Injured, Sick, and Disabled Workers: The Intersection of Injured Worker, Disability, and Medical Leave Protections

Transcription

1 Injured, Sick, and Disabled Workers: The Intersection of Injured Worker, Disability, and Medical Leave Protections Presented by Mark P. Amberg and John C. Rake to the Oregon Head Start Association Specialist Conference, April 6, 2012

2 What we ll cover: the Bermuda Triangle of leave laws Injured Worker/Workers Compensation Laws The ADA and Oregon Disability Law Federal Family and Medical Leave Act (FMLA)/Oregon Family Leave Act (OFLA) Leave Law Overlaps Checklist and Common Pitfalls Hypothetical Questions

3 Maxims of Jurisprudence For every wrong there is a remedy That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due Superfluity does not vitiate

4 Enforcement and Guidance In Oregon, BOLI charged with preventing unlawful discrimination and enforcing violations, adopting procedures and rules necessary to enforce Oregon s civil rights laws, and investigating complaints of discrimination (as well as wage and hour violations) Website: Technical assistance for Employer s For federal law, EEOC enforces civil rights discrimination, and the Wage and Hour division of U.S. Dep t of Labor enforces FMLA,

5 Coverage generally Workers compensation - Covers work-related injuries or illness FMLA/OFLA Covers serious health conditions ADA - Covers disability *Generally, have to apply the law that is most beneficial to the employee

6 Coverage Which employers are covered Oregon Workers Compensation Law General provisions cover employers with as few as one employee. Anti-discrimination/retaliation 6 or more employees Reinstatement 21 or more employees Re-employment 6 or more employees

7 Coverage Which employers are covered ADA (federal) All local government employers with at least 1 employee Private employers with 15 or more employees Oregon state disability laws Employers with 6 or more employees in Oregon

8 FMLA Coverage Which Employers Are Covered Employers with 50 or more employees in the U.S. OFLA Employers with 25 or more employees in Oregon

9 Workers Compensation (WC) ORS Chapters 656, 659A; OAR Chapters 436, 438 Dictates wage-loss compensation and medical expense benefits be paid to employees who suffer onthe-job injuries; prohibits discrimination and retaliation; establishes reinstatement and reemployment rights KEY trigger: Injury or illnesses that arises out of and in the course of employment where work is the major contributing cause of the injury or illness (i.e. more than 50 percent of the cause)

10 WC: Duty to not discriminate/retaliate Employer may not discriminate in any employment practice (hiring, firing, compensation, privileges, etc.) against a worker injured on the job who uses the Oregon workers compensation system. Employer may not discriminate against a person who has or is going to testify in a workers compensation procedure. Employer may not count time off the job due to a compensable or medically certified injury when determining an employee s absentee rate.

11 WC: Duty to reinstate Reinstatement is required if: Employee s former position exists and is available Employee is able to perform the duties of the position Employee makes timely demand for reinstatement

12 WC: Duty to reinstate If the former position exists but is not available, placement in a vacant, suitable position is required. E.g., a position may exist but be unavailable because of seniority or other restrictions related to a valid collective bargaining agreement. A suitable position is one that is most similar to the former position (in duties, compensation, duration, shift, etc.). Employer must consider all suitable positions at facilities within a reasonable commuting distance, not just positions at the original facility where the employee worked. If there is no vacant, suitable position, the injured worker must follow the employer s reporting policy until the employer offers the worker a suitable position.

13 WC: Duty to reinstate If the worker s former position no longer exists and there is not a vacant suitable position, the employer does not have to create a position for the injured worker. An employee s right to reinstatement generally lasts three (3) years from date of original injury. An employer s duty to reinstate extends to successor employers.

14 Loss of Reinstatement rights: If worker Is determined to be medically stationary and is not physically able to return to the former position Is eligible for and participates in vocational assistance Accepts suitable employment with another employer after becoming medically stationary Refuses the employer s bona fide offer of suitable light duty or modified employment before becoming medically stationary Fails to demand reinstatement within seven (7) days from the date the worker is notified by the insurer/self-insured employer (by certified mail) that the worker s physician has released the worker to his/her former work duties Is discharged for bona fide reasons not related to the injury, or Clearly and unequivocally abandons employment with the employer. Does not report to work as specified in a suitable job offer OR Three (3) years have elapsed since the date of the original injury

15 WC: Duty to re-employ Applies to workers who are not able to perform physical duties of former position and, therefore, are not entitled to reinstatement Duty: Employer must re-employ an injured worker who is unable to perform the physical duties of his or her former position to an available and suitable position if: The employee is medically released to the available and suitable position The employee makes timely demand for reemployment.

16 WC: Duty to re-employ - Available and Suitable Positions An available position is one that is vacant and for which the employee satisfies the seniority or other restrictions provided in a collective bargaining agreement. A suitable Position meets the injured worker s medical restrictions, is a position for which the worker is otherwise qualified, and is as similar as practicable to the former position (duties, compensation, duration, shift, etc.).

17 WC: Duty to re-employ An employee assigned to an available, suitable position has a right to the position unless the position is eliminated for bona fide reasons or the worker recovers from the physical restriction that kept him or her from returning to the former position. If the injured worker becomes physically able to perform the original position, the employee is eligible for reinstatement to his/her former position. Must make timely demand for reinstatement If a suitable position is not available when the injured worker demands re-employment, the employee must follow the employer s reporting policy until the employer offers the employee an available, suitable position.

18 WC: Duty to re-employ The employer is under no obligation to create an available, suitable position if one does not exist. An employee s right to re-employment continues for three (3) years from the date of original injury. An employer s duty to re-employ extends to successor employers.

19 Loss of Re-employment rights if the worker: Is not physically able to return to the former position Participates in vocational assistance Accepts suitable employment with another employer Refuses the employer s offer of an available, suitable position Fails to demand reinstatement/reemployment within seven (7) days from the date of notification that the worker s attending physician has released the employee for reemployment Is discharged for bona fide reasons not related to the injury, or Clearly and unequivocally abandons employment with the employer. Does not report to work as specified in a suitable job offer -or- Three (3) years have elapsed since the date of the original injury

20 Americans with Disabilities Act overview Federal ADA: 42 U.S.C. Sects. 1201; EEOC regs Oregon ADA : ORS 659A.100 TO 659A.145 Prohibits discrimination against qualified individuals with disabilities in all employment practices - hiring, firing, advancement, compensation, training, and all other terms and conditions of employment Requires reasonable accomodations for qualified individuals Limits medical inquiries and protects confidentiality of employee medical and health records

21 Key ADA terms Disability* Impairment* Substantially affect* Major life activity* Essential functions Reasonable accommodation Interactive process Undue hardship

22 Disability The ADA protects qualified individuals with a disability; State disability law protects qualified individuals with an abnormality as well. Under the ADA, a disability is defined as a physical or mental impairment that substantially limits one or more major life activities.

23 ADAAA s Definition of Disability ADAAA says that the following impairments will, as a factual matter, virtually always be found to impose a substantial limitation in a major life activity: Deafness blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, AIDS, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, PTSD, OCD, schizophrenia

24 Impairment Broad definition longterm / permanent physical or mental condition Even if brought on by voluntary choices such as smoking, eating habits NOT impairments under the ADA: Characteristics or traits when in normal range and not result of psychological disorder lefthandedness, height, weight Temporary conditions such as colds, the flu, sunburn, broken bones that will heal normally Transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders, compulsive gambling, kleptomania, pyromania, psychoactive disorders resulting from current use of illegal drugs.

25 Major life activity EEOC guidelines suggest the following: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, and reaching. ADAAA adds: operation of a major bodily function, including but not limited to functions of immune system, normal cell growth (cancer), digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive fxns *Mental and emotional processes like thinking, concentrating, and interacting with others also constitute major life activities.

26 Substantially limits *Definition broadened as a result of ADAAA. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity as compared with an average person in the general population. Relevant factors: nature and severity, duration, and impact of the impairment Medical Evidence is not required Positive Mitigating Measures should not be considered, except for glasses or contact lenses Episodic limitations (or those in remission) will be considered active

27 Coverage for regarded as and record of disability Coverage/protections of ADA also applies to individuals who: Are regarded as having a disability by employer by taking prohibited action because of an actual or perceived impairment Not regarded as disabled if the actual or perceived impairment is transitory (duration of 6 months or less) AND minor. ADAAA clarifies that individuals covered only under the regarded as prong are not entitled to reasonable accommodation. Have a record of a disability Some recorded medical history of a disability Could include workers comp records e.g. permanent disability rating For these two types of coverage, don t have to establish actual disability or limitation on major life activity

28 Qualified individual w/ a disability A qualified individual has the skill, experience, education, and other job requirements for the position, and must be able to perform the essential functions of the job with or without accommodation. Individual s continued or recent employment in a position suggests that the employee is qualified for the position. Employees who pose a direct threat to the health and safety of others are not otherwise qualified individuals.

29 When a qualified individual with a disability is entitled to protection The individual s qualifications should be assessed at the time an employment decision is made or an employment action is taken. Any employment action should be based on the employee s current ability to perform the job, not on the possibility or perception of the employee s future ability to perform.

30 Essential functions Essential functions mean fundamental job duties, but not marginal, collateral, or incidental functions of the position. Determining whether a job duty constitutes an essential function is a case specific inquiry, but the following have been found to constitute essential functions: regular attendance; ability to work independently; overtime; staying awake; anger management

31 Reasonable accommodation Besides avoiding discrimination, an employer has an affirmative duty to provide reasonable accommodation, but need not change essential job functions. Generally means eliminating workplace barriers Required unless it imposes undue hardship Once employer receives a request, employer must engage in a meaningful interactive process to determine if a reasonable accommodation is possible, and if so, what is available

32 Reasonable accommodation examples Purchasing or modifying equipment Making written or other materials accessible and understandable Making reasonable changes to facilities and work areas Restructuring employee s position, including shifting marginal duties to other employees Permitting employee to work at home where presence in office not essential Modifying work schedules, reporting times Grant reasonable leave of absence Reassignment to another position for which employee is qualified

33 Unreasonable Accommodations Generally, not required to: Restructure job in way that eliminates essential job duties Create a new position Convert temporary light duty position into permanent position Lower quality, quantity, or production standards Offer promotion Transfer to position where doing so would violate terms of a collective bargaining agreement Restructure job duties in a way that would require other employees to work harder or longer Provide indefinite leave of absence Offer the accommodation requested or desired by the employee

34 Inquiries into disabilities/medical exams/medical records Employers cannot inquire into an applicant s or employee s disability, medical condition, or medical history unless certain exceptions apply. Medical/physical exams can only be required as a condition of employment once a bona fide job offer has been made and only if required of all job applicants. Medical parts of workers comp files and family and medical leave request records are protected against disclosure under the ADA. Information from all medical exams and inquiries and all medical related information for an employee must be kept apart from general personnel files as a separate and confidential medical record.

35 Inquiries into disabilities/medical exams/medical records Access to medical information for employees is only on a need to know basis and only for legitimate, workrelated reasons: E.g., HR or risk management personnel or others needed to review medical information to make decisions about employee leave, qualification for protected leave, and reasonable accommodations

36 FMLA/OFLA overview FMLA: 29 U.S.C. 2601, et. seq. OFLA: ORS 659A.150 to 659A.186 Family leave acts generally require employers to provide 12 weeks of leave in any 12-month period for a qualifying reason, provide for some reinstatement rights, and prohibit retaliation or discrimination

37 FMLA/OFLA Coverage Covered employers FMLA - employers with at least 50 employees; OFLA employers with at least 25 employees in the state of Oregon. Covered employees FMLA worked at least 1250 hours during 12 mo. Period preceding leave OFLA worked for 180 calendar days preceding leave, and an average of 25 hours/week during that period, except for parental leave

38 FMLA/OFLA qualifying reasons Both OFLA and FMLA Employee s own serious health condition, including pregnancy-related conditions Family member s serious health condition Both: Spouse, parent, child OFLA: parent-in-law, same sex domestic partner, grandparent, grandchild Parental leave - newborn or newly adopted or newly placed child FMLA only Qualifying exigency related to family members s active duty call-up Care for family member of next of kin injured or ill as result of active military duty (entitled to 26 weeks leave, rather than 12) OFLA only Non-serious condition of child ( sick child leave )

39 Serious Health Condition Means a physical or mental condition that involves Inpatient care (overnight stay) in a medical care facility Incapacity for more than 3 consecutive calendar days, plus 2 instances of medical treatment with at least one treatment w/in 7 days of the first day of incapacity, and second treatment within 30 days of incapacity. Chronic conditions requiring periodic medical treatment (e.g. asthma, diabetes, epilepsy, migraines) Long term/permanent conditions causing period of incapacity (e.g. Alzheimer s, strokes) Non-chronic conditions requiring multiple treatments that result in absences from work (cancer, kidney)

40 Notice of FMLA/OFLA Leave Employer may require employee to provide up to 30 days advance written notice as part of a leave policy If employee cannot provide 30-day notice, must provide as soon as possible considering circumstances w/in one or two business days of when need for leave is known For emergency leave, employee must provide notice as soon as practical (FMLA says verbal notice within one or two business days of learning the need for leave)

41 FMLA/OFLA reinstatement rights FMLA: Reinstatement to former position or equivalent position OFLA: Reinstatement to former position required unless position eliminated for legitimate business reasons. Then, require reinstatement to equivalent position. Equivalent position is one that is virtually identical to former position in terms of pay, benefits, working conditions and responsibilities.

42 Unlawful Practices under Family Medical Leave Laws Employer may not: Retaliate or discriminate against any person because he or she has inquired about family medical leave, submitted a request or invoked any provision of family medical leave laws Interfere with, restrain or deny any rights under family medical leave laws Discourage an employee from taking leave Discharge, expel or discriminate because a person has filed a complaint, testified or assisted in any proceeding under family medical leave laws

43 12 weeks of leave maximum??? There are several situations where an employee will be entitled to more than 12 weeks of leave in a year Oregon male parents (up to 24 workweeks = 12 parental + 12 sick child) Oregon female parents (up to 36 workweeks = 12 pregnancy disability + 12 parental + 12 sick child) Employee eligible for state leave but not federal leave or covered by state leave but not federal leave Employee s serious health condition disability additional leave as reasonable accommodation

44 How to account for overlapping leave If have an on-the-job injury that qualifies for workers comp absence and which also is a serious health condition that qualifies for FMLA/OFLA: Can run FMLA and OFLA leave concurrently May run workers comp time loss concurrently with FMLA leave May not run concurrently with OFLA leave If employee refuses offer of suitable light duty/modified duty assignment, OFLA leave automatically begins to run.

45 Overlapping leave - considerations The fact that a worker is given a disability rating under the workers compensation system does not automatically establish a disability under the ADA. But, employers should be careful about triggering ADA obligations by: Referring to the employee s absence as out on disability. Stipulating to a permanent partial impairment May not be able to challenge the permanency later May create a regarded as disabled situation

46 Overlapping leave - classifications Taking FMLA leave for a serious health condition does not indicate the employee has a disability. However, a serious health condition may persist and be so restricting that it limits a major life activity, triggering ADA protections. An on-the-job compensable injury may be a serious health condition implicating FMLA or OFLA. The condition may also qualify as a disability under the ADA. Cautionary note: The exclusive remedy provided by workers compensation law does not preclude an employee from filing claims under the ADA or FMLA.

47 Designating Leave WC No requirements ADA no statutory req ts but good practice is to inform employee in writing that leave is being provided as a reasonable accommodation FMLA Designation notice required OFLA No required forms, but employer can use FMLA designation form. Employer must notify employee when use of paid leave is required and provide notice that leave is OFLA qualifying prior to commencement of anticipated leave or two days of the notice of emergency leave.

48 Medical Certification WC At end of disabling claim, insurer will obtain a closing exam indicating whether employee can return to work and extent of impairment ADA Fitness for duty exam permitted to determine whether employee can perform essential job functions FMLA Employer may require a medical certification; must use DOL form; may obtain fitness for duty for employee on leave for own medical condition (not for parental leave and only after 4 th occurrence in Oregon for sick child leave) OFLA Same as FMLA, but no specific form required

49 Insurance Benefits during Leave WC Employer must provide coverage pending acceptance or denial; if claim denied, coverage must continue; if accepted, FMLA/OFLA insurance rules apply. ADA Employer must treat ADA qualified employee consistent with other employees on leave, and must comply with FMLA/OFLA until those leaves are extinguished FMLA Employer must maintain coverage during leave employer must continue to pay its share, and employee may be required to pay their share. OFLA Employer is not required to maintain insurance during leave

50 Alternative: Light or modified duty Employer may want to offer light or modified duty to injured workers to save on costs. ADA: does not require an employer to accommodate a worker with a disability by creating a new light duty or modified duty position, but job restructuring may be required under the ADA as a reasonable accommodation. FMLA/OFLA: worker might be entitled to intermittent leave. Employer is not permitted to require employee to take light or modified duty in lieu of FMLA/OFLA leave. if an employee refuses a light duty offer while on workers compensation leave and the employee s injury qualifies as a serious health condition, OFLA leave for the employee will automatically commence.

51 Light or modified duty, continued Creating light duty or modified duty positions can create significant issues unless the employer takes special precautions: The employer should let the employee know that it is willing to create a light duty position even though the employer is not required to do so. The employer should inform the employee that it is doing this for the sole purpose of keeping down the employer s workers compensation costs. The employer should make clear to the employee that it is, in fact, eliminating essential job functions. The length of the light duty position should be for a specified period of generally short duration. The employer should reserve its right to reassess the situation if it is not working out and abolish the light duty position (i.e., put back the essential job functions) at any time with or without prior notice to the employee.

52 Overlap of reinstatement laws Employee who loses reinstatement or re-employment rights under workers comp rules may still have reinstatement rights under FMLA/OFLA at end of 12- week leave period Employee who exhausts FMLA/OFLA leave while out on workers comp absence still may have reinstatement rights for up to three (3) years under workers comp law ADA does not include reinstatement rights per se but requires reasonable accommodation of qualified individuals with a disabilities which could include leave without pay that extends beyond the 12 weeks of FMLA/OFLA leave or period of workers comp time-loss

53 Retaliation One word regarding retaliation DON T! Prohibition against retaliation is every bit as protected under the law as actual discrimination. Frequent cases where employer is found not to have engaged in unlawful discrimination but is found liable for retaliation against the employee Includes retaliation by supervisors, managers, and co-workers Essential elements are: Protected activity, adverse action, and a connection between the two ( causation )

54 Retaliation practical steps Attitude adjustment Supervisors and management must lead and set the tone. Don t make derogatory remarks about the employee. e.g. gimpy, whiner, slacker Be respectful of employee s legal right to complain. Even if employee s complaint is not factual, it is almost always protected. Seek an independent opinion with experienced counsel before taking an adverse employment action especially one that is close in time to the employee s protected activity Have an anti-retaliation statement in your harassment/ discrimination policies Train supervisors

55 Checklist for overlapping leave laws 1. Review eligibility requirements to determine whether employer is covered 2. Review employee s eligibility for benefits & protections 3. Analyze whether reason for absence qualifies employee under various laws (e.g. compensable claim for WC or disability for ADA or serious health condition for FMLA/OFLA) 1. For ADA, analysis involves whether employee is entitled to reasonable accommodation 4. If overlapping laws apply, determine which law grants most generous leave entitlement 5. Ensure that notice obligations and medical certification requirements are followed 6. Determine benefits and seniority issues 7. Determine reinstatement or reemployment rights/accommodation issues 8. Don t take any adverse employment action without considering all of the above

56 Common Pitfalls Some disabilities under ADA are not serious health conditions under FMLA/OFLA Temporary or part time employees who may not have FMLA/OFLA leave entitlement may be entitled to leave as ADA accommodation Don t act too soon, e.g., terminating employee because you think they will not be able to return to work before their 12 weeks has run

57 Hypotheticals Sue U. Soone works as a framer for a construction company, Weir N. Trouble, Inc. Sue is right-handed. In her job, Sue frequently lifts more than 25 pounds and frequently uses her right hand and arm. No. 1 On April 2, 2012, Sue falls down stairs at a job site and breaks her left arm. She needs to go to the doctor to have her arm re-set and casted.

58 No. 2 Hypotheticals Same as #1 except Sue breaks her right arm. Casted and can return to work within a week Right arm permanently impaired Sue can no longer use a hammer but maybe can use a nail gun with her left hand?

59 Hypotheticals No. 3 One week after Sue s right arm is re-set and casted, she develops a systemic infection which will require a one-week hospital stay, additional two weeks off work and ongoing antibiotic treatments.

60 No. 4 Hypotheticals While out on leave for her arm, Sue develops bronchitis which severely inhibits her ability to breathe. As the month goes by, it is determined that Sue s bronchitis is chronic and will likely last for an indefinite period of time.

61 Hypotheticals No. 5 While out on leave for her arm, Sue decides to take advantage of her time off and goes to Palm Springs for a week. While there, she develops severe sunburn.

62 Hypotheticals No. 6 Sue gets through all of this. Her employer, however, is now irritated with Sue, who was a slacker to begin with, since Sue has cost the company a lot of money. Her supervisor, Noah Sensitivity, wants to fire Sue can Sue (legally) be fired? What if Noah tells some co-workers: I m really tired of that crip and all the problems she has caused this company. A week later, Noah brings Sue into his office and fires her for unauthorized leave? How about when, two weeks after she comes back to work, Sue wrecks her third company vehicle in the past six months and fails to report the accident to Noah?

63 ????? Questions??????

64 Thank you! Contact us with any questions Mark Amberg John Rake