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Ten years ago or so, employers were struggling with the interaction between the Americans with Disabilities Act, the Family and Medical Leave Act and workers compensation, also known to employment lawyers as “the Bermuda Triangle.”
The idea was that trying to keep all these laws in mind while dealing with injured employees caused employers to become disoriented, without a compass and lost.
After a lot of training, it seemed that employers were getting the hang of dealing with all three laws at once. But since employment lawyers have stopped harping on it, we are beginning to see employers struggle again with ADA-FMLA-workers compensation.
And it is even more complicated now, because since at least 2015, employers may also be required to accommodate pregnancy and related conditions. That makes four laws.
A better metaphor for the current state of affairs is whack-a-mole. An employer thinks it has fulfilled its obligations under one of these laws, and then — whoop! — up pops a new “mole.”
Two whack-a-mole scenarios
Scenario 1: The employee has a severe injury on the job and is out of work for six months. At the end of that time, his physician says that he is at maximum medical improvement with a 50% disability rating. The physician recommends light duty. Your policies allow light duty for a maximum of 90 days, for work-related injuries only. You give the employee a light duty assignment for 90 days. When that period ends, you terminate the employee. Is that a problem?
It could be. First, let’s assume you let the employee use up his FMLA leave during the six months that he was completely out of work, so you don’t have an FMLA issue anymore — unless we are in a new FMLA leave year, in which case you might. You’ve handled the workers compensation part correctly — assuming your insurer doesn’t hate you for placing a time limit on light duty. But is there an ADA issue?
Not necessarily, but it’s likely. A disability rating for workers comp purposes is not the same as an ADA-protected disability, but there is a lot of overlap. By the time you terminated your employee, he had been unable to work in a regular job for nine months, which is treading dangerously into ADA territory. To stay out of trouble from an ADA standpoint, and avoid a disability discrimination charge, at the end of the light duty assignment you should have at least considered whether it would have been possible for the employee to perform a “regular” job with reasonable accommodations. This should be discussed through an “interactive process” — also known as a “conversation” or “brainstorming session” — between the employee and the employer, with the help of health care providers if needed. If you go through the process and determine that no accommodations are possible, then you will be on firmer ground when you terminate the employee. If you don’t go through the process, then you assume the legal risk that there was an accommodation that would have worked.
Scenario 2: Your material handler is pregnant. Her doctor places her on a 10-pound lifting restriction until after the baby is born … seven months from now. You can’t accommodate this type of restriction with a material handler because her entire job consists of lifting and moving loads of 25 pounds to 50 pounds. You would give her “make-work” light duty, but that’s only for people with on-the-job injuries. You’d put her out on FMLA leave, but she’s been employed with you for only six months, so she is not eligible. Since you can’t accommodate her lifting restriction, and she isn’t eligible for FMLA leave, you offer her a one-month personal leave and tell her that if her lifting restrictions are still in place at the end of the month her employment will be terminated but she’ll be eligible to reapply when she is able to meet the lifting requirements.
No problem, right?
Well, yes, maybe a big problem, related to that “make-work” light duty. Because you have this type of work and offer it to employees who are “similar in their ability or inability to work,” then you should offer it to your pregnant material handler as well. Failure to do so could violate Title VII, which prohibits discrimination based on sex, including pregnancy.
A proposed protocol
The best way to avoid whack-a-mole with a sick, injured, or pregnant employee is to go through a process of “ruling out” applicable laws, and then acting based on the laws that do apply. Let’s say you have an employee with a congenital heart condition that limits his ability to perform the essential functions of the job. Rule out!
Hey, that wasn’t so bad! Let’s try it again. Your employee has work-related carpal tunnel syndrome. Rule out!
Last one! Your employee is pregnant. Rule out!
That mole is whacked!