July 26, 2018

Anyone who has been to the Caribbean or watched any of the natural disaster movies made in the 1970s has heard of the part of the eastern Caribbean where an unusual number of ships and aircraft are said to have mysteriously disappeared, the infamous Bermuda Triangle. The reasons are inexplicable, and have been fodder for many movies, conspiracy theories, and legends.

Although not as exotic as the Caribbean, the workplace can pose as many mysteries as these disappearances, and we refer to the challenging convergence of the Family and Medical Leave Act, the Americans with Disabilities Act (and its amendments), and state workers’ compensation laws as our own Bermuda Triangle. It is often difficult to understand the complicated interplay between these laws.

Why is this so complicated? First, these laws were written by different governmental bodies, and second, they were designed to achieve differing goals or objectives. Let’s recap the key goals and objectives of each:

I. The Three Main Laws

A. FMLA: The Family and Medical Leave Act, enacted in 1993 and amended in 2009, was simple in its objective, yet has become quite complicated in its implementation. The stated purpose in Public Law 103- 3, enacted February 5, 1993 is: “To grant family and temporary medical leave under certain circumstances”.

The FMLA is enforced by the Department of Labor’s Wage and Hour Division, as an outgrowth of the way “hours worked” are tracked. It sets minimum leave standards for employers with 50 or more employees working within a 75-mile radius for at least 20 weeks of the current or preceding calendar year. To be eligible, the employee must have worked at least 12 months and 1,250 hours prior to the start of the leave.

In addition to the FMLA, be aware of any state leave laws or disability laws that may have higher standards than the federal mechanisms we will discuss today. States with their own FMLAs include California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin, plus the District of Columbia.

B. ADAAA: The Americans with Disabilities Act, first adopted in 1990 and overhauled in 2008 with an effective date of January 1, 2009 (the “ADA Amendments Act”), is enforced by the Equal Employment Opportunity Commission. This comprehensive disabilities law was Congress’ answer to inconsistently applied disability laws. Its goal is to prohibit discrimination against qualified individuals with a disability, i.e., a person who can perform the essential functions of her or his job, with or without reasonable accommodation. ADAAA applies to employees of businesses with 15 or more employees who have worked for at least 20 weeks of the current or preceding calendar year. (California: 5 or more employees)

C. Workers’ compensation laws: these creatures of state law were states’ answers to providing medical care and some income security for employees injured at work, in exchange for releasing the employer from claims of negligence. Many of these laws were created during America’s industrial revolution, when workers had no leverage and safety laws were not yet commonplace. The no-fault system of workers’ compensation and uninsurability against workplace claims encouraged safer workplaces and hedged against the risk of injuries.

In 46 states, employers contract with insurance companies to manage workers’ compensation claims. The other four, including Ohio, have monopolistic state funds, where a state agency (i.e., Bureau of Workers’ Compensation) manages and administers claims in exchanged for the assessment of premiums on employers. These laws provide for medical treatment and payments of compensation following workplace injuries. Workers’ comp laws apply to most employers with one or more employees. The exceptions to eligibility for benefits are when an injury is self-inflicted, the result of horseplay or misconduct, and in some instances, where discipline for violating safety rules have issued or where the employer can timely document that the employee’s intoxication caused the injury.

II. The Interplay: A Venn Diagram for Granting and Tracking Leave

This is an FMLA seminar, so why are we muddying the waters and talking about other laws? Focusing on just one leave law can expose you to significant and costly legal problems. Examples of overlap problems:

• Family leave for FMLA grounds: depending on applicable state laws, may need to be paid leave
• Disability leave: employee is temporarily unable to work because of a disability. May necessitate FMLA leave, and/or accommodation. Additional leave may be a form of accommodation.
• Workers’ Compensation: employee suffers a work-related illness or injury. This time almost always qualifies as FMLA leave if the employee is eligible for FMLA.

A. How to identify overlap - start wide and narrow in:

1. Is this a workers’ compensation injury?
2. IF YES: Is employer subject to FMLA and eligible?
a. 12 months/1,250 hours?
b. Serious health condition?
c. Has employee exhausted 12 weeks of leave?

3. IF YES:
a. Is the condition a “disability” as defined by the ADA?
b. Does condition prevent employee from performing essential functions?
c. With or without accommodation?

Let’s look at some of the distinctions and the practical aspects of how these other laws piggyback onto the FMLA:

Caution: who can determine medical necessity of leave? Not employers! Do not substitute your judgment or knowledge for that of a medical expert. When in doubt about the expert’s findings, there are other tools available.

• FMLA: “health care provider” (keep in mind limited scope of clarification)
• ADAAA: medical professional (relative value of second and third opinions)
• W/C: POR is medical doctor, doctor of osteopathic medicine, doctor of mechanotherapy, doctor of chiropractic, doctor of podiatry, doctor of dental surgery or licensed psychologist (employer can use BWC exams, IMEs)

III. After the FMLA Leave

A. Start that clock!
Once FMLA leave is over, how do we determine what, if any, other obligations employer may have? Ask yourself “what was the reason for the leave?”

• Workers’ comp: recovery period for employee’s certified condition (lost time claim) may run past expiration of FMLA
• May wish to consider - even before leave is over - whether a good-faith light-duty job offer would be useful return-to-work tool
• Note: light duty cannot be required if employee still has FMLA leave time left

B. FMLA Leave is Up, Now what?

1. Restoration to same or equivalent job.
a. FMLA

1. What is “equivalent” job?
2. What happens in cases of RIFs or other personnel changes during the leave?
3. What if employee is accommodated but cannot perform same job?

Examples:

Q1. An employee with a disability has taken 10 weeks of FMLA leave and is preparing to return to work. You have decided that the person filling in during her absence is able to do the job much better. You want to put the returning employee in an “equivalent” position rather than her original one.

A1. Although under the FMLA the employer may reinstate an employee to the same or equivalent position upon return to work, the ADA requires that the employer return the employee to her original position. Absent an undue hardship in doing so or the employee’s inability to perform the work of the original position with or without reasonable accommodation (i.e., she is no longer qualified for her original job), the employer must reinstate the employee to her original position.

Q2: An employee with an ADA disability has taken 12 weeks of FMLA leave. He notified you that he is ready to return to work, but he is no longer able to perform the essential functions of his position or an equivalent position. What are your obligations?

A2: Employer could terminate employment under FMLA, but ADA requires employer to consider whether the employee could perform the essential functions with reasonable accommodation (e.g., additional leave, part-time schedule, job restructuring, specialized

equipment), or whether the employee can be reassigned to any vacant position available for which the employee is qualified, with or without reasonable accommodation, so long as there is no undue hardship.

b. ADAAA: Must reinstate or accommodate unless doing so would cause undue hardship. Must engage in interactive process where ADAAA is applicable

c. No reinstatement required, but most states have retaliation laws

2. Once FMLA is done, can employer require RTW certificate?
a. FMLA: not a requirement; employer an make it part of policies, so long as consistently applied
b. ADAAA: permitted, if needed to determine accommodation or job fitness. However, cannot require “full duty” release!
c. W/C: typically needed
3. Must employer offer light duty?
a. FMLA: no, and shouldn’t require if prior to expiration of 12 wks of FMLA
b. ADAAA: depends
c. W/C: advised

4. Must employer otherwise accommodate?
a. FMLA: no
b. ADAAA: yes, if subject to ADAAA (note: certain exceptions in instances of direct threat to employee or others that can’t be accommodated). Reasonable accommodations can include schedule changes, job modification, different job, light duty, etc.
c. W/C: yes and no (light duty benefits employer)

PRACTICE POINTER: How to accommodate

• Provide job description of regular job to physician
• Describe proposed light duty
• Identify physical aspects involved
• Specify proposed duration of accommodation
• Is a Functional Capacities Evaluation in order?

5. Must employer provide additional leave as accommodation?
a. FMLA: no
b. ADA: recommended if doesn’t cause undue hardship
c. W/C: yes

Example:

Q: An employee has medical complications following a routine procedure and now needs 15 weeks of leave for treatment. What can you do?

A: The employee is eligible for 12 weeks of FMLA leave. The additional weeks may constitute a reasonable accommodation. Under the FMLA, the employer could deny the additional weeks of leave, but under the ADA, it should not unless doing so causes demonstrable undue hardship.

Practice Pointer when considering additional leave:

• Does it cause undue hardship?
• Is additional time requested specific or indefinite? ADAAA does not require accommodating indefinite leaves
• “In the near future”, “more time”, “couple weeks”
• Request additional medical documentation

6. Must employer extend “job restoration”?
a. FMLA: not past 12 wks. If employer offers additional time as a post-leave accommodation, this does not extend restoration cutoff date
b. ADAAA: N/A, but may need to accommodate or offer other opening(s) for which e’ee may be qualified. See EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act
c. W/C: no

7. Must employer offer benefits during leave?
a. FMLA: same benefits during leave
b. ADAAA: not specified, but must offer same benefits as to non-disabled e’ees.
c. W/C: yes, to the extent they are in place during a concurrent FMLA leave.

8. Take-aways:

a. Start the FMLA clock as soon as you have reason to believe the leave counts. Statute addresses need to promptly notify. Notify retroactively if you must, provide all notices - can undo if you get it wrong. Be aware of consequences of not timely notifying employee that leave is FMLA-qualifying.
b. ADA, W/C/ leaves should run concurrently with FMLA
c. Don’t forget about related issues (STD, etc.)

IV. USERRA: the Fourth Corner of the Bermuda Triangle

A. Employee has not worked 12 continuous months/1,250 hours: USERRA entitles reemployed service member to same rights and benefits that he or she would have attained if he or she had remained continually employed.
B. USERRA’s escalator clause
C. Post-2009 leaves for military service members

i. different amounts of leave
ii. “next of kin”

D. USERRA reasonable-accommodation requirement goes beyond ADA’s: employer must affirmatively assist returning employee in becoming qualified for the job (training, retraining, etc.). Pitfall: USERRA applies to all employers, regardless of size

V. Other FMLA issues to consider

A. Does company pay for any part of leave?
B. Does state law require it?
C. Is STD/LTD available?
D. Intermittent leave: FMLA can be taken in as little as the shortest unit of time the employer uses for other leaves, provided that it is not greater than one hour
E. Employee uses vacation time for medical absence, doesn’t notify employer of real reason for time off
F. Employee scheduled or even pre-paid a vacation a year in advance, but depletes all leave for a medical absence
G. Employee was entitled to take a vacation, which ends up falling during the FMLA leave
H. Employee becomes ill while on a scheduled and approved vacation

VI. Best Practices

A Cases are all fact-specific
B. Use a dependable tracking tool
C. Enforce discipline consistently but don’t overreach.
D. Have established policies and practices
E. Create checklists for evaluating application of laws
F. Train management!
G. Use job descriptions
H Use job analyses
I. Get clarification when appropriate or permitted
J. Document any interactive steps
K. Run qualifying leaves and workers’ compensation concurrently
L. Be consistent about requiring documentation from all employees
M. Consider light or modified duty
N. Know which laws trigger COBRA, and figure out how to collect insurance premiums if employee has no ongoing compensation against which to deduct premiums
O. Discuss facts with legal counsel!