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FMLA,ADA & Workers' Comp: Navigating the Treacherous Triangle

Brenda B. Thompson

Attorney

M. LEE SMITH PUBLISHERS LLC B r e n t w o o d , Te n n e s s e e

This special report provides practical information concerning the subject matters covered. It is sold with the understanding that neither the publisher nor the writer is rendering legal advice or other professional service. Some of the information provided in this special report contains a broad overview of federal law. The law changes regularly, and the law may vary from state to state and from one locality to another.You should consult a competent attorney in your state if you are in need of specific legal advice concerning any of the subjects addressed in this special report.

© 2000 M. Lee Smith Publishers LLC 5201 Virginia Way P.O. Box 5094 Brentwood,Tennessee 37024-5094

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means without permission in writing from the publisher.

Thompson, Brenda B. Telecommuting pluses & pitfalls / Brenda B.Thompson. p. cm. ISBN 0-925773-30-1 (coil binding) 1.Telecommunication -- Social aspects -- United States. 2.Telecommunication policy -- United States. 3. Information technology -- Social aspects -- United States. I.Title. HE7775.T47 1996 96-21827 658.3'128 -- dc20 iw

Printed in the United States of America

Contents

INTRODUCTION . . . . . . . 1 1 -- ADA, FMLA, AND WORKERS' COMP LAW: A SIDE-BY-SIDE COMPARISON . . . . . . . 3 Background and Purpose . . . . . . . 3 Does the Law Apply to Me? . . . . . . . 4 Whom Does the Law Protect? . . . . . . . 6 What Does the Law Require? . . . . . . . 7 Who Enforces the Law? . . . . . . . 9 State vs. Federal Law:Who Wins? . . . . . . . 10 2 -- FOCUS ON A FEW IMPORTANT CONCEPTS . . . . . . . 11 Dealing with Workers Who Aren't Traditional "Employees" . . . . . . . 11 ADA Concepts . . . . . . . 12 FMLA Concepts . . . . . . . 25 Substance Abuse: An Issue of Special Concern . . . . . . . 27 3 -- PUT 'EM ALL TOGETHER . . . . . . . 29 4 -- HIRING DO'S AND DON'TS . . . . . . . 31 Before the Offer . . . . . . . 31 After the Offer . . . . . . . 35 Exactly What Is a Real "Offer"? . . . . . . . 37 Dealing with Dishonesty . . . . . . . 37

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B r i n g i n g A r b i t r a t i o n i n t o Wo r k p l a c e 2 0 0 0

The Hiring Decision . . . . . . . 38 A Final Word of Caution . . . . . . . 39 5 -- DEALING WITH EMPLOYEE ILLNESSES AND INJURIES . . . . . . . 41 Knowing Which Laws Apply to You . . . . . . . 41 Evaluating the Illness or Injury . . . . . . . 42 Following the Law . . . . . . . 46 6 -- AVOIDING LAWSUITS . . . . . . . 61 Don't Retaliate . . . . . . . 61 Think Before You Terminate . . . . . . . 62 7 -- EVALUATING POLICIES AND PROCEDURES . . . . . . . 65 Job Descriptions . . . . . . . 65 Attendance and Leave of Absence Policies . . . . . . . 65 Confidentiality of Medical Records . . . . . . . 67 CONCLUSION . . . . . . . 69 APPENDICES . . . . . . . 71 Appendix A: List of Relevant Federal Statutes, Regulations, and Agency Guidance . . . . . . . 71 Appendix B: Chart Comparing ADA, FMLA, and Workers' Compensation Laws . . . . . . . 77 Appendix C: Medical Certification Checklist and DOL Model Certification . . . . . . . 79 Appendix D: FMLA Notice Checklist and DOL Model Notice . . . . . . . 83 NOTES . . . . . . . 86

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Introduction S

Consider the following scenarios: 1.You need to hire a few new employees for positions that require a fair amount of lifting. Obviously, you'd like to be sure that anyone you consider hiring for these positions can do the job. So what you'd like to do is ask all applicants for positions that require lifting to tell you if they've ever had any back injuries. If anyone answers yes, you'd like to require that applicant to undergo a medical exam to determine whether the back problem would prevent her from performing the job. Can you do that without violating the law? 2.You have a longstanding leave of absence policy that provides for a maximum leave of absence of one year. If an employee doesn't return to work at the end of that period, he's automatically fired. One of your employees hurt her shoulder at work and, as a result, had to take some time off. After several months off without any improvement to her shoulder, her doctor recommended she have surgery to repair a torn rotator cuff.The employee called to let you know she'd probably be out for another few months. If the employee doesn't come back to work when she hits the 12-month mark, can you fire her without violating the law? three laws (which, by now, are near and dear to the hearts of every HR professional) -- the federal Family and Medical Leave Act (FMLA) (and any state counterpart), the federal Americans with Disabilities Act (ADA) (and any state counterpart), and state workers' compensation law. It's enough to worry about just one law, but when two (and sometimes three or more) all apply at the same time -- it's enough to drive even the best and most experienced HR manager up the wall (and maybe even out the door)! The purpose of this report is to help you find your way through the legal minefield that has developed around these three laws in particular, with special attention given to particularly troublesome areas, including . . . · making it through the hiring process without tripping over the law; · dealing with the problem of substance abuse; · knowing when an employee poses a "direct threat" to your workforce; · responding appropriately when an employee becomes ill or injured;

The number of telecommuters is estimated to be growing by 15 to 20% Each of these scenarios raises legal issues under one or more of at least per year.

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F M L A , A D A & Wo r k e r s ' C o m p : N a v i g a t i n g t h e Tr e a c h e r o u s Tr i a n g l e

· preventing supervisors from retaliating against an employee for taking FMLA leave, seeking protection under the ADA, or filing a workers' comp claim; · knowing when it's safe to terminate an employee without running afoul of the law; and · evaluating your policies and procedures to be sure they're a help and not a hindrance. A word of caution: The laws discussed in this report are both comprehensive and complex.What's more, their interpretation often changes from one year to the next. This special report is intended only to provide an overview of the laws themselves and to address a few of the problems they often create, particularly when they bump into one another. To be sure you're in compliance with the most current legal requirements, we advise you to seek the assistance of a competent employment law attorney before making any final decisions involving your workforce.

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Appendices

APPENDIX B: CHART COMPARING INTERACTING PROVISIONS OF ADA, FMLA, AND WORKERS' COMPENSATION LAWS

Covered employers ADA 15 or more employees in 20 weeks in current or preceding year None FMLA 50 or more employees in 20 weeks in current or preceding year 1. Employee at worksite with 50 or more employees within 75 miles 2. Employee has worked for you total of 12 months (need not be consecutive) 3. Employee has 1,250 hours of service in 12 months before leave Employee has serious health condition that keeps him from performing essential job functions Workers' Comp Laws Minimum number of employees varies between one and five Generally none

Eligibility requirements (other than triggering health condition requirements, below)

Health condition triggering protection of law

Ability to work requirement

Leave available?

Paid leave required?

1. Employee has impairment that substantially limits major life activity (or has history or regarded as having same) 2. Despite disability, employee can perform essential job functions if provided reasonable accommodation To qualify for ADA protection, employee must be able to perform essential job functions if reasonable accommodation given Depends on facts. Law requires reasonable accommodation that doesn't pose undue hardship, which in some cases, may mean leave of absence Not generally, but again, depends on facts (must give reasonable accommodation), and may not discriminate based on disability

1. Employee is ill or injured 2. Illness or injury occurred during course of employment 3. Illness or injury arose out of employment

Employee's serious health condition must keep him from performing essential job functions Yes

To receive income benefits, generally must show some level of incapacity

Maybe, if employee unable to work

No, but if provided, can count against annual FMLA leave allotment

Depending on nature of injury and resulting incapacity, may be entitled to income benefits

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F M L A , A D A & Wo r k e r s ' C o m p : N a v i g a t i n g t h e Tr e a c h e r o u s Tr i a n g l e

Duration of leave? Intermittent leave or reduced work schedule required? Notice from employee required? ADA Again, depends on facts of case Again, depends on facts of case FMLA Up to 12 weeks in a 12-month period Yes Workers' Comp Laws Depends on nature of injury and incapacity Depends on state law

Yes,ADA doesn't apply Yes, if need is foreseeable, to an employee unless you employee must give know about her disability at least 30 days' notice; if unforeseeable, as much notice as practicable Medical certification Yes Yes permitted? Required to Not generally, but Yes, for health benefits provide benefits depends on facts of case (on same terms as during leave? (reasonable before leave); upon accommodation; can't return, must restore discriminate) other benefits as if employee never gone Required to reinstate Generally yes, but again, Generally, must restore at end of leave? depends on facts of case employee to same or equivalent job Obligated to provide Depends on facts No; if do provide it, can't light duty? of case (reasonable require employee to cut accommodation test) FMLA leave short to take it Anti-retaliation Yes Yes provision

Yes, employee generally must notify you promptly of job-related condition

Generally yes Generally not required

Generally depends on employee's ability to do the job Depends on state law

Yes

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About the Author

B

renda B. Thompson is an attorney in the Editorial Department of M. Lee Smith Publishers LLC. Prior to joining the company, Ms. Thompson practiced law at Bass, Berry & Sims in Nashville,Tennessee, and at Miller & Martin in Chattanooga,Tennessee, where her primary areas of practice were employee benefits and federal income taxation. Before coming to Tennessee, Ms.Thompson was an associate at Alston & Bird in Atlanta, Georgia, where she practiced in the areas of federal, state, and local taxation. Ms.Thompson received a B.S. in Secondary Education from Tennessee Temple University, and worked as a high school English teacher between college and law school. She graduated first in her class from Wake Forest University School of Law, where she served as research editor of the Wake Forest Law Review, was a member of the Moot Court Board, and received several academic awards.

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About the Publisher

Attorney M. Lee Smith publishes HR Executive Special Reports. Now in its 26th year, M. Lee Smith Publishers LLC is committed to providing you with solutions to your employment law questions. In addition to the HR Executive Special Reports, we publish your state's Employment Law Letter, environmental compliance, workers' comp, and health law newsletters, state-specific employment law desk manuals, and much more. If you would like more information regarding our other publications, please call our toll-free customer service hotline. Or, visit our World Wide Web home page that showcases all the products we offer. Our 100-plus newsletters, books, and directories alert readers to new laws, regulations, and court cases on the state level, including easy-tounderstand information on federal laws, all reported with your state's local laws and regulations in mind.That's unlike most other newsletters that only report on federal developments. And because each of our publications is written by a talented team of in-state attorneys, you learn quickly of changes taking place affecting your operation. Like the HR Executive Special Reports, all of our newsletters feature our no-risk guarantee. If you're dissatisfied, for any reason, you are entitled to a complete refund.You have no risk. Customer Service: (800) 274-6774 E-mail: [email protected] Home page: http://www.mleesmith.com

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Employee Privacy Rights & Wrongs Workplace Violence & Employer Liability How to Conduct Internal Investigations How to Manage Problem Employees FMLA, ADA & Workers' Comp: Navigating the Treacherous Triangle How to Fire Employees Without Getting Burned The Company You Keep: Four Key Tools for Employee Retention A Legal Guide to Successful Hiring The H in OSHA Stands for Health Workplace Harassment Trail Guide:Avoiding the Avalanche Zone FMLA Leave: A Walk Through the Legal Labyrinth Ten Commandments for Avoiding Religious Harassment and Discrimination Claims How to Avoid the HR Hazards of Your Electronic Workplace ADA from A to Z How to Manage Your Aging Workforce How to Discipline & Document Employee Behavior How to Make Background Checks Part of Your Hiring Process Know Your Responsibilities: Ethics & Fiduciary Duties for HR How to Manage & Minimize Absenteeism Overtime Ins and Outs: How to Comply with the FLSA How to Comply with COBRA Without Getting Bit How to Evaluate & Manage Employee Health Plans How to Make Telecommuting Work for Your Company Defamation in the Workplace Stop It Before It Starts: The HR Manager's Guide to Preventing Sexual Harassment Reducing Risk for Reductions in Force _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ × × × × × × × × × × × × × × × × × × × × × × × × × × $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 $97 = = = = = = = = = = = = = = = = = = = = = = = = $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________

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