Workers’ Comp and FMLA, ADA, and HIPAA

Workers’ compensation laws are state statues. But there can still be interplay between
workers’ comp and federal employment laws like FMLA, ADA, and HIPAA.

Workers’ Comp and FMLA:

Federal Family and Medical Leave Act (FMLA) regulations provide that leave taken
pursuant to a workers’ comp claim would be considered FMLA leave for a serious health
condition and counted in the leave entitlement permitted under the FMLA, as long as the
situation otherwise meets the criteria for FMLA leave.

In such cases, you may designate the leave as FMLA leave and count the leave against the
employee’s FMLA leave entitlement, with the workers’ compensation absence and the
FMLA leave running concurrently.

What’s the effect of workers’ comp and FMLA running concurrently?

FMLA leave is normally unpaid, but under these circumstances, wage replacement will be paid by
workers’ compensation. It also means that a person who is out on workers’ compensation
leave and FMLA leave concurrently may not be fired for absence, even if the person is out
of work well beyond the employer’s cutoff absence day.
If you decide to designate leave for a work-related injury covered by workers’ comp as
FMLA leave as well, you should notify the employee, in writing, and tell the worker that
he or she is entitled to FMLA rights as well as being responsible for its obligations.

NOTE: You may not declare workers’ compensation leave as FMLA leave retroactively if
you knew or should have known that the leave qualified as FMLA leave.
The employee who is out on FMLA leave is not required to take an alternate or modified
duty job. However, an employee who refuses a job he or she is capable of doing is likely to
lose workers’ compensation benefits. Many states also have medical leave laws that may
differ in some respects from federal FMLA, so you should review your state leave law as
well.

Workers’ Comp and ADA:

In most cases, the definition of disability under state workers’ compensation laws differs
from that under the federal ADA, because the state laws serve a different purpose. An
ADA disability is any impairment, work-related or not, that “substantially limits one or more major life activities of a person or the person has a record of such impairment or is
regarded as having such impairment.” Workers’ compensation laws are designed to
provide needed assistance to workers who suffer work-related injuries, whereas the ADA’s
purpose is to protect disabled people from discrimination.

Many workers’ compensation injuries are not “disabling” under the ADA because they do
not substantially limit a worker’s ability to perform a major life activity. But it is also
possible that an impairment that is not “substantially limiting” in one circumstance could
result in disability in other circumstances.

For example, suppose a construction worker falls and breaks a leg and the leg heals
normally within a few months. Although this worker may be awarded workers’
compensation benefits for the injury, he or she would not be considered a person with a
disability under the ADA.

However, if the worker’s leg took significantly longer to heal than the usual healing period
for this type of injury, and during this period the worker could not walk, he or she would
be considered to have a disability. Or, if the injury caused a permanent and limiting limp,
the worker might be considered disabled under the ADA.

Workers’ Comp and HIPAA Privacy Requirements:

The HIPAA Privacy Rule creates national standards to protect individuals’ medical records
and other personal health information and sets limits on the use and release of health
records.

Health plans and medical providers are allowed to disclose medical information without
authorization when required to do so by a workers’ compensation law. It will thus be
permissible under most state laws for a provider to disclose protected health information to
a workers’ compensation insurer for the purposes of processing a claim for benefits.

The workers’ compensation insurer could then provide this information to the employer
because a workers’ compensation insurer is not a HIPAA-covered entity. Some state laws
may specifically provide for the direct release of information to the employer, but just to
be safe, you may still want to provide authorization forms to employees filing workers’
comp claims.



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