The ADA, FMLA, and workers' compensation laws all provide protections for employees but can interact in complex ways. The ADA requires employers to provide reasonable accommodations for employees with disabilities. The FMLA provides up to 12 weeks of unpaid, job-protected leave for qualified medical and family reasons. Workers' compensation covers work-related injuries and illnesses. When addressing employee leave and return to work issues, employers must consider requirements and interactions under all three sets of laws.

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UFOs – Unidentified Flying Objects
Ufology – is a neologism coined to describe the collective
efforts of those who study reports and associated evidence of
unidentified flying objects (UFOs).
Ufologist – A ufo investigator is called a ufologist
Ufo Sightings- Some eye witnesses to the UFOs
Roswell Incident- called the Roswell UFO crash
1947
UFO Conspiracy – Worldwide UFO cover Ups and
related theories
Alien- An extra-terrestrial being is called an alien

2. The Bermuda
Triangle of Leave Laws
ADA, FMLA and Workers Compensation
Instructor: Brenda JM Sabin, CBP
Director of Operations and Site Administration for HRSentry, LLC

3. Today we are talking about these Federal
Leave Laws:
The American’s with Disabilities Act (ADA)
The Family and Medical Leave ACT (FMLA)
Workers Compensation (WC)
We will look at each law separately then
weave them together
Its like putting a puzzle together
blindfolded!
Overview

4. Americans with Disabilities Act of 1990
(Titles 1 and V) pertains to:
◦ Private employers with 15 or more employees,
◦ State and local governments,
◦ Employment agencies and labor unions
◦ The ADA's nondiscrimination standards also apply to federal
sector employees under section 501 of the Rehabilitation Act,
as amended
ADA

5. Employees with disabilities must:
have an equal opportunity to apply for jobs and to
work in jobs for which they are qualified;
Provides protection from hiring discrimination
Also provides protection from job loss due to disability
have an equal opportunity to be promoted once
they are working;
have equal access to benefits and privileges of
employment that are offered to other employees,
such as employer-provided health insurance or
training; and
must not be harassed because of their disability.
ADA

6. As defined by the ADA, an individual with a
disability is a person who:
◦ has a physical or mental impairment that
substantially limits one or more major life
activities;
seeing, hearing, speaking, walking, breathing,
performing manual tasks, learning, caring for
oneself, working, etc…..
◦ has a record of such an impairment; or
◦ is regarded as having such an impairment
What is a disability?

7. Under the ADA you as an employer are
required to make reasonable
accommodations unless it creates undue
hardship for your business
A reasonable accommodation is determined by: employee size, revenue
and type of business on a case by case basis
ADA

8. Reasonable accommodation may include, but is
not limited to:
◦ Making existing facilities used by employees readily accessible to and usable by
persons with disabilities
◦ Job restructuring, modifying work schedules, reassignment to a vacant position;
◦ Acquiring or modifying equipment or devices, adjusting or modifying
examinations, training materials, or policies, and providing qualified readers or
interpreters.
Reasonable Accommodations

9. An employer never has to provide any
reasonable accommodation that causes
undue hardship, meaning significant
difficulty or expense.
◦ Undue hardship refers not only to financial
difficulty, but to reasonable accommodations
that are unduly extensive or disruptive, or
those that would fundamentally alter the
nature or operation of the business.
Undue Hardship

10. Reinstatement Rights –
◦ Must be to the SAME job unless doing so causes
undue hardship to the employer
◦ No time limit on reinstatement
◦ Employer is obligated to make reasonable
accommodations based on the essential functions of
the job
Essential functions are the fundamental job duties performed in a position.
The term "essential functions" does not include the marginal functions of the
position. A function may be essential because:
The position exists to perform that function.
There are a limited number of employees available who could perform that
function.
The function is highly specialized.
ADA

11. Family Medical Leave Act (Federal)
Some states have their own Family Leave
Laws
Whichever law is more beneficial to the
employee must be followed
FMLA

12. FMLA
Job protection
12 weeks unpaid leave in a 12 month period
Intermittent leave is allowed
Reasons why:
Birth or adoption
Check state law definitions for spouse’s working for
same employer
Serious health condition
Yourself
Immediate family member
Check state laws for difference in definitions of
immediate family
FMLA

13. H.R. 4986, the National Defense
Authorization Act for FY 2008
(NDAA), Pub. L. 110-181.(eff.
01/28/2008)
Caregiver Leave
FMLA-eligible employees who are the spouse, child, parent, or next of
kin to a service member who has been seriously injured (including
illness) while on active duty can take up to 26 weeks of unpaid leave
in a 12-month period to care for the service member. Important:
Where appropriate, all existing provisions of the FMLA apply,
including the intermittent leave, the substitution of paid leave, and the
notice provisions.
Recent Amendments to FMLA

14. H.R. 4986, the National Defense
Authorization Act for FY 2008
(NDAA), Pub. L. 110-181.(eff.
01/28/2008)
Active Duty Leave
Under another FMLA amendment, an employee may take FMLA
leave for "any qualifying exigency" arising out of the fact that his/her
spouse, child, or parent is on active duty or has been notified of an
active-duty call. Amount of leave available: up to 12 weeks in a 12-
month period (i.e., the usual FMLA leave allotment).
According to the DOL, this amendment won't become effective until final regulations defining any qualifying exigency
are issued. In the interim, the DOL advised employers to provide this type of leave. Here, too, the regular FMLA
provisions apply, so when the need for leave is foreseeable, employees must provide their employers with reasonable
and practicable notice. Also, employers may require that leave requests be supported by certification.
Recent Amendments to FMLA

15. Private employers with 50 employees,
working within 75 miles
Schools
Public agencies Must have a
written FMLA
policy
Government
FMLA-
FMLA- Covered Employers

16. If an FMLA-covered employer has any
eligible employees and has any written
guidance to employees concerning
employee benefits or leave rights, such as
in an employee handbook, information
concerning FMLA entitlements and
employee obligations under the FMLA
must be included in the handbook or
other document.
The Law on Policy Requirements

17. Federal - Worked at least 12 months
◦ Do not have to be consecutively
Federal - Worked 1250 hours in previous
12 months
Check your State Laws
VT – 3 laws to consider
FMLA Eligible Employees

18. Employee Requirements:
◦ Must notify employer as soon as reasonably
possible for the need of time off
◦ Employer must notify Employee that their time
off is being counted under FMLA (form WH-
380)
◦ Employer can require Drs certification if leave
is for serious health condition (employees or
family member) (form WH-381)
Notices

19. "Serious health condition" means an illness, injury,
impairment, or physical or mental condition that involves:
any period of incapacity or treatment connected with inpatient care in a hospital,
hospice, or residential medical care facility; or
a period of incapacity requiring absence of more than three calendar days from
work, school, or other regular daily activities that also involves continuing treatment
by (or under the supervision of) a health care provider; or
any period of incapacity due to pregnancy, or for prenatal care; or
any period of incapacity (or treatment therefore) due to a chronic serious health
condition (e.g., asthma, diabetes, epilepsy, etc.); or
a period of incapacity that is permanent or long-term due to a condition for which
treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.);
or,
any absences to receive multiple treatments (including any period of recovery
therefrom) by, or on referral by, a health care provider for a condition that likely
would result in incapacity of more than three consecutive days if left untreated (e.g.,
chemotherapy, physical therapy, dialysis, etc.).
Serious Health Condition

20. Entitled to 12 weeks of job protection
◦ NOT additional time off
◦ Runs concurrent with other leave of absence
policies
Disability
WC
Paid Time off (check state laws)
◦ Can be taken intermittently
Time tracking an issue
Why is it important to track immediately and
consistently?
Entitlements

21. Accrual of benefits
◦ Federal Law –time off benefits cannot be taken
away but do not have to continue to accrue
◦ Check state law
Using paid time off
◦ Federal Law – you can require your employees
to use their time off
◦ Your employee can choose to use their paid
time off
Check state law
FMLA
Time Off Benefits

22. Maintenance of Health Benefits
◦ Keep on insurance – same status
◦ Can require the payment that they normally
would have paid
Pre-tax vs post-tax

23. Reinstatement Rights
◦ Must be reinstated to the same or equivalent
position with same pay and benefits and other
“perqs” if returned to work within the 12
weeks.
◦ Special rules for educational institutions
◦ Not entitled to reinstatement if out beyond the
12 weeks
FMLA

24. Joyce is pregnant and her baby is due on
October 1st.
◦ On September 10th Joyce comes to you to say
that her Dr has told her she must stop working
now before the baby is born.
◦ Assume you have no paid disability policies.
◦ Assume Joyce has some paid time off available
to her to use.
Example/POLL

25. Injury or Illness that is Work Related.
◦ Provides for partial income replacement
◦ Provides for medical treatment payments
◦ Permanency benefits
◦ Vocational Rehab
◦ Death Benefits
Reinstatement rights – check state law –
WC is governed by State Laws. Some
have more restrictive laws on
reinstatement.
Workers Compensation

26. Illness or Injuries/Serious Health Conditions
Injury at work may qualify for WC only-if no lost days at work
It may qualify for FMLA and WC if lost work days.
Bronchitis - out sick for three days – FMLA serious health condition
Heart Attack would qualify for FMLA and may qualify for ADA if it
substantially limits major life activity
A injury at work that impairs a major life activity -WC and ADA and
FMLA would apply.
Any time an illness or injury occurs you need to ask
yourself:
Does the illness/injury impair the employees ability to perform a
“major life activity”?
If so, you have a duty to make a reasonable accommodation.
Serious health conditions

27. ADA –
◦ a reasonable accommodation may be unpaid leave – and
this would not be limited to the 12 weeks of FMLA.
FMLA –
◦ the employee can take intermittent leave or work on a
part time basis for a serious health condition if it is
medically necessary, up to the 12 weeks time in a 12
month period
WC –
◦ unable to perform job duties/ may do light duty work if
available
Comparisons of Laws
Reduced time at Work

28. ◦ ADA – it has to be the same position unless
doing so would cause undue hardship to the
employer
◦ FMLA – same job or an employee can be
transferred to an alternative position as long as
it’s an equivalent position (pay, benefits)
◦ WC an employer may be obligated to reinstate
an employee within a specified time frame to
any job that they can meet the essential
functions – employers do not have to create a
job (check state laws)
Comparisons
Returning to Work

29. ◦ ADA – open ended /reasonable
◦ FMLA – 12 weeks within 12 months
◦ WC – open ended until medical end result or
return to work is medically certified or
termination of employment.
Comparisons
Time Off Away from Work

30. Reasons for:
◦ ADA – taken only for their own disability –
fairly serious health conditions affecting “major
life activities”
◦ FMLA – taken for their own serious health
condition or family member
Birth or adoption
Military amendments
◦ WC – work related injury or illness
Comparisons
Reasons for Leave

31. Minimum length of employment to be
eligible:
◦ ADA – none
◦ FMLA -1250 hrs within last 12 months; have
worked 12 months in total
◦ WC - none
Comparisons

32. Joe works in a job that requires him to
pick up 50 lb bags from a loading dock
and carry them to a storage room.
◦ He hurts his back while working and is out of
work on WC for three weeks.
◦ When he returns to work – medical restrictions
apply and he can only lift up to 50lbs to waist
level but cannot carry it
◦ How does each law apply?
Example

33. WC Claim
◦ Pays for medical and partial lost wages
FMLA
◦ Start the clock ticking as soon as he goes out
of work
ADA – is there a disability?
How the laws may interact

34. ◦ Answer: It depends --- ADA is looked at on a
case by case basis.
◦ The medical restrictions– can they be
accommodated reasonably?
◦ The essential job function is to “move” the
bags, not necessarily carry them….
Case by Case…..

35. Make every qualifying leave an FMLA event
Revise existing policies of sick, personal, disability etc to run
concurrent with FMLA
Designate and provide notice of such
Identify essential functions of ALL jobs
Provide FMLA training especially to front line supervisors and
managers
Maintain separate confidential records
Document all time away from work
Establish a reinstatement procedure and/or return to work
program (light duty)
What to do! Best Practices

36. Have information available – quickly
Keep up to date and current on law
changes and revisions
Document all your steps and procedures
What to do continued….

37. In HRSentry
◦ www.hrsentry.com
Libraries –
◦ Federal Employment Laws and Regulations
State Employment Laws and Regulations
Best Practices
Using Search feature:
◦ ADA
◦ FMLA
◦ Workers Compensation
ADA – FMLA - WC

38. Q&A
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the site
support@hrsentry.com(for information on
sign up and group rates)
admin@hrsentry.com (for help inside
HRSentry)
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