Absence Makes You a Goner: Dealing with Employee Leave

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Absence Makes You a Goner

Navigating the Bermuda Triangle of Employment Law, the ADA, FMLA and Workers

Compensation

GONERAbsence Makes You a

Dealing with Employee Leave

Presented by Brendan FeheleyJune 24, 2015

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Navigating the Bermuda Triangle of

Employment LawADA, FMLA + Workers Compensation

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1

Defining the

2Sailing into

the

3

Tips for Escaping the

Our Agenda

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DEFININGthe Sides of the

Triangle

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Workers’ Comp

Gives you pay due to work-related

injury*Short-Term Disability?

ADAGives you right to

a “reasonable accommodation”

FMLAGives you the right to be off work for 12

weeks

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FMLAUNPAID

LIMITED TIME PERIODONLY FOR CERTAIN REASONS

CAN BE BLOCK OR INTERMITTENTELIGIBILITY REQUIREMENTS

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WORKERS’COMPENSATIO

NALL EMPLOYEES ELIGIBLEPAYS MEDICAL BILLS

NO RIGHT TO EMPLOYMENTLIMITED SCOPE OF

COVERAGE

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ADAALL EMPLOYEES ELIGIBLESUBSTANTIAL LIMITATION OF MAJOR LIFE ACTIVITY

REQUIRES DIALOGUE“REASONABLE

ACCOMMODATION” CAN MEAN ANYTHING

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SHORT- + LONG-TERM

DISABILITYDEFINED + DRIVEN BY PLAN DOCUMENT

NOT LEGALLY REQUIRED

MAY HAVE EMPLOYEE CO-PAYS + ELIGIBILITY REQUIREMENTS

COMPENSATION FOR EMPLOYEES ON

LEAVE

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SAILINGinto the Triangle

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Incident at work

BRUCE + KRIS

Workers’ Comp?

Fight now or pay later

Hypothetical

ISSUE:

FMLA?Eligibility?

PT?ADA?

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Light Duty Offer

BACK INJURY

Workers’ Comp?

Bruce + Kris: The Saga Continues

Required?Working outside

restrictions

FMLA? ADA?

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FMLA Paperwork:

ADA?First

report of injury

Bruce + Kris: To the Beginning

3 months off

Witnesses?

Medical Record

s?

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Where are you getting them

from?

MEDICAL RECORDS

Short-Term

Disability?

Bruce + Kris: Medical Records

Objective medical

evidence is KEY

Prior injury?

Substantial

Aggravation?

Pain Meds

Drug Testing?

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FMLA time remaining?

What happens after?

SURGERYFight now

or pay later?

Bruce + Kris: 10 Weeks Later

Bruce’s manager’s reaction?

ADA? Termination?

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KRIS’ PSYCHOLOGICAL

CONDITION

Transfer?

Bruce + Kris: It’s a Family Affair

Work from home?

WC? FMLA? ADA?

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Recovering but needs more

weeks

BACK INJURY

Exam?

Bruce + Kris: Back to Bruce’s Back

“Reasonable”Light duty options?

Bruce’s role in treatment

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Indefinite Leave?

RESTRICTIONS?Framing the conversation

Rehire

Bruce + Kris: Season Finale

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A Word About PREGNANCY+ Not ADA

+ Conditions associated with it can be

+ Most favored nation status?+ FMLA issues+ Pregnancy Discrimination Act

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ESCAPINGthe Triangle Alive

Tips for

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Handling Absences

Know your policies + how they interact

Know what forms of documentation you

have + what you can get from them

Job DescriptionsIncident Reports

Witness StatementsInteractive Process

FMLA FormsOthers?

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Engage with employee early + often

Press doctors whenever possible

Light duty is a 2-way street

Know employee’s responsibilities

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Watch out for repeat offenders

Attendance still matters

Be very careful about telecommuting

Sometimes you have to pick your poison

The best action for handling a WC claim may not be good for ADA

!

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Thank You!

Brendan Feheley, DirectorKegler Brown Hill + [email protected]/brendanfeheley614.462.5482