What Rules Apply? Sources of Rights 5/21/2013. Disability Laws. Family & Medical Leave Act Workers Compensation Laws Employment Policies

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1 Managing the Sick, Injured or Disabled Worker Disability Laws What Rules Apply? Family & Medical Leave Act Workers Compensation Laws Employment Policies Disability (ADA) Requires employers with 15 or more employees to provide reasonable accommodation to a qualified individual with a disability, if no undue hardship or direct threat. Sources of Rights Family Leave (FMLA) Provides for 12/24 weeks of protected unpaid leave for an employee s or family member s serious health condition, birth/adoption of child or military leave. Workers Comp (WC) Alaska Act applies to employers with 1 or more Policies Paid sick leave eligible to use up to 80 hours of employees; must previously maintain accrued sick insurance leave, per coverage for calendar year workers, e.g. medical, disability, reemployment benefits 1

2 Our Fearless Leader A snapshot with the workforce! 5 What should you do for an ouch on the job? The number of issues can make you just sob. Workers Comp, FLMA and ADAAA? What are you supposed to say? 6 2

3 Workers Compensation Compromise policy for workers who are hurt on the job. It is the worker s exclusive remedy. AS within 30 days of an on the job injury the worker should file a report; or within 30 days of discovering a work related illness. (Form 6101 Report of Injury or Illness) Company may be liable if it has actual notice. Workers Compensation The company must promptly notify its insurance carrier. In Alaska, within 21 days after the company learns of the claim li the insurer must decide whether to accept or reject (i.e., controvert) the claim. Usually the issue is whether the claim is job related. Workers Compensation If the company accepts the claim, the worker may receive WC benefits. If the company denies the claim, the worker may challenge the denial. 3

4 Phases of a Workers Comp Claim Injury (or occupational illness/disease) Notice Investigation Acceptance (or denial) Payment of temporary benefits if warranted Closure Determination of permanent, partial, or total disability benefits Aggravation rights Types of Workers Comp Benefits Time loss (payment of partial wages for time off work because of injury or illness) Medical costs Vocational rehabilitation services Permanent or partial disability payments Alaska Act does NOT provide job reinstatement rights This candid shot was snapped right before The Incident. Herbert s Injury 12 4

5 Wonka Wonders Is Herbert entitled to workers compensation since Veruca pushed him? 2. Because it was probably his fault because he was wearing slippery boots? 3. Because he was standing too close to the edge of the chute in violation of a safety rule? 13 Workers Comp Retaliation Alaska law allows employees to win damages if they can prove the company retaliated against them for filing a WC claim. Your best defense: act in good faith, document the file, and distinguish a safety violation from the resulting injury. Workers Comp Retaliation It is a myth that it s OK to fire a worker if you wait until the claim is closed. It is also a myth that you can t fire a worker with an open WC claim. 5

6 Wonka Wonders Can we fire Herbert because he was too close to the chute? 2. Because he injured himself? 3. Because he broke several golden eggs during his fall? 16 Workers Comp Overlap With ADAAA & FMLA Alaska WC Act does NOT provide job reinstatement rights Time off work due to a WC claim may be designated by the company as FMLA leave, but FMLA DOES provide job protection. ADAAA requires reasonable accommodation for a disabled worker, which might involve periods of leave with reinstatement WC exclusive remedy does not prohibit ADAAA, FMLA or retaliation claims. Leave laws are hard when their scope overlaps, Track very carefully til you reach the caps, It s very easy to get it all wrong, You could be doing this all day long! 18 6

7 Family and Medical Leave Act FMLA applies to employers with 50 or more employees. All employees count: full time, part time, seasonal, temporary, even those who are on leave. FMLA Eligibility Requirements Employee has 12 months of employment, Employee has worked 1250 hours during the 12 month period prior to leave, AND Employee is at a work location with 50 or more employees in a 75 mile radius Serious Health Condition Absence Plus Treatment (3 day rule) Chronic condition requiring treatments Permanent/long term conditions requiring medical supervision Multiple treatments 7

8 Not Usually a Serious Health Condition Colds and flu Earaches, stomach aches and headaches Fever and sore throat But, all of the above do count when caring for a sick child Routine medical or dental visits Tips on Tracking FMLA Leave If leave is in one continuous block, count calendar weeks missed If leave is intermittent, count hour by hour Full time employees: 480 hours of leave per year Part time employees: 12 x (# of weekly hours worked) Variable schedule employees: average hours worked over prior 12 weeks and multiply by 12 Count only the actual amount of leave taken FMLA Job Protection FMLA DOES grant job protection the company must return the employee to the same or a similar position. FMLA does NOT require the company to extend leave beyond 12/24 weeks. The company does not have to create a job if no longer available but the burden will be on the company to prove the position was eliminated by business necessity and not in retaliation. 8

9 FMLA Liability & Retaliation Company can be liable for wrongful or discriminatory denial of FMLA leave statutory double lost wages Assist managers they cannot exercise discretion to grant or withhold leavewhen an employee qualifies. Company can be liable for terminating an employee in retaliation for exercising his or her legal right to take FMLA leave. Best defense: act in good faith and document each step in the process. FMLA Overlap With ADA & WC Company can designate time off for WC injury/illness as FMLA leave. But remember FMLA DOES provide job protection where Alaska WC does not. When a worker returns from FMLA leave but is not 100% fit for duty, ADAAA requires reasonable accommodation to assist a disabled worker to perform the essential functions of the job. Donnie s Injury In which our hero has to clean up after plant visitors. Again. 27 9

10 These unruly criminals. 28 Wonka Wonders... Should Donnie receive FMLA if he had an allergy attack from the bubbles? If he fell from the ladder and had a concussion? If his back hurt after scrubbing the ceiling? 29 Now we must talk about disability? But it requires some work ability. The interactive process is often required When an accommodation is desired

11 Disability Laws Federal Law Americans with Disabilities Act, 42 USC 1201, as amended (ADAAA) Applies to employers who have 15 or more employees State Law AS Discriminatory Practices Prohibited Applies to all employers Definition of Disability For federal and state purposes, a disability is a physical or mental impairment a record of an impairment, OR being regarded as having an impairment that substantially limits a major life activity ADAA Definitions Substantially limits means the inability to perform or a significant restriction in performing a major life activity that the average person can perform. Major life activity means caring for oneself, walking, seeing, hearing, speaking, breathing, learning, or working. (And many more...) 11

12 ADAAA Changed the ADA Discourages questions about whether employee is disabled Substantially limits to be read broadly Doesnot consider effect of medications Question is whether employee, in untreated/unmedicated state, is disabled exception for eyeglasses/contact lenses Alcoholism or drug abuse = disability when in treatment, but not when impaired at work ADAAA Reasonable Accommodation ADAAA applies to applicants and employees Worker must be otherwise qualified for the job Company must engage in an interactive process to determine what steps can be taken to allow the worker to perform the essential functions of the job Worker must not impose a direct threat to health or safety of self or others rare defense ADAAA Reasonable Accommodation Examples of reasonable accommodation include (and many more): Access accommodation Technology acquisition or equipment modification Job restructuring Part time schedule or Telecommuting Modifying examinations or training materials Granting additional paid or unpaid leave 12

13 ADAAA Job Protection ADAAA requires the company to reasonably accommodate a worker who becomes disabled (e.g., due to a WC or non work related injury) Includes job reinstatement Employer has the burden to show that reinstating to the same or another position would have imposed undue hardship on the company If only a lower paying position is available, OK to pay lower wages ADAAA Undue Hardship Rare defense means significant difficulty or expense to the company: Nature of the business Nature and cost of the accommodation Financial resources of the business Number of persons employed Safety and loss of efficiency Availability of outside funding sources ADAAA Retaliation Company can be liable for wrongful or discriminatory denial of ADAAA reasonable accommodation to disabled workers. Company can be liable for retaliation against workers exercising ADAAA rights. Best defense: act in good faith and document the file regarding the interactive process and accommodations offered. 13

14 ADAAA Overlap With WC & FMLA ADAAA requires Company to grant reasonable accommodation to workers who are disabled by WC injury/illness and who are returning from FMLA leave. Should an absence exceed 12 weeks, additional leave of absence may be a reasonable ADA accommodation Clarence s injury A Sunday stroll gone horribly wrong. 41 When you can actually have too much chocolate

15 Wonka Wonders... Is Clarence s back injury a disability? What reasonable accommodationcould could Wonka provide? Does time off count as FMLA? Can we discipline him? What about light duty? 43 Problems are solved when the duty is light, It keeps workers busy, not stewing at night. Do it all right and you could save dough! There s just a few tips you should know. (And your boss will thank you for it.) 44 Light Duty Jobs Work for an employee who is not able to do his or her regular job. But be careful... It interplays differently with different areas of law. 15

16 Benefits of Light Duty Can reduce your WC claim costs. It is an incentive for employees to keep working. Helps keep employees invested in the workplace and in their recovery. Can reduce lawsuits. Light Duty and FMLA An employer may not pressure an employee to give up FMLA leave and take light duty. If the worker accepts light duty, then the time on duty does not count against the worker s FMLA leave. Light Duty and ADAAA You never have to offer an employee a light duty position for a disability accommodation, if it involves moving essential functions. Do not inadvertently create light duty positions that disabled employees can argue exist and are vacant. 16

17 Tips for Administering Light Duty Make sure the offers of light duty are temporary: day periods. Have a written policy about light duty. Be specific about what the duties involve. Try to avoid busy work. It will have an adverse impact on the worker s (and co workers ) morale. It may be seen as retaliation This poor kid was just hired to test the televisions. Mike s injury 50 Wonka Wonders... Can Mike be asked to be the Glass elevator operator? What if Mike asks to continue in his TV position? And if that includes moving TVs? How can Wonka be sure Mike is up for moving TVs? 51 17

18 An employee who s injured may need dough Or want to work, to not feel slow. An accommodation may be in the cards, But can the employee work that hard? 52 Tips for Return to Work / Fitness for Duty Testing If there is an issue of whether an employee can perform the essential functions of his or her job (ADA) ADA permits ROW as long as medical examination and inquiry is job related and supported by business necessity If returning from FMLA, need a policy or practice that requires certification for employees who have been on similar type of leave W/C typically required Slugworth s condition Deceiving children has taken its toll

19 Slugworth spirals into a deep depression. 55 Wonka Wonders... Is this a work related injury? What if Slugworth says he is going to have a hard time deceiving kids in his state? What if the medical certification says he needs intermittent leave for six months or longer? At what point can I fill his position? 56 FMLA Reinstatement FMLA requires reinstatement to same job following leave, so long as it is available and the worker can perform the job. A job is available even if it is filled with a temporary replacement. An employer put some structure in place to manage intermittent lave, such a notifications, tracking usage and updated certifications Once the 12 week FMLA entitlement is used, the employee s position is no longer protected under the FMLA (but don t forget retaliation!) 19

20 ADA Reemployment ADA requires that, if a worker can no longer perform job duties, the employer must provide reemployment in another job. No obligation to create a new job, and the job must be open. Worker must have minimum qualifications and be able to perform the job. Intermittent leave with no end in sight is not a reasonable accommodation. Loss of Right to Reinstate/Reemploy Workers Comp (in Alaska): Eligible for vocational retraining but decline in favor of a dislocation benefit Participation in vocational retraining, or Suitable employment elsewhere, or Refuse bona fide offer of alternate employment, or Doctor determines worker is unable to return to work. FMLA: after leave time expires. ADA: a reasonable time when the leave accommodation becomes an undue hardship. Questions 20