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

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.
 The Bermuda Triangle
The First Leg: ADA

What 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
 The Bermuda Triangle
The 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
 The Bermuda Triangle
The 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
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The 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
 The Bermuda Triangle
The 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
 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
Who are covered employers?

What employees count?

Who are eligible employees?

What family members count?

 The Bermuda Triangle
The 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?
 The Bermuda Triangle
The Second Leg: FMLA
How do I compute the 12-month
period?

What is intermittent leave?

What is reduced schedule leave?

 The Bermuda Triangle
The 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?
 The Bermuda Triangle
The Second Leg: FMLA

What protections does an employee who

requests or takes FMLA leave have?
 The Bermuda Triangle
The Second Leg: FMLA

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 wage-

replacement (or death) benefits and
medical expense coverage for
employees who experience work-related
injuries
 The Bermuda Triangle
The Third Leg: Workers
Compensation
Covered employees
Covered injuries
Arising out of employment: Was the
injury caused by the employment?
 The Bermuda Triangle
The 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?
 The Bermuda Triangle
The 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?
 The Bermuda Triangle
The Third Leg: Workers
Compensation
What are the risks of
discharging an employee
following a work-related Retaliation
injury?
But what if the employee cant
perform her regular job?
 The Bermuda Triangle
The Third Leg: Workers
Compensation

Workers Compensation Abuse

Watch closely, start early and
manage carefully!
 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.
 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.
QUESTIONS ?