Talk to Two Attorneys: The Intersection Between Workers’ Comp and Employment Law

Workers’ comp and employment law aren’t the same — but they do have some overlap.
By: | May 31, 2024

Back in 2016, Noorjahan Ramji was working as a cleaner for Hospital Housekeeping Systems LLC (HHS). One day, she tripped while cleaning, injuring her knee. She received a cortisone shot less than a week later, the law firm Freeman, Mathis and Gary reported, and began physical therapy. Her doctor approved her for light duty eight days after the accident.

But before she could start that light duty assignment, HHS wanted her to complete its essential skills test. The test required a variety of exercises — squats, going from kneeling to standing. As the test went on, Ramji complained that her knee was hurting and asked to use her sick leave to continue recovering. She promised to take the test at a later date.

HHS fired her instead, citing the failure of the test and several older infractions.

Ramji consulted a workers’ comp attorney and eventually settled with the company for costs of medical treatment and reinstatement. 

Case closed? Not quite. After the workers’ comp case settled, Ramji filed another suit for interference with her Family and Medical Leave Act (FMLA) rights. She was an eligible employee who hadn’t previously used any FMLA leave, but HHS didn’t inform her of her right to take leave. 

Welcome to the crossroads of workers’ comp and employment law, a knotty intersection that opens employers up to legal risk — all because they didn’t understand the differences between these two overlapping types of law.  

Workers’ Comp and the Alphabet Soup of Employment Law

For most employers, the distinction between employment law and workers’ compensation is murky. 

“Unless you’re an attorney and you know that there’s nuances to each area, you really would sort of lump it together, because it all has to do with employees and the employers and their obligations and rights,” said attorney Brittany Atkinson, partner with the firm Chartwell Law.

Workers’ comp legal cases revolve around a workplace injury. An employee might sue for benefits after an employer denies coverage for a workplace accident, or an employer might sue for fraud if they believe a worker falsified an injury, among other types of cases. Employment law covers a range of cases — wrongful termination, ADA and FMLA violations, discrimination and wage and overtime violations, just to name a few. 

Within these two distinct areas of law. There can be overlap, as there was in Ramji’s case, which the U.S. Court of Appeals for the Eleventh Circuit ruled in her favor in April 2021. 

“I think that oftentimes when an employer is thinking of a work injury, depending on the size of the company, they tend to become focused on the work injury itself and not the other claims that may arise,” said Robert Baker, partner with Chartwell Law, who works in both workers’ comp and employment law. 

One area that often creates confusion is laws surrounding termination. Though an employer needs to provide workers’ compensation benefits to an injured worker, they don’t have to protect their jobs in most cases. An employer could lay off a worker who is away due to a work injury, or they could fire them for safety violations that caused the injury. A worker may sue for wrongful termination, however, alleging that they were fired for reporting a workers’ compensation claim.  

“One of the hottest topics I’m constantly talking to employers about is hiring and firing,” Atkinson said. “Whether you can hire or fire somebody in connection with the surrounding workers’ comp claim is a completely different analysis under employment law than it is under workers’ comp law.”

Other common areas of overlap involve the Americans with Disabilities Act (ADA) and FMLA, what Baker calls part of the “alphabet soup” of employment law. An injured worker could potentially be considered disabled under the ADA or qualify for FMLA, as Ramji did. If these workers’ comp cases aren’t properly handled with regard to these employment laws, they could open up an employer to liability. 

“Perhaps the employer is hyper-focused on the work injury, and rightfully so,” Baker said. “But there may not be someone there in the HR seat [who can] identify that someone now has permanent restrictions and has been working for an extended period of time in a modified duty capacity. Does that possibly create an issue where someone is either disabled or perceived as being disabled under the ADA? What happens if that modified duty is abruptly ended without a consideration of the ADA implications?”

Employment law considerations become more complicated for Professional Employer Organizations (PEOs). PEOs help small to midsize businesses manage compliance, HR and workers’ comp administrative tasks by entering in a co-employment agreement with the company they serve. They’re in a unique position during the litigation process.  

“When claims become litigated, that makes it even more difficult because we’re technically the employer of record,” said Ebony Murray, senior claims manager with the PEO E3HR. “The risk management portion for PEOs is 10 times harder than for everyone else.” 

So How Do Employers Navigate These Intersections?

In order to navigate the overlap between workers’ comp and employment law, employers need to be proactive about working with attorneys from both sides of the divide. 

“A lot of people operate in silos,” Murray said. “But there’s just so much overlap, especially when it comes to workers’ comp.” 

Consulting with an employment law attorney early in a workers’ comp claim can help employers spot potential pitfalls. 

“I’m constantly reaching out to our partners who handle employment law and we come together to collaborate,” Atkinson said. “Talk to both attorneys. Know what’s going on in both sides of the law so that you don’t open your company up to further litigation down the road.”

“If the employer identifies an issue early enough, certainly then we as workers’ compensation attorneys or employment attorneys would want to consult with each other so that there’s more or less of a road map at the outset of how to manage or litigate your exposure,” Baker added. 

Companies might worry that consulting two different kinds of attorneys could be costly, but it’s important to remember that claimants are likely talking to both kinds of lawyers.  

“These claimants talk to their attorneys, and the attorneys know what they are doing,” Atkinson said. “Take the extra step to consult both sides.” &

Hear more from this panel of presenters at National Comp 2024. For more information on the session “The Legal Nexus: Strategies for Merging Employment Law with Workers’ Comp” and other topics, visit here today.

Courtney DuChene is a freelance journalist based in Philadelphia. She can be reached at [email protected].

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