The intersection of three major laws dealing with employee health provides us with some difficult situations when having to make decisions between the Americans with Disabilities Act (ADA), the Family and Medical Leave Act and Workers’ Comp. I was reminded of this when I heard a presentation by some attorneys from GreenbergTraurig in Atlanta. It is a pretty hairy intersection and reminds me of some of the video you see of a busy traffic in India. (See the video below if you don’t know what I mean.)
The discussion was about light duty and how it works under the three laws. Light duty is encouraged under Workers’ Comp law; it has to be voluntary under FMLA and cannot be counted against FMLA time; and under the ADA an employer is not required to either “bump” incumbent employees or to create a job as a reasonable accommodation.
That last point is an important one. Anyone who has had to deal with the ADA knows that there is the requirement that we engage in an interactive discussion about making “reasonable accommodation” to an employee with a disability. Fortunately for employers there is nothing in the law that requires employers to create a job. It does not meet the standard for “reasonable.”
Attorney Eric B. Meyer, writing in his blog post, Fact or Fiction: The ADA requires creating a new job for a disabled employee, quoted a decision of a federal appellate court, which said: “The ADA does not require an employer to create a new position or to eliminate or reallocate essential job functions in accommodating an employee with a disability.” Of course if you wish to make such an accommodation you are free to do so, but you are opening up yourself to many more issues if you do so.
Here is that scene of an intersection in India. It is wild, but notice NO collisions.
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