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The Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA) and Texas Workers’ Compensation Act (TWCA) can be frustrating laws for employers to understand. Perhaps the most difficult aspect of these laws is that they all primarily relate to employees’ inabilities to work due to medical conditions, yet no single one of them takes precedence over any other two. It is no wonder then, that employers are concerned about meeting their obligations under each statute and that many employers — often unwittingly — end up violating one or more of the statutes’ provisions. While it is impossible in this forum to summarize the substantive provisions of these statutes, what follows are seven mistakes employers frequently make that can result in significant liability. Thus, we call them the “Seven Costly Sins.” 1. Terminating anyone for absenteeism without first considering the possible implications of the FMLA, ADA and TWCA. All three statutes limit an employer’s ability to terminate an employee for absences. If, for example, an employee has a medical condition that prevents her from performing her job, the employer cannot terminate the employee without first considering whether the ADA requires a reasonable accommodation (see Sin 3 below), as well as whether the FMLA requires that the employee receive time off from work for treatment or recovery. Additionally, if the employee’s medical condition actually arises out of her employment and she files a worker’s compensation claim, the employer may not terminate the employee for filing the claim. And while the TWCA — unlike the FMLA and ADA — does not provide for an automatic entitlement to accommodation, a leave of absence or a right to reinstatement, an employer who treats employees differently under the TWCA may be creating harmful evidence of discrimination and claims of retaliation. 2. Failing to prepare a leave of absence policy and to train adequately the necessary individuals about their responsibilities for ensuring compliance under the various statutory schemes. All employers should have a leave-of-absence policy that clearly sets forth the employer’s position on employee absences and that is uniformly enforced. In fact, many employers have implemented neutral or no-fault absence policies, which provide that all absences are counted, irrespective of the reason, and that the employer will terminate or discipline employees after they exceed a set number of absences. While the FMLA, ADA and TWCA do not specifically prohibit such policies, employers must be well versed regarding the situations in which the statutes could come into play. First, absences that qualify as FMLA leave cannot be counted as absences under no-fault policies. Second, the ADA provides that a reasonable accommodation (see Sin 3 below) may include extended unpaid leave; thus, these absences cannot be counted against the employee. If, however, the absences prevent the employee from performing essential job functions, they can be counted as absences under no-fault policies. Third, while no-fault absence policies may reduce the employers’ liability for retaliatory discharge under the TWCA — because they allow employers to discharge employees after they have been absent for a specified period — it is important that these policies do not distinguish between employees who are injured on and off the job to avoid claims of discrimination. 3. Failing to have a working knowledge of terms such as “serious health condition” under the FMLA, “disability” under the ADA and “reasonable accommodation” under the ADA. Not all medical conditions are covered by all three statutes, so it is important to understand the terms that limit each statute’s coverage. The FMLA, for example, covers “serious health conditions,” which are medical conditions involving 1. in-patient care; or 2. continuing treatment by a health care provider. “Continuing treatment” could include, inter alia, any period of incapacity of more than three consecutive calendar days and even encompassing conditions that are merely temporary in nature. The ADA, on the other hand, does not generally apply to temporary conditions and only applies to conditions considered to be “disabilities,” which are those that cause a “substantial limitation in a major life activity.” Another difficulty for employers is determining what constitutes a “reasonable accommodation” under the ADA. While case law provides many examples of such accommodation — including making work facilities more accessible, restructuring jobs and modifying work schedules — the process for determining whether an employee is even entitled to accommodation under the ADA can be exceedingly complex. Employers should bear in mind, though, that even if a particular medical condition does not require accommodation under the ADA, it still may require that the employer grant the employee FMLA leave. A chronically tardy and absent employee with chronic lung disease, for example, may not be entitled to accommodation under the ADA, but that same employee may have a “serious health condition,” thus entitling him to leave under the FMLA. 4. Failing to provide the required notice to employees so that leave time can be deducted from an employee’s FMLA entitlement (particularly in workers’ compensation cases). Under the FMLA, employees are entitled to 12 weeks of leave during any 12-month period for covered situations. The FMLA provides, however, that if the employer does not inform an employee (at least orally) within two business days of that employee’s leave request that the time off is being counted as FMLA leave, and the employer cannot deduct that time from the employee’s 12-week allotment. (Note, however, that the 8th and 11th U.S. Circuit Courts of Appeals have held this notice provision to be invalid.) Moreover, where a worker is absent due to an on-the-job injury, failure to provide timely notice could expose the employer to a claim of discriminatory treatment under the TWCA if the employer improperly deducts the absences from the employee’s FMLA leave allocation. 5. Failing to discharge a problem employee (such as one with attendance problems) prior to the employee becoming eligible for leave under the FMLA. Generally speaking, an employee becomes eligible for FMLA leave after the employee has worked at least 1,250 hours during the 12-month period before the leave is requested. If an obvious attendance problem surfaces during those 12 months, the employer should address it with the employee at that point, before the employer becomes constrained by the FMLA requirements. If not, the employer may soon find itself defending a retaliatory discharge claim under the FMLA. The point of this advice is not that an employer should terminate an employee one day before he is entitled to FMLA leave. Rather, it is to stress the importance of addressing attendance problems when they first arise in accordance with company guidelines. 6. Failing to communicate with the employee about the nature of a known medical condition to determine whether the employer must provide the employee with a reasonable accommodation and/or whether the employee is entitled to leave under the FMLA. Employers are not generally expected to have knowledge of employees’ various medical conditions and needs. Rather, it is typically the employee’s responsibility to inform the employer when there is a medical condition that keeps the employee from performing a job. Far too many employers, though, after learning of such a condition, avoid any type of discussion with the employee about the condition for fear they will exceed the boundaries of a permissible inquiry. This reluctance is particularly dangerous under the ADA, where employers generally have a duty to engage in an interactive process with the employee to find a means to reasonably accommodate the condition. An interactive process will not only provide the employer with information to determine whether the employee is entitled to reasonable accommodation or FMLA leave, but also can help limit compensatory and punitive damages in cases where it is determined that the employer has violated the ADA. 7. Failing to monitor aggressively all attendance cases, leave cases and work-related injuries, and obtain necessary supporting medical documentation. The FMLA and the ADA provide that, in certain situations, the employer can request medical documentation of an employee’s injury or medical condition. If there is any doubt about the legitimacy of an employee’s alleged condition, employers should not hesitate either to request such documentation or, where appropriate, seek an independent medical examination. Also, under the ADA, employers have the right to require tests or examinations to verify whether an employee can perform the essential functions of his job. Good record collection and retention allows employers to determine more accurately whether an employee’s medical condition is covered under the applicable statutes, as well as to monitor the employee’s eligibility for leave (e.g., paid leave, unpaid leave, days remaining under no-fault absence policy). To avoid the pitfalls created by the inevitable overlap of the FMLA, ADA and TWCA, the employer must be armed with a working knowledge of the key provisions in these statutes. By avoiding the “Seven Costly Sins,” employers can help prevent litigation and ensure compliance with important aspects of these complex laws.

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