Leave and Accommodation - Workplace Injuries

Most of the questions that I get revolve around the rights of sick and injured employees. In my view, this is the most complicated area of employment law.  This will be the first in a series of articles on leave and accommodation rights under certain scenarios.  Note, for those of you in other states, this article is based on New Jersey law.

Joe Hardhat works in construction and injures his shoulder and back when a beam falls and he catches it to prevent it from hitting another employee. What are Joe’s rights?

Worker's Comp – Worker’s comp is supposed to pay for Joe’s medical bills to get his shoulder fixed.  The worker’s comp insurance carrier will assign Joe to a doctor who will treat him and report back to the carrier on his condition.  (Note, the doctor does not report to the employer . . . more on that later).  While Joe is out of work, he receives worker’s comp pay (75% of his normal pay).  If his shoulder and back are permanently injured, Joe will receive a worker’s comp award that is supposed to compensate him for his injury.

Leave from Work – Joe has to ask - Joe is entitled to some amount of leave.   But Joe has to ask for it.  Remember when I said the worker’s comp doctor does not communicate with the employer?  That means the employer does not automatically know how much time Joe needs.  Joe should have the worker’s comp doctor fill out a certification saying how much leave he needs and give it to his employer.

Leave from Work – No One Knows How Much You Get – The thing that makes everyone crazy is there is no clear rule for how much time you get to be out.  If you work for a large employer (50+), the FMLA provides 12 weeks of leave.  However, the American’s with Disabilities Act (ADA) and New Jersey Law Against Discrimination (LAD) provide for an additional “reasonable” amount of leave as a form of accommodation.  What’s reasonable?  Well it depends.  For a large employer it may be reasonable to allow the employee to be out for a year.  For a small employer, maybe they can only afford to provide leave for a few weeks.  It all depends on the circumstances.

Health Benefits? So Joe’s covered for his treatment through worker’s comp but what about his wife and kids who are covered under his employer health plan.  Here’s where the system really breaks down for Joe.  Large employers covered by the FMLA are required to continue benefits for 12 weeks.  After that, they can legally require Joe to pay for coverage.  Small employers can require Joe to pay for his coverage immediately.  So Joe is hurt, only getting 75% of his pay, and now has to pay out-of-pocket for his family’s medical benefits.  

Going Back to Work with Restrictions – At some point, Joe’s worker's comp doctor is likely to say he can perform some work with restrictions.  Joe is anxious to go back to work so he can earn his full pay.  But can he go back?  Many employers at this point respond “We don’t have light duty.”  The ADA and the LAD require that employers reasonably accommodate disabled employees.   Again, the question of whether the employer has to give Joe light duty depends on whether the employer can reasonably do so.  Again, size matters.  Large employers probably can and often do provide light duty.   For smaller employers, it may be too much of a burden.  

What if Joe is Replaced? So Joe does everything he is supposed to.  He goes to the doctor, gets surgery, recovers, goes through rehab and fully recovers.  After an 8 month ordeal, Joe is cleared to return without restriction.  He shows up at work ready to go and finds out he’s been replaced by Sam Newguy.  Doesn’t his employer have to take him back?  The answer is not necessarily.  Joe’s employer does not need to keep the position open indefinitely, it just has to keep it open for a reasonable time.  If there is no open position when Joe is cleared to return, he does not have a right to be reinstated.  However, that’s not the end.  The ADA and the LAD provide that reassignment is a form of reasonable accommodation.  So in this situation, the employer likely has an obligation to help Joe find another position with the company. 

Note - If Joe works for a large employer and is able to get back to work within 12 weeks, he is entitled to reinstatement under the FMLA.