a “serious health condition.” In that event, the employee’s absence from work may run concurrently under both Workers’ Compensation laws and the FMLA. However, in such a case, if a physician authorizes the employee’s return to work before the FMLA’s 12 week period has expired, an employee that still claims to be unable to return to work and that remains on leave may forfeit their Workers’ Compensation benefits.

Whether one or all of these laws applies rests heavily on how each law defines key terms and requirements. For example, an employee with dyslexia might be “disabled” for purposes of ADA protection, yet not be considered as suffering from a “serious health condition” under the FMLA or an “occupational injury” under Workers’ Compensation laws. In contrast, an employee that requires minor back surgery for an injury that occurred on the job may have a Workers’ Compensation claim for an occupational injury and an FMLA claim for a serious health condition, but not a claim for a disability under the ADA.

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