absence makes you a goner: dealing with employee leave
TRANSCRIPT
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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