1. An employee developed elbow pain after her employer retooled the assembly line, potentially making her condition work-related. 2. Two doctors disagreed on whether the condition was work-related or degenerative. The employer denied accommodated duty based on one doctor's opinion. 3. The employee took 12 weeks of FMLA leave for surgery but needed more time to recover. The employer threatened termination if she did not return at the end of FMLA leave.

1. LEAVE OF ABSENCE
The Bermuda Triangle –
ADA/FMLA/Workers’ Compensation
Connie Campisi – HNI Risk Advisor, HR Compliance
Mark Brault – HNI Risk Advisor, Benefits Attorney

2. Introduction
Because the interaction of three major employment laws – the
American with Disabilities Act (ADA), the Family and Medical Leave Act
(FMLA) and workers’ compensation is so complicated, it is sometimes
referred to as the Bermuda Triangle of employment law
It is essential for organizations to know about and understand how this
triangle to ensure legal compliance as well as to provide employees
with the benefits and protections each law provides.

3. General Understanding
• Because a majority of absences whether scheduled or unscheduled are related to the illness of an employee or an immediate
family member, one, two or even all three of these regulations may apply.
• Non-compliance or a violation of these regulations could be a great liability for an organization in the form of lost wages, back pay,
reinstatement, retroactive benefits, compensatory and even punitive damages.
• Most employers want to ensure that employees receive the benefits and protection that these regulations provide.

4. Overview – What is a leave of absence?
A leave of absence (“LOA”) could mean many things. First attempt to
classify whether the LOA is job protected (ADA, FMLA, WFEA), a paid
leave (STD, LTD), an unpaid leave, an unprotected leave, some other
company LOA policy or a combination of LOAs.

5. Overview – What is a leave of absence?
• Each LOA has different compliance issues, durations, medical
documentation requirements and health plan coverage/payment
issues.
• Easy to get confused or forget a step in the process but plaintiffs
attorneys will gladly notify you when something was done incorrectly.

6. Diagnose the issue: What is it?
• For a job protected LOA, always start with the Family Medical Leave
Act (“FMLA”). FMLA protections are the most restrictive and FMLA
has the highest employee threshold number (50).
• EEOC Guidance – “An employer should determine an employee’s
rights under each statute separately, and then consider whether the
two statutes overlap…”

7. Eligibility under FMLA
• Applies to employers with 50+ employees within a 75 mile radius.
• Employee must have worked at least 12 months for the employer
(whether consecutive or not) and completed 1,250 hours of service
during the past 12 months.
PRACTICE TIP! This employee count does include controlled groups of
corporations within the 75 mile radius.

8. FMLA Essentials
• A serious health condition
• Employers may not change the essential functions of a job in order to
deny FMLA leave or to deny the employee from being reinstated.
• FMLA protects employees from losing their job or benefits while on
leave not to exceed 12 weeks for each measurement period.
PRACTICE TIP! To help alleviate some FMLA abuse, use a 12 month
rolling period instead of a calendar year when tracking FMLA leave.

9. Leave options: FMLA
• Employer has the affirmative obligation to designate leave as FMLA
leave. An employee’s right – an employer’s responsibility
• Employer may not require an employee to take a job with a
reasonable accommodation such as light duty.
• FMLA is not a COBRA event unless the employee does not return
after the leave has expired, in which case it could be a COBRA event.

10. Reinstatement: FMLA
• Employer is required to reinstate employee to substantially equivalent position,
with equivalent benefits, pay, terms and conditions of employment.
• No right to reinstatement if employee is unable to perform the essential
functions of the job.

11. Reinstatement: FMLA
• Upon return the employer must restore any benefits terminated
during leave, even if the employee lost coverage for failure to pay
during the leave.
• PRACTICE TIP! If you have locations in other states, make sure the
other states do not have separate FMLA laws that differ from federal
FMLA.

12. ADA & State overview
The Americans with Disabilities Act (“ADA”) applies to all
employers with 15 or more employees.
- The biggest difference between the federal and state disability laws often is the
nature/degree of permanence.

13. ADA & State overview
• States also often have disability laws that are more favorable to employees since
they often apply to all employers of any size.
• To be covered under Michigan disability laws, an employer only need to have 1
or more employees. Michigan laws are enforced through the Michigan
Department of Civil Rights (“MDCR”).
• Some aspects of MDCR are more favorable to employees, particularly those who
work at small employers where ADA is not available.
PRACTICE TIP! Employers of all sizes should assume they are subject to some
disability laws since the MDCR applies to basically all employers.

14. Disabilities under ADA
• ADA forbids discrimination against “qualified individuals with
disabilities” and requires employers to reasonably accommodate such
individuals.
• ADA defines disability as –
• A physical or mental impairment that substantially limits one or more major
life activities.
• A record of having such an impairment.
• Being regarded as having such an impairment.

15. Disabilities under ADA
• ADA amendments further modified and broadened the class of
persons and major life activities to which the ADA applies. Changes
include:
• Mitigating measures such as medication will be disregarded when evaluating
whether a person is substantially limited.
• The definition of “substantially limits” has been broadened and there is a new
definition of “regarded as disabled”.
PRACTICE TIP! When confronted with a potential disability claim
assume it is a disability given its broad definition.

16. Protections under ADA
• No length of service requirement under the ADA.
• Limitations exist on pre-employment inquiries:
• Cannot ask applicants about past WC claims or work-related injuries prior to
making a conditional offer of employment.
• In order to disqualify a candidate who has a disability, employer must show
that the individual poses a “direct threat” which includes “a significant risk of
substantial harm to the health or safety of the individual or others than
cannot be eliminated or reduced by reasonable accommodation.

17. Protections under ADA
• ADA is almost perpetual, limited only by the requirement that the
employee be able to perform the essential functions for the position
with or without a reasonable accommodation.
• BUT…a LOA as a reasonable accommodation under the ADA after
expiration of FMLA is no longer required per our own 7th circuit. See
Severson v. Heartland Woodcraft, Inc.

18. Protections NOT available under ADA
• If there is no concurrent FMLA, no obligation to continue to offer
health insurance coverage unless the employer has previously
provided coverage for other employees under ADA leave.
• If no FMLA and no termination, COBRA must be offered.

19. Reinstatement under ADA
• ADA does NOT mandate equivalence in pay or benefits upon return
unless there is an equivalent vacant position.
• ADA does NOT require the employer to create a new job for the
employee.
• Reasonable accommodations include: job restructuring; modified
work schedules; equipment modifications; and reassignment.

20. Worker’s Comp overview
Worker’s Compensation laws were established to provide benefits for job-
related injuries.

21. Eligibility under Worker’s Comp
• Any employer with 3 or more employees at any one time, or employs
1 or more workers for 35 or more hours per week for 13 weeks or
more is subject to the Michigan worker’s comp laws.

22. Protections under Worker’s Comp
• WC insurance carrier pays all medical expenses related to the injury.
• Employer can cancel health insurance, but only if the state WC laws
do not require you to maintain it. Michigan does not require you to
maintain health insurance.
• No requirement to accommodate under worker’s comp although the
insurance carrier will encourage it.
• Cannot terminate employee for absences related to work injury.

23. Reinstatement under Worker’s Comp
• Unreasonable refusal to rehire: Employer cannot, without reasonable
cause, refuse to rehire an employee who is injured in the course of
employment, where suitable employment is available within the
employees’ physical and mental limitations.
• If not able to return to work, employer must have medical proof that
employee is physically unfit to return.

24. Light duty options
• Under ADA and WC, if work restrictions exist, an employer may
“create” light duty work. These positions may be temporary.
PRACTICE TIP! An employee who is on light duty tolls FMLA. The FMLA
“clock” stops.

25. FMLA and light duty work
• Key concepts for FMLA and light duty work:
• Can’t require light duty work while on FMLA.
• No waiver of FMLA rights if an employee wants to work light duty.
• Light duty acceptance must be voluntary and uncoerced.
• FMLA “clock” stops on light duty.
• Both require reinstatement to the same or an equivalent position with
equivalent pay and benefits.
• No FMLA right to restoration for a LOA beyond 12 weeks unless there is a
continuing worker’s comp issue in play.

26. Worker’s Comp interaction with FMLA
• Always count WC time off concurrently as FMLA time but remember
you cannot force the employee to take accrued paid leave for FMLA
since worker’s comp is already paid time off.
PRACTICE TIP! If you don’t count this time concurrently, employees can
double dip. Employers MUST have all of this policy language in writing.

27. Worker’s Comp & FMLA
• When is an employee with a WC injury not protected under the
FMLA?
• Employer has less than 50 employees.
• Employee did not satisfy length or hours of service under FMLA.
• Employee had already exhausted 12 weeks of FMLA.

28. Worker’s Comp & ADA
• When is an employee with a WC injury not protected by the ADA?
• Injury does not “substantially limit” a “major life activity”.
• Injury is temporary or short-term (broken arm).
• No reasonable accommodation enables the employee to perform the
“essential functions” of the position.
• A “direct threat” to health or safety of employee or others exists.

29. FMLA, ADA, & WC – Reasonable
Accommodations
• Requires an interactive process at all times.
• No reasonable accommodation or reinstatement right under any law
if the employee cannot perform the essential functions of the job.
PRACTICE TIP: If an employer reserves light duty work for employees
who have worker’s comp injuries, the employer cannot refuse to
provide a reserved light duty job to an employee who has a non-
worker’s comp injury that is also a disability. Violates ADA.

30. FMLA, ADA, & WC – Reasonable
Accommodations
• ADA violation if an employer relies on a worker’s comp disability
rating or finding as a reason not to return the employee to work.
• There is no duty to create a new position or bump another employee.
• Employers cannot have a blanket (“no fault”) termination policy.

31. FMLA, ADA, & Worker’s Comp
• More reasonable accommodation issues:
• OLD POSITION: How long to hold an employee’s position open should be
analyzed on a case-by-case basis. A LOA is considered a reasonable
accommodation (especially 6 months or less or even 6-12 months) while an
indefinite leave is not a reasonable accommodation. LOAs beyond 12 months
become problematic. The new Severson case changes this approach unless a
WC injury still exists.
• LOAs are disfavored by the WC carriers since they are in the business of
rehabilitating the employee vs. paying them benefits sitting at home.

32. FMLA, ADA, & Worker’s Comp: Medical
Inquiries
• WC allows employers to have broad access to medical records and
treating physician. Employers cannot deny FMLA leave based on this
greater amount of information.
• Under ADA, you can’t inquire into the nature and extent of the
employee’s disability except where job-related and consistent with
business necessity unless employee is requesting time off due to the
disability.

33. FMLA, ADA, & Worker’s Comp: Medical
Inquiries
• ADA allows more detailed questions than what is available under
FMLA. The employer may also require medical examinations (IMEs)
and make physician inquiries to determine what, if any,
accommodations are reasonable.
• FMLA limits you to the information that can be requested on the
DOL’s FMLA medical certification form.

34. FMLA, ADA, & Worker’s Comp: Fitness for
duty exams
• ADA: allowed if “job related and consistent with business necessity”
and limited to what is needed to determine if employee is able to
perform the job.
• FMLA: can require a fitness for duty certification that addresses the
employee’s ability to perform the essential functions of the job.
• WC: employee simply obtains a release to return to work, with or
without restrictions, and may get a permanent disability rating from
the physician.

35. Non-protected leaves of absences: Basics
• When would these occur:
• Employer not big enough to have to offer FMLA
• Employee not yet eligible for FMLA
• Employee needs time off but not due to serious health condition
and no vacation or PTO is available.
• Employer has an additional LOA policy beyond FMLA time frame
• Some employers use these LOAs to juggle workloads

36. Non-protected LOA – Legal Considerations
• LOA may trigger COBRA concerns due to a reduction in hours or if
additional leave is available after the expiration of any FMLA.
• May need carrier approval to extend/continue to offer benefits.
• If COBRA is issued, should you subsidize the employee? NO! If
employee never returns and elected COBRA b/c you agreed to
subsidize, you lost ability to kick employee on the exchange until next
open enrollment.

37. LOAs & ACA look back issues
• If LOA is PAID, hours of service are credited (like vacation) in the
measurement period for the duration of the leave.
• If LOA is UNPAID and meets no exceptions, the employee will have no
hours of service for the duration of the leave.
• Exceptions of leave unpaid which have different treatment if leave for
FMLA, WC, Jury Duty and USERRA. Two options are available for the
treatment of leave:
• Exclude period of unpaid leave from measurement period computation by
determining average hours without including this period; or
• Input hours by crediting employee with hours of service at a rate equal to the
average weekly hours of service for weeks that were not part of this LOA.

38. Case Studies
FACTS:
• IMA Hurt has worked on the assembly line at Widgets, Inc. for the past 15 years. Her job
requires repetitive use of her upper extremities. In June 2015, Widgets, Inc. re-tooled
the line to allow it to run larger widgets through the assembly process. After performing
her duties on the assembly line for approximately 30 days after the re-tool occurred, IMA
Hurt developed the insidious onset of bilateral elbow pain.
Comments: The employer now has notice that there is a potential medical issue. The
interactive process should commence to ascertain what the extent of the problem may be.
**This fact scenario/case study was copied from a seminar I attended last year called “The Intersection of the ADA, FMLA and Worker’s Compensation Laws” by Attorneys
Stephanie Brown, Douglas Feldman and James Walcheske.

39. Case Studies
• Ms. Hurt reports her medical condition to the nursing station who sets up an evaluation at the local
occupational health clinic. The physician at the clinic, Dr. Healemhup, advises Ms. Hurt that he
believes her elbow problems simply represent a non-work-related degenerative condition and that
she may return to work immediately, but should use a splint. Ms. Hurt, not being enamored
with Dr. Healemhup's opinion, immediately goes to her own primary care physician, Dr.
Compassionate, who advises her that he believes her condition is indeed work-related and that her
work duties were a material contributory causative factor in the progression of her bilateral elbow
symptoms. He advised her that she could only go back to work with temporary restrictions
requiring no lifting greater than 10 pounds and no repetitive use of the upper extremities.
COMMENTS: The next step in the process is to diagnose the issue. Here we are still early
in the process but it is clear she thinks she has a worker’s comp issue (Widget’s disagrees)
and probably FMLA issue if time off of work is needed. You cannot discount an ADA issue
but her condition is certainly not to the point to seriously consider ADA as of this time.
**This fact scenario/case study was copied from a seminar I attended last year called “The Intersection of the ADA, FMLA and Worker’s Compensation Laws” by Attorneys
Stephanie Brown, Douglas Feldman and James Walcheske.

40. Case Studies
• Ms. Hurt presents these alternative opinions to the Human Resources Department of
Widgets,Inc. Widgets,Inc. advises her that they will not provide accommodated duty for
her since Dr. Healemhup believes that her condition is not work-related and advises her
to take FMLA leave.
• Twelve weeks later, Ms. Hurt continues to treat for her elbow condition. She
undergoes bilateral epicondylitis surgery and continues to be subject to temporary
restrictions. Widgets, Inc. sends. her a letter indicating she must return to work at the
expiration of her FMLA leave, or risk being terminated from employment. Ms. Hurt
advises that Dr. Compassionate believes that she will be able to return to work to her
regular duties in approximately an additional 8 weeks.
• The company's HR Department huddles together to determine Ms. Hurt's fate!

41. Case Studies
COMMENTS: We have conflicting medical opinions which is problematic since it means any eventual
litigation could get complicated and messy. As of now since the worker’s comp (WC) carrier will not
acknowledge a WC claim, Widgets does not have to acknowledge it either. However, Widgets did give
FMLA and it appears she took or will take all 12 weeks of the available FMLA time. Since no light duty
(WC) time was approved or offered, it is clear that this time off was all FMLA leave. Widgets is now
trying to determine whether to immediately fire her after the 12 weeks of leave has expired or to give
her the additional time off as unpaid leave. The key items to weigh here is whether the 8 additional
weeks is an undue burden/hardship vs. what is the downside of keeping her employed and giving
leave as a reasonable accommodation. Her FMLA is all used up and she has not appealed or again
reasserted a WC injury up to this point since WC initially said it was not work related. Thus the only
other issue is whether this injury is getting to the ADA point. She does have restrictions but we are not
100% certain they are temporary so the cautious approach would be to give her the 8 weeks of leave
and give her COBRA after FMLA expires if that is your typical practice.

42. Case Studies
• Eight weeks later, Ms. Hurt is returned to work, but not full duty. Rather, she has
permanent restrictions placed upon her which prohibit her from performing repetitive
tasks with her upper extremity which is a significant portion of her job on the assembly
line. The company elects to have an independent medical examination with Dr. Yourcured
who opines that she can return to work without restriction. Both medical opinions are
provided to the company for their consideration.
• COMMENTS: Again, she is now out of FMLA leave and no WC exists. The only issue
remaining is whether the company wants to continue to accommodate her for fear of an
ADA issue. However, I think there is another big issue. She can no longer perform the
essential functions of her job under the ADA protections even with accommodations so
the employer should not keep her in this position and it only has to give her another
position in the event one is vacant or it would not present undue hardship. It is clear she
can no longer work on the assembly line. The company has done a nice job from their
end communicating with her and having her take an IME.
• **This fact scenario/case study was copied from a seminar I attended last year called “The Intersection of the ADA, FMLA and Worker’s
Compensation Laws” by Attorneys Stephanie Brown, Douglas Feldman and James Walcheske.

43. Case Studies
• The company concludes that if the treating physician's opinions are followed, Ms. Hurt cannot
return to her assembly position. However, there is an alternative position available in a
manufacturing cell in another area of the plant. In this manufacturing cell, there are 7
workstations that the employees rotate through on a weekly basis. Five of those workstations
do not require repetitive use of the upper extremities, but the other 2 do not. Ms. Hurt requests
that she be allowed to return to work in the manufacturing cell and that the company provide her
with reasonable accommodation by allowing her to avoid the positions which require repetitive
use of the upper extremities.
• What should they do?
COMMENTS: Widgets should due its due diligence to ascertain if this is an ADA injury. If not,
there is no duty to accommodate. If it is an ADA issue, the next determination is whether this
accommodation is reasonable and/or whether such an accommodation creates undue hardship.
There were attorneys at this seminar that believed this was a reasonable request; however there
were plenty of attorneys including myself, who did not think this was a reasonable accommodation.
I cite that fact that she cannot perform all of the essential functions of this job since she cannot
complete 2 required workstations. Contd. Next page.

44. Case Studies
Continued Comments:
Other facts I found persuasive for NOT accommodating would be the fact that you are in essence creating
a new job since she cannot perform the same functions as all other employees in this same position
because all of the other employees can work all of the 7 workstations. This also has the effect of creating
new or different work obligations for current employees since at least one or two employees will also have
their job duties changed somewhat because they will have to pick up the work in the two workstations that
Ms. Hurt cannot complete and finally, if you create this accommodation one time, you have to make
similar accommodations when other injuries pop up. I would suggest Widgets put together all of these
arguments and explain that this accommodation would be undue hardship to the employer rather than
immediately caving in to these demands. It would mean Ms. Hurt will likely be terminated which in turn
may lead to a wrongful termination complaint but I really think the big picture (long term effect) must be
weighed heavily and factored in this situation.
**This fact scenario/case study was copied from a seminar I attended last year called “The Intersection of the ADA, FMLA and Worker’s Compensation Laws” by Attorneys Stephanie Brown, Douglas Feldman and
James Walcheske.

45. Conclusion
• Examine the legal restrictions that are imposed upon you as the employer.
• In situations where the restrictions appear to be in conflict or where some
restrictions are greater than others, you should attempt to comply with the
strictest or the most severe restrictions.
• The general rule has always been that when one or both of the federal
statutes (ADA and/or FMLA) conflict with the state laws (worker's comp
and/or MDCR), the federal laws take precedence if the federal laws are
more restrictive.
• Please seek the assistance of legal counsel when uncertain how to proceed.

46. Thank you!