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Dispelling 4 common myths about disability leave

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in Compensation and Benefits,Employment Law,FMLA Guidelines,Human Resources

There once was a time when considering an employee's request for disability leave was fairly straightforward. The sole determining factor was the company's business needs.

But no more. With the passage of the ADA and FMLA, employers must now navigate a virtual maze of federal laws and regulations. And when an employee's disability stems from a work-related accident, workers' compensation issues must be taken into account.

The resulting complexity of this ADA/FMLA/workers' comp "Bermuda triangle" has created much misunderstanding and myths about how to handle disability leave. Here are four of the biggest myths, plus the truth:

Myth 1: Disabled employees can be terminated as soon as they exhaust their 12 weeks of FMLA leave.

It's true that employees are entitled to a maximum of 12 weeks of FMLA-protected leave per year. But employers need to realize that the ADA often entitles disabled employees to longer periods of leave.

The ADA doesn't provide any "bright line" rules concerning the length of necessary leave. That question must be carefully reviewed on a case-by-case basis, and it hinges on the size of the employer, the nature of the employee's position and the employer's ability to find a temporary replacement worker.

Even though employees aren't entitled to an open-ended leave of absence, in some cases the ADA requires a leave of absence in excess of six months or a year.

Myth 2: Employers can't charge time against employees' FMLA bank while they're receiving workers' comp benefits.

Time taken off by employees receiving workers' comp benefits should be counted concurrently as FMLA time. That procedure should be spelled out in your employee handbook. Also, a notice should be sent to employees on workers' comp leave that specifically designates the leave as FMLA-qualifying.

Bottom line: It's always beneficial for employers to ""burn"" through an employee's FMLA bank as quickly as possible.

Myth 3: If an employee's petition for workers' comp benefits has been denied, I don't have to provide a leave of absence.

It's important to realize that the determination of whether an employee is eligible for workers' comp benefits does not affect an employee's rights under the ADA or FMLA.

Workers' comp benefits hinge on the existence of a "work-related injury." The FMLA requires a "serious health condition." The ADA covers a "qualified individual with a disability." Each of those terms has a special, independent meaning.

Likewise, an insurance carrier's determination that an employee is disabled under the terms of a long-term or short-term disability policy has absolutely no bearing on an employee's rights under the ADA, FMLA or workers' comp law.

Myth 4: Once an employee provides a completed FMLA certification form, you can't ask for more detailed medical information.

In truth, employers can require more detailed medical information. In fact, employers have a right to receive detailed information on the employee's diagnosis and prognosis to determine whether an extended leave of absence is required under the ADA.

Employees often refuse to provide medical clarification about their FMLA certification, pointing to HIPAA's privacy rules. But that position is simply wrong. HIPAA regulations provide a specific exemption for work-related inquiries.

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