The Bermuda Triangle of Employee Leave: FMLA, ADA and Workers Compensation Presented by: Amy O. Bruchs

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1 The Bermuda Triangle of Employee Leave: FMLA, ADA and Workers Compensation Presented by: Amy O. Bruchs We are going to be moving quickly through the topic that we have entitled The Bermuda Triangle of Employee Leave Law. Those laws are FMLA, Workers Compensation and the ADA. We are going to describe for you exactly how each of those laws works together and how each of those laws can be implicated in any given situation where you have an employee who is not able to work because of some sort of physical or mental condition or impairment. We will start with the FMLA overview. FMLA is a federal law and please note that some states have their own version of a state law counterpart. This is the federal law and it s applied to employers who have 50 or more employees in any 20 weeks of any calendar year period. That would include part-time employees. So once the 50-employee threshold is implicated, then the FMLA applies. And quite generally what the FMLA says is that if someone has a serious health condition and they otherwise meet the qualified requirements, they will be entitled to 12 weeks of leave per a 12-month period and under the federal law, that can be a rolling 12-month period or it can be a calendar year, whichever is designated by the employer. In order to be a qualified employee, that person must have worked for the employer at least 12 months and 1,250 hours in the previous 12 months to qualify as an eligible employee. FMLA applies to lengthy leaves of absences and then also to intermittent leaves, the shortest, for example, an hour a day to obtain treatment for a continuing condition. Other than providing the leave and guaranteeing that their job will be held open for them upon their return from that leave, FMLA does not require any further accommodations for the employee. It also prohibits an employer for which alienating against an employee for exercising a right under the FMLA. This law can sometimes overlap with the second part of the triangle which is workers comp. Now workers comp. is a state-by-state statute. It is generally the same. What it is, is workers comp. is obviously a no fault system. So an employee needs to do that work doesn t need to establish that the employer was negligent in order to be able recover benefits under work comp. Work comp statutes generally do not require an employer to provide an injured employee with leave. What it does prohibit is it prohibits retaliation so if an employer is inclined to provide leaves of absence to people who are say injured in a motorcycle accident and need to be off of work for a couple of weeks, then a person who doesn t get that same right could argue and have that workers comp injury could argue that they are being discriminated against or retaliated against because of the type of the injury that they have. What the workers comp laws do is they don t require you to hold open a position generally. Instead, what they require is that when the employee is ready to return to work in some cases that is called an end healing or in other states it is a return to work date. At that point in time the employer has to examine whether or not it has any work available within the employee s restriction and if it does, it is generally required to give the employee or assign the employee to that work. It is not required to hold a job open. The last point of the triangle is the Americans with Disabilities Act. Again this is the federal law that governs how employers must deal with employees who have conditions that rise to the level of being called a disability and generally if a person has what is defined by the law as a disability, then the employer has an obligation to make reasonable accommodation. And one of those reasonable accommodations may be allowing a person a leave of absence in order to accommodate that disability and the conflict that disability creates with their job.

2 There is no defined amount of leave, like the FMLA which I am obligated to provide under the ADA. It is open-ended. It all depends on a reasonableness. However, someone who asks an employer to be off indefinitely, that is generally considered to be unreasonable. It is an undue burden for the employer to have to hold that person s job open indefinitely. To qualify for the Americans with Disabilities Act s coverage unlike the FMLA, the employee didn t need to work for the employer for any specific length of time, and then also retaliation is prohibited. Now the Americans with Disabilities Act is various states has state counterparts. It is, for example, in the state of Wisconsin, there is the Wisconsin Fair Employment Act. It is actually interpreted much more employee-friendly than the ADA. So if you have an issue that comes up where an employee needs to have a leave because of a medical condition or an impairment, it would be important for you to consult with your lawyer to make sure in addition to these three laws that you are covering any state or local requirements or providing that person with leave or accommodating them. To drive home some of these points, I am going to bring up an example that we are going to talk about throughout the remainder of the presentation that deals with an employee who has reported having migraines that are, according to the employee, caused by being exposed to fluorescent lighting at work. So we ve named our character of Migraine Mary. She is an employee in the Company s accounting department and she has an actual doctor s diagnosis that she has severe migraines and mood swings caused by prolonged exposure to fluorescent lighting. If you were to call me and we were to discuss this scenario, I would immediately point out that there are three potential laws, at least three potential laws, that are implicated by Mary s scenario. The first is the FMLA. So what we would analyze under the FMLA is whether her migraines constitute a serious health condition. If they do constitute a serious health condition, then she probably has FMLA rights to leave. The next thing I would determine is worker s compensation and if she can establish that the injury occurred during the course of her employment and arose out of employment, was caused by employment then she may be entitled to worker s compensation benefits. And then lastly under the ADA, we would have to make a determination as to whether her migraines meet the definition of a disability, and a definition of a disability which we are going to cover in detail is any physical or mental impairment that substantially limits one or more of a person s major life activities, such as walking or sleeping and a major life activity is also working. So migraines come up very frequently in the case law is that if are chronic migraines that they should count as a disability thereby triggering a combination request. Okay taking a step back, let s bore into the FMLA a bit. In order to meet the definition of a serious health condition, the impairment or illness or condition has to be one of two things. It generally has to require either inpatient care or continuing course of treatment by a healthcare provider. So if anybody is hospitalized or the like that automatically meets definition of a serious health condition for which the employee is accorded protective leave under FMLA. 2

3 Continuing treatment means that they are incapacitated for three days and then they have subsequent treatment with their doctor, and chronic conditions also meet the definition of a serious health condition. So in Mary s case, if her migraine had caused her to miss three days of work and then follow-up treatment, or if it had caused her to chronically have a condition and have periodic treatment, then they would meet the definition of a serious health condition which would mean Mary is entitled before the employer can do anything about the fact that she is not able to report to work, the employer would have to give her a full 12 weeks or the equivalent of 12 weeks of time off in order to deal with her migraine situation. Under the ADA, the ADA was actually modified in 2009 to make it easier for employees to establish whether or not a condition constituted a disability. That s because employers decide defense lawyers very successfully whittled down and that and narrowed the definition of disability under the ADA in a variety of ways. So in 2009 at the urging of the Obama administration, they changed the definition so that more people could more easily qualify as having a disability if they had a condition. So first of all as again, I said that if some sort of condition or impairment or illness which makes performing a major life activity unusually difficult and this slide describes some of the major life activities. For example, if I am confined to a wheelchair, obviously a major life activity that is impacted for me is walking and I cannot emulate. It might, though, impact my major life activity of working. So if I had a condition which makes it very difficult to work or make an achievement of work unusually difficult than meets that prong of the analysis. The other piece is that generally the definition of a disability describse things that are long term or a near permanent type of condition. For example, if I was in a motorcycle accident and I break my leg and it is going to be healed up in a couple of months, that does not generally meet the definition of a disability. However, if I am in a motorcycle accident and I break my back and that is going to have long-term impac,t that will impact a major life activity and I probably do have a disability that would need to be accommodated under the ADA. This slide indicates that things that are episodic or long-standing or chronic that when they are active impact my ability to a major life function, then they meet the definition of a disability. And migraines are a good example of what type of condition might fall under those types of situations, because when a person has been diagnosed with migraines has a serious migraine, it may be that they are completely incapacitated from working. That last point was that mitigating factors may not be considered in determining whether or not someone has a disability, came up from a line of cases where employers were able to successfully argue well this person s lifelong condition of heart disease is not substantially limiting, because if they take their heart medication then they are fine, and so therefore they do not meet the definition of a person with a disability. The new changes in the law clearly nixed that type of scenario. Alright adding some detail with Mary. Now Mary has gone from indicating that she has been diagnosed with migraines to a situation where she is becoming frequently more often absent and tardy. And the CFO approaches Mary and asks her if she is okay because at this point they are not exactly sure why she is missing so much work. Mary clearly tells the CFO that the fluorescent lights in her office are causing her severe migraines and that as a result she is going to have to miss work from time to time with little to no notice possible. Now, first of all, for those of you whose position is to manage employees I know how difficult these types of situations are to manage. Especially with a hidden disability. You can t really tell if 3

4 an employee is legitimately missing work or whether sometimes is just an excuse for missing work. I hear many employers complain that the law favors employees in this regard I hear your frustration but at the same time it is what it is. The law is pretty clear of it until an employer has jumped through numerous steps you really are required to accommodate treat these types of conditions as legitimate and only after managing a situation can you make some contrary determination. So with Mary s migraines has she provided enough information in order to be entitled to the accommodation that she seeks which is missing work from time to time with or without a notice. But first of all this title should actually not be requesting a leave of absence it should be obtaining protection under the laws that we re describing and the first bullet point is abracadabra and actually there are no magic words needed. Each of these laws basically says that if the employer is given enough information so that they could reasonably conclude or be reasonably placed on notice that the employee has a need for some accommodation or a need for leave to take FMLA then that is enough. So Mary has said to the CFO I have migraines and they are caused by my work and I need to miss work. So under the FMLA what can the employer do. First of all the employer is always entitled to obtain medical information and I highly recommend that in every case if someone is requesting a leave or an accommodation that the employer always request medical documentation. The FMLA somewhat limits employers on specifics of what the employer could seek. That is a topic for another day. But if you went on the Department of Labor website you would find the Department of Labor FMLA Certification Form. Basically, ask the doctor to describe the condition, to describe whether the person is going to need some intermittent or set amount of leave and describe if and when they are going to be able to come back to work. That is all the information that the employer has the right to request and receive. In Mary s case if she came in and filled out the FMLA Certification Form with the doctor saying that she needs to leave that the leave even intermittently, the employer will be obligated to allow her to miss that work up to 12 total weeks if she is covered by the FMLA. And the note if any employers don t meet the sufficient number of employees to be covered under the FMLA, I generally recommend that they not voluntarily agree to comply with the FMLA. Lots of times we will review handbooks and we will see someone say oh we complied with the FMLA even though they only have 25 employees. We strongly recommend against that. You certainly can be a good employer and offer leave rights. It is just that the FMLA is very burdensome and for that reason it applies to fairly large employers only. For workers compensation, most often employers have a workers compensation insurer which takes care of these things but in some states the employer takes care of this. As soon as someone makes a claim for workers compensation benefits, they have waived their position of client, patient privilege and so the employer is entitled to request medical information as a part of paying benefits. And then lastly, under the ADA if you the employer receive information that puts you on a reasonable notice that the person may have a disability and may need some sort of an accommodation so here, in Mary s case if she is covered by the FMLA the accommodation is the leave. But let s say she is not covered by the FMLA. The ADA would still apply. The ADA would say okay employer, you are supposed to gauge the interactive process to determine if there is some accommodation you could provide for this employee. Now before you go there, you as the employer have a right to medical information to determine whether the person has a disability, and then this interactive process which is described in the last bullet 4

5 point, is designed where you and the employee are going to work together along with the employee s doctor to figure out if there is any accommodations that can be made for her condition. Adding to our scenario now Mary is there are some more red flags coming up because sometime after she has reported that she is suffering from migraines she starts to miss work every Friday and she is frequently in for work the other days. This is a situation where I would advise the employer to the fullest extent that it is legally possible to manage the leave. So for the FMLA, again this is the law that allows employers the least amount of information. However, even though you can t request more information from the doctor, you can tell these doctor s information that you find helpful. And then there are ways to obtain recertification every 30 days. In Mary s case she revealed she had migraines some months ago and now it is every Friday that she is missing. You might ask her and say you know we want this recertified from your doctor and by the way, please provide your doctor with the following letter. You would have worked with your attorney to prepare something which says Dear Dr. Jones: We understand that Mary is under your care for migraines, we re her employer and we have been providing her with intermittent leave. However, she started consistently missing every single Friday and no other days of the week. Please recertify that this condition is impacting her ability to do her job. Now you haven t asked for information that is improper but you have clearly almost put that doctor s professional analysis on the line by saying we think there are some shenanigans going on here. Workers Comp. You and your carrier are entitled to frequent medical updates and under the American with Disabilities Act, you absolutely have a legal right to obtain if it is a reasonable basis for concluding that the information you have from the doctor is somehow flawed, there are actually ways to get more information or even seek a second opinion. One of the tools that I described and been able to practically to tell doctors what is really going on and move on from there. Mary s case also raises the issue of intermittent leave, and there are some strategies for more aggressive with managing intermittently so that it is not subject to abuse by employee. One of which is for the FMLA I frequently and it really arises out of practices in the past or even in administration. Employers don t allow absences or don t track absences on less than full or partday absences. For the FMLA, the law says that you can track down to as short of an increment as you would otherwise track. So we strongly recommend that you track on a very short term hour-by-hour basis because otherwise a person who is taken an hour here and an hour there if you are not counting this against them, they will never reach the total under the FMLA. With this compensation, intermittent leave is not necessarily required. Either they are able to do the job or not. It doesn t really impact here. For the ADA is all about reasonableness. Again, if you are able to reasonably accommodate or make a showing that what the employee is asking for if they re not covered under the FMLA, then you may not have to grant that accommodation. One of the strategy on this point is that we strongly recommend that you require, where are allowed by law, employees use up their paid time off contemporaneously with all of their FMLA time. You are allowed to say something like unless not allowed by law whenever you are on FMLA you must first exhaust all of your paid time off. Sometimes that prevents the abuse of the intermittent due process. Because people do not want to use up their vacation for that purpose. 5

6 I am actually going to skip the light duties topic simply because it is a one-off of the key things that we are talking about. However, if you have any questions, please feel free to type them in. Alright Mary s situation has changed again, where in addition to taking time off for intermittent leave, her work performance starts to suffer. She misses mandatory duty. She was making way too many typographical errors. Her behavior towards co-workers is not professional and she is not around when the CFO needs her. How do manage performance issues during a leave? Again, the types of issues are very difficult, especially when any of the performance criticism relates to her absenteeism. We strongly advise you to proceed with ultimate caution when you have criticisms of an employee s performance that relate specifically to attendance. However, performance problems should be managed without consideration of the leave or medical condition and so typographical errors, inappropriate behaviors -- those are all fair game for the employer to address, even if the employee happens to be taking leave at the same time. Falls back to the basic HR 101 rule which is document, document, document -- so that you can establish the legitimacy of any decision after the fact in case it is challenged by the employee. The next slide Mary just has a problem. On October 5, 2011 she trips and falls over some chairs in the conference room and dislocates her shoulder. She submits a note from her doctor indicating that she can return to work on January 30. Let s note some things about this. First of all, what she is requesting is more than 3 months of leave more than 12 weeks of leave, but it s running between calendar years, so how I would analyze this situation in determining if you need to hold her job open for her until January 30, is you would first, under the FMLA, determine is she going to exhaust her FMLA leave time. That is the reason the end of the year situation is important because if a leave runs over a calendar year, if you run your FMLA leave on a calendar-year basis, she may be entitled to a new 12-weeks of leave on January 1. She probably has a serious health condition, so if she still has FMLA leave, you are going to have to leave her job open for her. Under the Worker s Comp statute, again, that s not a leave protection statute, but you would have to treat her the same as other people are treated. And, if you don t return her back to work under Worker s Comp laws, there may be an increased value to her claim because she may get some sort of additional benefit. Then, lastly under the ADA, is this situation covered under the ADA? Probably not. It goes back to that definition of a disability. Someone who dislocates her shoulder, that s in the nature of a temporary, not lifelong or permanent condition, and so that s probably not the situation where the employer would have to accommodate. The EEOC is really watching employers who terminate employees at the conclusion of medical leave and that means that employers even after referring back to people have to have a substantial basis, a legitimate basis to substantiate their decision. In closing, whenever an employee alerts the Company in any way, not using the magic words that they are suffering from some sort of condition, a medical condition or impairment or psychological condition affecting their ability to work, your red flag should go up and you, in consultation with your lawyers, should immediately assess and be mindful of the three parts of the Bermuda Triangle of Employee Leave law: FMLA, Workers Comp and the ADA. After making a consideration of what each law requires, sometimes in the same circumstance, only then can you determine the path that you need to take in order to protect the Company from liability. 6

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