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Navigating the Bermuda Triangle with FMLA, ADA and Worker's Compensation
Posted 2/10/2017
 
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Managing employee relations issues is never an easy task. In some situations, these matters can occupy up to 30% of a self storage facility operator's time, especially when discussing the topics of FMLA (Family Medical Leave Act), ADA (Americans with Disabilities Act) and Worker’s Compensation. These laws and regulations can be overwhelming on their own, but together they can interweave to become as chaotic as the Bermuda Triangle.

To best navigate these complexities, it is best to understand the three laws/regulations:

  • 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 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 employment, promotions and terminations, amongst others. Additionally, it requires that employers 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 ensures that an employer provides payment to an employee for an accident that occurs within the scope of employment. Payment can include medical attention, prescription medication and income replacement. This law applies to most employers.

When would these regulations intertwine and increase in complexity? Consider the following example:

You are an employer that has several locations close to one another (within 75 miles) and collectively have 62 employees. One of your employees is injured at one of your locations. You send them to get medical treatment as it is a Worker’s Compensation requirement within the state you operate. As a result of the injury, the employee needs to be out of work for 16 weeks but they may return to work after 14 weeks if they have a cast. This employee is right handed and receives a cast on his or her right arm.

Using the above definitions, let’s see how FMLA, ADA and Worker’s Compensation individually apply to this example:

  • FMLA- The employer has 62 employees within a 75 mile radius, meaning that they meet the conditions of an employer that is required to offer FMLA. Remember that an employer is required by law to comply with this Act if they have 50 employees or more within a 75 mile radius in the case they have multiple locations.
  • ADA- Assuming the employee has a disability, the law may require the employer to provide reasonable accommodation, unless there is an undue hardship when the employee comes back to work.
  • Worker’s Compensation- The example determined that the employer is in a state which requires him or her to offer Worker’s Compensation to their employees. The employer meets this requirement thus enabling the employee to be covered financially through Worker’s Compensation.

How do these regulations interplay? We now know that the employer meets the conditions that require them to offer Worker’s Compensation, thus supporting the employee financially on a limited basis during their absence from work. We also know that the employee is out of work due to a medical condition and this employer might be required to offer the employee FMLA if the employee meets the requirements of one year and 1,250 hours worked. Whether FMLA is offered concurrently or non-concurrently is up to the employer. A best practice for most employers is offering the leave concurrently so that the disruption is minimal and the job is federally protected for the employee.

While it seems as if Worker’s Compensation and FMLA have everything covered, remember that the employee was out for 16 weeks. After 12 weeks the employee would have exhausted his or her 12 week job protection under FMLA. This is when ADA and the chaotic interweaving of the three regulations takes effect. The employer would 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 of leave under the protection of the ADA.

The employer must also note that the employee can return to work for the remaining two weeks with a cast. In order for this to work, the employer would have to evaluate if the employee can return in two weeks and assess whether the working conditions allow the possibility of accommodating the employee’s cast. 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 determining reasonable accommodations, the employer needs to consider whether the business would be suffering an undue hardship. It is recommended to seek additional guidance on this issue.

The Bermuda Triangle of 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. At AlphaStaff, our dedicated and certified Human Resources account representatives help employers best understand the various employment practices. We also assist with employee relations matters, similar to the complex example used within this article, allowing storage owners to free up time to focus on their core business. To find out how AlphaStaff can provide storage owners with the tools and services needed to educate on employment practices, please reach out to Vice President of Strategic Business Development, Jeniece Carter-Henson, at JHenson@AlphaStaff.com or at 727.365.6722.

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