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Presented by Karl R. Steinberger

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Presented by Karl R. Steinberger

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  1. Human Resource SymposiumGulf Coast Human Resource AssociationSeptember 20, 2013THE WORKPLACE QUAGMIRE:UPDATES ON THE RELATIONSHIP BETWEEN THE ADA, FMLA, AND WORKER’S COMPENSATIONPresented by:Karl R. SteinbergerHeidelberg, Steinberger, Colmer, & Burrow, P.A.711 Delmas AvenuePost Office Box 1407Pascagoula, MS 39568-1407Telephone: 228-762-8021Facsimile: 228-762-7589www.hscbpa.com

  2. The Workplace quagmire:Updates on the relationshipbetween the ada, fmla, and workers’ compensation Presented by Karl R. Steinberger

  3. 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””)

  4. 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

  5. Highlights of Recent Changes • ADA • “Disability” has historically been strictly construed by the courts which led to the ADA Amendments Act of 2008

  6. 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

  7. Key Changes Under the ADAAA • ADAAA • “Disability” is to be broadly construed • “Substantially limits” is a lower threshold • The 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

  8. 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

  9. What are we seeing as a result? • Fewer cases dismissed on summary judgment • Huge increase in charges filed with the EEOC • FY 2008 – 19,453 charges alleging disability discrimination • FY 2012 – 26,379 charges alleging disability discrimination

  10. 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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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.

  16. 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

  17. 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.

  18. 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

  19. 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

  20. 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

  21. 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

  22. 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.

  23. 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

  24. 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

  25. 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)

  26. 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

  27. 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

  28. 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

  29. 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

  30. 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

  31. 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

  32. Status of Benefits While on Leave • Workers’ Compensation • There is no separate requirement under the Act that an employee receive benefits

  33. 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

  34. 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

  35. 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

  36. 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

  37. Settlements and Releases • FMLA • Only past claims can be settled and released • Prospective claims cannot be waived • Be sure to include potential past FMLA claims in global releases due to the availability of attorneys’ fees

  38. 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

  39. 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

  40. 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

  41. 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

  42. 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

  43. 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

  44. 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

  45. Conclusion • Quagmire • A complex and difficult situation with no easy solution • Beware of the potential pitfalls

  46. Karl R. Steinberger(228) 762-8021www.hscbpa.com

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