In the Office: The Bermuda Triangle of Employment

Picture this: One of your employees injures his or her back on the job. You file a workers’ compensation claim. After a few weeks, the employee comes back to work and presents a “light duty” release requesting an “accommodation” for his or her “disability.” The doctor’s note calls for limited walking, bending and reaching and restricts hours to six per day with a 15-minute break every hour. The employee is a technician, making the accommodation difficult at best.

Disability, you ask? Since when is a “bad back” a disability? Since 1990 – when the Americans With Disabilities Act (ADA) passed. This regulation, enforced by the federal Equal Employment Opportunity Commission (EEOC), is now 12 years old and, some say, getting worse with age. I would argue, thanks to the Supreme Court, that we’re finally starting to see some logical enforcement of the provision. This is good if you’re defending an ADA lawsuit, but what about the millions of employers who fight front-line ADA battles every day?

In addition to ADA, employers often tackle Workers’ Compensation (WC) and Family & Medical Leave Act (FMLA) requirements at the same time. These three regulations can run concurrently and have been dubbed “The Bermuda Triangle” of employment. The goal of this column is to help you make your way through the Triangle without drowning.

DISABILITIES AND LEAVE. Let’s start with a quick review of the principal ADA requirement: Employers with 15 or more employees are obligated to make reasonable accommodations to known physical or mental limitations, unless the accommodation would impose an undue hardship on the operation of the business.

According to EEOC, “disability” is “a physical or mental impairment that substantially limits one or more major life activities.” If you have fewer than 15 employees, chances are you’re still covered by similar state employment regulations that apply to smaller businesses.

The FMLA, on the other hand, became effective in 1993. This federal regulation requires employers with 50 or more employees within a 75-mile radius to grant eligible employees a minimum of 12 weeks unpaid leave for certain family and medical situations (like pregnancy or a workers’ compensation injury) that require ongoing medical treatment. An eligible employee is one who has been employed for at least 12 months and who has worked at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave. FMLA is enforced by the U.S. Department of Labor and many states have enacted more stringent leave laws that can apply to smaller businesses.

So, the big question is: How do you handle employees with job-related injuries who are eligible for FMLA and who also may have a disability?

TEN POINTS. To make your way through the ADA/WC/FMLA Bermuda Triangle, consider these 10 points:

1. If the workers’ compensation leave extends beyond three days, initiate the FMLA leave process for eligible employees. Employers cannot go back and retroactively apply FMLA – the leave must be designated up front by the employer and proper FMLA forms must be completed. FMLA  should run concurrently with workers’ compensation.

2. Your obligation under ADA to reasonably accommodate an injured worker continues throughout the claim process and family or medical leave.

3. Decisions regarding return to work and “light duty” assignments for injured workers must be made with an understanding of ADA and FMLA obligations.

4. Restricting light-duty positions to occupationally injured employees who return to work could result in an ADA violation.

5. All injured workers are not covered by ADA; they must first meet the definition of a qualified person with a disability.

6. Negative attitudes toward injured workers can cause the perception of a disability, resulting in an ADA liability.

7. Decisions must be made case by case. “Blanket” return-to-work policies are unacceptable.

8. Not allowing employees to return to work until they are 100 percent recovered (“full release”) could be viewed as failure to reasonably accommodate under ADA.

9. Consider bringing an injured employee back to work on a Thursday, so they ease back into work with only two days before the weekend. This can alleviate situations where they revert back to collecting workers’ compensation because they cannot work a full workweek.

10. Designate someone in your company to communicate with employees who are out on FMLA and WC leaves. Litigation often stems from a failure to communicate with employees, who then feel forgotten or mistreated and become angry.

The author is president of Seawright & Associates, Inc., an H.R. management consulting firm located in Winter Park, Fla. She can be reached via e-mail at jpileggi@seawright.com or at 407/645-2433.