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Gregory P. Kult, Partner Wooden and McLaughlin, LLP 211 N. Pennsylvania Street

DEALING WITH THE INJURED/ILL EMPLOYEE INDIANA RURAL HEALTH ASSOCIATION ANNUAL CONFERENCE BUILDING A BRIGHTER FUTURE June 7-8, 2011. Gregory P. Kult, Partner Wooden and McLaughlin, LLP 211 N. Pennsylvania Street One Indiana Square, Suite 1800 Indianapolis, IN 46204 (317) 639-6151

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Gregory P. Kult, Partner Wooden and McLaughlin, LLP 211 N. Pennsylvania Street

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  1. DEALING WITH THE INJURED/ILL EMPLOYEEINDIANA RURAL HEALTH ASSOCIATIONANNUAL CONFERENCEBUILDING A BRIGHTER FUTUREJune 7-8, 2011 Gregory P. Kult, Partner Wooden and McLaughlin, LLP 211 N. Pennsylvania Street One Indiana Square, Suite 1800 Indianapolis, IN 46204 (317) 639-6151 gkult@woodmclaw.com Wooden & McLaughlin, LLP

  2. General Considerations • Americans with Disabilities Act (ADA) • Family and Medical Leave Act (FMLA) • Employed 12 months • Worked 1250 hours within last 12 months • 50 employees within 75 miles • Genetic Information Non-Discrimination Act (GINA) Wooden & McLaughlin, LLP

  3. ADA, FMLA, and GINA Highlights • ADA: Reasonable Accommodation • FMLA: Leave of Absence • GINA: Family Medical History • All three: Requests for medical info. Wooden & McLaughlin, LLP

  4. Greg’s supervisor notices that Greg does not perform the job as well as he used to. Greg has mentioned a bad back, but has not suggested it impacts his performance. What should the supervisor do? • Meet with Greg • Focus on performance • Don’t assume. Rather, ask “Why?” Wooden & McLaughlin, LLP

  5. Greg tells his supervisor that he has a bad back that is making it difficult to do his job, and he needs help. What should the supervisor do? • Recognize this is a request for “accommodation” • Avoid discussing Greg’s medical condition • Ask: “What can we do for you?” • RUN . . . to Human Resources Wooden & McLaughlin, LLP

  6. HR meets with Greg. Greg confirms what he told his supervisor about his back and his need for help. What should HR do? • Interactive process (involve supervisor to limited extent) • Is the need obvious? • Is there an “easy” solution? • Should HR worry about setting precedent? • Should HR obtain medical information before agreeing to any changes? Wooden & McLaughlin, LLP

  7. HR decides that it needs some medical information. How should HR obtain the information? • Who picks the doctor? • Who pays? • How can HR reduce HIPAA headaches? • What information should HR request? • GINA: No family medical history • What if the doctor fails to cooperate? Wooden & McLaughlin, LLP

  8. Greg’s doctor confirms that Greg has a significant impairment and recommends that he not perform certain job duties for at least 12 weeks. What now? • Where should HR put the medical information? • Should HR continue with the interactive process? • Should HR contact the Job Accommodation Network [askjan.org]? • Who picks among alternative accommodations? Wooden & McLaughlin, LLP

  9. HR, Greg, and Greg’s doctor ultimately conclude that no accommodation would enable Greg to safely perform the job duties at issue. What now? • Does it matter whether the duties Greg cannot perform are “essential” or “marginal”? • Should HR consider “light duty”? • Should HR consider offering Greg a leave of absence? • Should HR consider reassignment? • Should HR terminate? Wooden & McLaughlin, LLP

  10. Light Duty? • Must you? • Should you? • Documentation tips Wooden & McLaughlin, LLP

  11. FMLA Leave? • Is Greg eligible? • Notice of Rights and Responsibilities • Certification? (Don’t forget GINA) • Designation Notice (Fitness for Duty/Functions?) • What to do when leave is about to expire Wooden & McLaughlin, LLP

  12. Non-FMLA Leave? • Must Greg’s employer modify its leave policies (or create a leave)? • Tip for employee handbook • Does Greg’s employer have to hold the position? • How much leave should be granted . . . • If employer is not covered by FMLA? • If employer is covered by FMLA, but Greg is not eligible? • If Greg has used up all 12 weeks of FMLA leave? • Responding to requests for extensions Wooden & McLaughlin, LLP

  13. Reassignment • Is bumping someone out of their job required? • May seniority systems be honored? • Must Greg be the most qualified, or just minimally qualified? • Must the employer continue to provide necessary accommodations to Greg in the new position? Wooden & McLaughlin, LLP

  14. Termination Be aware of possible discrimination/retaliation If FMLA, be aware of possible interference Remind Greg of each other’s efforts Clarify your understanding of the situation; offer opportunity to correct any misunderstanding Welcome Greg to reapply in future Wooden & McLaughlin, LLP

  15. Sample Documents for Attendees For sample communications to request medical information, assist with the reasonable accommodation process, confirm light duty, and terminate the employment relationship, contact: Greg Kult (317) 639-6151 gkult@woodmclaw.com Wooden & McLaughlin, LLP

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