0. TROUBLE SHOOTING LEAVES OF ABSENCE
Meredith Sayre, Esq.
Camacho Calvo Law Group LLC
134 W. Soledad Ave., Ste. 401
Hagatna, Guam 96932
March 2017

1. Introduction
The Bermuda Triangle, also known as the three headed monster, refers to the interplay of the three major employment laws -- the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and Workers’ Compensation Insurance. It is essential for all supervisors, in addition to the human resources staff, to understand the interplay of these laws to assure legal compliance as well as to provide employees with the benefits and protections each law provides. And remember, you also need to administer the other leave policies, e.g., PTO, vacation leave, sick leave, military leave, unpaid leaves, discipline policy, moonlighting policy, etc.

2. Reasons It is Important to Recognize and Analyze the Interaction of the ADA, FMLA, and Workers’ Compensation Laws
It is important to recognize and analyze the interaction of these laws because:
The majority of unscheduled and scheduled absences are related to the illness of employees or their family members. One, both, or all three of these laws may be involved.
Violations of these laws may result in lost wages, back pay, reinstatement, retroactive benefits, compensatory damages, and punitive damages. Other than the legal responsibilities, employers have moral and ethical responsibilities to assure that employees receive the benefits and protections these laws provide.

3. Purpose of the ADA, FMLA, and Workers’ Compensation Laws
The ADA prohibits discrimination against applicants and employees who are “qualified individuals with a disability”.
The FMLA sets minimum leave standards for employees for the birth and newborn care of a child, placement of a child for adoption or foster care, to care for an immediate family member with a serious health condition, for the employee’s serious health condition, Qualifying Exigency for Military Family Leave, and Serious Injury or Illness of Covered Service Member.
Workers’ Compensation Insurance laws provide for payment of compensation and rehabilitation for workplace injuries, and minimize employer liability.

4. Enforcement Authorities for the ADA, FMLA, and Workers’ Compensation Insurance Laws
ADA – Equal Employment Opportunity Commission (EEOC)
FMLA – U.S. Department of Labor Wage and Hour Division
Workers’ Compensation Laws - Workers’ Compensation Commission

5. Family and Medical Leave Act (FMLA)
FMLA is simple; two sentences sum it up.
Eligible employees of covered employers who have a qualifying event and provide appropriate notice and requested certification's are entitled to at least 12/26 weeks of health insurance continuation and job-protected unpaid leave per defined 12- month period.
Covered employers must post appropriate notices, have a comprehensive leave of absence policy, and develop a standard notice/certification procedure to ensure compliance.
Recommendation: Administer FMLA strictly, use DOL forms and checklist

6. The Americans With Disabilities Act Title 1 (“ADA”)
Prohibits discrimination against qualified individuals who are disabled. A “qualified individual with a disability” is defined as a person with a disability who, with our without “reasonable accommodation”, can perform the “essential functions” of the employment position the individual holds or desires
Amended by the ADA Amendments Act of 2008 (the “ADAAA”)
Became effective January 1, 2009
Purpose of the ADAAA to expand the definition of “disability” to include many types of impairments E.g., epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder

7. Americans with Disabilities Act Title I
Definition of a “Disabled” Person:
Physical or mental impairment that substantially limits one or more of the major life activities (MLA) of the individual
Person with a record of such impairment
Person who is regarded as having such an impairment
Reasonable Accommodation
Law requires that an employer grant a reasonable accommodation to a qualified individual’s disability so long as the accommodation does not create an undue hardship on the employer.
Deciding which accommodation is appropriate requires an interactive process between management and the employee.
Helpful resource – Job Accommodation Network

8. EEOC Focus In ADA Cases
Primary focus:
Whether employers have complied with their obligations under the ADA (the interactive accommodation process); and
Whether discrimination has occurred
Not whether individual meets definition of disability or whether an individual’s impairment substantially limits a “Major Life Activity”
“substantially limits” shall be construed broadly in favor of expansive coverage
Impairment that is episodic or in remission is a disability if it would substantially limit an MLA when active

9. EEOC Focus In ADA Cases
Determination shall be made without regard to the “ameliorative effects” of mitigating measures
E.g., medication or a device that improves an impairment
E.g., may not consider an individual’s use of insulin to control his diabetes when determining whether the diabetes substantially limits the MLA of eating
But ordinary eyeglasses or contact lenses shall be considered
“non-ameliorative effects” may be considered:
negative side effects of medicine, burdens associated with following a treatment regime and complications that arise from surgery

10. Workers’ Compensation Insurance
Insurance that covers employees who suffer a work-related injury or illness
Ensures that employee receives necessary medical treatment
Provides partial wage replacement benefits
Regulated by local law

11. Workers’ Compensation Insurance
Compulsory
No fault system: negligence or fault in the accident’s cause is not at issue; employee who is hurt or diseased merely has to show that the injury arose as a result of the employment
Liability of employer to employee shall be exclusive

12. Areas of Interplay between ADA, FMLA, and Workers’ Compensation
These are the areas of interplay between the ADA, FMLA, and Workers’ Compensation Insurance that employers need to consider when managing employee absenteeism.
Employer Coverage
ADA – 15 or more employees for 20 weeks during current or preceding calendar year
FMLA – 50 or more employees within a 75-mile radius for at least 20 weeks during current or preceding calendar year
Workers’ Compensation Insurance– Applies to all employers.

13. Areas of Interplay between ADA, FMLA, and Workers’ Compensation (cont’d)
Employee Eligibility
ADA – an employee (or applicant) who is disabled as defined by the ADA, is qualified for the position and can perform the essential functions of the position with or without a reasonable accommodation.
FMLA – an employee who has worked at least 12 months and hours prior to the start of the leave and who works at a worksite where there are 50 or more employees within a 75-mile radius.
Workers Compensation – an employee who has an injury arising out of or in the course of employment (with exceptions possible for willful misconduct or intentional self-inflected injuries, or intoxication from alcohol or illegal drugs).

14. Areas of Interplay between ADA, FMLA, and Workers’ Compensation (cont’d)
Length of Leave
ADA – No specific limit for the amount of leave that would be provided as a reasonable accommodation that does not create an undue hardship on the employer.
FMLA – 12 weeks in the 12 month period as defined by the employer; service member care leave up to 26 weeks.
Workers’ Compensation – No specific limit for the amount of leave an injured worker may need.

15. Areas of Interplay between ADA, FMLA, and Workers’ Compensation (cont’d)
Medical Documentation
ADA – Only medical examinations or inquiries regarding an employee’s disability that are job-related and limited to determining ability to perform the job and whether an accommodation is needed and would be effective.
FMLA – Medical certification of the need for the leave not to exceed what is requested in the Department of Labor Medical Certification Form.
Workers’ Compensation – Medical information that pertains to the employee’s on-the-job injury.

16. Areas of Interplay between ADA, FMLA, and Workers’ Compensation (cont’d)
Restricted or Light Duty
ADA – Required to be offered if it is a reasonable accommodation that does not create an undue hardship on the employer.
FMLA – Cannot be required.
Workers’ Compensation – Ought to be offered if available as it may eliminate the employee’s entitlement to the wage replacement benefit.

17. Areas of Interplay between ADA, FMLA, and Workers’ Compensation (cont’d)
Fitness-to-Return-to-Work Certification
ADA –Permitted as long as the medical examination and inquiry is job-related and necessary to determine whether the employee can perform the essential functions of the job.
FMLA – Can only be required under a policy or practice that requires employees who have been on a similar type of leave of absence (DOL forms)
Workers’ Compensation – May be and is typically required.

18. Areas of Interplay between ADA, FMLA, and Workers’ Compensation (cont’d)
Benefits While on Leave
ADA –No specific requirements but cannot discriminate and must provide same benefits as those provided to employees on non- ADA leave of absence.
FMLA – Health coverage must be continued at same level as prior to the leave. Benefits other than health benefits are determined by the employer's established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).
Workers’ Compensation – Not required to be continued unless run concurrently with FMLA leave.

19. Areas of Interplay between ADA, FMLA, and Workers’ Compensation (cont’d)
Reinstatement
ADA –Required reinstatement to previous job unless doing so would create an undue hardship on the employer.
FMLA – Required reinstatement to the same or an equivalent job. No undue hardship exception.
Workers’ Compensation – No reinstatement rights, except for retaliatory discharges.

20. Example of Employee Absence Involving Interaction of ADA, FMLA, and Workers’ Compensation Insurance
Ana Mesa, a housekeeper at a hotel, has called in sick for three days citing extreme back pain. She has been with Guahan Hotel, a company with over 500 employees, for twenty years working full-time with very few absences. Ana calls in sick for the fourth day stating that she was examined by her doctor who took x-rays and stated that she needs complete bed rest and possibly back surgery and will be unable to work for an extended period of time. She states that her doctor thinks the condition is caused by the type of work she has been doing.

21. Example of Employee Absence Involving Interaction of ADA, FMLA, and Workers’ Compensation (cont’d)
Using the areas of interactions between the ADA, FMLA, and Workers Compensation laws, here is an analysis of Ana’s absence.
Employer Coverage – Guahan Hotel is covered under and must comply with the ADA, FMLA and Workers Compensation Laws.
Employee Eligibility – Ana may be eligible for protection under the ADA and FMLA, depending on the severity of her condition. A workers’ compensation claim must be filed, processed, and a determination made as to coverage under Workers’ Compensation.

22. Example of Employee Absence Involving Interaction of ADA, FMLA, and Workers’ Compensation (cont’d)
Length of Leave – Leave as a reasonable accommodation under the ADA is not an issue at this point as Ana’s absence, with proper medical certification, will be designated as FMLA leave. Should her absence exceed 12 weeks, additional leave of absence may be a reasonable ADA accommodation. If the condition is determined to be work-related, workers’ compensation leave (if the company has this type of leave) will run concurrently with the FMLA leave.
Medical Documentation – Under the ADA, no medical documentation is yet required. FMLA medical certification is required. Medical documentation will be required by the Workers’ Compensation insurer.

23. Example of Employee Absence Involving Interaction of ADA, FMLA, and Workers’ Compensation (cont’d)
Restricted or Light Duty – Not required at the present time as Ana is unable to work in any capacity until further notice. When she is able to return to work and if she has medical restrictions, light duty, if available, must be offered as a reasonable accommodation under the ADA unless this creates an undue hardship on the employer. Light Duty cannot be required if FMLA leave is still available. Light duty may be offered under Workers’ Compensation.
Fitness-to-Return-to-Work Certification - Not required at the present time as Ana is unable to work in any capacity until further notice. When she is able to return to work, depending on any restrictions, she may be required to provide this certification under the ADA, FMLA, and Workers’ Compensation.

24. Example of Employee Absence Involving Interaction of ADA, FMLA, and Workers’ Compensation (cont’d)
Benefits While on Leave – Not required under the ADA. Under FMLA, Ana’s health benefits will be continued at the same level as prior to her leave and she will receive other benefit continuation given for employees on similar non-FMLA leave. No additional benefit continuation under Workers’ Compensation is required.
Reinstatement – Ana must be reinstated to her previous job under the ADA unless doing so would create an undue hardship on her employer. If she can return before her 12 weeks of FMLA leave have been exhausted, she will be reinstated in her previous position. Workers Compensation does not provide for reinstatement, except for retaliatory discharge.

25. Summary
It is important to recognize and evaluate the interaction of the ADA, FMLA, and Workers’ Compensation Insurance Laws because most absences are related to the illness of employees or their family members and one, both, or all three laws may be involved.
Employers have legal responsibilities to comply with these laws and face significant violations for non-compliance.
Employers have ethical and moral responsibilities to assure employees receive the benefits and protections these laws provide.

26. Summary (cont’d)
The three laws have different purposes.
The ADA prohibits discrimination.
The FMLA sets minimum leave standards.
Workers’ Compensation laws provide for payment of compensation and rehabilitation for workplace injuries and minimize employer liability.

27. Summary (cont’d)
Important areas of interplay between the three laws are:
Employer Coverage
Employee Eligibility
Length of Leave
Medical Documentation
Restricted or Light Duty
Fitness-to-Return-to-Work Certification
Benefits While on Leave
Reinstatement

28. Any Questions?
THANK YOU!