The Bermuda Triangle ADA FMLA Workers Compensation AREA

The Bermuda Triangle: ADA, FMLA & Workers’ Compensation AREA Human Resources Update April 6, 2006 Kira Fonteneau

“The Bermuda Triangle” The First Leg: ADA Americans With Disabilities Act of 1990 Ø At least 15 employees for coverage Ø QUID – a person who can perform the essential functions of the position desired or held, with or without reasonable accommodation.

“The Bermuda Triangle” The First Leg: ADA What is a Disability? Ø Physical or mental impairment that substantially limits one or more MLA’s Ø A record of such an impairment Ø Being regarded as having such an impairment

“The Bermuda Triangle” The First Leg: ADA Reasonable Accommodation Ø Employee’s responsibility to request, generally Ø Employer not required to wait indefinitely for condition to be corrected Ø No set period of time where employer is no longer required to reasonably accommodate

“The Bermuda Triangle” The First Leg: ADA Direct Threat Ø No obligation to accommodate where a significant risk is posed to health or safety Ø Both individual and others Ø Individualized assessment Ø Examples

“The Bermuda Triangle” The First Leg: ADA Drug/Alcohol Abuse Ø Alcoholism as a covered disability Ø Current illegal drug use not protected Ø Individual seeking substance abuse treatment for past drug use may be protected Ø Employees must comply with workplace rules

“The Bermuda Triangle” The First Leg: ADA Behavioral Concerns Ø Hold disabled employees to same standards of workplace conduct as non-disabled employees Ø Job-related and consistent with business necessity Ø Presence at work as an essential job function Ø Punctuality as an essential job function

“The Bermuda Triangle” The Second Leg: FMLA Family and Medical Leave Act of 1993 Covered employers must grant up to 12 weeks of unpaid leave with continued group health insurance in any 12 -month period for the birth or placement of a child or for the serious health condition of the employee or certain family members

“The Bermuda Triangle” The Second Leg: FMLA Ø Who are “covered employers”? Ø What employees count? Ø Who are “eligible employees”? Ø What family members count?

“The Bermuda Triangle” The Second Leg: FMLA Ø What is a “serious health condition”? Ø Is a “serious health condition” the same as a disability under the ADA? Ø Could a workers’ compensation injury qualify as a “serious health condition”?

“The Bermuda Triangle” The Second Leg: FMLA Ø How do I compute the 12 -month period? Ø What is “intermittent” leave? Ø What is “reduced schedule” leave?

“The Bermuda Triangle” The Second Leg: FMLA Ø How does FMLA leave interact with workers’ compensation leave or other paid leave? Ø What rights does an employee who takes FMLA leave have?

“The Bermuda Triangle” The Second Leg: FMLA Ø What protections does an employee who requests or takes FMLA leave have?

“The Bermuda Triangle” The Second Leg: FMLA Ø Can employees escape the consequences of their misconduct by requesting or taking FMLA leave? NO!

“The Bermuda Triangle” The Third Leg: Workers’ Compensation A statutory method of providing wagereplacement (or death) benefits and medical expense coverage for employees who experience work-related injuries

“The Bermuda Triangle” The Third Leg: Workers’ Compensation ØCovered employees ØCovered injuries n “Arising out of” employment: Was the injury caused by the employment?

“The Bermuda Triangle” The Third Leg: Workers’ Compensation ØCovered Injuries n “In the course of” employment: Did the injury occur at work, at a place where the employee reasonably was expected to be, while he was performing work or work-related duties?

“The Bermuda Triangle” The Third Leg: Workers’ Compensation ØAre pre-employment inquiries about prior work-related injuries or workers’ compensation claims okay? ØDoes an employer have to “accommodate” an employee with light or alternate duty?

“The Bermuda Triangle” The Third Leg: Workers’ Compensation ØWhat are the risks of discharging an employee following a work-related injury? • But what if the employee can’t perform her regular job? Retaliation

“The Bermuda Triangle” The Third Leg: Workers’ Compensation ØWorkers’ Compensation Abuse n Watch closely, start early and manage carefully!

DISCHARGE Ø ADA Under the ADA, attendance is generally considered to be essential function of job. But, some reasonable modification to the attendance policy may be necessary. Ø FMLA The FMLA provides that absences for approved leave may not be counted against the employee. Ø Workers’ Compensation Act Because of the threat of retaliatory discharge claims, consistent application of company policy is important.

EMPLOYEE FRAUD Ø FMLA n An employee who fraudulently attempts to obtain leave may be discharged. Ø Workers’ Compensation Act n An employee who knowingly commits fraud as to his prior workers’ compensation history or in the application for or receipt of benefits can be deemed benefits, employment, or discharged.

QUESTIONS ?