That exclusivity protection has now been seriously eroded by the FMLA and the ADA. Now an employee has a direct action against his or her employer. Unlike the remedies available under the Workers' Compensation Act, the ADA remedies are unscheduled and unpredictable.

Since pre-employment physical examinations are now illegal under the ADA, employers are no longer able to take a pro-active approach in avoiding potential workers' compensation cases. In most cases, an employer will not know until it is too late that it has hired an individual with a pre-existing condition.

In some cases, an employer may hire an individual who will need an occasional leave of absence because of the pre-existing condition and that fact will not become known until after the employee is hired.

For example, an individual suffering from depression or occasional bouts of depression may need to take time off usually with very little notice. Since a pre-employment physical examination has been outlawed under the ADA, an employer may end up hiring someone who will need fairly regular leave of absences.

The effect of this is most clearly seen with pre-existing back problems. Before the ADA and FMLA an employer could legally choose not to hire an individual with a pre- existing back condition. Under the ADA, an employer will not know about that pre-existing condition until it is too late and under the FMLA the employer may be required to give an occasional leave of absence because of that pre-existing back condition.

Since it is a technical term an employee need not show that an accident occurred as a result of an unsafe activity or as a traumatic accident but only that the nature of the work caused a final breakdown of a body part.

Before the ADA, an employer's obligation to an employee for a work place injury was defined by the Workers' Compensation Act. If an employee ended up with a permanent physical restriction an employer could have legally terminated that employee if he was unable to perform the work. If the injury resulted in a long-term absence, an employer could have legitimately terminated that employee for excessive absenteeism even if those absences arose out of a work place injury.

Prior to the enactment of the ADA, if an employer successfully defended the workers' compensation case using an accident defense it's liability to that disabled employee would end. For example, if an employee claimed to have injured his or her back at work resulting in a 50 pound lifting restriction and the employer successfully proved that the employee had injured his or her back at home, it had no legal obligation to that injured worker. Thus, no liability

In the post-ADA era, if that same employer wins the workers' compensation case it may still face continuing liability under the ADA. Since the ADA is not concerned with the cause of the disability only its existence, the employer will still have an obligation to that injured worker to provide reasonable accommodation.

Since the ADA requires an employer to make an effort to offer reasonable accommodation to an injured or disabled employee, he imposes an additional obligation on the employer to return that employee to work. Thus, before the ADA if an employee ended up with a permanent 50 pound lifting restriction as a result of a workers' compensation case the employer could have legitimately terminated that employee if they were unable to do the job. After the ADA the employer may have to offer that employee reasonable accommodations and retain that individual as an employee. As that employee continues to work, however, the company faces a continuing obligation/exposure if that employee should sustain another work place injury aggravating or accelerating that pre-existing condition.

In addition, most, if not all, Workers' Compensation statute's give the employer the right to obtain the Petitioner's treating records. The FMLA imposes restrictions on the employer's ability to contact the employee's treating physician. When an employee applies for a leave of absence under the FMLA he can be required to provide a medical certificate stating the date the condition began, its probable duration, diagnosis and a brief statement of the regimen of treatment and the employee's inability to perform his or her essential job functions or work of any kind. The FMLA prohibits the employer from contacting that medical provider directly and obtaining any additional information or questioning the basis for the medical certification.

The only remedy the employer has in determining whether or not a leave of absence is warranted is by having the employee examined by an independent medical practitioner. The FMLA specifically prohibits the employer from having the employee examined by a doctor that the employer regularly uses or has a relationship with. In other words the FMLA requires that the physician chosen by the employer be a true "independent" physician. There is no such requirement that the employee obtain an "independent" medical opinion, in fact, the employee is free to be examined by his family physician who he may have had a relationship with for years.

This is an open and obvious conflict between Workers' Compensation and the FMLA. Under the Workers' Compensation Act, the employer can have the employee examined by a physician that the employer knows and, in fact, has a relationship with and feels comfortable with. Under the FMLA, the employer has to choose an "independent" physician.

In addition, under the Workers' Compensation Act the employer can usually correspond with the treating physician. Under the FMLA they cannot.

Where the independent physician chosen by the employer under the FMLA disagrees with the employee's physician the parties can then choose an independent third physician for an exam.

Since the FMLA prohibits the employer from taking any adverse action against an employee for exercising their rights under the FMLA, the employer would not be able to take into account the employee's restricted work schedule in evaluating that employee at the end of the year.

If the employer refuses to accommodate that restricted work level, it may face liability both under the FMLA and under the ADA for failure to provide reasonable accommodation to the disabled individual.