Delaware Employment Law Blog

The Family Medical Leave Act (FMLA), Americans With Disabilities Act (ADA), and state worker’s compensation laws are not mutually exclusive. By qualifying for one, an employee is not automatically disqualified from the others.

For example, an employee who is hurt on the job is not necessarily ineligible for FMLA leave. He still must be an eligible employee, work for a covered employer, and have a serious health condition. If his on-the-job injury resulted in him being absent from work for two days, though, he would not qualify for FMLA because a serious health condition is defined, in part, as an illness or an injury that incapacitates the employee for more than three consecutive days.

And what about an employee who exhausts all of his FMLA leave but is still on disability leave? Can he be terminated if he fails to return to work at the end of the 12-week period? Certainly an employer can terminate an employee who fails to return to work after exhausting all available leave.

But there is another level to this question. If the employee is on disability under the company’s disability-insurance plan, his serious medical condition may very well qualify as a disability, as well, under the ADA. The ADA requires that employers make “reasonable accommodations” for qualified employees. The U.S. Equal Employment Opportunity Commission (EEOC), and the courts have taken the position that an accommodation may take the form of a modified work schedule, flexible leave policy, or even just additional time off.

Whenever faced with a decision about whether to terminate an employee who is about to exhaust all of his FMLA time but is not expected to return to work, be sure to consider whether the ADA is applicable and what is required if it is.

For more information on legal compliance with the FMLA and ADA, see the posts in the HR Summer School category, which covers these topics in a comprehensive and no-nonsense style.

Stories of technology's effects on employees are everywhere.  Employees are using technology to espouse negative views about their employers.  Employers claim rights to their employees' e-mail accounts--both personal and private, even after the employee resigns, as well as employees' text messages made from the phone the employer provided.  The power of technology has again landed employees in the hot seat, which is likely warmer than the tanning beds they visited at the taxpayers' expense.

This time, technology has led to the arrest of more than 30 persons on the unemployment-insurance payroll.  The N.Y. Department of Labor tracked the allegedly fraudulent conduct with a new system that cross-checks the names reported by employers within the state as "new hires" against those on the unemployment list.  Clever, isn't it?

It gets better.  Once the Department generated a list of individuals whose name appeared on both lists, it was able to track the purchases of the unemployment recipients through a debit card that the state issues as part of its unemployment program.  And what were these "newly employed unemployment recipients purchasing with their state-issued debit cards?  Only the essentials, of course--subscriptions to dating websites, tanning salons, and lots of bar bills and restaurant charges.

Both of these new technology initiatives have produced a clear victory for citizens of New York, demonstrating additional benefits employers stand to gain from implementing effective technology measures. 

For a similar story on citizens' misuse of government money, see Workers’ Compensation Claims - A result of bad luck or bad leadership?

Today's headline from Fox news says, "Despite Perceived Effectiveness, Most Employees Who Participate in Wellness Programs Do Not Stay Committed.". The survey, conducted by Guardian Life Insurance Company North America, reports the following statistic:

Nearly half of employees who have participated in wellness programs in the past three years admit that their commitment trails off after just a few years

Wellness programs have been all the rage for the past several years. Employers have been advocating a healthy lifestyle for their workforces by implementing a whole host of rewards programs. Employees are encouraged to get healthy by giving up tobacco, keeping their cholesterol in check, exercise, and eat right.

And, how, pray tell, do employers make this healthy magic happen? With a wave of the magic wand called "cash," of course! Employees who participate in their employer's wellness program are often rewarded with cash prizes, reduced health insurance premiums, or, maybe, just the satisfaction of a healthier lifestyle.

And what's in it for employers? For one, the hope of healthy employees who cost less in insurance premiums. You know the saying, "an ounce of prevention," . . .. Some subscribe to the theory that healthier employees are more productive employees who make more money for their employers and cost their employers less. Go figure!!

Why whistle while you work when you can walk? Another invention for the healthy-office initiative.

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So why, according to the survey, aren't employees sticking with it? Could it be that money really doesn't motivate? Could it be that a healthy lifestyle requires more effort than the average American worker is willing to give it?