Tuesday 25 June 2019
  • :
  • :

Navigating the Bermuda Triangle of Employee Absences

Linda Croushore, Med, is the senior director of Disability Services at WorkPartners. Part of UPMC’s global health enterprise, WorkPartners provides health and productivity solutions to high-performing companies throughout the United States.

Jeffrey Swaney is the vice president of Workers’ Compensation at WorkPartners. Formed in 1997, WorkPartners has continued to expand services in an effort to help its clients strategically manage the health and well-being of their employees.

Some employee absence events may trigger not just one law, but the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and state workers’ compensation laws.

Violations of these laws may cause penalties to employers and, in some cases, even to managers. It is generally the employee’s responsibility to inform the employer about the need for an accommodation, related to a medical condition, to enable the employee to fulfill the essential duties of the job. Failure to clearly request an accommodation or provide this information has not always prevented lawsuits, however. In some cases, erratic employee behavior was a sufficient notice of need for an accommodation.

In addition, a doctor, family member or other qualified person can make requests “on behalf of” the employee. Employees cannot simply stop reporting for work; some notice of need is required by the FMLA.

In the workers’ compensation area, every state has its own laws and regulations, but the claim for a work-related injury should always be reported within 24 hours of the injury. This timeframe gives the workers’ compensation program time to assess the claim’s validity. More importantly, care can be directed early in the process as allowed by state statutes.

The ADA, FMLA and workers’ compensation regulations overlap in several areas; employers must determine which one(s) apply to an employee’s leave request. This overlap can raise questions regarding employer coverage, employee eligibility, length of leave and medical documentation.

Employers operating in this overlap zone need to maintain communication with their employees and require appropriate medical documentation. When these best practices falter, cases start to run off the rails because most leaves contain too many nuances for employees to comply without ongoing guidance.

Sending the employee a start-up letter or medical certification form is not enough. Employers who require fitness-for-duty certification should have a uniform FMLA policy in the employee handbook and other written communication to employees. The employer must give the employee a list of the essential job functions for use in the certification. The certification states the employee is able to resume work following an FMLA leave, it can address the employee’s ability to perform the essential functions of the job, and is signed by the employee’s health-care provider. Employers should not refuse to let an individual with a restriction return to work simply because the worker is not fully recovered from the injury. This mentality will likely result in an ADA violation.

The interactive process begins when an employer learns of the need for an accommodation. Even when an employer believes that no accommodation is possible, the ADA
requires the “interactive process” to discuss the situation with the disabled worker; healthcare providers are often included. Rather than moving straight to the undue hardship argument when an employee requests an accommodation, employers should thoughtfully and completely evaluate the request. Does the proposed accommodation provide for safety of employees and customers (patients in the healthcare setting); does it remove any essential functions; will it negatively impact work or product quality? The interactive process may require multiple cycles to explore other possible job modifications, more leave time or other alternatives.

Employers should not place the burden on the employee to identify open positions that might meet the employee’s accommodation request. Yet, it is imperative that employers document all efforts of an employee — or the lack of effort — to engage in this interactive process.

When employers consider all of these elements while managing an employee leave or claim, the overlapping processes of ADA, FMLA and workers’ compensation run more
smoothly. Because the ADA interacts so significantly with the other two, the ADA interactive process is key to helping you avoid being sucked into the Bermuda Triangle when dealing with employee absences.

For more information, visit