bermuda triangle presentation

8/4/2019 Bermuda Triangle Presentation

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The Bermuda Triangle:The Bermuda Triangle:

ADA, FMLA & Workers CompensationADA, FMLA & Workers Compensation

AREA Human Resources UpdateAREA Human Resources Update

April 6, 2006April 6, 2006

Kira Fonteneau


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The Bermuda TriangleThe Bermuda Triangle

The First Leg: ADAThe First Leg: ADA

Americans With Disabilities Act of 1990Americans With Disabilities Act of 1990

At least 15 employees for coverageAt least 15 employees for coverage

QUIDQUID a person who can perform the essentiala person who can perform the essential

functions of the position desired or held, with orfunctions of the position desired or held, with orwithout reasonable accommodation.without reasonable accommodation.


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What is a Disability?What is a Disability?

Physical or mental impairment thatPhysical or mental impairment that

substantially limits one or more MLAssubstantially limits one or more MLAs

A record of such an impairmentA record of such an impairment

Being regarded as having such anBeing regarded as having such an

impairmentimpairment


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Reasonable AccommodationReasonable Accommodation

Employees responsibility to request,Employees responsibility to request,generallygenerally

Employer not required to wait indefinitely forEmployer not required to wait indefinitely for

condition to be correctedcondition to be corrected

No set period of time where employer is noNo set period of time where employer is nolonger required to reasonably accommodatelonger required to reasonably accommodate


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Direct ThreatDirect Threat

No obligation to accommodate where aNo obligation to accommodate where asignificant risk is posed to health orsignificant risk is posed to health or

safetysafety

Both individual and othersBoth individual and others

Individualized assessmentIndividualized assessment

ExamplesExamples


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Drug/Alcohol AbuseDrug/Alcohol Abuse

Alcoholism as a covered disabilityAlcoholism as a covered disability

Current illegal drug use notCurrent illegal drug use not

protectedprotected

Individual seeking substanceIndividual seeking substance

abuse treatment for past drug useabuse treatment for past drug usemay be protectedmay be protected

Employees must comply withEmployees must comply with

workplace rulesworkplace rules


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Behavioral ConcernsBehavioral Concerns

Hold disabled employees to same standardsHold disabled employees to same standardsof workplace conduct as nonof workplace conduct as non--disableddisabled

employeesemployees

JobJob--related and consistent with businessrelated and consistent with business

necessitynecessity

Presence at work as an essential job functionPresence at work as an essential job function

Punctuality as an essential job functionPunctuality as an essential job function


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The Second Leg: FMLAThe Second Leg: FMLAFamily and Medical Leave Act of 1993Family and Medical Leave Act of 1993

Covered employers must grant up to 12 weeks ofCovered employers must grant up to 12 weeks ofunpaid leave with continued group health insurance inunpaid leave with continued group health insurance inany 12any 12--month period for the birth or placement of amonth period for the birth or placement of achild or for the serious health condition of thechild or for the serious health condition of the

employee or certain family membersemployee or certain family members


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The Second Leg: FMLAThe Second Leg: FMLA

Who are covered employers?Who are covered employers?

What employees count?What employees count?

Who are eligible employees?Who are eligible employees?

What family members count?What family members count?


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What is a serious health condition?What is a serious health condition?

Is a serious health condition the sameIs a serious health condition the same

as a disability under the ADA?as a disability under the ADA?

Could a workers compensation injuryCould a workers compensation injury

qualify as a serious health condition?qualify as a serious health condition?


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How do I compute the 12How do I compute the 12--monthmonth

period?period?

What is intermittent leave?What is intermittent leave?

What is reduced schedule leave?What is reduced schedule leave?


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How does FMLA leave interact withHow does FMLA leave interact with

workers compensation leave or otherworkers compensation leave or otherpaid leave?paid leave?

What rights does an employee whoWhat rights does an employee who

takes FMLA leave have?takes FMLA leave have?


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What protections does an employee whoWhat protections does an employee who

requests or takes FMLA leave have?requests or takes FMLA leave have?


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Can employees escape theCan employees escape the

consequences of their misconduct byconsequences of their misconduct byrequesting or taking FMLA leave?requesting or taking FMLA leave?

NO!NO!


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The Third Leg: WorkersThe Third Leg: Workers

CompensationCompensation

A statutory method of providing wageA statutory method of providing wage--replacement (or death) benefits andreplacement (or death) benefits and

medical expense coverage formedical expense coverage for

employees who experience workemployees who experience work--relatedrelated

injuriesinjuries


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Covered employeesCovered employees

Covered injuriesCovered injuries

Arising out of employment: Was theArising out of employment: Was the

injury caused by the employment?injury caused by the employment?


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Covered InjuriesCovered Injuries In the course of employment: Did the injuryIn the course of employment: Did the injury

occur at work, at a place where theoccur at work, at a place where the

employee reasonably was expected to be,employee reasonably was expected to be,

while he was performing work or workwhile he was performing work or work--related duties?related duties?


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Are preAre pre--employment inquiries aboutemployment inquiries about

prior workprior work--related injuries orrelated injuries orworkers compensation claimsworkers compensation claims

okay?okay?

Does an employer have toDoes an employer have toaccommodate an employee withaccommodate an employee with

light or alternate duty?light or alternate duty?


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What are the risks ofWhat are the risks of

discharging an employeedischarging an employeefollowing a workfollowing a work--relatedrelated

injury?injury?

RetaliationRetaliation

But what if the employee cantperform her regular job?


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Workers Compensation AbuseWorkers Compensation Abuse

Watch closely, start early andWatch closely, start early and

manage carefully!manage carefully!


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DISCHARGEDISCHARGE

ADAADA Under the ADA, attendance is generallyUnder the ADA, attendance is generallyconsidered to be essential function of job.considered to be essential function of job.

But, some reasonable modification to the attendanceBut, some reasonable modification to the attendance

policy may be necessary.policy may be necessary.

FMLAFMLA The FMLA provides that absences forThe FMLA provides that absences forapproved leave mayapproved leave may notnot be counted against thebe counted against theemployee.employee.

Workers Compensation ActWorkers Compensation Act Because of the threat ofBecause of the threat ofretaliatory discharge claims, consistent application ofretaliatory discharge claims, consistent application ofcompany policy is importantcompany policy is important..


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EMPLOYEE FRAUDEMPLOYEE FRAUD

FMLAFMLA An employee who fraudulently attempts to obtainAn employee who fraudulently attempts to obtain

leave may be discharged.leave may be discharged.

Workers Compensation ActWorkers Compensation Act An employee who knowingly commits fraud as to hisAn employee who knowingly commits fraud as to his

prior workers compensation history or in theprior workers compensation history or in the

application for or receipt of benefits can be deemedapplication for or receipt of benefits can be deemedbenefits, employment, or discharged.benefits, employment, or discharged.


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QUESTIONS ?QUESTIONS ?

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