Brendan presented "Absence Makes You a Goner: Dealing with Employee Leave" at a Kegler Brown breakfast briefing on June 24, 2015. The presentation focused on the legal aspects of handling employee absences and the interplay between FMLA, ADA and workers' compensation. Brendan also examined compensation issues surrounding employee leave and tips for handling long term leave situations.

1. z
Absence Makes You a Goner
Navigating the Bermuda Triangle of Employment
Law, the ADA, FMLA and Workers Compensation
Absence Makes You a
Dealing with Employee Leave
Presented by Brendan Feheley
June 24, 2015

2. z
Navigating the Bermuda
Triangle of Employment Law
ADA, FMLA + Workers Compensation

3. z
Defining the
Sailing into the
Tips for
Escaping the
Our Agenda

4. z
DEFINING
the Sides of the
Triangle

5. z
Workers’
Comp
Gives you pay due to
work-related injury
*Short-Term Disability?
ADA
Gives you right to a
“reasonable
accommodation”
FMLA
Gives you the right
to be off work for
12 weeks

6. z
FMLA
UNPAID
LIMITED TIME PERIOD
ONLY FOR CERTAIN REASONS
CAN BE BLOCK OR INTERMITTENT
ELIGIBILITY REQUIREMENTS

7. z
WORKERS’
COMPENSATION
ALL EMPLOYEES ELIGIBLE
PAYS MEDICAL BILLS
NO RIGHT TO EMPLOYMENT
LIMITED SCOPE OF COVERAGE

8. z
ADA
ALL EMPLOYEES ELIGIBLE
SUBSTANTIAL LIMITATION
OF MAJOR LIFE ACTIVITY
REQUIRES DIALOGUE
“REASONABLE ACCOMMODATION”
CAN MEAN ANYTHING

9. z
SHORT- + LONG-TERM
DISABILITY
DEFINED + DRIVEN BY PLAN DOCUMENT
NOT LEGALLY REQUIRED
MAY HAVE EMPLOYEE CO-PAYS
+ ELIGIBILITY REQUIREMENTS
COMPENSATION FOR
EMPLOYEES ON LEAVE

10. z
SAILING
into the Triangle

11. z
Incident at work
BRUCE + KRIS
Workers’
Comp?
Fight now or pay later
Hypothetical
ISSUE:
FMLA?
Eligibility?
PT?
ADA?

12. z
Light Duty
Offer
BACK INJURY
Workers’
Comp?
Bruce + Kris: The Saga Continues
Required?
Working outside
restrictions
FMLA? ADA?

13. z
FMLA
Paperwork:
ADA?
First report
of injury
Bruce + Kris: To the Beginning
3 months off
Witnesses? Medical
Records?

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Where are you
getting them from?
MEDICAL RECORDS
Short-Term
Disability?
Bruce + Kris: Medical Records
Objective medical
evidence is KEY
Prior injury?
Substantial Aggravation?
Pain Meds
Drug Testing?

15. z
FMLA time
remaining?
What happens after?
SURGERY
Fight now or
pay later?
Bruce + Kris: 10 Weeks Later
Bruce’s manager’s
reaction?
ADA? Termination?

16. z
KRIS’ PSYCHOLOGICAL
CONDITION
Transfer?
Bruce + Kris: It’s a Family Affair
Work from home?
WC? FMLA? ADA?

17. z
Recovering but
needs more weeks
BACK INJURY
Exam?
Bruce + Kris: Back to Bruce’s Back
“Reasonable”
Light duty options?
Bruce’s role in
treatment

18. z
Indefinite Leave?
RESTRICTIONS?
Framing the conversation
Rehire
Bruce + Kris: Season Finale

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A Word About
PREGNANCY
+ Not ADA
+ Conditions associated with it can be
+ Most favored nation status?
+ FMLA issues
+ Pregnancy Discrimination Act

20. z
ESCAPING
the Triangle Alive
Tips for

21. z
Handling Absences
Know your policies + how they interact
Know what forms of documentation you
have + what you can get from them
Job Descriptions
Incident Reports
Witness Statements
Interactive Process
FMLA Forms
Others?

22. z
Engage with employee early + often
Press doctors whenever possible
Light duty is a 2-way street
Know employee’s responsibilities

23. z
Watch out for repeat offenders
Attendance still matters
Be very careful about telecommuting
Sometimes you have to pick your poison
The best action for handling a WC claim
may not be good for ADA!

24. z
Thank You!
Brendan Feheley, Director
Kegler Brown Hill + Ritter
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614.462.5482