HUMAN RESOURCE SYMPOSIUMGULF COAST HUMAN RESOURCE ASSOCIATION

SEPTEMBER 20, 2013

THE WORKPLACE QUAGMIRE:UPDATES ON THE RELATIONSHIP

BETWEEN THE ADA, FMLA, AND WORKER’S COMPENSATION

PRESENTED BY:

KARL R. STEINBERGERHEIDELBERG, STEINBERGER, COLMER, & BURROW, P.A.

711 DELMAS AVENUEPOST OFFICE BOX 1407

PASCAGOULA, MS 39568-1407TELEPHONE: 228-762-8021FACSIMILE: 228-762-7589

WWW.HSCBPA.COM

THE WORKPLACE QUAGMIRE:UPDATES ON THE RELATIONSHIPBETWEEN THE ADA, FMLA, AND WORKERS’ COMPENSATION

Presented by Karl R. Steinberger

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””)

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

Highlights of Recent Changes ADA

“Disability” has historically been strictly construed by the courts which led to the ADA Amendments Act of 2008

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

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

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

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

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

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

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

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

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

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.

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

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.

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

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

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

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

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.

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

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

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)

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

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

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

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

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

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

Status of Benefits While on Leave Workers’ Compensation

There is no separate requirement under the Act that an employee receive benefits

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

Quagmire A complex and difficult situation with no

easy solution Beware of the potential pitfalls