Navigating the Bermuda Triangle of Employment Law

Submitted by statecreative on Mon, 08/11/2014 - 18:53
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Managing absenteeism is one of your biggest challenges as an employer, largely because it involves navigating the complexities of the three major employment laws – the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and Workers’ Compensation. The interplay between these laws is so full of hazards, many Human Resources professionals refer to them as the Bermuda Triangle of Employment Law.

The three laws have different purposes. The ADA prohibits discrimination, the FMLA sets minimum leave standards, and workers’ compensation provides compensation and rehabilitation for workplace injuries.

Simple enough – but when it comes to the interplay between the three, things can get complicated. Let’s look at two of these laws and how they interact:

The ADA and Workers’ Compensation
An injured worker who is eligible for workers’ comp benefits isn’t necessarily “disabled” under the ADA. For there to be a “disability,” the injured worker must (a) have a physical or mental impairment that substantially limits a major life activity; (b) have a record of such an impairment; or (c) be regarded as having such an impairment.

However, a workplace injury can become “regarded as” a disability. For example, if an employee suffers a minor back injury and that injury is temporary and doesn’t substantially limit a major life activity, it’s not considered a “disability” under the ADA. But if the employer doesn’t allow the worker to return to work, the employer has effectively “regarded” the worker as “having such an impairment” or disability – and it would meet the ADA definition. In that case, the employer’s refusal to allow the worker to return to his job would likely violate the ADA, and the employer could face liability under both laws.

The “Disability” Game Changer
Once an injury is considered a disability, your treatment of the injured worker has to conform to the ADA – and if there’s ever a conflict between the two laws, the ADA takes precedence.

For example, an employee injured on the job may need to take leave to recover. Under workers’ comp, you might be able to require the injured employee to reach “full recovery” before coming back to work. But if the employee is also considered “disabled,” you probably won’t have that option. Instead, you’ll have to make “reasonable accommodations” for the disabled employee who can still perform the essential functions of the job. That could involve installing a wheelchair ramp, providing modified duty, or putting the employee in a different position temporarily.

The ADA’s “Interactive Process”
To determine what reasonable accommodations you should provide for a disabled employee, the ADA outlines an “interactive process” in which you and the disabled employee work together to determine whether a reasonable accommodation can be made. Once you receive a request for an accommodation, you should initiate the interactive process. Under the ADA, the process requires you to:

• Analyze the disabled employee’s job functions to establish the essential and nonessential job tasks
• Consult with the employee to learn his or her precise limitations
• Explore the kinds of accommodations that would be most effective

Dealing with ever-changing employment laws can be stressful, and violating any one of them can cost you plenty. Be sure to always consult with your legal counsel, and to be aware of your state-specific statues which may override federal rules.

To learn more about navigating the laws, talk to the risk managers and HR consultants at Heffernan Insurance Brokers. We have the knowledge and practical expertise to help you protect your profits from disappearing into the Bermuda Triangle of Employment Law.