This document provides tips for navigating complex employee leave issues covered by the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and workers' compensation laws. It recommends educating managers to properly handle potential leave issues, developing clear leave policies, maintaining open communication with employees, thoroughly documenting all leave, and seeking legal counsel for complicated cases. Complying with these overlapping leave laws can be challenging but is important to avoid penalties and ensure employees receive their legal benefits and protections.

1. Sage HRMS I White Paper
Employee Leave Issues: Five Tips to Help
You Navigate the Bermuda Triangle

2. Sage HRMS
Table of Contents
Introduction .................................................................................................................. 1
Four Reasons Employers Should Recognize and Analyze the Interaction
of the ADA-AA, FMLA, and Workers’ Compensation Laws ...........................1
What are FMLA and ADA-AA? ................................................................................... 2
Work-Related Illness or Injury Decision Tree ...................................................3
Five Tips to Effectively Navigate Bermuda Triangle Leave Issues ...................... 3
Educate Your Staff to Avoid Bermuda Triangle Traps......................................4
Strategies to Prevent FMLA Violations................................................................5
Summary ....................................................................................................................... 6

3. Introduction Sage HRMS
If your company has more than 50 employees within a 75-mile radius, it must follow the
requirements of the Family and Medical Leave Act (FMLA). There are also additional federal and
state laws that your company must abide by in order to remain compliant with leave entitlement
programs. These laws include the American with Disabilities Act Amendments Act (ADA-AA),
workers’ compensation laws, Uniformed Services Employment and Reemployment Rights Act
(USERRA), and state leave laws.
It is imperative that employers stay up to date on
changing compliance requirements in order to
ensure that employees receive the benefits and
protections of these laws, as well as to control
costs, and avoid possible penalties.
Three of these laws, FMLA, ADA-AA, and workers’
compensation, often intersect and can be tricky
for employers to follow. These laws are sometimes
referred to as a “Bermuda Triangle” of employee
leave. Decisions about employee leave, as well
as tracking of leave and documentation must be
handled properly, or your company could face
lost productivity and compensatory or
punitive damages.
Four Reasons Employers Should Recognize and Analyze the Interaction
of the ADA-AA, FMLA, and Workers’ Compensation Laws
1. The majority of unscheduled and scheduled absences are related to the illness
of employees or their family members. One, both, or all three of these laws may
be involved.
2. Violations of these laws may result in lost wages, back pay, reinstatement,
retroactive benefits, compensatory damages, and punitive damages.
3. Other than the legal responsibilities, employers have moral and ethical
responsibilities to assure that employees receive the benefits and protections
these laws provide.
4. In some cases, employees may take advantage of this system of laws. It’s not
hard for businesses to lose thousands of dollars if they don’t closely monitor
employee leave.
Source: SHRM
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4. What are FMLA and ADA-AA? Sage HRMS
According to the Department of Labor, “the Family and Medical Leave Act (FMLA) provides certain
employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that
their group health benefits be maintained during the leave. Employers must continue to provide
insurance, but employees remain responsible for paying their share of the premiums even while
on leave. FMLA is designed to help employees balance their work and family responsibilities by
allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks
to accommodate the legitimate interests of employers and promote equal employment opportunity
for men and women.”
The FMLA is enforced by the Department of Labor’s Wage and Hour Division. Sometimes state laws
may provide broader protections than federal requirements. Employees are eligible for FMLA if they
have worked for their employer at least 12 months, worked at least 1,250 hours over the past 12
months, and work at a location where the company employs 50 or more employees within 75 miles.
The American with Disabilities Act (ADA) is a federal civil rights law that prohibits the exclusion of
people with disabilities from everyday activities, including the ability to hold a job. The range of
covered disabilities was greatly expanded by the 2008 American with Disabilities Act Amendments
Act. The combined Acts are now commonly referred to as ADA-AA.
ADA-AA is enforced by the Equal Employment Opportunity Commission (EEOC). Under this Act,
a disability is defined as having three parts:
1. A physical or mental impairment that substantially affects one or more major life
activities (MLAs).
2. A record of such impairment.
3. Being regarded as having such impairment.
MLAs can include activities, as well as bodily functions, as long as the impairment substantially limits
daily life activities. Employers need to follow the law in order to prevent violations. For example, if
an employee has a hearing disability and uses a hearing aid, even though his hearing may not be
impacted because of the hearing aid, his hearing still qualifies as a disability under ADA. Sometimes
a disability might not qualify, but if an employee is disciplined for something and treated like he
has a disability–it will qualify. For example, if an employee speaks slowly to control a stutter and is
disciplined for poor communication skills, then this could qualify under ADA.
Sometimes an employee may have a work-related illness or injury that requires protection under
FMLA and ADA-AA in addition to workers’ compensation laws. The determination for qualification
can be complicated, and this paper doesn’t cover all circumstances. When you are concerned
about a particular situation, it is always a good idea to check with your legal counsel or
ADA-AA experts.
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5. Sage HRMS
Work-Related Illness or Injury Decision Tree
• Is the condition temporary (less than six months in duration)? If yes, then it is not
likely to qualify under ADA-AA; if it isn’t temporary, then ADA-AA protection applies.
• Is the condition a serious health condition? If yes, then FMLA protection applies, so
give notice and request a medical certification.
• Is the condition permanent? If yes, then you must consider potential reasonable
accommodations under ADA-AA.
Non-Work Related Illness or Injury
• Is the condition temporary? If yes, then it’s not an ADA-AA issue.
• Is the condition a serious health condition? If yes, provide FLMA documents and
request medical certification. Begin evaluating to determine if it also qualifies under
ADA-AA.
• Is the condition permanent, or does it otherwise qualify under ADA-AA? Apply the
same decision-making as above.
Source: Daniel Kaplan, Foley and Lardner1
In this paper, we will discuss some of the basics of FMLA and provide you with five tips to help you
manage the Bermuda Triangle of leave issues.
Five Tips to Effectively Navigate Bermuda Triangle Leave Issues
1. Educate and Be Prepared to Spot and Respond to Bermuda Triangle Issues.
Provide training for your managers and supervisors so they are prepared to spot leave issues.
Make sure everyone stays up to date on changing requirements and make necessary
adjustments to your internal policies and procedures.
Was the employee absent for three full days? Did the employee make a visit to his or her
healthcare provider within seven days of the three-day absence? If so, this may be considered
an FMLA qualifying event, and your managers should be instructed to contact HR to talk with
the employee to determine if this could qualify. It is important to determine if the injury or illness
is a disability, a serious health condition, or both. From here, you can ensure that subsequent
leave issues are handled properly and accurately tracked. Managers should track absences in
any and all circumstances.
It’s a best practice to make the distinction that managers should be able to evaluate what
they normally track to determine if a qualifying event may be occurring. It’s vital to emphasize
the importance of tracking all leave whether it is for sick leave, vacation, PTO, unpaid leave, or
any other type of leave.
Employers are required to provide general notice regarding FMLA, eligibility, rights and
responsibilities, and designation. Although this is usually part of your employee handbook,
policy and procedure manual, and/or your public postings, once a determination is made, it’s
always a good idea to go over the information with the employee, in person if possible, to
review rules and responsibilities and clarify any questions the employee may have.
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6. Sage HRMS
Educate Your Staff to Avoid Bermuda Triangle Traps
Trap: Failing to recognize that the employee may have Protected Leave Rights.
Suppose an employee calls and says he is “feeling ill” and will be unable to come to
work for an estimated five days. Many supervisors and managers may not recognize
this as a potential FMLA or ADA-AA request.
Solution: Train your managers to understand the words that may trigger legal
obligations.
Under the FMLA, notice is sufficient if the employee give facts that suggest the
employee needs leave for a qualifying condition. Under the ADA-AA, employees do
not need to mention the phrase “reasonable accommodation” or the ADA-AA. Any
statement that suggests that the employee has a qualifying illness or injury, and would
like some help, may trigger ADA-AA protections.
Source: Randy Sutton, Saalfeld Griggs, PC1
2. Develop and Implement a Plan to Handle Issues.
Keeping informed is important for maintaining compliance with regard to the Bermuda Triangle
of leave laws. In order to successfully navigate the Triangle, know the laws and know who to
go to when you need help with interpretations. Keep your employees and your managers
informed of their rights and responsibilities and how the company’s policies and
procedures should be interpreted with regard to FMLA, ADA-AA and Worker’s Compensation
laws. Your company should have well-researched, well-written, and easy-to-understand
policies covering leave issues. You should regularly and clearly communicate
these policies throughout the company and consistently enforce the associated procedures.
One thing that will help you successfully meet leave requirement is to write and maintain
specific job descriptions. Make sure you include the physical capabilities needed, for example
standing 80% of the work day or lifting 80 pounds of equipment intermittently, so that it is
easy to determine if a worker can or cannot perform job duties as a result of illness, injury,
or disability.
You should also make sure that managers know that they should always discipline behavior
and never the cause. For example, a manager can tell an employee that it is unacceptable
that he or she is out every Monday, but not that they are sick. Don’t let managers discipline for
absenteeism that could be covered under FMLA, or other leave laws.
1 Randy Sutton, “Bermuda Triangle Traps & Strategies,” Saalfeld Griggs, PC newsletter.
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7. Sage HRMS
Strategies to Prevent FMLA Violations
1. Create a comprehensive certification form.
2. Ask for a second or third opinion to verify diagnosis (be prepared to pay for these
healthcare provider visits).
3. Ask for recertification. According to the Department of Labor, “The regulations
allow recertification no more often than every 30 days in connection with an
absence by the employee unless the condition will last for more than 30 days.
For conditions that are certified as having a minimum duration of more than
30 days, the employer must wait to request a recertification until the specified
period has passed, except that in all cases the employer may request
recertification every six months in connection with an absence by the employee.
The regulations also allow an employer to request recertification in less than 30
days if the employee requests an extension of leave, the circumstances described
in the previous certification have changed significantly, or if the employer receives
information that casts doubt upon the employee’s stated reason for the absence or
the continuing validity of the certification.”
4. Attach a letter to certification requests along with the worker’s attendance record.
Don’t be afraid to ask the healthcare provider if the worker’s serious health
condition and need for leave is consistent with such a pattern.
5. If you believe an employee is taking advantage of entitlement programs, consider
hiring a private detective.
Sources: Stever Meyer, HRInfo Center2 and Department of Labor3
3. Regular Communication is Key.
Make sure employees communicate and follow standard procedures for notification of
absences. Regular contact is important to let employees know how important they are to the
company and that they are missed at work. With regular communication, you will be less likely
to have problems with employees returning to work as they move through the eligibility period.
Know what you can ask and what you can’t. Employers may not ask for specific diagnostic
information, but it is perfectly legal to ask how an employee’s absence will impact your
business. Here’s where a specific position description can be useful: You can show the
employee’s healthcare provider a copy of the job description and ask how the injury or illness
affects the employee’s ability to perform their job duties. How often will the employee be
absent? Are there special accommodations needed? Consult with legal counsel to verify when
it does cross to coverage under ADA-AA.
2 Stever Meyer, “Four strategies to beat FMLA violation,” HR Info Center, January 14, 2010.
3 Department of Labor, “Frequently Asked Questions About Revisions to the Family and Medical Leave Act.”
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8. 4. Document Everything, Track Ongoing Cases, and Make Necessary Adjustments. Sage HRMS
In order to ensure compliance, take the time to document everything related to employee leave
issues. Keep records of important dates, communications between the employer and
employee, attendance records, and any accommodations made on behalf of the employee.
Tracking requirements in HR are becoming more and more complex. In addition to the
traditional tracking of sick leave, vacation, disability, and COBRA, laws such as the
Uniformed Services Employment and Reemployment Rights Act (USERRA) add new tracking
and record-keeping responsibilities. In the case of USERRA, service members convalescing
from injuries received during service or training may have up to two years from the date of
completion of service to return to their jobs or apply for reemployment. This requires the
employer to be prepared to reinstate the employee with the same seniority, status, and pay, as
well as any other rights and benefits determined by seniority. A qualified employee cannot waive
his or her right to this benefit.
5. Don’t Do It Alone—Seek Help From an Attorney and HR Software.
Because the Bermuda Triangle of leave laws can be confusing to navigate, it is helpful to track
leave through a human resources management system (HRMS) so that everything is
documented and available electronically. HRMS systems also provide regular government
updates so you can make sure that you’re tracking for FMLA, ADA-AA, and other types of
leave remains compliant with federal and state laws.
If your company has to deal with complicated or revolving leave issues, don’t be afraid to
ask for assistance from your company’s legal counsel. It is always better to have the facts and
be prepared than to face penalties for noncompliance.
Summary
There is no question that dealing with Bermuda Triangle leave issues can be complicated. Educating
your employees as well as your managers on the basics of leave protections and effective
communication are great places to start. Your company should develop and implement sound
policies so that managers know how to identify and respond to leave issues, and employees are
aware of their rights and responsibilities. Your success will depend on your company’s ability to
clearly communicate, document, and consistently enforce policies and procedures.
It is important to approach each law separately, “as if the employee is on three separate train tracks:
the Workers’ Compensation track, the FMLA track, and the ADA-AA track.”4 Ensure that HR,
managers, and employees are performing all of the necessary steps. If a mistake is made along
the way, it may be difficult to mitigate, and your company may face compensatory or punitive fines.
You can find help managing the requirements of the Bermuda Triangle of Leave by using a human
resources management system (HRMS) and seeking legal counsel.
4 Kaplan, Daniel, “Navigating the Bermuda Triangle of Employment Leave,” Foley and Lardner Labor and Employment Law
Perspectives, October 4, 2010.
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9. About Sage HRMS
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processes using Sage HRMS, you and your staff are freed up to spend more
time and energy on the business asset that is most vital to your company—
your employees.
A global $2.2 billion software company with over 30 years of experience
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To learn more, please call us at 800-424-9392, or visit
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