The Bermuda Triangle: ADA, FMLA

1
The Bermuda Triangle ADA, FMLA Workers
Compensation
AREA Human Resources Update April 6, 2006
Kira Fonteneau
2
The Bermuda TriangleThe First Leg ADA

• Americans With Disabilities Act of 1990
• At least 15 employees for coverage
• QUID a person who can perform the essential
  functions of the position desired or held, with
  or without reasonable accommodation.

3
The Bermuda TriangleThe First Leg ADAWhat
is a Disability?

• Physical or mental impairment that substantially
  limits one or more MLAs
• A record of such an impairment
• Being regarded as having such an impairment

4
The Bermuda TriangleThe First Leg ADA
Reasonable Accommodation

• Employees responsibility to request, generally
• Employer not required to wait indefinitely for
  condition to be corrected
• No set period of time where employer is no longer
  required to reasonably accommodate

5
The Bermuda TriangleThe First Leg ADA
Direct Threat

• No obligation to accommodate where a significant
  risk is posed to health or safety
• Both individual and others
• Individualized assessment
• Examples

6
The Bermuda TriangleThe First Leg ADA
Drug/Alcohol Abuse

• Alcoholism as a covered disability
• Current illegal drug use not protected
• Individual seeking substance abuse treatment for
  past drug use may be protected
• Employees must comply with workplace rules

7
The Bermuda TriangleThe First Leg ADA
Behavioral Concerns

• Hold disabled employees to same standards of
  workplace conduct as non-disabled employees
• Job-related and consistent with business
  necessity
• Presence at work as an essential job function
• Punctuality as an essential job function

8
The Bermuda TriangleThe 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

9
The Bermuda TriangleThe Second Leg FMLA

• Who are covered employers?
• What employees count?
• Who are eligible employees?
• What family members count?

10
The Bermuda TriangleThe Second Leg FMLA

• What is a serious health condition?
• Is a serious health condition the same as a
  disability under the ADA?
• Could a workers compensation injury qualify as a
  serious health condition?

11
The Bermuda TriangleThe Second Leg FMLA

• How do I compute the 12-month period?
• What is intermittent leave?
• What is reduced schedule leave?

12
The Bermuda TriangleThe Second Leg FMLA

• How does FMLA leave interact with workers
  compensation leave or other paid leave?
• What rights does an employee who takes FMLA leave
  have?

13
The Bermuda TriangleThe Second Leg FMLA

• What protections does an employee who requests or
  takes FMLA leave have?

14
The Bermuda TriangleThe Second Leg FMLA

• Can employees escape the consequences of their
  misconduct by requesting or taking FMLA leave?

NO!
15
The Bermuda TriangleThe Third Leg Workers
Compensation

• A statutory method of providing
  wage-replacement (or death) benefits and medical
  expense coverage for employees who experience
  work-related injuries

16
The Bermuda TriangleThe Third Leg Workers
Compensation

• Covered employees
• Covered injuries
• Arising out of employment Was the injury
  caused by the employment?

17
The Bermuda TriangleThe Third Leg Workers
Compensation

• Covered Injuries
• 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?

18
The Bermuda TriangleThe Third Leg Workers
Compensation

• Are pre-employment inquiries about prior
  work-related injuries or workers compensation
  claims okay?
• Does an employer have to accommodate an
  employee with light or alternate duty?

19
The Bermuda TriangleThe Third Leg Workers
Compensation

• What are the risks of discharging an employee
  following a work-related injury?

• But what if the employee cant perform her
  regular job?

20
The Bermuda TriangleThe Third Leg Workers
Compensation

• Workers Compensation Abuse
• Watch closely, start early and manage carefully!

21
DISCHARGE

• 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.
• FMLA The FMLA provides that absences for approved
  leave may not be counted against the employee.
• Workers Compensation Act Because of the threat
  of retaliatory discharge claims, consistent
  application of company policy is important.

22
EMPLOYEE FRAUD

• FMLA
• An employee who fraudulently attempts to obtain
  leave may be discharged.
• Workers Compensation Act
• 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.

23
QUESTIONS ?