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The Bermuda Triangle

Elizabeth A. CoonanAnn Holden Kendell

E-mail: coonan@brownwinick.com kendell@brownwinick.com

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Overview of Applicable Laws

Americans with Disabilities Act (ADA)

Family and Medical Leave Act (FMLA)

Workers’ Compensation (WC)

Genetic Information Nondiscrimination Act (GINA)

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How do you know you are in the Bermuda Triangle?

Employee has own serious health condition that arises out of a personal

or work situation

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Roadmap for Analyzing Bermuda Triangle Issues:

1) Address different laws individually

2) Communicate with the Employee

3) Begin with FMLA-Is the employee requesting leave?

-Is it apparent to the employer that the employee has a situation suggesting a need for FMLA leave?

-Administer leave process and compute time

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Roadmap for Analyzing Bermuda Triangle Issues:

4) Conduct ADA Analysis

-Does the employee need leave beyond FMLA allotment?

-Process restriction issues

5) Conduct Workers’ Compensation Analysis

-Does the employee require light or modified duty?

-Address leave issues

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Scenario

Amy Aiken is a nurse for WeTestU, LLC, an Iowa limited liability company that performs on-site blood testing for insurance companies. She travels to potential insureds at their home to conduct testing and works at the office processing paperwork. She has been a full-time employee for 5 years. She has missed 9 days of work this year. Company policy only allows 10 missed days per year. Under the policy, if Amy misses 2 more day, she is subject to termination.

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The Injury

Amy is scheduled to work on Friday but calls in to work indicating that she has back and neck pain. She states that she plans to visit her doctor and will update us as to her condition. She calls following the appointment and tells us that her doctor has ordered bedrest for 2 weeks and that she will return to work the following Monday.

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CAN WE TERMINATE HER?

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Analysis under FMLA

Determine Coverages- 50+ employees = covered employer

-12 months of service +1250 hours + works at a location with 50 employees within 75 miles = covered employee

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Analysis under ADA

Does Amy have a disability?

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Analysis under Workers’ Compensation

How do we determine coverage?-Investigate to determine if injury arises out of and in the course of her employment with the Company.

-Obtain report of injury if she alleges that it is work-related.

-Confirm compensability, if possible.

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First Return to Work

Amy provides documentation that designates her condition as serious. She has lifting restrictions, can only work half days and she informs you that she injured herself while drawing blood from a client. Her doctor indicates he will need to see her again in 2 weeks.

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Can we fire her?

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Analysis under FMLA

1) Is Amy eligible for FMLA Leave?-How many doctor visits has she had?-How many days is she unable to work?

2) Are there policies you will need to administer?

-Do you have a policy requiring substitution of PTO for FMLA leave?-Does FMLA leave run concurrently with workers’ compensation leave?

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Analysis under ADA

1) Is she covered under the ADA?

2) Do we need to do anything?

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Analysis under Workers’ Compensation

1) Determine whether we have light duty work.

2) If we deny her light duty work, what impact does that have on her FMLA leave and entitlement to workers’ compensation benefits?

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Amy Requires Surgery

Amy has been working on restricted duty for 4 weeks. Her doctor has prescribed surgery and is requiring her be off of work entirely for 3 days prior to surgery and 10 weeks post surgery. Amy has been compliant in her treatment regimen, regularly attending therapy and seeing her doctor. She remains in contact with the company and is eventually released to light duty. Amy wishes to return to her old job. Amy’s doctor indicates that she cannot lift more than 1lb on an infrequent basis.

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Can we give her the axe?

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Analysis under FMLA

1) Is Amy eligible to return to work?

2) What if Amy cannot perform the essential functions of her Job?

3) What if she has exhausted all of her FMLA allotment and cannot perform the essential functions of her job?

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Analysis under ADA

1) Does Amy qualify for ADA protection?

2) Are you required to return Amy to her former position?

3) If her job was filled while on leave, do you have to find her another job?

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Analysis under Workers’ Compensation

Are you obligated to return Amy to her former position under Iowa Workers’ Compensation law?

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Unsuccessful Return

Amy attempts to perform the duties associated with her former position and fails. Her position requires lifting in excess of 1lb as well as driving, bending and twisting. We offer her light duty but Amy goes home and says she just needs a few more weeks off.

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Can we give her the ol’ heave hoe?

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Analysis under FMLA

Do we have to continue to hold her position open?-No.

Can we terminate her at the end of her FMLA leave?- Yes under FMLA but what about ADA?

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Analysis under ADA

Do we have to give Amy additional leave?

-Probably

Do we have to consider reasonable accommodations?

- Yes.

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Analysis under Workers’ Compensation

Is Amy still entitled to workers’ compensation benefits after having turned down light duty?

- Yes, but only if she was released to work with restrictions and the work offered fit within those restrictions.

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Amy Returns to Work…Again

Amy returns to work six weeks later with temporary bending and lifting restrictions.

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Analysis under FMLA

None. She has exhausted her FMLA leave.

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Analysis under ADA

Does Amy qualify for ADA coverage?

-Yes.

Is the Company required to engage in the interactive process?

-Yes.

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ADA - Return to Work Analysis

Is the Company required to return Amy to her old job?-Maybe, if there is a reasonable accommodation that would permit her to perform the essential functions of the job.

What if Amy’s job was filled in her absence?-Don’t do this. Evidence of retaliation and/or regarding her as disabled.

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Analysis under Workers’ Compensation

Because Amy has been off of work because of a work-related injury, must you return her to her original position?

- No, but she must be offered suitable work.

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Permanent Restrictions

Amy returns to work with permanent restrictions.

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Analysis under ADA

What does Amy have to provide the Company to return to work?

-Doctor’s Release

-Fitness for Duty (if previously requested)

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Analysis under ADA (cont.)

Do we have to accommodate Amy’s permanent restrictions?

- Maybe. The ADA requires that the Company engage in the interactive process to determine if a position is available that fits within her restrictions.

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Analysis under Workers’ Compensation

Do we need to accommodate her restrictions under workers’ compensation?

- No, but the Company must engage in the interactive process (under ADA) before terminating.

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Analysis under Workers’ Compensation (Cont.)

If we cannot accommodate her restrictions, is she entitled to receive ongoing workers’ compensation benefits?

-Not if she has been released from care and placed at MMI.

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