FMLA, ADA, Workers Comp, Navigating the Collection

Feeling Lost in the Triangle? Here’s How to Plot Your Course

Knowing how to navigate the triangle of the FMLA, the ADA and Workers’ Compensation can be a daunting task for even the most seasoned HR professional. To find out how much you know, try taking this short quiz. How did you do?

Let’s start breaking it down.

FMLA (Family Medical Leave Act) as defined by the Department of Labor was enacted on February 5, 1993. The overall basis of the law is to provide most employees with up to 12 weeks of job protected leave. Acceptable reasons for FML include the birth and care of a newborn baby, a child placed with the employee through adoption or foster care, to care for the immediate family member that has been diagnosed with a serious health condition, or the serious health condition of an employee. Covered employers are those with at least 50 or more employees within 75 miles. To be covered under the FMLA, the employee must have at least one year of service and have worked at least 1,250 hours over the previous 12 months.

Employees going out on FML do not need to be compensated for the time, however, their health benefits must remain intact. Employers can and should request medical documentation and advanced notice of an employee taking the leave is required unless it is an unforeseeable emergency.

In 2008, the FMLA was expanded to cover leave for military families. Qualifying Exigency Leave is provided if the employee or an immediate family member of the employee is deployed to a foreign county. Military Caregiver Leave is available if an immediate family member is suffering from a serious illness or injury either as active military or a veteran and can be extended up to 26 weeks.

ADA & the ADAAA (Americans with Disabilities Act and ADA Amendment Act of 2008), as defined by the Department of Labor, protect employees and job applicants who have a disability from being discriminated against. A person is considered to have a disability if a physical or mental impairment limits one or more major life activity. Under the ADA, an employer with 15 or more employees must make a reasonable accommodation.

Workers’ Compensation is insurance that covers employees who have been injured or fall ill as a direct result of their employment. The coverage includes not only medical expenses but lost time wages because of the accident or injury. Workers’ Compensation is an employer paid policy and applies to all employers regardless of their size.

What You Need to Know to Navigate Safely

Understanding that most employee absences are related in some way to the illness of the employee or the employee’s family, is a good start to understanding how they are all related. With the ADA and Workers’ Compensation there is usually no set limit to the amount of time an employee may need either as a reasonable accommodation or a work-related injury. The one most important factor is that any absences under the ADA or Workers’ Compensation all run concurrently with FML. When you are designating FML time for a Workers’ Compensation or an ADA absence, note the following important differences:

ADA

Designation of FML is considered an accommodation
Engaging in the interactive process is important in determining if FML is necessary
Employee may need additional time after 12 weeks

Workers’ Compensation

If an employee is on FML, you cannot force light duty
Employee may need additional time after 12 weeks

Employer’s Most Common Mistake

As an employer the most important thing you can do is to understand the overlapping leave laws and how to apply them consistently. Many states have their own laws that apply and must be taken into consideration when designating leave. Never rely on a third-party Workers’ Compensation Claims Administrator to understand these laws and make decisions on your behalf.

Other Common Mistakes Include

Failing to properly train supervisors and managers
Failing to protect confidential information
Failing to have updated and accurate job descriptions
Failing to have uniform written accommodation policies

Employers must educate themselves and their staff in Workers’ Compensation, the FMLA, and the ADA so to mitigate any potential violations. Employers have both legal and ethical responsibilities and failure to comply with the laws can result in substantial penalties including legal fees, lost wages, back pay, compensatory, and punitive damages.

Don’t get caught in the triangle; know how to navigate to safely.

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This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.