(DEAR READERS: I know that using “Bermuda Triangle” to refer to issues involving the Americans with Disabilities Act, the Family and Medical Leave Act, and workers’ compensation is corny, trite, stale, and overdone. But I’m being ironic, so it’s ok.)
No. 1: FMLA leave can run _____________ with workers’ compensation leave.
ANSWER: C. They can run concurrently, and employers should allow them to run concurrently so the highly technical FMLA restrictions and obligations are out of the way as early as possible.
No. 2: If an employer offers “make-work” light duty to employees with workers’ comp injuries or illnesses, does it have to do the same for employees with non-work-related ADA disabilities?
A. No, because people who get hurt on the job deserve more favorable treatment from the employer than people who don’t.
B. No, because “make-work” light duty is provided mainly to keep workers’ comp premiums low by minimizing the benefit that has to be paid. That is not a concern with non-work-related ADA disabilities.
C. Yes, as long as the employee is in good standing.
D. Yes. The employer doesn’t have to offer “make-work” light duty at all, but if it does, then it would be required to offer it to employees with ADA disabilities on the same basis.
ANSWER: D. For this reason, it’s not a good idea to allow employees with workers’ comp injuries or illnesses to be on light duty indefinitely.
No. 3: Laura was injured on the job, and she is eligible for FMLA leave. You find an appropriate light duty position that is within her restrictions and has been approved by her doctor. When the position is offered to Laura, she says she doesn’t want to take it and would rather go out on FMLA leave instead. What is your recourse, if any?
A. Fire Laura for refusing an appropriate light duty position.
B. Allow Laura to take FMLA leave, but then apply for her workers’ comp benefits to be cut off because she refused an appropriate light duty position.
C. Since Laura refused an appropriate light duty position, let her go out on leave, but count each day against her under the attendance policy, and terminate her when she reaches the limit.
D. Nothing. You have no recourse in this situation.
ANSWER: B. Laura has an absolute right to take FMLA leave, but you still have the right to at least try to get her workers’ comp benefits cut off. (In real life, I’d suggest telling Laura in advance that this is what is going to happen. It might encourage her to change her mind and take the light duty instead.)
No. 4: Danny makes bicycle deliveries. At an intersection, a car ran a red light and hit Danny. Danny was in the hospital for a month, and he’s been continuing to recuperate at home for the past two weeks. It appears that his mobility will be permanently impaired. You just received a note from Danny’s doctor saying that Danny needs to stay out on medical leave for three more months (total of 4 1/2 months), and then he will be able to return to full duty with the accommodation of a recumbent bicycle. What do you do?
A. Terminate Danny’s employment because he will not be able to return to work at the end of his 12-week FMLA leave period.
B. Let Danny stay on FMLA/workers’ comp leave until he hits 12 weeks, and then charge each subsequent absence against him under your attendance policy until he gets enough occurrences for termination. Then terminate his employment.
C. Call Danny, tell him you got the doctor’s note, and say, “See you in three months! Your recumbent bike will be waiting! Luv ya!”
D. Permanently replace Danny with an employee who can ride a regular bike.
ANSWER: C, although employers can legally omit the “Luv ya!” part. The Equal Employment Opportunity Commission says that employers are generally required to allow employees with disabilities to take some “extra leave” as a reasonable accommodation under the ADA. Danny needs six weeks in addition to his 12 weeks of FMLA leave, and his doctor has given you a definite return-to-work date. Under these circumstances, you would almost certainly be required to let him have an extra six weeks of job-protected leave, and to allow him to return with the reasonable accommodation of a different type of bicycle, assuming there are no safety or efficiency issues.
No. 5: When an FMLA-eligible employee has a work-related injury or illness that results in an ADA-qualifying disability, here is a good protocol for employers to follow:
A. Let the FMLA entitlement run until it is exhausted. Meanwhile, follow up as needed with your workers’ comp carrier. When employee is ready to return to work (assuming he or she can’t return to full duty), engage in the interactive process with the employee and be open to making reasonable accommodations.
B. Let the workers’ comp case control, but let the FMLA time run concurrently. Do not allow the employee to return to work until he or she is 100 percent recovered. That way, no “interactive process” or “reasonable accommodation” will be necessary. If the employee cannot come back at 100 percent, administratively terminate employment.
C. Throw up your hands in despair. Too many laws!
D. Let the FMLA entitlement run until it is exhausted. Meanwhile, follow up as needed with your workers’ comp carrier. When employee is ready to return to work (assuming he or she can’t return to full duty), bring him or her back to work doing “make-work” light duty.
ANSWER: A. There is a big difference between “reasonable accommodation” and “make-work” light duty. Reasonable accommodation consists of adjustments to an actual job that you need to have performed, to allow an individual with a disability to perform that job. Make-work is just what the name implies. In the workers’ compensation context, light duty often serves no purpose for the employer other than to keep premiums low, and perhaps to keep the employee active and engaged with the company during recovery. Reasonable accommodation should be offered for as long as necessary to allow the employee with a disability to perform the essential functions of the job. Make-work light duty doesn’t have to be offered at all, much less on a permanent basis.
5 correct: Ace Bermuda Triangle navigator!
4 correct: Good enough – you’ll make it to San Juan!
3 correct: Apprentice pilot.
2 correct: Radio signal lost. Mayday!
1 or 0 correct: “And they were never seen or heard from again.”
Image Credits: From flickr, Creative Commons license. Map of Bermuda Triangle by National Oceanic and Atmospheric Administration, National Ocean Service; shipwreck by Ian Burt; cockpit by Dmitry Terekhov.