Transcript Lewis & Clark County

Employee Health/Medical
Complaints
Decipher the ADAAA, FMLA
and WC Puzzle
Puiggari Consulting
December 2010
(505) 690-4052
Statutes
• Americans With Disabilities Act and
Amendments
• Family Medical Leave Act (And USERRA)
• Workers Compensation Act
2
ISSUE
• Each Statute involves medical
issues
• Each Statute requires actions by
the employer
• Each Statute has different
requirements
3
Separate the Analysis
Many scenarios arise in which all three
statutes may need to be applied
However, the scope and application of each
statute is widely divergent
4
Separate the Analysis
Each law:
• Was enacted for different purposes and
apply to different levels of illnesses and
injuries
• Is applicable to different categories of
employers and employees
• Has different requirements for bringing a
claim
Must Do Separate Analysis
5
• In General the ADAAA and WC statutes
contain requirements much broader than
the FMLA
– Ex. ADAAA can require reasonable
accommodation. One form of reasonable
accommodation can be paid or unpaid leave.
FMLA only addresses unpaid leave
• In MT, there is no state FMLA but there is
very liberal leave and accommodation
provisions for pregnancy
6
All 3 Statutes in Play
• The only time all 3 statutes are implicated
is when employee is injured on the job and
requests some sort of leave
7
WHEN TO SIT UP AND TAKE
NOTICE
• Whenever an employee’s ( or immediate
family member’s) medical condition
becomes an issue in his or her ability to
perform the job
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STEPS
•
•
•
•
Determine which of these laws applies (even if
the employee does not mention any of them
when requesting leave)
Examine each law to determine if applicable
For applicable law determine type and amount
of leave
Examine each law to determine any other
rights employee may have or obligation
employer may have
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Conflict Between Statutes
• ALWAYS APPLY LAW AND PROVISION
THAT GIVES GREATER RIGHT TO
EMPLOYEE
• To separate issues, there needs to be
understanding of what each law requires
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WHAT TO DO!!!
• If the employee mentions medical issue:
– GET MATTER TO HR AS SOON AS POSSIBLE
– KEEP INFORMATION CONFIDENTIAL
These issues are complicated.
Don’t judge seriousness yourself.
Let HR do the job they are supposed to do.
Don’t assume person is not “really” injured/disabled
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Overview of Each Law
FMLA-Federal (50 or more)
• FMLA provides up to 12 weeks of unpaid
leave during any 12 month period for:
– Birth or adoption of child (includes foster care)
– Employee’s care of spouse, child, or parent
with “serious medical condition”
– Employee’s inability to perform one or more
essential function of the job due to “serious
medical condition” * (determined by health
care provider)
* This same as ADAAA requirement. ESSENTIAL THAT THERE BE
GOOD JOB DESCRIPTIONS THAT ENUNCIATE ESSENTIAL
FUNCTIONS OF JOB
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Other Provisions
• Employer must maintain employees health
insurance
• Employer must restore employee to original or
virtually identical job (terms of pay, benefits and
other terms and conditions)
• Employees cannot loose any seniority for time
they are on leave
• Applies to employers that have 50 or more
employees in 75 miles, employees must have
been employed for 12 months and worked 1250
hours prior to request for leave.
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Serious Medical Condition
• In Patient Care (hospitalized)
• Illness keeps employee out for 3 or more days if
treated at least twice by a health care
professional during the 3 day period—or one
visit but requires continuing treatment
• Permanent long term problem supervised by
physician where there is no effective treatment
(severe stroke, alzheimer’s)
• Incapacity due to pregnancy or childbirth
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FMLA LEAVE
FMLA LEAVE:
– Continuous
– Intermittent (due to single qualifying reason)
• If full attendance necessary for job may transfer
person to other position temporarily which better
suits reduced hours (ex. Litigation paralegal)
– Part-time employees entitled to proportionate
share
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FMLA reinstatement
3 Exceptions:
1. Employee would have been terminated anyway
had they not been on leave
2. Key Employees (must be given leave but can be
returned to different job even one with less
pay)
Must notify employee (when first receive request) you
consider them to be Key employee and why.
3.Employee tells employer they do not intend to
return to work after leave.
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Employer Obligations
• Provide poster with notice to employees of
rights
• Must have same information in employee
handbook or give to new employees upon
hire
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Necessary Forms/Notice
•
If employee qualifies for FMLA
– Employer must:
• Send employee letter designating time off as FMLA leave
– http://www.dol.gov/whd/regs/compliance/whdfs28d.pdf
– Within 5 business days of ee request or er designation
– Inform ee of eligibility status
– If not eligible must say why
• Provide Employee notice of their rights and responsibilities
• Get medical certification
– http://www.dol.gov/whd/forms/WH-380-F.pdf
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Rights and Responsibilities
• Notice must be in writing and include:
– Leave may be counted as FMLA
– How the 12 months is counted
– Any requirement certification is necessary and consequences of
not providing it
– Ee’s rights and er’s requirement of use of paid leave; and right to
unpaid leave
– Instructions for payment of health insurance premium if ee does
not return after 12 weeks
– Notice of designation of key employee
– Ee’s right to job restoration and maintenance of benefits
See: http://www.dol.gov/whd/regs/compliance/whdfs28d.pdf
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FMLA Health Care Certification
Employer can send certification to health care provider
listing essential functions and asking them to certify
person can or can not do those functions.
A note saying person is excused from work for
___number of days is not sufficient and does not
have to be accepted.
Employees obligation under FMLA to have doctor
provide the necessary information
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FMLA
• Employer may not require worker to accept light duty job
• Employer may not require employee to accept
“modification or accommodation” instead of light duty
• Employer can require paid leave run concurrently with
FMLA leave and must be taken. However, employee
must be notified of this in advance.
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Military
• Enhanced leave
• USERRA
• Get Help
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MT Pregnancy Leave
•
49-2-310. Maternity leave -- unlawful acts of employers. It is unlawful for an employer or an
employer's agent to:
(1) terminate a woman's employment because of the woman's pregnancy;
(2) refuse to grant to the employee a reasonable leave of absence for the pregnancy;
(3) deny to the employee who is disabled as a result of pregnancy any compensation to
which the employee is entitled as a result of the accumulation of disability or leave benefits
accrued pursuant to plans maintained by the employer, provided that the employer may
require disability as a result of pregnancy to be verified by medical certification that the
employee is not able to perform employment duties; or
(4) require that an employee take a mandatory maternity leave for an unreasonable
length of time.
•
KEY POINTS: Because a woman is pregnant: can’t terminate, can’t refuse
“REASONABLE” leave of absence, deny any other accommodation they are entitled to,
can’t require employee to mandatory leave for unreasonable length of time; CAN ask for
medical certification employee can’t perform job duties.
•
What is unreasonable length of time, what is reasonable leave of absence.
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Pregnancy Leave cont’d
49-2-311. Reinstatement to job following pregnancy-related
leave of absence. Upon signifying an intent to return at the
end of a pregnancy-related leave of absence, the employee
must be reinstated to the employee's original job or to an
equivalent position with equivalent pay and accumulated
seniority, retirement, fringe benefits, and other service credits
unless, in the case of a private employer, the employer's
circumstances have so changed as to make it impossible or
unreasonable to do so.
– KEY POINTS: Employee must indicate to employer in some way
they intend to return to work. Then employer must reinstate in
original or equivalent job. Equivalent means equivalent.
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Breast Feeding
• Mandated time for employee
– Both Federal and State law
• Necessary Time-Unpaid
• Private place: Not bathroom
– Shielded from view and intrusion
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USERRA
• 38 U.S.C. 4301 et. seq
– Provides Enhanced leave rights AND job
protections for employees absent/injured for
military duty
– Prohibits discrimination in employment and
retaliation against any person who was, is, or
applies to be a member of a uniformed
service or who performs or has an obligation
to perform service in a uniformed service
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• Leave of absence for up to 5 years if
absent because of service (how this is
counted is complicated)
• Must reinstate returning veteran to the
position they would have held if his
employment had not been interrupted by
military service
• Applies to all employers regardless of size
• Applies to all employees regardless of
length of service
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• Service includes training, active or inactive,
voluntary or involuntary and any absence
required to ascertain if the person is fit for duty
• Notice by employee is required unless
circumstances make it unreasonable
• Employer does not pay employee while gone
• Employee must be allowed to elect to pay for
health benefits while gone
• Entitled to all benefits would have had if
continuously employed (so 5 years accrued
vacation)
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ADAAA
Prohibits Employers from discriminating against employees
or applicants on the basis of :
– Existing disabilities
– Record of a disability or
– Regarded has having a disability
Requires employers to “reasonably accommodate” a
qualified individual with a disability so the employee
can perform the essential functions* of the job, unless
such accommodation would create an undue
hardship for the employer or threaten the health and
safety of other individuals.
* There is that term again…..
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Definition-Disability
An individual with a disability is a person who:
a. Has a physical or mental impairment that substantially limits one or more
major life activities;
b. Has a record of such an impairment; or
c. Is regarded as having such an impairment.
The Amendments Act did not change the actual definition of disability – the
definition is exactly the same as it was. What did change is the meaning of
some of the words used in the definition and the way those words are to be
applied to individuals.
• The Amendments Act emphasizes the definition of disability should
be construed in favor of broad coverage of individuals to the
maximum extent permitted by the terms of the ADA.
• The effect is to make it easier for an individual seeking
protection under the ADA to establish that he or she has a
disability within the meaning of the ADA
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Amendments
The Amendments Act:
a. Directs the EEOC to revise that portion of its regulations defining the term
"substantially limits". The Act clarifies an impairment need not prevent, or significantly
or severely restrict, performance of a major life activity to be substantially limiting;
b. Expands the definition of "major life activities" by including two non-exhaustive lists:
1. the first list includes many activities that the EEOC has recognized (e.g., walking)
as well as activities that EEOC has not specifically recognized (e.g., reading,
bending, and communicating);
2. the second list includes major bodily functions (e.g., "functions of the immune
system, normal cell growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions");
c. states that mitigating measures other than "ordinary eyeglasses or contact lenses"
shall not be considered in assessing whether an individual has a disability;
d. clarifies that an impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active; (cancer)
e. changes the definition of "regarded as" so that it no longer requires a showing that the
employer perceived the individual to be substantially limited in a major life activity, and
instead says that an applicant or employee is "regarded as" disabled if he or she is
subject to an action prohibited by the ADA (e.g., failure to hire or termination) based
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on an impairment that is not transitory and minor;
Reasonable Accommodation
• Employers must offer reasonable accommodation that
will allow employee to perform essential functions of job
– Essential functions of job are those that are reason
for jobs existence, cannot be reassigned (require
special knowledge) ; attendance always essential
function
• Reasonable accommodation is not necessarily what
employee requests
• Must engage in interactive process
• Undue hardship: financial resources of co. not sufficientimpact on operation of facility and other employees
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Interactive Process
• The ADA requires covered employers to make reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or
employee.
• The interactive process is the dialogue between the employer and
employee with the objective of finding such an accommodation, a
means by which a disabled employee can perform the essential
functions of a job in the employer's workplace.
• The ADA requires the employer to interact with the disabled
individual to make an accommodation for those limitations. Further,
the interactive process requires the employer to engage in a form of
individualized bargaining with the employee.
1
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Reasonable Accommodation
• Employers must offer reasonable accommodation that
will allow employee to perform essential functions of job
– Essential functions of job are those that are reason
for jobs existence, cannot be reassigned (require
special knowledge) ; attendance always essential
function
• Reasonable accommodation is not necessarily what
employee requests
• Must engage in interactive process
• Undue hardship: financial resources of co. not sufficientimpact on operation of facility and other employees
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EEOC Definition
• The EEOC,, defines the interactive process as :
"an informal, interactive process . . . [to] identify the precise
limitations resulting from the disability and potential
reasonable accommodations that could overcome those
limitations.”
• The EEOC's interpretive guidelines state: "Once a
qualified individual with a disability has requested
provision of a reasonable accommodation, the employer
must make a reasonable effort to determine the
appropriate accommodation. The appropriate reasonable
accommodation is best determined through a flexible,
interactive process that involves both the employer and
the [employee] with a disability."
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EEOC’s 4 Steps-Interactive Process
(1) Analyze the particular job involved and determine its purpose and
essential functions;
(2) Consult with the [disabled] individual . . . to ascertain the precise
job-related limitations imposed by the . . . disability and how those
limitations could be overcome with a reasonable accommodation;
(3) In consultation with the [disabled] individual . . . identify potential
accommodations and assess the effectiveness each would have in
enabling the individual to perform the essential functions of the
position; and
(4) Consider the preference of the [disabled] individual . . . and select
and implement the accommodation that is most appropriate for both
the employee and the employer.
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•
•
•
•
both the employer and the employee have the responsibility of making the
process interactive and productive. "[T]he employer and employee must
work together in good faith to help each other determine what
accommodation is necessary.” The responsibility to enter into the process
is shared because "each party has information the other does not have and
cannot easily obtain.“
The employer may ask the individual relevant questions that will enable it to
make an informed decision about the request. This includes asking what
type of reasonable accommodation is needed.(25)
The exact nature of the dialogue will vary. In many instances, both the
disability and the type of accommodation required will be obvious, and thus
there may be little or no need to engage in any discussion. In other
situations, the employer may need to ask questions concerning the nature
of the disability and the individual's functional limitations in order to identify
an effective accommodation. While the individual with a disability does not
have to be able to specify the precise accommodation, s/he does need to
describe the problems posed by the workplace barrier.
there are extensive public and private resources to help the employer
identify reasonable accommodations once the specific limitations and
workplace barriers have been ascertained.
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Medical Certification
– ADA prohibits any pre-employment medical
examinations or inquiries about disability
– Can make job offer contingent on post offer
medical examination (all individuals in that job
category are required to have one, and
examination is job related)
– If employee requests accommodation can
send essential functions of job to Dr. and ask
what employee can and cannot do without
accommodation and what employee needs to
be able to do essential functions.
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Don’t do….
Do not say things that suggest employee has disability
After someone is injured don’t say:
– well I don’t see how you are going to lift anything
now….
– maybe you should apply for disability under our
insurance policy
– your doctor may have released you to work but I
don’t think it is safe for you do this kind of work now.
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Example Case
• You have a disabled employee that has an
assistance dog, and she has worked for you for
5 years. She is a good employee with good
evaluations. She doesn’t need any other
accommodations except her dog. One day the
employee comes to you and says her dog is
getting older and slips on the linoleum floors of
the office building. She believes the dog will be
hurt by this eventually. She would like an
accommodation.
• What do you do?
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Workers Compensation
• Applies to all employers
• Must be work related injury (employee cannot
perform job either temporarily or permanently)
• Provides wages and medical care
• Impairment/injury (what is wrong with person
after MMI by Dr.) under Act is not necessarily a
serious medical condition under ADAAA
• MMI is the date after which further recovery can
no longer be anticipated
• Employer does not have to continue to
employee worker that cannot perform job
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WC Cont’d
• Not required to offer accommodation
• Most employers offer light duty—insurance
reasons
• If terminated once employee is recovered,
if job opening similar to pre injury job must
hire that employee
• IME: if dispute regarding extent of
employee’s injury—if employee refuses
IME forfeits benefits (for period of refusal)
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Goal Difference between ADA,
WC and FMLA
• WC gives medical treatment and wages to
injured workers (does not require they
work)-enforced by state
• ADA designed to get employees to work
by requiring employers to give
accommodations to allow them to work
• FMLA goal of ensuring employees can
return to jobs after taking time off for own
or family members health condition
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Interaction of Laws
• Remember an employee with a disability/injury as
defined by WC may not have disability as defined by
ADA (temporary, not long term etc) and an employee
eligible for FMLA may not have a disability as defined by
the ADA.
• To request an accommodation the employee need not
use those words…they may just ask for a change in
schedule or what they are doing
• Look at the situation and analysis under each law: Make
sure to do this at every stage…including when employee
returns to work from WC or FMLA leave…now are they
disabled under ADA and need accommodation?
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ADA
Ability
to
Request
Medical
Informat
ion
Health
Benefits
WC
FMLA
Yes
If employee asks for accommodation
If employee needs extended leave (past WC or
FMLA).
If disability not obvious to see if employee
disabled.
To see if employee needs accommodation.
To see if certain accommodation will work and
permit employee to perform job.
Can require employee to submit medical excuses
for all absences.
Can require IME to see if can perform essential
functions or to ascertain type of accommodation
or to see if employee poses “DIRECT THREAT” to
themselves or others (employer pays for exam)
If employee refuses generally will defeat ADA claim
Yes
Yes. Will get Drs. Notes for WC
DOL form
information. Also can request
Get certification at start to
IME from employer doctor .
see if there is serious medical
Employee must cooperate or
condition
benefits cut off during time they Recertification every 30 days
do not comply.
Can require IME –employer
Can also ask doctor if employee pays for examination
can perform essential functions
of position upon release to
return to work. (if not look to
ADA. If not disabled then
employer can terminate)
Not required to maintain if employee on leave
Must maintain while employee
on WC leave
Required to maintain while
employee on FMLA leave. No
need to maintain other
benefits
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ADA
Notice
Leave
WC
Employee obligation to request accommodation
However, if employer suspects (FMLA,WC etc)
don’t wait.
Engage in INTERACTIVE PROCESS!!!—
* MOST TRICKY: employee out on WC or FMLA
leave and returns—may be subject to ADA
protection and may need reasonable
accommodation—may ask indirectly (I need to be
excused from typing, I would like to work less
hours etc.). Need to assume this is request for
accommodation and inform HR.
1st report of injury must be
submitted by employee. If
employer aware of injury
ensure it is done
Accommodation can be time off, working parttime, etc.
Any time off can be unpaid.
Analyze under both ADA and FMLA; employee
gets greater benefits.
If FMLA and WC time off exhausted, additional
leave can be reasonable accommodation (if
condition is disability). There is no limit to
amount of leave that can be “reasonable”. Do
not need to give additional leave or can stop
leave when it becomes undue hardship (look at
needs of business, cost, can you fill in position
with someone else etc).
WC leave per statute
FMLA
Employee obligation to request
leave 30 days in advance if
doable.
Employer can designate leave
as FMLA if tells employee
doing so in advance (if leave
qualifies) and should do so.
If employee only asks for FMLA
ensure they understand
employer may need to look at
ADA also in future-if after 12
weeks still have condition
(then ADA interactive process
if condition is disability)
Limit 12 weeks: can be done all
at once, or in blocks or
intermittent. If not at all at
once very important to keep
records. No requirement to
give beyond 12 weeks
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Other
Position
Return to
Work
If exhausted leave under FMLA and WC and it is
disability employer can give more leave as
reasonable accommodation.
If employee cannot do former job anymore if
Employer has equivalent position and employee
can be reassigned without undue hardship, this is
reasonable accommodation. If there is no
equivalent position, but lesser one and employee
will accept it then Employer must reassign
employee. Employer is not required to create light
duty position.
Employer can ask for medical certification (and
information) from physician to ascertain whether
or not condition is disability.
If WC injury, or FMLA and then disability, must
accommodate
Can only refuse to accommodate (return to work)
if employee cannot do essential functions of prior
job, if there is no other position that can be
accommodation or if the employee is a direct
threat to themselves or others.
Can create light duty positionsbut not required. This helps
with WC insurance
No
Employer decides, based on
medical information from
doctor, when employee needs
to return. No need to consider
ADA if condition not disability
(short term, resolved etc.). If
there is continuing condition
see if it is disability under ADA.
Return to same job under WC
(unless accommodation under
ADA), only if recovered and job
available
After 12 weeks return to
original job or virtually identical
(pay, benefits, T& C of job). IF
can’t perform essential
functions of job then see if it is
disability under ADA and you
must offer accommodation.
Don’t have to reinstate key
employee.
Key employee: has statutory
definition but typically is person
co. cannot function without and
can’t be replaced by temporary
person
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Fitness for Duty
ADA
WC
FMLA
IF WC injury that is disability and do fitness for duty
evaluation only for essential functions of job if employer
reasonably believes employee’s injury impairs ability to
perform essential functions
Can ask for fitness for duty if employer thinks employees
disability direct threat to themselves or others and if only
related to job’s essential functions.
IF employee cannot perform essential functions then
must see if accommodation
Doctor’s evaluation must be accepted.
Employer can contact health care
provider, see medical records, ask
for IME.
Can send fitness for duty
certifications listing essential
functions and have medical
provider certify employee can do
them.
Can demand physical examination
to determine if employee capable
of performing essential functions
of job but can only relate to
medical condition took leave for
or that resulted in WC injury.
Note from health care provider
must be accepted by Employer. So
if not just says “employee can
return to work” you cannot
question that (don’t assume they
can’t or then violate ADA—
regarded as disability). Cannot
request more details or further
medical evaluation.
Can’t contact health care provider
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Yes. Employer must offer reasonable accommodation.
No. If injury is disability then see
Employee must request reasonable accommodation:
if ADA applies
need not be direct request or use of those words.
If employer suspects there is a disability (disability not
obvious) can request medical certification or can ask
employee if they need an accommodation.
If employer knows there is disability use interactive
process. Ask employee if they need accommodation.
If employee asks for accommodation, employer can ask
for medical information to establish if disability, what
Reasonable
kind and if the accommodation would permit employee
Accommodati
to perform essential job functions. Employer can get
on
copies of medical records.
Ex. Secretary to two litigation lawyers asks for relief from
typing. This essential function—get medical certification,
designate as FMLA leave if give time, if carpal tunnel
because of work then WC also.
Reasonable accommodations can include; leave (full or
part time), reduced hours, job restructuring. USE JAN
(JOB ACCOMMODATION NETWORK).
Yes but make sure employee cannot perform essential
functions of job, with or without reasonable
accommodation (so only if not other position, can’t
restructure job etc), or it would be undue hardship and
the employee has exhausted all absences allowed under
leave policies.
Termination
Yes. Can be terminated if have
policy that employees with
injuries that cannot come back to
original job within ___ days (i.e.
cannot perform essential
functions of job) will be
terminated and co. applies policy
consistently. Also must apply to
all employees—not just those
with WC injuries. Also employee
must have exhausted WC leave.
No.
Yes. Leave expired and employee
cannot return to former job
because cannot perform essential
functions. If condition is disability
then look at ADA
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NOTES:
•All medical information must be kept in separate file (from personnel file)
and kept locked
•Supervisors should not have unlimited access to medical information but
only told what they need to know.
•RESOURCES:
www.eeoc.gov
•http://askjan.org
•http://erd.dli.mt.gov/human-rights/employer-resources.html
•http://www.dol.gov/whd/fmla/
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