Avoiding the ‘Bermuda Triangle’ of Employment Law

The so-called “Bermuda Triangle” of employment law is: workers’ compensation, the Family and Medical Leave Act and the Americans with Disabilities Act.  

  What do you do when one of your workers is injured? Send them a get-well card, of course, but also keep in mind that a number of federal and state laws may come into play.

There is also the so-called “Bermuda Triangle” of employment law: workers’ compensation, the Family and Medical Leave Act and the Americans with Disabilities Act. Because the interplay of these laws presents dangerous territory, fraught with the potential for disaster and potential liability, employers should be aware of the complexity of these laws. This article is intended to introduce you to the basic purpose of each law, which employers/employees are covered by each law, and what is generally required by each law.

Employers should also be aware that individual state laws may impose additional (and sometimes inconsistent) requirements, and that workers’ compensation schemes vary in each state.

·      What Does Each Law Address? Workers’ compensation is governed by state law and provides financial assistance, medical care and other benefits to workers who suffer a job-related injury or disability. The FMLA is a federal law that provides a worker temporary leave for a “serious health condition” that either the employee or the employee’s family member is dealing with. The U.S. Labor Department’s Wage and Hour Division enforces the law. Finally, the ADA is a federal law that prohibits employers from discriminating against a person with a “disability” during hiring and employment, and the U.S. Equal Employment Opportunity Commission enforces it.

·      Who Is Covered by Each Law? These laws do not apply equally to all employers and employees. Workers’ compensation generally applies to all employers and covers all employees upon hire, but each state has its own law, so employers should be familiar with the workers’ compensation provisions of each state in which the employer has employees. The FMLA applies to private employers with 50 or more employees working within 75 miles from the employee’s worksite and only covers employees who have worked for their employers for at least 1,250 hours over the 12 months immediately prior to the leave. Finally, the ADA applies to private and public employers with 15 or more employees. But again, applicable state laws may provide broader coverage. 

·      What Does Each Law Require? Because each law has different requirements, their interplay is often challenging. Workers’ compensation programs vary from state to state, but generally provide workers with job-related injuries benefits such as medical care, temporary total disability benefits, vocational rehabilitation benefits, permanent partial disability benefits, permanent total disability benefits, and death benefits for surviving family members, and often prohibit retaliation against employees for filing workers’ compensation claims. The FMLA, on the other hand, entitles an eligible worker to 12 weeks of unpaid leave for treatment and recovery of a “serious health condition” or to take care of an immediate family member with a “serious health condition,” but requires the employer to continue to provide the worker with health insurance and allow the worker to return to the same or equivalent job after the leave. Finally, the ADA requires an employer to make reasonable accommodations, such as providing a modified work schedule, or even a period of leave, in some circumstances, for employees’ disabilities if that accommodation is necessary for the employee to perform the essential job functions.

·      How Do These Laws Apply to a Particular Situation? What would you do if an employee (with chronic absenteeism issues) is injured on the job, and begins receiving benefits from your state’s workers’ compensation program, and requests an indefinite leave of absence as a result of that injury? Or when that employee is out of work for months, and you need to fill that employee’s position? The answers to those questions are not simple. However, you should begin with the understanding that the definition of a job-related injury or disability for workers’ compensation purposes is not the same as the definition of a “disability” under the ADA or a “serious health condition” under the FMLA. You should also be aware that there are different triggering events, notice requirements and documentation requirements for each law. You should continue to familiarize yourself with applicable state and federal laws, and legal counsel is often necessary to help you navigate this “Bermuda Triangle.”