What's the "Bermuda Triangle" of Employment Leave?

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An employee is injured – what do you do (other than send a get well card and call your attorney, of course)? Look into the so-called "Bermuda Triangle" of employment leave: Workers' Compensation, the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA). The inter-connectedness of these three laws can put employers into dangerous territory. In an effort to help you navigate these choppy waters, here is a breakdown of the "Bermuda Triangle" in a decision tree (courtesy of David A. Kaplan). 

 Work-Related Injuries and Illnesses

1. Is the condition temporary?
Then it is not likely to be an ADA issue.

2. Is the condition a "serious health condition"?
If it is, provide FMLA leave and give FMLA notice if the employee is eligible for FMLA. Request medical certification.

If FMLA leave is not exhausted before the employee is able to return to work, then the employee is entitled to return to his old job upon his return from leave. If FMLA leave has been exhausted before the employee is able to return, then the employee is entitled to his old job back unless it has been filled due to business necessity (in most states). If the position has been filled, then the employee is entitled to any open job for which he is then qualified by skills and physical condition.

If FMLA leave has been exhausted before the employee is able to return, his old job has been filled, and there are no open jobs for which the employee is qualified, then (in most states) the employee must be offered any newly opened jobs for which he is qualified until there is evidence that the employee is no longer interested in employment with the company. Many times, an employer can simply advise the employee that he may apply for any opening for which he is qualified as soon as he/she can return to work.

3. Is the condition permanent?
Use the same approach as above, plus accommodation issues under the ADA. The employee must be able to perform the essential functions of the position, and the employer must engage in the interactive process to explore reasonable accommodations. Remember, the employee is not necessarily entitled to his requested or "best" accommodation. In addition, a leave of absence may be a reasonable accommodation (where it is for a limited duration, and results in the employee returning at the end of leave to perform the essential functions of the job).

Non-Work-Related Injury or Illness

1. Is the condition temporary?
Then it is not likely to be an ADA issue.

2. Is the condition a "serious health condition"?
If yes, provide FMLA leave and give FMLA notice if the employee is eligible for FMLA. Request medical certification.

Ask the employee to provide regular updates as to his ability to return and request that he check-in on a weekly/semi-weekly basis with his supervisor. If the employee is able to return to work before exhausting FMLA leave, and if his/her position was not eliminated while he was on leave, the employee is entitled to his old job. If the employee does not return to work before FMLA leave has been exhausted, the employee may be terminated and is not entitled to his old job.

3. Is the condition permanent?
Use the same approach as above, plus accommodation issues. The employee should not be terminated until the employer engages in the interactive process to explore reasonable accommodations.

Employers should also be aware that individual state laws may impose additional (and sometimes inconsistent) requirements and that Workers' Compensation varies from state to state.

Not sure what each law addresses, requires and who is covered, don't worry! Contact us at 410-451-4202 and we'll walk you through it.

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Guest May 24 2017
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