Employee Medical Issues

1. Employee Medical Issues Puiggari Consulting Regional 2013 (505) 690-4052

2. Statutes • Americans With Disabilities Act and Amendments • Family Medical Leave Act • Workers Compensation Act • USERRA • MT Pregnancy Act

3. ISSUE • Each Statute involves medical issues • Each Statute requires actions by the employer • Each Statute has different requirements

4. Class Activity You have a no fault attendance policy. Under the policy employees accumulate absences from work regardless of the reason (excluding fmla, jury and other required exceptions). Once they exceed maximum amount employment is terminated…no questions asked. Do you see any issues? Your attendance policy requires the employee provide a medical note stating the reason the employee was absent from work. Employee did this to enable it to categorize the absence as medical or not. Do you see any issues? You have an employee that is a supervisor and one of the essential functions of the job is to perform home visits. She injures her back and the co. gives her a lot of time in addition to FMLA. She returns to work after 8 months at full duties. 2 months later employee reinjures her back. She is given more time, but states that she cannot do home visits without an accommodation. The only accommodation is relieving her of the essential function of doing home visits. what are the issues?

5. Your standard application states that a high school diploma is required to apply. Does this violated the ADA • Why or why not • Employer has a policy that requires all employees that perform hazardous duties (driving, plows, heavy machinery etc.) to report to HR if they are taking any medication that may affect their ability to safely perform their jobs. • Does this violate the ADA

6. Answers • Employers have an affirmative duty under ADA to accommodate qualified individuals with disabilities who for some reason cannot report regularly to work (unless this undue hardship) • ADA permits employers to make inquiries into the ability of an employee to perform job related functions but it prohibits employers from making inquiries as to whether such employee is an individual with a disability or as to the nature and severity of the disability unless it is job related. Because this is not inquiry under FMLA or ADA for accommodation but under attendance policy this is a violation. • The court held that the county’s willingness to excuse employee’s inability to perform site visits during a fairly lengthy but temporary period of time the prior year was not evidence that those duties were nonessential. A reasonable accommodation was not to eliminate an essential function of her job. In order to have to accommodate the ee must provide an estimated date they can resume all duties and second the leave request must ensure the essential functions can be undertaken the near future. There is no definite time but the court said 6 months was too long to be reasonable.

7. 4) It might. If the reason someone doesn’t have a HS diploma is due to a disability and there is no reason the person needs the HS diploma to do the job. If the diploma is necessary employer may need to determine if the person can still perform essential functions 5) Hazardous requirement and safely: this makes the inquiry job related and consistent with business necessity as required by the ADA. If a report is made consult with employee’s doctor as needed. In policy tell employees if they have to be on meds indefinitely you will have to assess whether they are medically qualified to continue their jobs.

8. Separate Analysis • Many scenarios arise in which all statutes may need to be applied • the scope and application of each statute is widely divergent: Enacted to address different issues • Class • FMLA d why was it enacted • ADA why was it enacted • WC what is there a WC case • USERRA Why do we need this

9. 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

10. All 3 Statutes in Play • The only time the ADA, FMLA and WC statutes are all implicated is when employee is injured on the job and requests some sort of leave

11. 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

12. 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

13. 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

14. MT HRD • http://courts.mt.gov/library/default.mcpx

15. Use MT HRD • http://erd.dli.mt.gov/human-rights/complaint-process/decisions.html

17. FMLA-Federal (50 or more)What does Employee get • 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

18. 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.

19. FMLA LEAVE • Continuous or 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 • Can Require Employee take paid accumulated leave at same time

20. Employer Issues Is it is 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 • Incapacity due to pregnancy or childbirth

21. One of Most Important Employer Tools:FMLA Health Care Certification Employer can require certification from health care provider • must give employee 15 days to obtain • lists essential functions and asks to certify person can or can not do those functions. • Can get second opinion (er pays) (if opinions differ-3rd opinion dr. approved by both ee and er) A note saying person is excused from work for ___number of days is not sufficient and does not have to be accepted.

22. Certification • Employees obligation under FMLA to have doctor provide the necessary information • Can recertify (if original says more than 30 days, if significant change in circumstances, ee requests extension) • Do not get medical records, cannot contact doctor directly (except to ask about certification). If need third opinion other doctor can call employee our doctor (with employee permission) to ask about information in certification • http://www.dol.gov/whd/forms/WH-380-F.pdf • Cannot ask for more information than is on form for FMLA (can seek additional information for purposes of workers' compensation benefits, paid disability or other paid leave) • Must accept information on form • Keep medical information separate

23. FMLA –return to work Certification • certification addresses whether the employee can perform the essential functions of the job, based on conditions relating to leave only. • The employer may require this for any medical leave if the employer uniformly requires it as a condition of post-FMLA reinstatement. • The employer may require this up to once every 30 days for intermittent or reduced-schedule leave, if there is a reasonable belief of a significant risk of harm to the employee or to others related to the reason for the leave. • The certification is at the employee’s expense, and as such, the employer cannot dictate the type of HCP. (Doctor’s word is law) • However, failure of the employee to provide this may result in a delay or denial of reinstatement.

24. MT Pregnancy Leave • 49-2-310. Maternity leave -- unlawful acts of employers. • 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.

25. MT HRts Bureau • Reasonable Maternity Leave - An employee is entitled to a reasonable leave of absence for the temporary disabilities associated with childbirth, delivery and related medical conditions. The employer may not place restrictions on the leave which would not apply to leaves of absence for any other valid medical reason.

26. Case Scenerio • Employee Ruby worked as a nurse. She was supposed to float among different units but was only trained for one unit. She was transferred to another unit. When Ruby told her supervisors she was uncomfortable working in the unit without specific training she was told he had not choice. Ruby went to HR. During the meeting she was crying and shaking so severely she asked for an ambulance. HR let her go home and would talk the following day. The next day Ruby went to her doctor and was diagnosed with situational anxiety. The doctor also gave her a note recommending she take the rest of the week off. Ruby immediately gave the note to the HR department. Later the same day Ruby was called at home and told she was terminated because she refused a work assignment. Later the hospital filed a complaint with the Board of Nursing saying Ruby refused an assignment and walked off the job. • Was this a violation of the FMLA? • Did the Hospital know Ruby had a serious medical condition and therefor have notice she needed FMLA leave?

27. Best Practices for FMLA Legally administer and prevent abuse • Medical certification, recertification, and second/third opinions • Don’t accept incomplete, inadequate or suspect medical certifications • An honest belief employee is abusing is strong defense (er must do complete and exhaustive investigation of facts) • Use care and follow process if leave to care for family member

28. Best Practices for FMLA • Where FMLA ends and ADA begins • Critical employers engage in interactive process. Communicate during FMLA and after it ends and in between. If employee asks for more leave find out what they can and can’t do, if reasonable accommodations available if leave will help them. Document • Use Government guide to FMLA in discussions with employees. Helps them understand their obligations (what information have to give and that they must cooperate) • http://www.dol.gov/whd/fmla/employeeguide.htm

29. 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 • Standard Provisions 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 (including benefits—vacation time) Applies to all employers regardless of size Applies to all employees regardless of length of service

30. USERRA-New Provisions VOW (VOW to Hire Heroes Act) and the National Defense Authorization Act of 2012 • Both Expand protections under USERRA • `Protect against hostile work environment based on military service (don’t forget Cat’s Paw—rely on info from biased person to make decision) • Extends USERRA reemployment rights to National Guard called for domestic assignments

31. ADA-Basic Provisions 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 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.

32. 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 effect of the Amendments 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

33. Recent Amendments • Expands the definition of "major life activities“ 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"); • mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability; • an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; (cancer)

34. Reasonable Accommodation • Employers must offer reasonable accommodation that will allow employee to perform essential functions of job • Reasonable accommodation is not necessarily what employee requests • Must engage in interactive process • Undue hardship: financial resources of co. not sufficient-impact on operation of facility and other employees

35. Interactive Process • 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

36. EEOC’s 4 Steps-Interactive Process • Analyze the particular job involved and determine its purpose and essential functions; • 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; • Ask questions. nature of disability, what can and can’t do (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. Obligation on employee to cooperate in process

37. Medically related inquires • A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity • restrictions on inquiries and examinations apply to all employees, not just those with disabilities

38. 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) • After employment begins, can make disability related inquiries and require medical examinations only if they are job-related and consistent with business necessity

39. Disability-related inquiries may include the following: • asking an employee whether s/he has (or ever had) a disability or how s/he became disabled or inquiring about the nature or severity of an employee's disability;(20) • asking an employee to provide medical documentation regarding his/her disability; • asking an employee's co-worker, family member, doctor, or another person about an employee's disability; • asking about an employee's genetic information;(21) • asking about an employee's prior workers' compensation history;(22) • asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee's taking of such drugs or medications;(23) and, • asking an employee a broad question about his/her impairments that is likely to elicit information about a disability (e.g., What impairments do you have?)

40. Questions that are permitted • asking generally about an employee's well being (e.g., How are you?), asking an employee who looks tired or ill if s/he is feeling okay, asking an employee who is sneezing or coughing whether s/he has a cold or allergies, or asking how an employee is doing following the death of a loved one or the end of a marriage/relationship; • asking an employee about nondisability-related impairments (e.g., How did you break your leg?) • asking an employee whether s/he can perform job functions; • asking an employee whether s/he has been drinking asking an employee about his/her current illegal use of drugs asking a pregnant employee how she is feeling or when her baby is due;and, • asking an employee to provide the name and telephone number of a person to contact in case of a medical emergency

41. When can Ask for Medical Opinion • If employee requests accommodation employer is entitled to know that an employee has a covered disability and requires reasonable accommodation. So the employer 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. • Can’t get all medical records

42. 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.

43. Undue Hardship • Don’t need to accommodate if undue hardship • Document • Significant losses in productivity because work by less effective temp workers or substitutes or overburdened employees • Lower quality and less accountability for quality • Lost sales • Less responsive customer service and increased dissatisfaction • Deferred projects • Increased burden on management to find replacement workers or readjust workflow or priorities • Increased stress remaining workers • Lower morale

44. FMLA / ADA • When FMLA ends and ADA begins • Interactive process • Communicate during FMLA and after it ends • If employee requests additional leave after FMLA expires, • Need to know what they can and can’t do • Whether reasonable accommodations are available to help them perform essential functions • Whether additional leave will help them perform those essential functions

45. Class Fun Tests • You have an employee that has a disability. The employee comes to work with a miniature horse. She states it is housebroken • Do you allow this accommodation: yes or no • You have an employee that is a firefighter. They have ADD. They are taking a promotional exam. They would like extra time to take the exam • Do you allow this accommodation: yes or no • You have an employee that has seasonal affective disorder and wishes to be moved to a window office • Do you allow this accommodation: yes or no

46. Case • Employee takes FMLA leave to colon cancer surgery. He returns to work and then takes intermittant leave (to address several reoccuring health issues). This occurs for about one year. Then employee presents note from doctor that he still has cancer and fatigue and must be out two weeks. Day before return, employer gives employee note that he has exhausted FMLA leave. Same day employee gives note saying he may return in 3 weeks. Co. Terminates. • Did this violate FMLA or ADA

47. Answer • Did not violate either • Additional leave can be a reasonable accommodation under the ADA but only where the employee gives the employer an anticipated return date. If employee requests leave of unspecified duration it is not a request for reasonable accommodation. • In this case company concluded return to work date uncertain because he failed to return by the date in his first note and second said he may return in 3 weeks. In light of his diagnosis, frequent absences and failure to return by date in first note, return date uncertain • So for those cases where employee takes off does not return and gives another note can use this analysis

48. Ex. Of Accommodations • Bending no fault attendance policy • Extra time to take promotional exam (firefighter with ADD allowed extra time to take exam) • Window Office • Miniature horse: public businesses must accept miniature horses as well as dogs as service animals (unless no housebroken) • Transfer to a different job (vacant) even if there is more qualified non disabled candidates (if ee meets minimum qualifications): split in circuit

49. 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

50. 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)