WORKPLACE: The Bermuda Triangle Of Employment

Picture this: One of your employees injures his or her back on the job. You (appropriately) 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 the employee’s 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 11 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?

Why is this regulation so confusing and difficult to comply with? Perhaps it’s the fact that we can’t isolate it out and deal with it on its face. Instead, employers must tackle Workers’ Compensation (WC) and Family & Medical Leave Act (FMLA) requirements at the same time. These three regulations can (and often do) run concurrently. It’s been dubbed "The Bermuda Triangle" of employment — and rightly so. The goal of this column is to help you make your way through the Triangle without drowning.

PRINCIPAL ADA REQUIREMENT. 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 of otherwise qualified applicants and employees with a disability unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business.

Needless to say, every one of these words has a definition of its own. For example, according to EEOC, "disability" is "a physical or mental impairment that substantially limits one or more major life activities." Individuals with "disabilities" include those who:

• Have a physical or mental impairment.

• Have a record of a physical or mental impairment.

• Are regarded as having a physical or mental impairment.

• Associate with a person with a disability (such as the mother of a disabled child).

You get the point — it’s complicated. And, if you happen to have fewer than 15 employees, chances are you’re still covered by similar state employment regulations that apply to smaller businesses. (In other words, sorry, but you’ll need to keep reading!)

By the way, the most common impairment under ADA is back impairment. And, what percent of bad back claims do you think are work-related? Almost all. (FYI: The second most common ADA impairment is stress, and the third is neurological disorders, like carpal tunnel syndrome.)

IMPAIRMENT VS. DISABILITY. Under ADA, "an impairment" is not necessarily a "disability." There are quadriplegics who are severely impaired who don’t consider themselves disabled and, on the other hand, there are people walking around who are classified as 100 percent disabled who look and act healthier than you and I. Also, a person can be classified as disabled by social security or an insurance carrier and not meet the ADA definition of "disabled."

Don’t try to make sense of this. Just remember, each case stands alone. What may be a disability for one person may not be for another. This is why it’s critical to get professional advice if you encounter a potential ADA situation.

Before we get back to the Bermuda Triangle, let’s look at the Family and Medical Leave Act (FMLA). We won’t talk about Workers’ Compensation since it’s been around for a long time and most everyone knows what it is and how it works.

The FMLA, however, 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. This leave does not have to be paid, but you do have to reinstate the employee at his or her same rate of pay upon return. Also, you must continue any health insurance benefits he or she was receiving at the commencement of the leave, although you can require payment for the employee’s portion.

FMLA is enforced by the U.S. Department of Labor, Wage and Hour Division. As you might imagine, many states have enacted more stringent family and medical 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 may also have a disability?

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

1. If the workers’ compensation leave extends beyond three days, initiate the FMLA leave process for eligible employees. This is a critical point because 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 leave can and should run concurrently with Workers’ Compensation. Otherwise, you may find yourself granting an FMLA leave on top of previous leave. (This is called "leave-stacking" and you want to avoid it at all costs.)

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

3. Decisions regarding the 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 create the perception of a disability that, in turn, can create an ADA liability.

7. All employment-related decisions about an individual with a disability must be made case by case. "Blanket" return-to-work policies are not acceptable.

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 (typically, a human resources representative) to keep the lines of communication open with employees who are out on FMLA and WC leaves. Litigation often stems from a failure to communicate with employees i.e., if they feel forgotten or mistreated and become angry.

CONCLUSION. The moral of the story is tread carefully in deep water. Call for help when you’re faced with a potential ADA/WC/FMLA situation. In addition to addressing the requirements of these three regulations, you want to review state regulations along with health insurance and disability obligations. Your HR manager or a trained professional can help keep you afloat in such murky waters!

The author is president of the Winter Park, Fla., consulting firm, Seawright & Associates, Inc. She can be reached at 407/645-2433 or via e-mail at jseawright@pctonline.com.