The Bermuda Triangle The Winds Are Changing

Transcription

1 The Bermuda Triangle The Winds Are Changing Sue Simons RAS Staff Attorney

2 Disclaimer The information provided is for informational purposes only. It is not offered as and does not constitute legal advice. Likewise, the information provided is not intended to create nor does it constitute an attorney-client relationship. Resolution of specific legal questions is fact specific. As a result, the information provided is not a substitute for consulting with and obtaining individualized advice from a licensed attorney.

3 The Triangle Workers Compensation Family and Medical Leave Act (FMLA) Americans With Disabilities Act as Amended (ADAAA) Workers Comp GINA And Now Entering the Triangle: Genetic Information Nondiscrimination Act (GINA) ADAAA FMLA

4 Governing Law Workers Compensation State Specific FMLA Federal and State Specific ADAAA Federal and State Specific GINA Federal and State Specific

5 Purpose Workers Compensation Wage replacement, compensation for permanent impairment/disability and medical benefits FMLA Leave and job protection 12 weeks unpaid leave in 12 month period ADAAA Prohibits discrimination based upon disability It is a civil rights law GINA Prohibits discrimination based upon genetic information

6 Enforcement Agencies Workers Compensation State Department of Labor FMLA US Department of Labor and State Departments of Labor ADAAA Equal Employment Opportunity Commission (EEOC) and State Human Relations/Rights Department ENFORCEMENT GINA Equal Employment Opportunity Commission (EEOC)

7 Employer Covered Workers Compensation All employers FMLA Employers with 50 or more employees in a 75-mile radius and all state and local governments regardless of number of employed and (e.g. school districts) ADAAA Employers with 15 or more employees (Federal) SD All employers regardless of number of employees GINA Employers with 15 or more employees

8 Employee Covered Workers Compensation All employees FMLA Must have worked for the employer for 12 months and worked 1250 hours prior to need for leave ADAAA All employees (Federal) GINA All employees (Federal)

9 What is Covered Workers Compensation All injuries arising out of and in the course of employment FMLA Need for leave due to a serious health condition ADAAA Physical or medical impairment that substantially limits one or more major life activity GINA Genetic information includes, among other things, medical information, current and historical, regarding an employee s family member even if it is never used

10 Fitness for Duty Fitness-to-Return-to-Work Certification Workers Compensation May be and is typically required FMLA Can only be required under a policy or practice that requires employees who have been on a similar type of leave of absence ADAAA Permitted as long as the medical examination and inquiry is job-related and necessary to determine whether the employee can perform the essential functions of the job

11 Benefits While on Leave Workers Compensation Not required to be continued unless run concurrently with FMLA leave. FMLA Health coverage must be continued at same level as prior to the leave. Benefits other than health benefits are determined by the employer's established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate). ADAAA No specific requirements but cannot discriminate and must provide same benefits as those provided to employees on non-adaaa leave of absence.

12 Reinstatement Workers Compensation No reinstatement rights under most state laws, except for retaliatory discharges. FMLA Required reinstatement to the same or an equivalent job if able to return prior to the expiration of FMLA leave. No undue hardship exception. ADAAA if able to return with reasonable accommodations reinstatement to previous job required unless doing so would create an undue hardship on the employer.

13 Conflict RE: Leave Entitlement FMLA/ADA/WC FMLA Leave must be allowed if qualified for leave ADA Can t force employee to take leave if the employee can perform essential functions of the position with reasonable accommodations but cannot force employee to take light duty if other leaves available to the employee (FMLA, Sick, Vacation) Workers Compensation Cannot force employee to take light duty assignment but may alter whether/what type of benefits are due

14 Crossing into the Triangle Have: 1. A covered employee 2. Working for a covered employer who 3. Sustains a work related injury 4. Resulting in a serious health condition and 5. Resulting in a physical or mental impairment that substantially limits a major life activity

15 True or False? Regarding workers compensation, the time to think about the ADA is at MMI?

16 EEOC EEOC senior attorney - December 2014 This may be surprising news for some readers MMI should not be viewed as the trigger for ADArelated protections and obligations

17 Yes or No? Do the final ADAAA regulations require that an impairment last a particular length of time to be considered substantially limiting?

18 EEOC Under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA disability

19 True or False? The ADAAA S requirement for an interactive process does not apply in decision-making about light duty or transitional work assignments?

20 EEOC - ADAAA Obligations [W]hether or not the worker s condition is stable and has reached maximum medical improvement (MMI) has no relevance, either (a) To the time when the employer s obligation to engage in the interactive process begins or (b) To the time when a worker should be considered a qualified individual with a disability under the ADA

21 Scenario On the job injury Doctor s note: No work due to severity of the medical condition No work due to perception that employer cannot or will not provide safe light-duty work Doctor release to work with restrictions: Keep employee home due to state or federal law or union contract Employer says no light duty available and keeps employee out of work

22 EEOC Response In all but #1 ADAAA may apply Concern is that the employee is often not consulted as these decisions are being made ADAAA requires the employer to interact with the employee in looking for solution that will allow the employee to work

23 EEOC Response As part of the ADA interactive process, injured workers must be included in the workers compensation decisionmaking process about light duty/return to work and leave

24 Reasonable Accommodations and the interactive process Key terms ADAAA Reasonable accommodations Interactive process In workers compensation terms TTD/TPD and light duty

25 Agreement ADA and Workers Compensation Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA Especially when they were not part of the decision-making process that has put them out of work

26 Limitation of Light Duty Assignments Limitation of time for light duty assignment Key: Must conduct an individualized analysis at the end of a defined period and extend when appropriate

27 ADA Assignment To Alternative Job As Reasonable Accommodation Can the employer offer an employee an assignment at a different location such as a different division of the same company or at a charitable organization, if there are no suitable jobs at the original location?

28 EEOC Response The ADAAA allows but does not require the employer to assign the person alternative duties that the individual can perform (including work at a local charity) As soon as that individual can return to full duty to the original position, with a reasonable accommodation if necessary, they must be returned to the position Cannot require employee to permanently work at the charitable organization

29 EEOC Employer Best Practice Communicate light duty policy at the time of hire, prior to injury Establish a light duty job bank to place injured workers during recovery Discuss reasonable accommodations and begin the interactive process at the time of injury Communicate with medical provider to obtain work restrictions Assign a productive light duty position to the employee based upon work restrictions

30 Medical Information - FMLA If an employee is on FMLA leave running concurrently with a workers' compensation absence, and the provisions of the workers' compensation statute permit the employer or the employer's representative to request additional information from the employee's workers' compensation health care provider, the FMLA does not prevent the employer from following the workers' compensation provisions and information received under those provisions may be considered in determining the employee's entitlement to FMLA-protected leave.

31 Medical Records - FMLA d) If an employee's serious health condition may also be a disability within the meaning of the Americans with Disabilities Act (ADA), as amended, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA. Any information received pursuant to these procedures may be considered in determining the employee's entitlement to FMLA-protected leave.

32 Medical inquiries - ADAAA The ADA does not prohibit an employer or its agent from asking disability related questions or requiring medical examinations that are necessary to ascertain the extent of its workers compensation liability. However, the questions and examinations must be consistent with the state law s intended purpose of determining an employee s eligibility for workers compensation benefits.

33 Medical Records - ADAAA The ADA requires that an employer keep confidential medical information obtained during a medical evaluation and during an inquiry into the employee's ability to perform the job. Supervisors and managers may know only the work-related status or abilities of the employee, not the underlying medical information. First aid and safety personnel may also be made aware of the condition in some instances.

34 Medical Records - ADAAA Medical information obtained during a medical examination or inquiry must be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. It may not be filed with or in regular personnel files. Additionally, such medical information must be stored in a locked and secure area.

35 Medical Records - HIPAA The Health Insurance Portability and Accountability Act of 1996 (HIPAA) specifically excludes workers compensation records. However, some medical providers will not voluntarily disclose the employee s records without an authorization from the patient before medical records are released. In those situations, employers have to decide whether to fight with the medical provider as to the employers entitlement to the medical records on demand or obtain the requested authorization from the patient. As a practical matter, the more efficient manner in which to obtain the records from such a medical provider is to obtain the employee s signature on the HIPAA waiver.

36 GINA SOURCE: What about GINA? How does it apply and what concerns/ responsibilities does it add to this process?

37 GINA The Genetic Information Nondiscrimination Act (GINA) prohibits employers with 15 or more employees from discriminating against employees because of genetic information. Genetic information includes, among other things, medical information, current and historical, regarding an employee s family members even if it is never used.

38 GINA The EEOC's final rule says that a "request" for genetic information may include making requests for information about an individual's current health status in a way that is likely to result in a covered entity obtaining genetic information.

39 GINA 29 CFR (b) provides exceptions to the general prohibition against requesting, requiring, or purchasing genetic information. One being where a covered entity inadvertently requests or requires genetic information of the individual or family member of the individual.

40 GINA Section (d): Medical examinations related to employment. The prohibition on acquisition of genetic information, including family medical history, applies to medical examinations related to employment. A covered entity must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.

41 GINA Section Construction. (a) Relationship to other laws, generally. This part does not (3) Limit or expand the protections, rights, or obligations of employees or employers under applicable workers' compensation laws.

42 GINA GINA appears to provide an exception regarding receipt of family history or genetic information when relevant to a workers compensation claim; unfortunately, the regulations do not address the circumstances under which this exception may apply. And while there are certainly instances in defense of a workers compensation claim that family history may be relevant (and in those circumstances, the employer should be able to rely upon the exception), most often family history is not critical to the defense of a workers compensation claim.

43 GINA Safe Harbor In the workers compensation setting, this information is sometimes gathered by medical experts conducting independent medical exams, by nurse case managers who may seek to find out any and all medical information about the injured worker s family as well as the injured worker, or by family physicians who have made non-work-related entries in the medical records. However, GINA has allowed an exception to the overall thrust of the legislation by stating that if the information is relevant to the workers compensation claim, it can be disclosed. The legislation and the regulations give no definition of the term relevant therefore, making the interaction between the health care provider, the carrier, the employer and the employee complicated, to say the least

44 GINA SAFE HARBOR 38 CFR (b)(1((B) If a covered entity uses language such as the following, any receipt of genetic information in response to the request for medical information will be deemed inadvertent:

45 GINA Safe Harbor Language The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

46 New FMLA Cert. Forms For Completion by the HEALTH CARE PROVIDER: Limit your responses to the condition for which the employee is seeking leave. Do not provide information about genetic tests, as defined in 29 C.F.R (f), genetic services, as defined in 29 C.F.R (e), or the manifestation of disease or disorder in the employee s family members, 29 C.F.R (b).

47 GINA EEOC questions and answers document 17. What should an employer do to comply with GINA when lawfully requesting health-related information from an employee?

48 GINA Safe Harbor The Final Rule says that when an employer makes a request for health-related information (e.g., to support an employee's request for reasonable accommodation under the ADA or a request for sick leave), it should warn the employee and/or health care provider from whom it requested the information not to provide genetic information. If the proposed warning is provided, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA. In other words, use of this type of warning creates a "safe harbor" for employers who receive genetic information in response to a request for health-related information.

49 GINA Safe Harbor 18. Must the warning be provided every time an employer requests health-related information from an employee? To take advantage of this safe harbor, the employer must do what is reasonably necessary to ensure that the warning is understood by employees or doctors submitting healthrelated information to the employer, at the time of submission. This is best accomplished by providing the warning each time health-related information is requested. But it may suffice to give the warning more generally, for example by including it on the employer's leave and reasonable accommodations request forms, if doing so would reasonably ensure that it is understood at the time healthrelated information is submitted.

50 GINA Safe Harbor 19. What if an employer does not provide a warning like the one the EEOC suggests when it requests healthrelated information and receives genetic information in response? If the employer's request for health-related information was made in a way that was likely to result in the employer obtaining genetic information, the request violates GINA.

51 GINA Safe Harbor On the other hand, if the employer's request was not made in a way that was likely to result in the acquisition of genetic information, any genetic information it acquires would be considered an inadvertent acquisition. For example, an employer who asks an employee to provide a doctor's note explaining a five-day absence will not violate GINA if the doctor includes the family medical history taken as part of the employee's medical examination, even if the employer has not warned the employee or the doctor against providing genetic information.

52 Summary MMI no longer the trigger for ADA accommodation considerations Have accurate updated job descriptions identifying essential functions and accurate physical requirements Involve injured worker when discussing light duty assignments Be sure GINA safe harbor language is on all requests for medical information regardless of who is asking

53 Disclaimer: The information provided is for informational purposes only. It is not offered as and does not constitute legal advice. Likewise, the information provided is not intended to create nor does it constitute an attorney-client relationship. Resolution of specific legal questions is fact specific. As a result, the information provided is not a substitute for consulting with and obtaining individualized advice from a licensed attorney.