THE INTERPLAY OF THE AMERICANS WITH DISABILITIES ACT, WORKERS' COMPENSATION AND FMLA

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1 August 25, 2015 THE INTERPLAY OF THE AMERICANS WITH DISABILITIES ACT, WORKERS' COMPENSATION AND FMLA Laurie Goetz Kemp Kightlinger & Gray, LLP 3620 Blackiston Blvd., Suite 200 New Albany, IN Libby Valos Moss Kightlinger & Gray, LLP One Indiana Square, Suite 300 Indianapolis, IN

2 I. Americans With Disabilities Act A. What Is It? The Americans With Disabilities is the federal law that prohibits discrimination against an "otherwise qualified individual with a disability." 42 U.S.C (a). A "qualified individual" is one who can perform the essential functions of the job with or without reasonable accommodation. The ADA applies to both the hiring process and throughout employment, including during and after a leave of absence related to a disability and can compel employers to alter personnel, work environment and practices and take other steps to affirmatively accommodate the needs of disabled employees and applicants. The Act was amended effective January 1, 2009, now referred to as ADAAA, and greatly expanded coverage under this law. B. Which Employers Are Obligated? Any employer with 15 or more employees must comply with the Americans with Disabilities Act. C. How Do You Define The Terms? A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities or impairs a major bodily function. A disability also includes a record of such impairment or being regarded as having such an impairment. The EEOC and latest regulations define major life activities as sleeping, eating, breathing, concentrating, standing, lifting, walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself and working. Standing, lifting, or sitting are also defined as major life activities. These life activities must be "substantially limited" by the disability. In order to determine if a major life activity is substantially limiting, compare the employee to the average person in the general public. Whether an impairment substantially limits an employee s major life activity will depend upon the impairment's nature and severity, expected duration, and permanent or long-term impact or expected impact. However, regulations state that in order to be substantially limiting an impairment need not severely restrict or significantly restrict performance of a major life activity. The conditions do not need to be permanent or even long term in duration if the symptoms and debilitating nature are severe enough. Also, employees can no longer consider mitigating factors such as medications, treatments, prosthesis, etc. Regulations now state the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under the law. These conditions include: Deafness Blindness Partially or completely missing limbs

3 Autism Cancer Cerebral palsy Diabetes Epilepsy HIV infection Multiple Sclerosis Muscular Dystrophy Psychological conditions including major depressive disorder, bipolar disorder, PTSD, obsessive compulsive disorder, and schizophrenia A record of impairment deals with those individuals with a history of a disability, for example, Cancer in remission. A "regarded as" impairment may arise when a person has no disability but the employer regards them as having one or treats them differently due to assumption of impairment. Current Regulations state that an action prohibited by this part includes refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment which is based on an actual or perceived impairment, unless the impairment is both transitory and minor. Transitory is defined by the regulations as actual or expected duration to be less than 6 months. D. What Are The Employer's Obligations? The Employer must provide a "reasonable accommodation" to the known limitations of an otherwise qualified individual with a disability. The accommodations may be to insure equal opportunity in the application process; enabling an employee to perform the essential functions of the position held or sought; or enabling person to enjoy equal benefits and privileges of employment as other non-disabled workers. The only exceptions to the reasonable accommodation requirement are (1) if the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business or (2) if the employer can show that the individual poses a "direct threat" to the health or safety of the individual and others. Undue hardship is defined by the EEOC as an action that requires "significant difficulty or expense" in relation to the size of the employer, the available resources, and the nature of the operation. It is meant to encompass accommodations that are unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the operation of the business. Similarly, the "direct threat" exception is very specifically and narrowly defined. The Employer must show that there is significant risk of substantial harm, a specific and identifiable risk; a current risk, not speculative or remote; based on objective medical or other factual data; and, that cannot be eliminated or reduced by reasonable accommodation.

4 E. What Is Reasonable Accommodation? Under the ADA, reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done that enables a QIWD to become or remain employed. The law and the regulations provide examples of reasonable accommodation: Job restructuring part-time or modified work schedules reassignment to a vacant position permitting use of accrued paid leave providing additional unpaid leave holding a job open until an employee returns to work making facilities accessible and usable obtaining or modifying equipment or devices providing qualified readers and interpreters providing special office space or parking The duty to reasonably accommodate applies to the hiring processes, as well as the "benefits and privileges" of employment, such as equal access to employee lounges, breakrooms, restrooms, office space, and employer-sponsored services or events such as health programs and social events. F. What Are An Employee's Remedies? Remedies under the ADA are those typically available to an employment discrimination plaintiff and include reinstatement/hiring; promotions; back pay and front pay; reasonable accommodation; "embarrassment and humiliation" damages; attorneys' fees; and court costs. Under federal law, punitive and compensatory damages are capped as follows: Up to 100 employees: $50, employees: $100, employees: $200, employees: $300,000. The ADA is enforced by the Equal Employment Opportunity Commission (EEOC). An employee must file an administrative charge with the EEOC within 300 days of the most recent alleged discriminatory act. The EEOC has independent authority to conduct investigations and impose fines but, practically speaking, this rarely happens. After an individual has met the jurisdictional prerequisite of filing an administrative charge, he or she may proceed by filing suit in federal court against the employer.

5 II. Workers' Compensation A. When Is An Employee Entitled To Workers' Compensation? Worker's Compensation is available for on-the-job injuries and is a "no fault" system. In order to recover Workers' Compensation benefits, the worker must have suffered an injury by accident which arose out of and in the course of employment. An employee has 2 years from the date of injury or 2 years from the last date for which compensation is paid to file a claim before the workers compensation board. B What Benefits Is An Employee Entitled To Under Workers' Compensation? Under Indiana law, if a work related injury/illness has been proven and timely notice has been given, an employee is eligible for payment of medical benefits that are related to the injury and medically reasonable and necessary, as well as Temporary Disability and/or Permanent Total Disability benefits, and/or Permanent Partial Impairment benefits. Temporary Total Disability Benefits arise only when an employee has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment, whether in a full or light duty capacity. These benefits are paid at the rate of 2/3 of the average weekly wage up to the state maximum/minimum until the worker reaches maximum medical improvement or is able to return to work with or without restrictions. Temporary Total Disability can and should run concurrently with FMLA leave. Temporary Partial Disability Benefits arise when an employee has not reached maximum medical improvement from an injury but has reached a level that permits a return to work on a part time basis. These benefits are paid at a rate of 2/3 of the difference between the employee s average weekly wage and current earnings. Permanent Partial Impairment Benefits arise when an employee who, due to an injury, has a permanent disability rating under the AMA guides but retains the ability to work. The compensation associated with a permanent partial impairment is determined by statute. Permanent Total Disability Benefits arise when an employee who, due to an injury, has a permanent disability and is unable to perform any reasonable type of work as a result of an injury.

6 III. Family and Medical Leave Act A. What Is It? The FMLA requires an employer to grant up to 12 weeks (up to 26 if military family leave is involved) unpaid leave to workers who need to care for the birth of a newborn child, the adoption or foster placement of a child, to deal with their own serious medical condition or a serious medical condition of a parent, spouse (includes same sex spouse) or child, for exigent circumstances, or to care for a service member injured in the line of duty for family members of US Service members. B. Who Is Covered Under The FMLA? In order to be eligible for an FMLA leave, an employee must have been employed at least 12 months by the employer and must have worked at least 1,250 hours during the 12 months preceding leave. Employers that have 50 or more employees working within a 75 mile radius are obligated to provide eligible employee FMLA leave. All public sector employers and private or secondary schools are covered regardless of their number of employees. C. What Are An Employer's Obligations? Chief among the obligations is the employer's obligation to return an individual to the same or a substantially equivalent position upon return from FMLA leave. The same or substantially equivalent position includes not only the same duties and responsibilities and level of pay but other terms and conditions of employment such as status, job title, office space, etc. The second key obligation for employers obligated under the FMLA is the requirement that an employee on FMLA leave is entitled to continuation of medical/health insurance benefits under the same terms and conditions as if the employee were continuing to work. D. What Is A Serious Health Condition? Note that a serious health condition may be, but is not necessarily, a disability under the ADA. A serious health condition is an illness, injury, impairment, physical or mental condition that requires in-patient care; is a chronic or permanent medical condition; or results in a period of incapacity of at least 3 days plus continuing treatment by a healthcare provider. Continuing treatment is broadly defined and includes: Two or more visits to a healthcare provider within 30 days; Two or more treatments by a healthcare practitioner on referral from healthcare provider; A single visit to a healthcare provider that results in a regimen of continuing treatments; or

7 For a long term serious or chronic condition that cannot be cured by continuing medical supervision of, but not necessarily actively treating may require 2 annual visits to healthcare provider. E. Intermittent Leave: FMLA also provides for intermittent leave or reduced leaves of absence. An employee may take leave intermittently, for a few days or hours, or work on a reduced schedule if meets requirements above and leave is medically necessary. F. What is Medically Necessary? Medically necessary means that there must be a medical need for the leave and that the leave can best be accomplished through intermittent leave or a reduced schedule. Employee can be required to switch to a temporary position with equivalent pay and benefits that better accommodates the modified schedule. G. What Notice/Documentation Must be Provided? If the leave is foreseeable, 30 days notice must be given prior to start of leave. If not foreseeable, notice should be given as soon as possible. Typically within one to two days of knowledge of need for leave is sufficient. The employee must also provide medical certification including the start date of condition, probable duration, diagnosis, brief statement of regimen of treatment, whether hospitalization is required and the employee's inability to perform her essential job functions. If leave to care for family member, also should include a statement as to why employee's presence is beneficial to patient. H. Employee Entitlement to Service members FMLA Leave Entitlement Service members FMLA provides eligible employees unpaid leave for any one, or for a combination of the following reasons: A qualifying exigency arising out of the fact that a covered family member s spouse, child, or parent in the National Guard or Active or Reserve Military is on active duty in a foreign country or is notified of an impending call to active duty in support of a contingency operation. To care for the parent, spouse, child or next of kin of an employee who is a covered servicemember or qualified veteran of the Armed Forces, National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty, provided that such injury or illness renders the family member medically unfit to perform duties of the member s office, grade, rank or rating.

8 IV. Comparison and Conflicts Within the Laws: A. Benefit Protection: 1. ADA: An employee with a disability must receive same benefits as non-disabled workers. Employer cannot discriminate against disabled workers with respects to benefits coverage. If worker becomes part-time as part of accommodation, need only provide benefits as to other part-time employees unless FMLA involved. 2. FMLA: For group insurance, employer must continue coverage under same terms during FMLA leave as employees not on leave and reinstate as soon as return to leave. Full time employee who becomes part-time due to intermittent leave under FMLA is entitled to same coverage as full time employees. 3. Workers Compensation: No protection or guarantee of benefits on workers compensation leave. B. Medical Examination Requirement: 1. ADA: For applicants, any medical exam must be post offer. If conditional offer all applicants for same position must be required to submit. Current employees may be sent for examination if there is a need to confirm employee is able to perform essential job functions; if necessary for reasonable accommodation process; or if job related and consistent with business necessity. No restrictions of physician to be used. 2. FMLA: Employer may require medical certification of serious health condition but can request only the information contained on DOL's Request forms and cannot request additional information except may request clarification and authentication with employee's permission. If employer doubts the validity of certification, may request and pay for a second opinion. Limits on this exam include that the exam cannot be with a healthcare provider who the employer regularly uses or contracts with; cannot force employee to travel more than a reasonable distance; and employer must pay employee for out of pocket expenses to attend. 3. Workers Compensation: Employers may require employee to submit to examination at employer's expense. Requests must be reasonable in time, number and location. Must pay for travel expenses associated with exam.

9 C. Fitness For Duty Certifications: 1. ADA: Fitness for Duty Certifications may be required when there is a need to determine whether employee is able to perform essential job functions or if necessary for reasonable accommodation process. Must be job related and consistent with business necessity. 2. FMLA: May require certification upon return to work after FMLA leave if uniform request and practice to all employees returning from any leave or if have reasonable belief that there is a safety issue with the return. Should include this requirement in policy. Can also require for intermittent leaves when there is a specific safety concern associated with the return. 3. Workers Compensation: May require but should be uniform practice. D. Intermittent Leave or Reduced Schedule: 1. ADA: Intermittent leave or reduced schedule may be a reasonable accommodation unless a hardship or prevents performance of essential job functions. 2. FMLA: Employee has absolute right to reduced schedule or intermittent leave for employee's serious heath condition or the serious heath condition of a family member. Employer may transfer to equivalent position if better accommodates requests. 3. Workers Compensation: No right to reduced schedule or intermittent leave but may be required to pay temporary total disability benefits if not offered. Also, may be able to offset with temporary partial disability benefits. E. Attendance: 1. ADA: Absences due to disability may be counted as occurrences under a no fault attendance system program subject to reasonable accommodations. 2. FMLA: Absences due to FMLA qualifying reason cannot be counted as occurrences under a no fault attendance system program. 3. Workers Compensation: Absences due to a work injury may be counted as occurrences under a no fault attendance system program. Be aware of retaliation issues. Treat workers compensation employee same as person off on personal injury. FMLA can run concurrent to workers compensation leave.

10 G. Light Duty Programs: 1. ADA: reasonable accommodations should not require reinstatement or transfer to a true light duty position because ADA does not require employers create jobs. However, if employer offers light duty jobs to those other than with work injuries or allows employees to stay in light duty positions indefinitely, they may become a reasonable accommodation. Need to have written plan with definite timeframe and clear understanding that position is temporary. 2. FMLA: Employee must be able to perform essential functions of her position upon return from leave. Reinstatement or transfer to a light duty position is not required unless ADA issues. Employee has absolute right to FMLA and does not have to accept light duty position as alternative to taking leave. 3. Workers Compensation: No obligation to have but can limit exposure for temporary and permanent disability benefits if employer is able to return employee to work \

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