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Workers’ compensation & employment termination


“Tere [is] no remedy under the Workers’ Compensation Act for an employee who was terminated from her job ... “ but the employer must consider the remedies provided an employee by the Family and Medical Leave Act (12 weeks of unpaid leave time with benefits), the Americans with Disabilities Act (ADA) (reasonable accommodation of disability if the employee can timely return to work), and the Section 905 of the Workers’ Compensation Act (additional compensation and rehabilitation benefits for up to one year). Source: Davis v. Dillmeier Enterprises, 330 Ark. 545, 956 S.W.2d 155 (1997).


FMLA: Qualifying employees are entitled to take up to twelve


(12) weeks unpaid FMLA leave a year for “a serious health condi- tion rendering the employee unable to perform his or her job” (and certain other family and medical reasons). Under no circum- stances should the employment of a person on workers compen- sation be terminated before the 12 weeks of FMLA time has ex- pired. Upon returning from FMLA leave, an employee is entitled to be restored to the same or equivalent position with equivalent pay, benefits and other terms and conditions of employment. 29 U.S.C. 2601, et seq.


ADA/ACRA remedies: Te ADA prohibits arbitrary discrimi-


nation on account of disability. Te law requires the employer to “reasonably accommodate” a qualified individual with a disabil- ity, unless the necessary reasonable accommodation would work an “undue hardship” on the employer. A “qualified individual with a disability” is an individual with a disability who, with or without reasonable accommodation, can perform the “essential functions” of the job. Individuals perceived to be at high risk of incurring a work-related injury are “regarded as having such an impairment” and are included in the ADA’s protections. A person injured on the job and on workers compensation must be reasonably accommodated if that employee can return to work, with accommodation. “Reasonable accommodation” examples include: (1) making existing facilities used by employees readily accessible to the disabled; (2) job restructuring; (3) flexible or modified work schedules; (4) reassignments to other positions;


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and (5) the acquisition or modifica- tions of equipment or devices. 42 U.S.C. 12101, et. seq.


Workers Compensation Law (A.C.A. 11-9-505): Section 505 of the Workers’ Compensation Act has the stated purpose of “plac[ing] an em- phasis on returning the injured worker to work;” yet, “[t]his section shall not be construed as creating an exception to the common law regarding employment at will,” according to A.C.A. 11-9-505(d) & (c). “Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the Workers’ Com- pensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of the refusal, for a period not exceeding one (1) year,” according to A.C.A. 11-9-505(a). “An employee who is entitled to receive compensation benefits


Mike Rainwater Risk Management Legal Counsel


for permanent disability and who has not been offered an oppor- tunity to return to work or re-employment assistance shall be paid reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee. Te employer’s responsibility for addi- tional payments [for a program of vocational rehabilitation] shall not exceed 72 weeks ...” according to A.C.A. 11-9-505(b).


(Mike Rainwater, a regular contributor to County Lines and lead


attorney for AAC Risk Management, is principal shareholder of Rain- water, Holt and Sexton, P.A., a state-wide personal injury and disability law firm. He has been a lawyer for more than 30 years, is a former deputy prosecuting attorney and has defended city and county officials for more than 25 years.)


County Law Update


Did an aspect of county government “make news” recently in your county? Did any


of your county officials or staff get an award, appointment or pat on the back? Please let us know about it for the next edition of County Lines magazine. You can write up a couple of paragraphs about it, or if something ran in your local paper, call and ask them to forward the story to us. We encourage you or your newspaper to attach a good quality photo, too: e-mail sperkins@arcounties.org.


COUNTY LINES, WINTER 2014


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