BERMUDA TRIANGLE OF LEAVES
The Bermuda Triangle of Leaves – ADA, Work Comp, Leaves. The coming together of these three requirements and law and regulations result in a Bermuda Triangle! Pitfalls and disappearances!
Key to improving this confusion is to know:
What is a disability?
Medical certification is requirements
Establish essential functions
Engage the interactive process
Review reasonable accommodation
Track Concurrent Leave
Different laws cover different employees. The ADA applies to employers with at least 15 employees and EEOC has oversight. Check your leave policies at your organization. Know that each state can be different also. Some cities also cover leaves, whether paid or unpaid and what type.
There are some health issues that are considered a health condition but not a disability that would require a leave under the ADA but different under FMLA. FMLA serious health condition is illness, injury, impairment or physical/mental condition that requires overnight stay in hospital other facility or statement by health care provider. Yet, under the ADA, impairment is defined as that which limits major life activity, record of impairment or regarded as impairment.
FMLA requires time away from the job for a covered employee’s time out for medical purposes (not paid time off) or to care for a parent, child and spouse provisions. Covered employers are those with at least 50 employers, also check city or state laws for related leaves such as parental leave, safe harbor leave, paid vs. unpaid and the Department of Labor has responsibility. Part time employees may be covered if they work at least 1250 hours per year.
FMLA requires health insurance to continue as previously provided, however if it is only a Work Comp situation, this provision is typically not required.
Allow use of paid leave to supplement work comp payments if per policy at a percentage basis. Manhy provide for two weeks payment which the employer can but is not required to provide. Accrued timeoff can be used.
ADA – Leave is not for a definite period of time such as FMLA. Undue hardship on employer is defined under the ADA, such as too costly, substantial disruption to the workplace. No length of service requirements is in the ADA.
Leaves under the Work Comp, FMLA and ADA may overlap and it’s possible that they are taken at the same time. However, depending on what is identified as the medical issue, what law applies a little differently. FMLA and work comp should run concurrently. Identify an FMLA leave as such to stay within the 12 week leave. Work comp often does not provide job protection, depending on the injury. EEOC provides reasonable accommodation without specific time period. But it further indicates that an automatic termination policy is discriminatory based on disability.
ADA and FMLA provide for certification of fitness for duty. Work comp does not have same limitations.
Extensions of leave. In prior years a request for an extension of leave past 12 months was very unclear. The current White House Administration expectations have changed this in addition to a recent court decision that clarifies somewhat that a long period of time is not required. Astra Zeneca employee had requested an additional 12 mo. leave extension beyond the original leave for severe depression and extreme anxiety. The Court found this to be an unreasonable leave request and not a reasonable accommodation required under the ADA.
What if a medical condition spans all three requirements? What do you need to know and be aware of?
Do you know the warning signs?
As you work through various requests for medical leave of absence, keep an eye on what is required or applies under different federal, state, city laws or what your policies cover.
If you have any questions in working through this triangle of confusion, please feel free to contact TRIAD HR Consulting at 512-734-0103, Dorothy@triadhrconsullting.com or visit our website: www.triadhrconsulting.com