Examples: Q: Does an employer "know" about a disability merely by overhearing something? A: Yes, that's actual knowledge.
Q: Is a person protected under the ADA if they have an accident because they forget to take their medication and slip into a semi-diabetic coma? A: The EEOC doesn't require the employer to tolerate failure to take medications; employee not protected by ADA if medications mitigate the problem.
Q: When a person on FMLA leave because of a kidney transplant returns to work, is the person protected by the ADA because of the aftermath of the transplant, such as having to take powerful drugs the rest of their life? A: If the medication has bad side effects and limits the employee, she may be under the ADA because of the effect of the medications rather than the underlying condition.
These are only three of the many questions that arose, and there was no shortage of others. In fact, because so many questions came up, Paindiris wasn't able to go through his printed materials sequentially, as planned. He commented that, according to a client poll by Jackson, Lewis, HR managers say that dealing with time off is their number two concern, second only to recruitment and retention. It's obviously a very difficult area of the law, he said, with no clear answers one way or the other.
Every case is different
To illustrate the gray area that characterizes many of the answers under these laws, Paindiris distributed a list of questions raising hypothetical situations under each law, and asked program participants to discuss the FMLA and/or ADA implications of each. The process of analyzing the facts by applying the FMLA and ADA definitions gave participants a tool to take back to their HR jobs. A lot of the answers were "It depends," each case has to be studied on its own merits.
Training for supervisors and managers is critical
"Analyzing and thinking about it is important," said Paindiris. In fact, because of the complexity of the three laws, he recommended that employers add FMLA/ADA/workers' comp training to the sexual harassment training prescribed by recent Supreme Court decisions. He said that 90 percent of companies are now doing sexual harassment training because of these decisions, so adding these new types of training would be a good way to avoid liability. He notes that line supervisors who aren't familiar with the laws may terminate employees illegally, and HR managers may accept the proffered reasons without delving into whether FMLA or ADA protections actually apply. Training is a must.
topic generates more questions than how that complex alphabet stew--ADA, FMLA, and Workers Comp--interact with one another on tricky employment questions. At a recent seminar Attorney Tasos Paindiris of Jackson, Lewis, Schnitzler, and Krupman, was peppered by the audience with questions about practical dilemmas that the ADA, FMLA, and workers' comp laws bring to their jobs. Here are some of the popular questions and short paraphrases of the answers.