Managing Leave in the Employer’s ‘Bermuda Triangle’

08/20/08

A forklift runs over the foot of one of your employees, breaking a few bones. You know the employee is entitled to time off to recover, but under what law? Workers’ Compensation would, of course, kick in, as well as the Family and Medical Leave Act for many companies. And if the injury resulted in a disability, the employee would gain rights granted by the Americans with Disabilities Act. Each provides for leave and return under different guidelines.

Welcome to what’s called the “Bermuda Triangle” of employment law. Far from rare, cases like these occur so frequently that many lawyers specialize in this convergence of the FMLA, ADA, and Workers’ Comp.

Note: Nearly every employer is covered by Workers’ Compensation regulations, which vary from state to state. It’s important to understand your state’s regs regarding leave and reinstatement. In addition, this article assumes you’re covered by both the ADA and FMLA. If you’re not sure, check out G.Neil’s Information Center.

First Responsibility: Respond to the Injury
With some workplace injuries, you call 911 immediately. Others are slow to reveal themselves or may not seem too bad to onlookers — especially supervisors eager to get on with productive work.

It’s important to respond to every incident, complaint, or request associated with an injury. According to Armando V. Riccio, an attorney with Capehart Scatchard in Mt. Laurel, New Jersey, one of the biggest mistakes employers make in dealing with injuries is missing the chance to make a “timely, informed response to information or inquiries that trigger FMLA or ADA rights.”

In other words, don’t sit on the sidelines when it’s time to act. Advises Riccio, “Make sure your line supervisors are trained to identify FMLA and ADA issues and bring them to the attention of the HR department or senior managers immediately.”

Disability or Serious Health Condition?
That done, assess the nature of the injury. Is it a “serious health condition” as defined by the FMLA? Or is it a “disability” in the eyes of the ADA? Or is it both?

According to the EEOC, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. An ADA disability, on the other hand, is an impairment that substantially limits one or more major life activities.

Sometimes the two overlap — think stroke or cancer. And many workplace injuries covered by the FMLA quickly become disabilities covered by the ADA: an eye injury that results in partial blindness, a broken arm that heals poorly, a back injury that results in a permanent inability to lift more than ten pounds.

Respond to a Request for Leave
It’s important to understand such distinctions so you can respond appropriately to a request for time off. The FMLA grants twelve weeks of unpaid leave. But under the ADA, an employer may be required to provide additional leave as a “reasonable accommodation,” though not indefinitely. As Riccio points out, “Although there is a good deal of favorable law for employers under the ADA, there is little in the way of a clear-cut upper limit for leave. To complicate matters, the interpretation of the law varies from one jurisdiction to the next.”

That means an employee with a back injury could conceivably get twelve weeks FMLA leave, and another twelve weeks of leave as an ADA accommodation — assuming it doesn’t impose an undue hardship.

When an employee is covered by both the ADA and FMLA, you may have more options for getting him or her back on the job sooner. You could, for example, offer an employee four weeks’ leave as an accommodation for a back injury under the ADA, with a return to a light-duty position for another four.

The employee is entitled to apply the law that provides greater rights. Thus, the worker just mentioned could refuse the accommodation by saying he needs the full twelve weeks offered by the FMLA to recover. As the EEOC writes: “While the FMLA does not prevent an employee from accepting an alternative to leave, the acceptance must be voluntary and uncoerced.”

Intermittent Leave
Be aware that you may need to grant intermittent leave, an employee right that bedevils many managers trying to keep an operation well-staffed. Under the ADA, for example, a qualified individual may work part-time or take time off occasionally as an accommodation, barring an undue hardship. And if reduced or intermittent hours do create an undue hardship in the current position, you must reassign the employee to a vacant, equivalent position for which the employee is qualified.

Under the FMLA, an eligible employee may take leave intermittently or on a part-time basis until the twelve weeks are used up.

When Employees Abuse the Law
Every so often, you run into an employee who abuses either the FMLA or ADA. Your first line of defense is to make medical inquiries — legally — to ensure that leave is truly necessary.

Under the FMLA, you may ask the employee for a doctor’s certification that he or she has a serious health condition. Under the ADA, you’re also permitted to make inquiries about the disability to determine whether an accommodation is warranted. But, says Riccio, “Make sure all questions and examinations are job-related and consistent with business necessity.”

Terminating an Employee on Leave
What if you want or need to terminate an employee on leave? Caution! First, make doubly sure the termination is for a lawful reason and not to retaliate. Then line up all the documentation that supports your decision.

Finally, put on your armor. For, says Riccio, “No employer can prevent an employee from filing a lawsuit, no matter how frivolous.” His advice: Check with a competent attorney before terminating. “In some jurisdictions, the timing of events plays a key role in the court’s decision to allow the matter to proceed to trial.” The attorney will also verify that you have complied with the law in all respects.

Unfortunately for employers, gray areas abound in the spot where the ADA, FMLA, and state Workers’ Comp laws meet. It’s not always easy to avoid the legal shoals that can punch a hole in the corporate ship. G.Neil provides these beacons to guide your way:

FMLA Answer Kit (includes Bermuda Triangle Tip Sheet)
Family and Medical Leave Act Compliance Guide
State-specific Workers’ Compensation Law Guides
FMLA Manager (software)
Federal Employment Laws: A Desk Reference
Confidential Employee Medical Records Folder
Employer’s Guide to Handling Government Investigations: EEOC