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ADA and FMLA: Impact on Workers Compensation A presentation for the AMI Foundation (AMIF) Conference on Worker Safety, Human Resources and the Environment Dallas D. Jones, Esq. BAYLOR, EVNEN, CURTISS,
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ADA and FMLA: Impact on Workers Compensation A presentation for the AMI Foundation (AMIF) Conference on Worker Safety, Human Resources and the Environment Dallas D. Jones, Esq. BAYLOR, EVNEN, CURTISS, GRIMIT & WITT, LLP Wells Fargo Center 1248 O Street, Suite 600 Lincoln, NE (402) FOCUS OF THIS PRESENTATION A new look at an old problem a goal oriented, integrated approach to managing workers compensation claimants to: Minimize the WC costs of the claim Avoid a successful retaliation claim Avoid a successful disability discrimination claim Avoid a successful FMLA claim The First Step: Identify Your Goals The Two Most Common Questions: 1. How do I limit my workers compensation claim costs? 2. Can I terminate my problem employee without violating the ADA, FMLA, and Anti Retaliation Provisions? The Second Step: Understand the Purpose of Each Act Workers Compensation: It Asks: What can t the employee do because of the injury? Awards compensation for that. Americans with Disabilities Act (ADA) It Asks: What can the employee still do? Forces employers to provide employees opportunity to use residual abilities. The Second Step: Understand the Purpose of Each Act Family and Medical Leave Act (FMLA) It Mandates: Employer must allow qualifying employee to take unpaid leave, and return employee to regular job after leave Retaliation Prohibitions: It Prohibits: Employers from terminating employment because claim for benefits is made The Third Step: Understand the Core Principles in Play ADA WC FMLA RETALIATION Core RETALIATION Principles in Play You may not demote or fire an employee for making a claim for workers compensation benefits You may demote or fire an employee for legitimate, non discriminatory reasons Timing is telling Consistency is key Documentation is best defense Core WORKERS COMPENSATION Principles in Play The Question: What caused the employee s loss? Claimants are entitled to temporary benefits if they miss work because of their work related injuries Claimants entitlement to industrial disability or loss of earning capacity is a function of their diminished ability to earn wages because of the work related injuries Claimants are entitled to vocational rehabilitation if unable to perform suitable employment because of their work related injuries Core WORKERS COMPENSATION The Incentives: Principles in Play The employer: To return the employee to work at all costs The employee: To maximize the amount s/he cannot do Core FMLA Principles in Play Right to leave is absolute if certified, you can t stop it You may not fire an employee because of a serious medical condition before the expiration of 12 weeks of unpaid leave per year You must allow employees covered by FMLA to return to their same job unless that creates an undue hardship You should always run leave concurrently with Workers Compensation Core ADA Principles in Play You may not fire an employee because of his/her disability if: The disability substantially limits a major life activity, and The employee can perform the essential functions of the job with or without a reasonable accommodation, Unless the accommodation creates an undue hardship or constitutes a direct threat to safety. Core ADA Principles in Play A few key points to remember: Protection is available from day one Disability definition has been broadened and may include conditions which are expected to result in permanent restrictions Major Life Activity now includes any operation of a major bodily function Core ADA Principles in Play A few key points to remember: Reasonable Accommodation may involve: Unpaid leave in excess of FMLA leave» If there is expectation that a job the employee can perform could become available» How long is determined on a case by case basis Job restructuring but does not require removing essential functions The Fourth Step: Understand How Each Act Impacts Your Goal Controlling Workers Compensation Costs Termination Sometimes both Goal: Limit the WC claim Costs Claim costs are reduced by offering light duty to limit lost time due to injury Impact of FMLA on this goal: Employee has absolute right to leave But no absolute right to temporary benefits if the employee is able to perform light duty which pays equivalent wages Goal: Limit the WC claim Costs Employer should: Offer light duty as alternative to FMLA leave to mitigate lost wages Remember: You cannot prevent FMLA leave, but you may be able to prevent temporary benefits i.e., lost wages not due to injury but decision to take leave Note also: Period of light duty work does not reduce FMLA leave Goal: Limit the WC claim Costs Claim costs are reduced by offering light duty to limit lost time due to injury Impact of ADA on this goal: The Light Duty Dilemma :» May an employer reserve light duty jobs for WC employees only?» Must an employer allow an employee to permanently remain in the light duty job? Goal: Limit the WC claim Costs May an employer reserve light duty jobs for WC employees only? There is no obligation to create light duty jobs under the ADA But there is obligation to reassign to a vacant permanent job» May be problematic if reserve lightest, permanent jobs, for WC claimants only As long as light duty jobs are not permanent, not regular jobs, may safely reserve light duty for WC claimants only Goal: Limit the WC claim Costs Must an employer allow an employee to permanently remain in the light duty job? If the light duty job is a temporary one, and not a regular job, then no No obligation to create light duty jobs under the ADA But if it is a permanent, regular job, then possibly so Goal: Limit the WC claim Costs The In a Perfect World Solution to the Light Duty Dilemma : Light duty... Should be defined as temporary, Should not be a regular job, and Should be composed of pieces and parts of regular jobs. Goal: Termination Impact of WC on this goal: Unemployed claimants are almost always entitled to greater benefits that employed claimants Risk is that unemployment will be determined to be due to injury=greater claim costs Balance costs of claim with benefit of termination E.g., greater TD and PD, loss of control v. increased morale and reduced administrative headache Goal: Termination Impact of ADA on this goal: Disallows discrimination based upon disability Does not disallow termination based upon refusal to work Offer light duty work within restrictions Document refusal to perform the work But Don t Forget!: Before you terminate, has FMLA leave been exhausted? Goal: Termination Impact of ADA on this goal: May not terminate because of disability unless unable to perform the essential functions, with or without reasonable accommodation Ensure interactive process occurs Document employee s statement that cannot perform work and no other accommodation will be effective Document safety risk or undue hardship details Goal: Termination Impact of FMLA on this goal: May not terminate until 12 weeks of leave is exhausted Ensure that all leave is exhausted before termination Impact of Retaliation on this goal: Expect some claimants to assert termination in retaliation for filing of claim Document non discriminatory reasons for termination Consider timing Employment Disability Decision Tree Copyright 2010 Baylor, Evnen, Curtiss, Grimit & Witt, LLP; All Rights Reserved QUESTIONS?
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