FMLA,ADA & Workers Comp: Navigating the Treacherous Triangle

FMLA,ADA & Workers Comp: Navigating the Treacherous Triangle Brenda B. Thompson Attorney M. LEE SMITH PUBLISHERS LLC Brentwood, Tennessee

This special report provides practical information concerning the subject matters covered. It is sold with the understanding that neither the publisher nor the writer is rendering legal advice or other professional service. Some of the information provided in this special report contains a broad overview of federal law. The law changes regularly, and the law may vary from state to state and from one locality to another.you should consult a competent attorney in your state if you are in need of specific legal advice concerning any of the subjects addressed in this special report. 2000 M. Lee Smith Publishers LLC 5201 Virginia Way P.O. Box 5094 Brentwood,Tennessee 37024-5094 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means without permission in writing from the publisher. Thompson, Brenda B. Telecommuting pluses & pitfalls / Brenda B.Thompson. p. cm. ISBN 0-925773-30-1 (coil binding) 1.Telecommunication Social aspects United States. 2.Telecommunication policy United States. 3. Information technology Social aspects United States. I.Title. HE7775.T47 1996 96-21827 658.3'128 dc20 iw Printed in the United States of America

Contents INTRODUCTION....... 1 1 ADA, FMLA, AND WORKERS COMP LAW: A SIDE-BY-SIDE COMPARISON....... 3 Background and Purpose....3 Does the Law Apply to Me?....4 Whom Does the Law Protect?....6 What Does the Law Require?....7 Who Enforces the Law?....9 State vs. Federal Law:Who Wins?....10 2 FOCUS ON A FEW IMPORTANT CONCEPTS....... 11 Dealing with Workers Who Aren t Traditional Employees... 11 ADA Concepts....12 FMLA Concepts....25 Substance Abuse: An Issue of Special Concern....27 3 PUT EM ALL TOGETHER....... 29 4 HIRING DO S AND DON TS....... 31 Before the Offer....31 After the Offer....35 Exactly What Is a Real Offer?....37 Dealing with Dishonesty....37 v

Bringing Arbitration into Workplace 2000 The Hiring Decision....38 A Final Word of Caution....39 5 DEALING WITH EMPLOYEE ILLNESSES AND INJURIES....... 41 Knowing Which Laws Apply to You....41 Evaluating the Illness or Injury....42 Following the Law....46 6 AVOIDING LAWSUITS....... 61 Don t Retaliate....61 Think Before You Terminate....62 7 EVALUATING POLICIES AND PROCEDURES....... 65 Job Descriptions....65 Attendance and Leave of Absence Policies....65 Confidentiality of Medical Records....67 CONCLUSION....... 69 APPENDICES....... 71 Appendix A: List of Relevant Federal Statutes, Regulations, and Agency Guidance....71 Appendix B: Chart Comparing ADA, FMLA, and Workers Compensation Laws...77 Appendix C: Medical Certification Checklist and DOL Model Certification...79 Appendix D: FMLA Notice Checklist and DOL Model Notice....83 NOTES....... 86 vi

Introduction S Consider the following scenarios: 1.You need to hire a few new employees for positions that require a fair amount of lifting. Obviously, you d like to be sure that anyone you consider hiring for these positions can do the job. So what you d like to do is ask all applicants for positions that require lifting to tell you if they ve ever had any back injuries. If anyone answers yes, you d like to require that applicant to undergo a medical exam to determine whether the back problem would prevent her from performing the job. Can you do that without violating the law? 2.You have a longstanding leave of absence policy that provides for a maximum leave of absence of one year. If an employee doesn t return to work at the end of that period, he s automatically fired. One of your employees hurt her shoulder at work and, as a result, had to take some time off. After several months off without any improvement to her shoulder, her doctor recommended she have surgery to repair a torn rotator cuff.the employee called to let you know she d probably be out for another few months. If the employee doesn t come back to work when she hits the 12-month mark, can you fire her without violating the law? Each of these scenarios raises legal issues under one or more of at least three laws (which, by now, are near and dear to the hearts of every HR professional) the federal Family and Medical Leave Act (FMLA) (and any state counterpart), the federal Americans with Disabilities Act (ADA) (and any state counterpart), and state workers compensation law. It s enough to worry about just one law, but when two (and sometimes three or more) all apply at the same time it s enough to drive even the best and most experienced HR manager up the wall (and maybe even out the door)! The purpose of this report is to help you find your way through the legal minefield that has developed around these three laws in particular, with special attention given to particularly troublesome areas, including... making it through the hiring process without tripping over the law; dealing with the problem of substance abuse; knowing when an employee poses a direct threat to your workforce; responding appropriately when an employee becomes ill or injured; 1 The number of telecommuters is estimated to be growing by 15 to 20% per year.

FMLA, ADA & Workers Comp: Navigating the Treacherous Triangle preventing supervisors from retaliating against an employee for taking FMLA leave, seeking protection under the ADA, or filing a workers comp claim; knowing when it s safe to terminate an employee without running afoul of the law; and evaluating your policies and procedures to be sure they re a help and not a hindrance. A word of caution: The laws discussed in this report are both comprehensive and complex.what s more, their interpretation often changes from one year to the next. This special report is intended only to provide an overview of the laws themselves and to address a few of the problems they often create, particularly when they bump into one another. To be sure you re in compliance with the most current legal requirements, we advise you to seek the assistance of a competent employment law attorney before making any final decisions involving your workforce. 2

Appendices APPENDIX B: CHART COMPARING INTERACTING PROVISIONS OF ADA, FMLA, AND WORKERS COMPENSATION LAWS ADA FMLA Workers Comp Laws Covered employers 15 or more employees 50 or more employees Minimum number of in 20 weeks in current in 20 weeks in current employees varies or preceding year or preceding year between one and five Eligibility None 1. Employee at worksite Generally none requirements with 50 or more (other than employees within 75 miles triggering health 2. Employee has worked condition for you total of 12 months requirements, (need not be consecutive) below) 3. Employee has 1,250 hours of service in 12 months before leave Health condition 1. Employee has Employee has serious 1. Employee is ill triggering impairment that health condition that or injured protection of law substantially limits major keeps him from 2. Illness or injury life activity (or has performing essential job occurred during course history or regarded as functions of employment having same) 3. Illness or injury 2. Despite disability, arose out of employment employee can perform essential job functions if provided reasonable accommodation Ability to work To qualify for ADA Employee s serious To receive income requirement protection, employee health condition must benefits, generally must must be able to keep him from show some level of perform essential job performing essential job incapacity functions if reasonable functions accommodation given Leave available? Depends on facts. Law Yes Maybe, if employee requires reasonable unable to work accommodation that doesn t pose undue hardship, which in some cases, may mean leave of absence Paid leave required? Not generally, but again, No, but if provided, can Depending on nature depends on facts (must count against annual of injury and resulting give reasonable FMLA leave allotment incapacity, may be accommodation), and entitled to income may not discriminate benefits based on disability 77

FMLA, ADA & Workers Comp: Navigating the Treacherous Triangle ADA FMLA Workers Comp Laws Duration of leave? Again, depends on facts Up to 12 weeks in a Depends on nature of of case 12-month period injury and incapacity Intermittent leave Again, depends on facts Yes Depends on state law or reduced work of case schedule required? Notice from Yes,ADA doesn t apply Yes, if need is foreseeable, Yes, employee generally employee required? to an employee unless you employee must give must notify you promptly know about her disability at least 30 days notice; of job-related condition if unforeseeable, as much notice as practicable Medical certification Yes Yes Generally yes permitted? Required to Not generally, but Yes, for health benefits Generally not required provide benefits depends on facts of case (on same terms as during leave? (reasonable before leave); upon accommodation; can t return, must restore discriminate) other benefits as if employee never gone Required to reinstate Generally yes, but again, Generally, must restore Generally depends on at end of leave? depends on facts of case employee to same or employee s ability to do equivalent job the job Obligated to provide Depends on facts No; if do provide it, can t Depends on state law light duty? of case (reasonable require employee to cut accommodation test) FMLA leave short to take it Anti-retaliation Yes Yes Yes provision 78

About the Author Brenda B. Thompson is an attorney in the Editorial Department of M. Lee Smith Publishers LLC. Prior to joining the company, Ms. Thompson practiced law at Bass, Berry & Sims in Nashville,Tennessee, and at Miller & Martin in Chattanooga,Tennessee, where her primary areas of practice were employee benefits and federal income taxation. Before coming to Tennessee, Ms.Thompson was an associate at Alston & Bird in Atlanta, Georgia, where she practiced in the areas of federal, state, and local taxation. Ms.Thompson received a B.S. in Secondary Education from Tennessee Temple University, and worked as a high school English teacher between college and law school. She graduated first in her class from Wake Forest University School of Law, where she served as research editor of the Wake Forest Law Review, was a member of the Moot Court Board, and received several academic awards. 91

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