The Bermuda Triangle:
ADA, FMLA & Workers’ Compensation
AREA Human Resources Update
April 6, 2006
Kira Fonteneau
“The Bermuda Triangle”
The First Leg: ADA
Americans With Disabilities Act of 1990
 At least 15 employees for coverage
 QUID – a person who can perform the essential
functions of the position desired or held, with or
without reasonable accommodation.
“The Bermuda Triangle”
The First Leg: ADA
What is a Disability?
Physical or mental impairment that
substantially limits one or more MLA’s
A record of such an impairment
Being regarded as having such an
impairment
“The Bermuda Triangle”
The First Leg: ADA
Reasonable Accommodation
 Employee’s responsibility to request,
generally
 Employer not required to wait indefinitely for
condition to be corrected
 No set period of time where employer is no
longer required to reasonably accommodate
“The Bermuda Triangle”
The First Leg: ADA
Direct Threat
No obligation to accommodate where a
significant risk is posed to health or
safety
Both individual and others
Individualized assessment
Examples
“The Bermuda Triangle”
The First Leg: ADA
Drug/Alcohol Abuse
 Alcoholism as a covered disability
 Current illegal drug use not
protected
 Individual seeking substance
abuse treatment for past drug use
may be protected
 Employees must comply with
workplace rules
“The Bermuda Triangle”
The First Leg: ADA
Behavioral Concerns
 Hold disabled employees to same standards
of workplace conduct as non-disabled
employees
 Job-related and consistent with business
necessity
 Presence at work as an essential job function
 Punctuality as an essential job function
“The Bermuda Triangle”
The Second Leg: FMLA
Family and Medical Leave Act of 1993
Covered employers must grant up to 12 weeks of
unpaid leave with continued group health insurance in
any 12-month period for the birth or placement of a
child or for the serious health condition of the
employee or certain family members
“The Bermuda Triangle”
The Second Leg: FMLA
Who are “covered employers”?
What employees count?
Who are “eligible employees”?
What family members count?
“The Bermuda Triangle”
The Second Leg: FMLA
What is a “serious health condition”?
Is a “serious health condition” the same
as a disability under the ADA?
Could a workers’ compensation injury
qualify as a “serious health condition”?
“The Bermuda Triangle”
The Second Leg: FMLA
How do I compute the 12-month
period?
What is “intermittent” leave?
What is “reduced schedule” leave?
“The Bermuda Triangle”
The Second Leg: FMLA
How does FMLA leave interact with
workers’ compensation leave or other
paid leave?
What rights does an employee who
takes FMLA leave have?
“The Bermuda Triangle”
The Second Leg: FMLA
What protections does an employee who
requests or takes FMLA leave have?
“The Bermuda Triangle”
The Second Leg: FMLA
Can employees escape the
consequences of their misconduct by
requesting or taking FMLA leave?
NO!
“The Bermuda Triangle”
The Third Leg: Workers’
Compensation
A statutory method of providing wagereplacement (or death) benefits and
medical expense coverage for
employees who experience work-related
injuries
“The Bermuda Triangle”
The Third Leg: Workers’
Compensation
Covered employees
Covered injuries

“Arising out of” employment: Was the
injury caused by the employment?
“The Bermuda Triangle”
The Third Leg: Workers’
Compensation
Covered Injuries

“In the course of” employment: Did the injury
occur at work, at a place where the
employee reasonably was expected to be,
while he was performing work or workrelated duties?
“The Bermuda Triangle”
The Third Leg: Workers’
Compensation
Are pre-employment inquiries about
prior work-related injuries or
workers’ compensation claims
okay?
Does an employer have to
“accommodate” an employee with
light or alternate duty?
“The Bermuda Triangle”
The Third Leg: Workers’
Compensation
What are the risks of
discharging an employee
following a work-related
injury?
• But what if the employee can’t
perform her regular job?
Retaliation
“The Bermuda Triangle”
The Third Leg: Workers’
Compensation
Workers’ Compensation Abuse

Watch closely, start early and
manage carefully!
DISCHARGE
 ADA Under the ADA, attendance is generally
considered to be essential function of job.
But, some reasonable modification to the attendance
policy may be necessary.
 FMLA The FMLA provides that absences for
approved leave may not be counted against the
employee.
 Workers’ Compensation Act Because of the threat of
retaliatory discharge claims, consistent application of
company policy is important.
EMPLOYEE FRAUD
 FMLA

An employee who fraudulently attempts to obtain
leave may be discharged.
 Workers’ Compensation Act

An employee who knowingly commits fraud as to his
prior workers’ compensation history or in the
application for or receipt of benefits can be deemed
benefits, employment, or discharged.
QUESTIONS ?