The Bermuda Triangle of HR law: What employers need to know

Some employee absence events may trigger not just one law, but the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and state workers’ compensation laws. Violations of these laws may cause penalties to employers and, in some cases, even to managers.

Smart Business spoke with Linda Croushore, senior director of Disability Services, and Jeffrey Swaney, vice president of Workers’ Compensation, at WorkPartners, about the overlap among ADA, FMLA and workers’ compensation.

Who can trigger ADA, FMLA or workers’ compensation? In what instances will more than one law apply?

It is generally the employee’s responsibility to inform the employer about the need for an accommodation, related to a medical condition, to enable the employee to fulfill the essential duties of the job. However, failure to clearly request an accommodation or provide this information hasn’t always prevented lawsuits. In some cases, courts held that erratic employee behavior was a sufficient notice of need for an accommodation. In addition, a doctor, family member or other qualified person can make requests ‘on behalf of’ the employee. Employees cannot simply stop reporting for work; some notice is required by the FMLA.

With workers’ compensation, every state has its own laws and regulations, but the claim for a work-related injury should always be reported within 24 hours of the injury. This gives the workers’ compensation program time to assess the claim’s validity. More importantly, care can be directed early in the process as allowed by state statutes.

The ADA, FMLA, and workers’ compensation regulations overlap in several areas; employers must determine which one(s) apply to an employee’s leave request. This overlap can raise questions regarding employer coverage, employee eligibility, length of leave and medical documentation.

How should employers handle leave when there’s overlap among the laws?

Employers operating in this overlap zone need to maintain communication and require appropriate medical documentation. When these best practices falter, cases start to run off the rails because most leaves contain too many nuances for employees to comply without ongoing guidance.

Sending a startup letter or medical certification form isn’t enough. Employers that require fitness-for-duty certification should have a uniform FMLA policy in the handbook and other written communication to employees. The employer must give the employee a list of the essential job functions for use in the certification. The certification states the employee is able to resume work following an FMLA leave. It can address the employee’s ability to perform the essential functions of the job and is signed by the employee’s health care provider. Employers shouldn’t refuse to let an individual with a restriction return to work simply because the worker isn’t fully recovered from the injury. This will likely result in an ADA violation.

The interactive process begins when an employer learns of the need for an accommodation. Even when an employer believes no accommodation is possible, the ADA requires an ‘interactive process’ to discuss the situation with the disabled worker; health care providers are often included. Rather than moving straight to the undue hardship argument, employers should thoughtfully evaluate the accommodation request. Does the proposed accommodation provide for the safety of employees and customers? Does it remove any essential functions? Will it negatively impact work or product quality? The process may require multiple cycles to explore possible job modifications, more leave time or other alternatives.

Employers shouldn’t place the burden on the employee to identify open positions that meet the accommodation request. Yet, it’s imperative that employers document all efforts of an employee — or the lack of effort — to engage in this interactive process.

When employers consider all elements while managing an employee leave or claim, the overlapping processes of ADA, FMLA, and workers’ compensation run more smoothly. Because the ADA interacts significantly with the other two, the ADA interactive process is key to helping employers avoid being sucked into the Bermuda Triangle of HR law.

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