Transcript The Workplace quagmire - Gulf Coast Human Resource Association

HUMAN RESOURCE SYMPOSIUM
GULF COAST HUMAN RESOURCE ASSOCIATION
SEPTEMBER 20, 2013
THE WORKPLACE QUAGMIRE:
UPDATES ON THE RELATIONSHIP
BETWEEN THE ADA, FMLA,
AND WORKER’S COMPENSATION
PRESENTED BY:
KARL R. STEINBERGER
HEIDELBERG, STEINBERGER, COLMER, & BURROW, P.A.
711 DELMAS AVENUE
POST OFFICE BOX 1407
PASCAGOULA, MS 39568-1407
TELEPHONE: 228-762-8021
FACSIMILE: 228-762-7589
WWW.HSCBPA.COM
THE WORKPLACE QUAGMIRE:
UPDATES ON THE RELATIONSHIP
BETWEEN THE ADA, FMLA, AND
WORKERS’ COMPENSATION
Presented by Karl R. Steinberger
Highlights of Recent Changes

ADA
 ADA
passed in 1990
 Applies to employers with 15 or more employees, state and
local governments
 Prohibits discrimination on the basis of disability.
 Disability defined:
 Physical
or mental impairment that substantially limits one or more
major life activity (“actual disability”)
 A record of such an impairment (“record of disability”)
 Is regarded by the employer as having such an impairment
(“regarded as “disabled””)
Highlights of Recent Changes

ADA
 Requires
employers to provide a “reasonable
accommodation” to an otherwise qualified individual with a
disability unless the accommodation would impose an undue
hardship
 A reasonable accommodation can include modifying existing
facilities, job restructuring and many other options
 Employers are encouraged to initiate an informal interactive
process
Highlights of Recent Changes

ADA
 “Disability”
has historically been strictly construed by
the courts which led to the ADA Amendments Act of
2008
Highlights of Recent Changes

ADAAA
 Became
effective on January 1, 2009
 Focus
is now on whether the employer is complying with
its obligations rather than strict interpretation of
disability
 The
amendments are not retroactive
Key Changes Under the ADAAA

ADAAA
 “Disability”
is to be broadly construed
 “Substantially
 The
limits” is a lower threshold
listing of “major life activities” is expanded
 Mitigating measures are of no relevance with the
exception of eyeglasses and contact lenses
 A condition that is in remission or episodic may still be a
disability
Key Changes Under the ADAAA

ADAAA

“Regarded as” is expanded

Clarifies that employers are not required to provide
a reasonable accommodation to an individual who is
solely “regarded as” having a disability
What are we seeing as a result?
 Fewer
 Huge
 FY
cases dismissed on summary judgment
increase in charges filed with the EEOC
2008 – 19,453 charges alleging disability discrimination
 FY 2012 – 26,379 charges alleging disability discrimination
FMLA


Applies to private employers with 50+ employees
within a 75 mile radius, public agencies, and private
or public elementary and secondary schools
Eligible employees must have worked for the
employer for at least 12 months and 1250 hours
within those 12 months
FMLA

Provides up to 12 weeks of unpaid leave for
certain events, including, but not limited to, an
employee’s own serious health condition.
 The
scope of this presentation is limited to the
employee’s own serious health condition
Recent Changes

DOL issued final rule effective March 8, 2013

Many changes affect other leaves under the FMLA

There are a few changes which impact leave for an
employee’s own serious health condition
Recent Changes




Employers may not require employees to take more
leave than necessary
Employers must track leave in the smallest increment
of time that is used for other types of leave and
may not exceed one hour
Airline employees have special hours of service
requirements due to their unique schedules
Recordkeeping requirements must comply with
GINA confidentiality provisions
Workers’ Compensation




Employers with 5 or more employees are required
to be insured
For claims arising prior to July 1, 2012, disputed
issues are resolved in favor of the claimant
After July 1, 2012, the parties are on equal footing
and the Act is not liberally construed in favor of
either party
Regardless, a claimant must prove the claim by a
fair preponderance of the evidence
Interplay Between the ADA, FMLA, and
Workers’ Compensation
The importance of understanding the interaction of
these three statutory schemes cannot be stressed
enough. Even though each law serves a different
purpose, many employee absences that are illness or
injury related are covered by one or more of these
statutes. Employers can face significant violations for
non-compliance.
Areas of Interplay









Employer Coverage
Employee Eligibility
Length of Leave
Medical Documentation
Restricted or Light Duty
Fitness to Return to Work Certification
Benefits
Reinstatement
Settlements and Releases
Employer Coverage/
Employee Eligibility

ADA
Enforced by the EEOC
 Applies to employers with 15 or more employees
 Coverage begins on the first day of employment
 Protects qualified individuals with a disability

Qualified individuals are those who can perform the essential
functions of the job with or without an accommodation.
 “Disability” is a physical or mental impairment that substantially
limits a major life activity. Individuals are protected if they have
a disability, have a record of a disability, or are regarded as
having a disability.

Employer Coverage/
Employee Eligibility

FMLA
 Enforced
by the Department of Labor
 Applies to employers with 50 or more employees within
a 75 mile radius
 An employee must have worked for 12 months (need
not be consecutive) and 1250 hours (immediately
preceding)
 Leave is available for several reasons, including an
employee’s own serious health condition
Employer Coverage/
Employee Eligibility

Workers’ Compensation
 Mississippi
law requires employers with 5 or more
employees to carry workers’ compensation insurance
 Coverage begins on the first day of employment
 The Act protects employees who are injured on the job
 Employees can be compensated for lost wages, medical
bills, and necessary travel
 Enforced by the Mississippi Workers’ Compensation
Commission
Length of Leave

ADA
 Leave
can be a reasonable accommodation if it is not
an undue hardship
 Can also include reduced or part-time schedules or
intermittent leave
 No specific length is required
 An indefinite leave is likely to be considered an undue
hardship
 Additional leave under the ADA should be closely
analyzed after FMLA has expired
Length of Leave

FMLA
 An
eligible employee is entitled to 12 weeks of FMLA
leave within a 12 month period for their own serious
health condition
 The 12 month period can be measured by calendar
year, rolling year measured backward, or rolling year
measured forward
 Leave can be intermittent or one block of time
Length of Leave

Workers’ Compensation
 The
Act limits paid compensation to 450 weeks of
temporary disability and 450 weeks of permanent
disability, subject to a maximum of 450 times 66 2/3%
of the average weekly wage of all workers in
Mississippi.
 The amount of time an employee can be out of work
without compensation is not set by statute.
Medical Documentation

ADA
 Examinations
and inquiries must be job related
 Must
be limited to determining whether the employee
can perform the job with or without an accommodation
 Employer
can seek medical advice regarding potential
accommodations
Medical Documentation

FMLA
 An
employee seeking FMLA leave or whose leave may
be covered by FMLA must be given certification
paperwork
 Employee has 15 days to return the paperwork
 Employer may request follow up information if
necessary
 Second opinions are available
 Third opinions available if first two are conflicting
Medical Documentation

Workers’ Compensation
Injured employee must establish each element of the claim
 Medical evidence usually necessary to establish the causal
relationship
 Medical records are submitted in compensable claims for
consideration of payment
 Medical records are limited to the work related injury
 Employer/carrier can require employee to submit to
examination by employer selected physician (EME)
 Commission can require a third opinion (IME)

Restricted or Light Duty

ADA
 Restricted
or light duty can be a reasonable
accommodation

FMLA
 Cannot

be required under the FMLA
Workers’ Compensation
 Consider
offering light duty if available so as to reduce
or end benefits
Fitness to Return to Work Certification

ADA
 An
employer can require an employee to submit to a
return to work examination if it is job related and
necessary to determine whether the employee can
perform the essential functions of the position
Fitness to Return to Work Certification

FMLA
 Return
to work examinations are allowed if the
employer has a policy or practice that requires
employees who have been on similar leaves to undergo
these examinations
Fitness to Return to Work Certifications

Workers’ Compensation
 Employers
routinely require employees who have had a
workers’ compensation claim to submit a “fit for duty”
release from the treating physician as a condition of
the employee returning to work
Status of Benefits While on Leave

ADA
 No
specific provisions covering the maintenance of
benefits
 An
employer cannot discriminate and must provide the
same benefits that employees on non-ADA leaves
receive
Status of Benefits While on Leave

FMLA
 Health
benefits must be maintained at the same level
as prior to the FMLA leave
 Other
benefits should be offered on the same basis as
other employees on leave that is not covered by FMLA
would receive
Status of Benefits While on Leave

Workers’ Compensation
 There
is no separate requirement under the Act that an
employee receive benefits
Rights to Reinstatement

ADA
 An
employee who has been on leave as a reasonable
accommodation should be reinstated to his/her previous
position unless doing so poses an undue hardship
Rights to Reinstatement

FMLA
 Employees
must generally be reinstated to the same or
equivalent position
 There are a few exceptions such as key employees or
employees who would have been laid off during the
leave
 Once an employee’s leave has expired, the employee
must return to work or reinstatement is not required
 Employee may still be entitled to a reasonable
accommodation under the ADA
Rights to Reinstatement

Workers’ Compensation
 Mississippi
law does not require reinstatement of
employees who have been on workers’ compensation
leave
 Be aware that if an employer refuses to
reinstate/rehire an injured worker who has attained
MMI, there is a rebuttable presumption of total
disability
Settlements and Releases

ADA
 Do
not include a provision prohibiting an employee
from filing charges of discrimination
 Include
an explicit waiver of attorneys’ fees
 Include
a non-admission of liability provision
 Specify
that the employee is not the prevailing party
Settlements and Releases

FMLA
 Only
past claims can be settled and released
 Prospective
 Be
claims cannot be waived
sure to include potential past FMLA claims in global
releases due to the availability of attorneys’ fees
Settlements and Releases

Workers’ Compensation
 Claims
can only be settled with approval of the
Commission
 Only
workers’ compensation claims may be settled
within this forum
Recent Cases

Henry v. United Bank, 686 F.3d 50 (1st Cir. 2012)
 Illustrates
interplay between FMLA and ADA
 Open-ended
or indefinite leave found not be a
reasonable accommodation
Recent Cases

Fleck v. Wilmac Corp., 2011 U.S. Dist. LEXIS 54039
(E.D. Pa. May 19, 2011)
 Involved
FMLA and ADA
 Interpreted ADAAA
 Summary judgment denied based on employee’s
proposed accommodations to return to work with
breaks or part-time
Recent Cases

Robert v. Board of County Commissioners, 691 F.3d
1211 (10th Cir. 2012)
 Involved
FMLA, ADA, and workers’ compensation
 Employee suffered on the job injury after returning to
work from FMLA leave
 No ADA claim since employee was not entitled to
indefinite reprieve from some essential functions of her
job as an accommodation
Recent Cases


EEEOC v. Resources for Human Development, 2012
U.S. Dist. LEXIS 26749 (E.D. La. Feb. 28, 2012)
Lowe v. American Eurocopter, LLC, 2010 U.S. Dist.
LEXIS 133343 (N.D. Miss. Dec. 16, 2010)
 Morbid
obesity can be a disability under the ADAAA
Recent Cases

Carbaugh v. Unisoft International, Inc., 2011 U.S.
Dist. LEXIS 131551 (S.D. Tex. Nov. 15, 2011)
 Applied
the ADAAA
 Employee’s
MS would be a disability when active
Recent Cases

Medvic v. Compass Sign Co., 2011 U.S. Dist. LEXIS
89275 (E.D. Pa. Aug. 10, 2011)
 Applied
ADAAA provision which disregards mitigating
measures
 Employee
who stuttered found to have a disability
Conclusion

Quagmire
A

complex and difficult situation with no easy solution
Beware of the potential pitfalls