This year, shipping giant UPS agreed to pay a total of $2 million to nearly 90 current and former UPS employees to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

Part of the suit alleged that the company maintained an inflexible leave policy that unfairly terminated disabled employees when they reached 12 months of leave without engaging in what is known as the “interactive process” required by law under the Americans with Disabilities Act (ADA).

This case and others serve as a reminder to employers of the complex nature of leave laws. A company may be aware that it would be a violation of federal law to mandate that a disabled employee return to work without providing reasonable accommodations, or to restrict their medical leave to the 12 weeks required by the Family and Medical Leave Act (FMLA). What most employers fail to recognize is that they have a duty beyond the FMLA to provide unpaid leave as a reasonable accommodation under the ADA, unless the accommodation would cause “undue hardship” to the employer.

Further complicating leave issues, state workers’ compensation laws can also require leave after an employee has been injured while working. There is no uniform federal law for workers’ compensation, so each state administers its own set of rules. For employers located in multiple states, that means multiple workers’ compensation laws to consider.

Sometimes an employee’s leave request is straightforward and requires the application of only one leave law, but not often. There is a good reason why the interaction of the FMLA, ADA, and workers' compensation laws is known as the Bermuda Triangle of employment law.

From a liabilities standpoint, it can be dangerous territory. An employer must know what is required under each of the three laws and when they apply. Violations can result in significant damages for lost wages, back pay, reinstatement, retroactive benefits, compensatory damages and punitive damages.

Here are the basic steps for an employer to follow to help avoid potential legal pitfalls:

1. Establish which leave laws apply to you as the employer

If the employer has 15 or more employees, then the ADA will apply.
If the employer has 50 or more employees within a 75-mile radius, then the employer is subject to FMLA.
As a general rule, all employers are subject to workers’ compensation laws and each state enacts its own workers’ compensation laws.

2. Determine which laws cover the employee’s leave needs

If the employee has a condition that meets the definition of a disability under the ADA, then the ADA will apply.
If the employee has a serious health condition, then the FMLA will apply.
If the injury is work-related, then workers’ compensation will apply.

The answers to these questions will determine if any or all three of the leave laws apply.

3. If more than one law applies, establish which law will apply first

Look at the employee’s benefits and rights under the applicable law. Provide the leave under the law with the greatest rights and benefits for the employee.
If both the FMLA and ADA apply, then the FMLA will cover the employee’s leave first. Any requests for leave after FMLA has ended will be subject to the ADA as an accommodation request. For example, if an employee meets the requirements for leave for both the FMLA and the ADA, the employee may take the 12 weeks of unpaid leave under the FMLA, and when this leave has expired, depending upon the circumstances, the employee may be entitled to additional leave as an accommodation under the ADA.

In this scenario, to determine whether the employee is entitled to additional leave, the employer must engage in the ADA interactive process. This requires employers to review job functions to establish the essential and nonessential job tasks, identify the barriers to job performance by consulting with the employee to learn about the employee’s limitations, and explore the types of accommodations that would be most effective.

4. Address reinstatement rights

The employee will have rights upon return from FMLA leave. Under the FMLA, with certain exceptions for key employees, an employee returning to work must be given the same or an equivalent position.
The ADA is similar in this requirement as well.
There are a few states that require reinstatement after workers’ compensation leave unless holding the job causes an “undue hardship” to the employer.

5. Assess whether the employee’s return to work will impose a direct threat to the health and safety of the employee or others in the workplace

If the employee poses a significant risk to him/herself or others that cannot be eliminated by a reasonable accommodation, then leave should be continued until the employer and employee complete the interactive process to determine if and when it is safe for the employee to return.

As always, it’s best to consult with an employment law expert or an experienced HR consultant to provide clear guidance on this intricate area of law.

Source: https://www.bizjournals.com/

Running a business is hard enough when everything goes smoothly. But when you’re an entrepreneur, the unexpected happens. You need to prepare yourself for every possible situation, including fraud.

Business fraud isn’t as rare as you might think. It’s important that you know how to prevent and deal with fraud if it comes your way.

Types Of Fraud In Business

Small businesses with less than 100 employees experience a median loss of $154,000 due to fraud, according to the Association of Certified Fraud Examiners (ACFE). This number is higher for small businesses than most large companies.

Employees and customers are just a few people who might take advantage of your small business. Recognize types of fraud in business and learn how to protect yourself.

Here are a few types of common small business fraud you might face.

1. Identity Theft

Identity theft could cost your business thousands of dollars. Fraudsters could steal your business’s identity and use it to access your credit.

People might get their hands on things like financial statements, bank statements, or your federal tax identification numbers. It’s also possible to have information taken from your computer.

To prevent identity theft, make sure you keep your statements and sensitive information secure. If you have physical copies, keep them locked in filing cabinets that only you can access. For digital copies, make sure you use difficult usernames and passwords, and avoid falling for phishing scams. Don’t hand your information out to anyone.

Fraudsters could also have access to your business bank account if employees lose paychecks. Paychecks are very sensitive since they contain your business’s routing and bank account numbers.

If a lost paycheck gets into the wrong hands, fraudsters could access and withdraw money from your bank account. To limit the damage this could do to your business, consider separating your payroll account from the rest of your business’s money.

Having a separate payroll account means potential fraudsters would only have access to a limited amount of funds. You only deposit enough money to cover employee paychecks with a payroll account.

You might also consider paying employees via direct deposit instead of paychecks. With direct deposit, you put the employee’s wages directly into their account. That way, you do not need to pass out checks with sensitive information. Some states allow employers to enforce mandatory direct deposit.

2. Payroll Fraud

Payroll schemes are twice as common in small businesses as opposed to large companies, according to the ACFE. There are a few different ways that payroll fraud can occur at your business.

Employees might ask for pay advances without paying them back. Or, employees might lie about hours worked on their timesheets. Employees could also get co-workers to clock in for them even if they aren’t at work.

Do background checks on all employees before you hire them. And, you should audit payroll accounts so you can catch fraudulent behavior early on.

Use SaaS payroll services so you can approve payroll before you pay employees and keep track of their pay rate and hours within your system. Don’t wait until your business has doled out huge sums of cash to start keeping an eye on things!

3. Money Fraud

Because there’s so much illegal cash circulating in the United States, you might come across fake bills. Money fraud can happen without you or the customer even noticing. But, counterfeit money is worthless when you go to deposit the cash at the bank.

The most common counterfeit bills are high-valued, like $100 bills. If you accept counterfeit money, you won’t receive any revenue from the sale. Worse, you could end up giving real currency as change for a fake bill.

Protect your small business from money fraud by learning how to tell if money is fake. There are different features you should be able to spot on legal currency, like raised printing, microprinting, watermarks, and color-shifting ink. And, teach your employees to check cash before accepting it.

4. Return Fraud

The majority of small businesses that sell goods have experienced return fraud in one way or another.

There are different types of return fraud. Some customers might purchase a product, use it, then return it even though nothing is wrong with it. Or, you might have fraudsters who steal products from you and attempt to return them to make a profit.

Return fraud can be damaging to your business. You might not be able to wipe out all return fraud, but you can limit it based on your policies.

To prevent return fraud, you can require receipts. And, you could tighten your policies so that customers only receive store credit after a certain time period. Although you want customers to be happy, you also don’t want your business to lose money from fraud.

5. Workers’ Compensation Fraud

Workers’ compensation fraud is another type of small business fraud you could come across if you have employees.

As a business owner, most states require that you purchase workers’ compensation. Workers’ compensation insurance pays your employees if they become injured or ill at work.

There are different ways workers’ compensation fraud can occur, so you need to be vigilant. Employees might get injured outside of work and say they got the injury at your business. Or, employees could make up an illness or injury.

How do you protect your business from workers’ compensation fraud? You need to document everything, keep accurate records, and look out for signs of fake injuries.

Author: Mike Kappel

Source: https://www.forbes.com/sites/mikekappel/2017/10/04/5-types-of-fraud-in-business-that-could-put-you-in-a-bind/3/#53b64fc91b60

The Bermuda Triangle for employers: Navigating ADA, FMLA and Workers’ Comp leave laws