The Triangle. Part One Overview of FMLA ADAAA Workers Compensation

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1 The Triangle Part One Overview of FMLA ADAAA Workers Compensation

2 Discuss the Family Medical Leave Act and how it applies to counties Review the Americans with Disabilities Amendments Act and its impact on counties Understand Texas Workers Compensation and the duty of counties to comply Objectives

3 Family Medical Leave Act (FMLA) Americans with Disabilities Amendments Act (ADAAA) Texas Workers Compensation (WC)

4 U.S. Department of Labor Wage and Hour Division Effective August 5, 1993

5 FMLA applies to all public agencies All counties with 50 or more employees employed within 75 miles of the workplace must grant FMLA to eligible employees.

6 Employee has worked for county for at least 12 months & & Break >7 years not counted unless military call up >3 years burden on employee Has worked at least 1250 hours during the last 12 months prior to FMLA Leave Part timers and long term temps might qualify New in 2013 all time lost due to military service is counted as time worked

7 A newly born, adopted or fosterplaced child A spouse, child or parent with a serious health condition The employee s own serious health condition

8 When disabled as defined by ADAAA Incapable of self care Has a serious health condition And in need of care due to that condition

9 Qualified employee can receive 12 weeks of leave in a 12 month period for: Spouse, child or parent of the employee is being deployed to a foreign country. Does not extend FMLA 12 weeks.

10 Defined as Short term deployment (7 days) Military events and related activities Childcare and school activities Financial and legal arrangements Counseling Rest and recuperation (15 days) Post deployment activities (during first 90 days home) Any additional agreed upon activities

11 New in 2013 Leave to care for military members parent Arranging for alternative care Attending meetings with staff at care facility Can require copy of military members rest and recuperation leave orders or other military documentation

12 Qualified employee: up to 26 weeks of leave in a single 12 month period to care for : Leave is applied per-service member, per-injury basis but no more than 26 weeks in single 12 month period. Does extend FMLA 12 weeks to up to 26 weeks. Spouse, child, parent or next of kin recovering from a serious injury or illness sustained as a result of active duty in the military.

13 Reasons for leave: A member of the military undergoing medical treatment, recuperation, therapy, outpatient treatment or on the temporary disability retired list Certain veterans undergoing medical treatment, recuperation or therapy

14 New in 2013 Definition of serious injury or illness expanded to include illnesses or injury that existed prior to active duty aggravated by service Can require copy of military documentation

15 May be taken when medically necessary to care for a seriously ill family member or because of the employee s own serious health condition. (usually chronic conditions)

16 Medical Certifications County may require (give employees 15 days to obtain) Can only require intermittent leave recertification every 6 months Fitness for Duty: must include a copy of the job description or essential functions on or before the designation notice is given to the employee Privacy requirements must be met Supervisor is never allowed to contact the physician to clarify the information provided

17 Also new in 2013 Employers required to comply with the confidentiality requirements of GINA Genetic Information Non Discrimination Act Must allow leave increments the same as set for any other leave and never more than 1 hour Check your policy: 4 hours wont work for FMLA DOL Forms updated and no longer part of the regulation to allow for easier revisions

18 Protections A covered employee must: Maintain county paid benefits Be restored to their original job Or equivalent job in terms of pay, benefits and other conditions of employment Be provided proper documentation in writing To include Notice of Eligibility Form WH-381 and Designation Notice Form WH-382 If requiring medical certifications, use proper forms.

19 If is exhausted, what next? Have a policy in place to offer employees COBRA at the end of their 12 weeks Review the employee s status and condition Begin the interactive process to determine and DOCUMENT your actions. Not every leave under the FMLA will have the ADAAA protection but evaluation is important

20 Train supervisors to comply Check your policies Don t forget ADAAA

21 U.S. Department of Justice EEOC ADA was effective July 26, 1992 Amended 2008

22 No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; and other terms, conditions, and privileges of employment

23 Key Changes Expands the definition of disability. Introduces 9 rules of construction. Employee now only has to prove the condition substantially limits them You must use the 9 rules of construction to determine whether an impairment substantially limits a major life activity The term substantially limits will now be broadly interpreted

24 Key Changes More activities added to the list of major life activities that create a disability when people cannot perform them A new category of major life activities was added to include major bodily functions

25 Key Changes A health condition that amounts to a disability now counts as a disability even if the individual takes medicine or uses a device that limits the disability s impact (hearing aids, insulin, drugs, etc) A medical condition may still qualify as a disability even if it is episodic or in remission.

26 Key Changes Makes it much easier for employees to sue under the regarded as section If an employer wrongly considers an employee or applicant as disabled when they are not they can sue and win, even if the impairment that caused them to view them as disabled was not a disability.

27 Who s covered? ADAAA applies to all local government employers with 15 or more employees. Employees who meet the definition of qualified individual with a disability who, with or without a reasonable accommodation, can perform the essential functions.

28 What s makes a qualified individual? ADAAA states than an individual with a disability is qualified when They satisfy the requisite skill, experience, education and other job related requirements of the position with or without reasonable accommodation and can perform the essential functions.

29 A physical or mental impairment that substantially limits a major life activity of an individual A record of such an impairment Being regarded as having such an impairment Regulations state the term major does not create a demanding standard for disability and should not be interpreted strictly.

30 Purpose To reinstate a broad scope of protection by expanding the definition of the term disability to include many types of impairments that were originally left out of the ADA.

31 includes any Physiological disorder or condition, or anatomical loss affecting one or more body systems such as: Neurological Musculoskeletal Special sense organs, Respiratory (including speech organs), Cardiovascular, Reproductive, Digestive, Genitourinary, Immune, Circulatory, Hemic, Lymphatic, Skin Endocrine

32 includes any Mental or psychological disorder such as: Intellectual disability (formerly termed mental retardation, Organic brain syndrome, and specific learning disabilities.

33 Caring for oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Sitting Reaching Lifting Bending Speaking Breathing Learning Reading Concentrating Thinking Communicating Interacting with others Working

34 A history of a mental or physical impairment that substantially limits a major life activity, or has been misclassified as having such an impairment. Employers are required to provide a reasonable accommodation if needed and if related to the past disability.

35 This is only used for discrimination purposes because of the actual or perceived impairment. An applicant or employee who is subjected to an action prohibited by the ADAAA because of an actual or perceived impairment will meet the regarded as definition of disability.

36 Functions of the immune system Special sense organs and skin Normal cell growth Digestive Genitourinary Bowel Bladder Neurological Brain Respiratory Circulatory Cardiovascular Endocrine Hemic Lymphatic Musculoskeletal Reproductive functions * Includes the operation of an individual organ within the body.

37 These are ADAAA impairments that are virtually always disabilities. Deafness substantially limits hearing Blindness substantially limits seeing An intellectual disability substantially limits brain function. Partially or completely missing limbs or mobility impairments substantially limit musculoskeletal function This is not an exhaustive list.

38 These are ADAAA impairments that are virtually always disabilities. Autism substantially limits neurological function Cancer substantially limits normal cell growth Cerebral Palsy substantially limits brain function This is not an exhaustive list.

39 These are ADAAA impairments that are virtually always disabilities. Diabetes substantially limits endocrine function Epilepsy substantially limits neurological function HIV infection substantially limits immune function This is not an exhaustive list.

40 These are ADAAA impairments that are virtually always disabilities. Multiple Sclerosis substantially limits neurological function Muscular Dystrophy substantially limits neurological function Major depressive disorder, bipolar, posttraumatic stress disorder, obsessive compulsive disorder and schizophrenia substantially limit brain function This is not an exhaustive list.

41 The primary focus in an ADAAA case should be if the employer complied with their obligations under the ADAAA and if discrimination occurred, not if the individual meets the definition of disability. No extensive demand analysis to determine if disabled.

42 Review job descriptions to ensure regulatory compliance Train supervisors to comply Assure interactive process in place with documentation Check your policies

43 Texas Department of Insurance Division of Workers Compensation Effective September 1, 1993

44 TWCA applies to all public agencies. All counties must provide Workers Compensation Coverage to all eligible employees.

45 TWCA defines disability as: The inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the pre-injury wage.

46 Texas Constitution, Article 3, Section 52e Each county in the State of Texas is hereby authorized to pay all medical expenses, all doctor bills and all hospital bills for Sheriffs, Deputy Sheriffs, Constables, Deputy Constables and other county and precinct law enforcement officials who are injured in the course of their official duties; providing that while said Sheriff, Deputy Sheriff, Constable, Deputy Constable or other county or precinct law enforcement official is hospitalized or incapacitated that the county shall continue to pay his maximum salary; providing, however, that said payment of salary shall cease on the expiration of the term of office to which such official was elected or appointed.

47 TWCA Income Benefits Temporary Income Benefits Impairment Income Benefits Supplemental Income Benefits Lifetime Income Benefits Death Benefits

48 TWCA Medical Benefits May get travel reimbursement for travel over 30 miles from residence or workplace in order to receive necessary medical care for a work related injury May pay for artificial appliances and prosthetic devices where injury has necessitated. (not broken glasses or hearing aids without a related injury Prescriptions

49 Report injury to your carrier within 8 days of the date: Employee is injured or suspected of being injured Employee misses any time from work because of work related injury Employer is notified of an occupational disease or illness even if the employee has not missed time. Employee dies because of work related illness or injury

50 Provide a copy of the First Report of Injury (DWC-1) to the injured employee and Notice of Injured Employee Rights and Responsibilities in the Texas Workers Compensation System

51 Report an injured employee s wages and other fringe benefits to your carrier Send Employers Wage Statement (DWC-3) within 30 days of the date income benefits begin to accrue (the 8 th missed day from work).

52 Report to carrier any changes to fringe benefits, pay or employment status on Supplemental Report of Injury (DWC 6) within: 10 days from date an injured employee resigns or is terminated; 3 days from the date an injured employee returns to work 3 days from the date an injury causes an employee to miss additional work after return

53 Keep a record of all work related injuries, illnesses and fatalities for at least 5 years from the last day of the year in which the injury, illness or fatality occurred.

54 Post a written notice in English and Spanish (and any other appropriate language) telling employees that: Employer has workers compensation insurance and the insurance company name Information regarding divisions ombudsman program Divisions toll-free number to report unsafe work conditions Notice 9 required for sheriff, jail, fire and EMS

55 Employers are prohibited from collecting workers compensation insurance premiums or coverage contributions from employees. Employers are prohibited from discharging or otherwise discriminating against an employee because the employee has filed a claim.

56 Report all injuries that occur in the course and scope of employment to a supervisor within 30 days of injury or first known date of injury. Know if they are in a network when informed by employer. Tell the doctor how they were injured.

57 Send completed claim form (DWC-41) to DWC. They have one year to send Provide current address, telephone number and employer information to DWC and claims administrator. Tell DWC and claims administrator any time there is a change in their employment status or wages.

58 TWCA describes as: Activity of any kind or character that has to do with and originates in the work, business, trade or profession of the employer and that is performed by an employee while engaged in or about the business of the employer.

59 TWCA indicates the following circumstances hold no liability: The injury occurred while the employee was intoxicated. Injury caused by an employee s willful attempt to injure himself or to unlawfully injure another person.

60 TWCA indicates the following circumstances hold no liability: Injury arose out of an act by a 3 rd person intended to injure employee for a personal reason unrelated to work. Injury arose out of voluntary participation in an off-duty recreational, social or athletic activity, unrelated to job duties, (unless employer expects participation).

61 TWCA indicates the following circumstances hold no liability: Injury arose out of an act of God, unless employment exposes employee to a greater risk of injury from act of God than applies to general public. Injury arose out of employee s horseplay.

62 Helps reduce costs Need a policy Need functional job descriptions Need communication with the doctor

63 Must make a Bona Fide Offer of Employment Made in writing Presented to employee with DWC-73 Include a description of the physical and time requirements, consistent with employee s abilities Identify location, schedule and wage

64 Review job descriptions to ensure regulatory compliance Train supervisors to comply Post appropriate notices Check your policies

65

66 This training is designed to provide general information about the subject matter covered. Neither TAC nor the trainers are engaged in rendering legal advice. If you need legal advice, TAC recommends that you seek the services of a competent attorney who is familiar with your specific situation.

67 The Triangle Part One Overview of FMLA ADAAA Workers Compensation Human Resources Regional Workshops

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