Storage Business Owners Alliance
(248) 254-9000
Login  |  Join Now!
Twitter - Follow us on Twitter! Facebook - Look us up on Facebook! LinkedIn - We’re Linked! YouTube -
HR Corner
Posted 2/29/2016
 
print this article print    Email A Friend email    Share with Twitter   Share with Facebook   Share with LinkedIn   Share with del.icio.us   Share with Newsvine   Share with Reddit   Share with StumbleUpon   Share with Technorati  

NAVIGATING THE BERMUDA TRIANGLE WITH FMLA, ADA AND WORKER’S COMPENSATION

Managing employee relations issues is never an easy task. In some situations, employee relations matters can take up to 30% of a self-storage facility operators time, especially when discussing the topics of FMLA (Family Medical Leave Act), ADA (Americans with Disabilities Act) and Worker’s Compensation. Throughout this article you will be provided with information that will educate you on the main components of each of these terms and guide you on what you should be aware of when it comes to the correlation of these terms.

Let’s start by defining each of these terms and highlight some of the terms and conditions for each.

• FMLA – Family Medical Leave Act – the Family Medical Leave Act provides eligible employees with unpaid job protection for up to 12 weeks for specified family and medical reasons. In order to qualify for this the employee needs to have worked with the company for one year and worked no less than 1,250 hours. Additionally, for an employer to be required by law to comply with this Act they need to have 50 employees or more within a 75 mile radius (in the case they have multiple locations).

• ADA – Americans with Disabilities Act – the Americans with Disabilities Act is a law that prohibits discrimination against persons with disabilities. This includes for things like employment, promotions, and terminations, amongst others. It also makes it a requirement to provide reasonable accommodation to individuals with disabilities to the extent they can perform the essential functions of their job with the accommodation. Employers with 15 or more employees must comply with this law.

• Worker’s Compensation – Worker’s Compensation legislation requires that an employer should provide a safe and suitable place of employment. This law has been created to ensure that an employer provide payment to an employee for an accident that occurs within the scope of employment. Payment can include medical attention, prescription medication and income replacement. Applies to most, even small employers however state laws govern.

At this point you might be asking yourself, well now I know the definitions but how do they interplay and how does it affect me. The best way to explain is by example.

Let’s say you have an employee that gets hurt at work and you send them to get medical treatment because in the state you operate you fall under the requirements of an employer having to offer Workers Compensation. The result of the injury is that the employee needs to be out of work for 16 weeks and can come to work after 14 weeks wearing a cast on his right arm (employee is right handed). You are an employer that has two locations close to one another (within 75 miles) and collectively have 62 employees.

Now we will take a look at the facts and using the definitions to see what legislation applies in this case.  

  • First we look at the FMLA. According to the definition of FMLA this particular employer meets the conditions of an employer having the requirement to offer FMLA because we are assuming the employer has 50 employees or more within a 75 mile radius.
  • Then we will take a look at ADA. Assuming the employee has a disability (i.e., we cannot determine whether the employee has a disability based on the example), the law might require the employer to provide a reasonable accommodation unless there is an undue hardship when the employee comes back to work. 
  • Thirdly we look at Worker’s Compensation. The example determined that the employer is in a state which requires him/her to offer workers compensation to their employees; therefore the employer meets this requirement and the employee is being covered financially through workers compensation.

At this point we know the facts and how they apply separately. We will now discuss how they apply together even though there is no specific legislation in their interplay.

In the example above, because the employer meets the conditions that require them to offer Workers Compensation the employer needs to provide the employee with workers compensation. This would take care of supporting the employee financially, on a limited basis, during his absence from work. Part of the compliance with Workers Compensation is that the employer is required to ensure the employee has a job when the employee is able to return to work and/or provide a reasonable accommodation if the employee requested and is applicable.

At the same time because the employee is out of work due to a medical condition and in light of the details of the example, this employer is also required to offer the employee FMLA (if the employee meets the requirements of one year of work and 1,250 hours worked). But whether you offer it concurrently or non-concurrently is up to the employer. A best practice for most employers is that they offer it concurrently so that the disruption is minimal and the job is federally protected for the employee. But what do we do with the extra four weeks the employee needs and two of those wearing a cast? This is when the ADA comes into play.

After the 12 weeks the employee would have exhausted his/her 12 week job protection under FMLA but might still be receiving compensation from Worker’s Compensation – can I terminate the employee? Well, this is when you need to study the circumstances and determine if the employee would qualify for a reasonable accommodation that will allow the employee to take the additional four weeks under the ADA protection, especially since the employee would be out of work for two entire weeks and can return to work for the remaining two weeks with a cast. Concurrently the employer would have to evaluate if the employee can return in two weeks and if the working conditions allow the possibility of accommodating that employee’s cast wearing arm at the worksite. In most office settings, this is permissible and the employee would be allowed to take the additional two weeks and work the remaining two weeks with a cast. It is important to emphasize that in making determinations on reasonable accommodations, the employer also needs to consider whether the employer would be suffering an undue hardship on the business. It is recommended to seek additional guidance on this issue.

At AlphaStaff we manage employee relations matters like this and provide support to employers to understand the complexities of employment practices such as the ones mentioned above and described through the example. The Bermuda triangle of the FMLA, ADA and Worker’s Compensation is an area that all employers could be faced with and, if handled inappropriately, could lead to legal exposure. Through our certified Human Resources practitioners and skilled professionals, we are able to assist employers to minimize these types of exposures while still allowing the employers to make the decisions that make sense for their operations. At the end of the day, we do the heavy lifting by providing compliance guidance and allowing you to focus on your business. To find out how AlphaStaff can provide you with tools and services to educate you on employment practices that can affect your business, please feel free to reach out to our Vice President of Strategic Business Development, Jeniece Carter-Henson, at jhenson@alphastaff.com or at (727)365.6722.

NOTE: The information contained in this article is not legal advice or a substitute for legal counsel.

Featured Vendors:
Contact us
News - Storage Business Owners Alliance

Storage Business Owners Alliance
30665 Northwestern Highway
Suite 100
Farmington Hills, MI 48334 USA
www.thesboa.com

Phone: (248) 254-9000
Fax: (248) 538-4327
Email: info@thesboa.com