How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA
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How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA



How to Manage the ADA and Employee

How to Manage the ADA and Employee
Leave Laws
Employees Who Cannot (Or Will Not) Work: Balancing the
ADA, Workers Compensation, and the FMLA



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    How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA Presentation Transcript

    • How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA Alec Beck Partner, Minneapolis Office Andrew Tanick Managing Partner, Minneapolis Office Ford and Harrison, LLP
    • Moderator Becky Ross Marketing Manager (303) 228-8753
    • Presenter Alec Beck Partner Ford and Harrison, LLP
    • Presenter Andrew Tanick Managing Partner, Minneapolis Office Ford and Harrison, LLP
    • Employees who Cannot (or will not) Work Balancing the ADA, Workers’ Compensation and the FMLA Presented by FordHarrison Attorneys: Andy Tanick Alec Beck
    • Purpose of the Statutes ■ Workers’ Compensation – WAGE PROTECTION ■ Family and Medical Leave Act [“FMLA”] – Right to be ABSENT FROM Work ■ Americans with Disabilities Act [“ADA”] – Right to be AT WORK if qualified ■ Occupational Safety and Health Act – Right to a SAFE WORKPLACE
    • Workers’ Compensation Applies to Most Workplace Physical or Psychological Injuries Pays for Most Lost Wages, as well as Medical Benefits, Permanent Disability, Rehabilitation Benefits and Retraining Employers Must Report all Potential Work Injuries to the Applicable State Department Employees on Workers’ Compensation may be Offered Light-Duty
    • Family and Medical Leave Act Employees who have been at the Employer for at least one year, and have worked 1250 hours. Entitled to twelve weeks’ leave Serious Health Condition or the employee or a member of the Employee’s family Birth or Adoption of a Child Leave may be taken “intermittently”
    • OSHA ■ Occupational Safety and Health Act ■ Requires Employers to Create and Provide a Safe Workplace ■ Provides Standards for Employers to Create a Safe Workplace (e.g., Ergonomic Standards for Work Stations) ■ All Workplace Accidents must be Reported to the applicable State Department (in “deferral states” or the federal OSHA office
    • Americans with Disabilities Act Protects persons with physical or mental impairments that limit major life activities Only protects employees who are “qualified” (i.e., can perform all the job’s essential functions) Covered employees may be entitled to “reasonable accommodation” in order to allow them to become fully qualified for their jobs Once someone has disclosed a potential disability (and not before!), employers have an obligation to find out of a reasonable accommodation exists.
    • ADA: Who is Protected? ■ Qualified Individuals with Disabilities – A disabled individual who can perform the “essential functions” of his/her job with or without “reasonable accommodation”
    • ADA: Definitions - Disability 1. A physical or mental impairment that substantially limits one or more major life activities 2. Record of having such an impairment 3. Being “regarded as” having such an impairment
    • ADA Amendments Act (ADAAA) Effective January 1, 2009 Final Regulations effective May 24, 2011
    • Reasons for ADAAA ■ Congress felt Courts were construing definition of “disability” too narrowly ■ The Supreme Court’s decisions in Sutton v. United Airlines and in Toyota Motor Mfg. v. Williams ■ The EEOC’s regulation defining “substantially limits” as “significantly restricted” was too high a standard
    • Overview: Changes to Meaning of Disability 1. Expanded the definition of “major life activities.” 2. “Substantially Limits” redefined and broadened. 3. “Mitigating Measures” not considered. 4. List of Impairments that will “virtually always” be disabilities. 5. Term “disability” to be interpreted broadly, no need for extensive analysis. 6. “Regarded as” broadened.
    • Changes to Major Life Activities ■ Additions (in bold), include: ■ Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
    • Changes to Major Life Activities (cont.) ■ Major Life Activities now include “operation of a major bodily function,” including: ■ Functions of the immune system, special sense organs, and skin; normal cell growth; digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions
    • Substantially Limits Redefined ■ The term “Substantially Limits” to be determined based on nine new "rules of construction,” including: ■ “Substantially Limits” to be determined broadly ■ An impairment is a disability “if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” Need not prevent, or significantly or severely restrict.
    • Substantially Limits Redefined (cont.) ■ Impairment lasting fewer than six months can be substantially limiting ■ The primary focus under the ADA will be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.
    • Substantially Limits Redefined (cont.) ■ Scientific, medical, or statistical analysis not required in comparing an individual to “most people in the general population” ■ An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active (e.g., MS, epilepsy, bipolar disorder, cancer).
    • Mitigating Measures ■ Cannot take into account the “ameliorative effects” of mitigating measures ■ Person is “individual with a disability” if impairment would substantially limit a major life activity without benefit of the mitigating measure (e.g., meds) ■ Exception: ordinary eyeglasses and contact lenses
    • “Regarded as” ■ No longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity ■ New Amendments Act standard: an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA based on an impairment or perceived impairment (e.g., carpel tunnel syndrome)
    • Example: Obesity Disabled Under ADAAA? ■ George weighs 400 pounds. He seems to have problems breathing, but has not been diagnosed with any underlying illnesses that cause his obesity or any conditions resulting from his obesity. His employer has noticed that he seems to be wheezing some, but doesn’t think he has any diagnosable impairment. Still, his employer is concerned that the breathing problems and weight are interfering with his productivity. His boss, Donald Trump, fires him.
    • Pre-ADAAA ■ No. There is no proof that the employer thought George was substantially limited in any major life function because of his breathing. Post - ADAAA ■ Yes. Since employer took action against George because of perceived impairment (whether real or not).
    • Rule No. 1: A Workplace Medical Condition Will Involve EACH of these Statutes
    • Second Rule – Analyze Each Injury in the Following Order: ■ FMLA (For now Obvious Reasons) ■ OSHA (File the Correct Forms) ■ Workers’ Compensation (Ditto) ■ ADA/Disability Discrimination ■ LTD/STD Issues ■ COBRA (Any Time Employee is Gone)
    • Complying with the law – and still trying to keep the lights on ■ Our natural orientation is to be supportive ■ A good business model requires helping all employees be successful in their jobs ■ Where the “good business model” doesn’t do the trick, the labor contract probably does But... ■ Handling medically-related issues can be extremely complicated, and leads to cynicism and corner- cutting ■ The challenge is to comply with the law while protecting both employee AND employer rights ■ Sometimes the process seems ridiculous or impossible Let’s take an example to illustrate this subject...
    • Hypothetical Situation Bob’s qualifications are a bit substandard Bob is somewhat “quirky” Performance issues Personality issues Due to a pressing need for a bookkeeper, you hired “Bob”
    • He’s not just “eccentric” Exhibiting anti-social traits Talking to himself Talking to the water cooler Bad personal hygiene Missing a good deal of work Doesn’t like you much Bob’s Got Issues . . . but it doesn’t stop there . . .
    • You’ve got a Dilemma . . . (1) You’re a Good Person (2) You Want to Do the Right Thing (3) Bob Obviously Needs Help (4) What Should you Do? (5) Ask Him if Something’s Wrong?
    • If Bob says “yes”... Then you’ve taken on obligations you didn’t have before. NO. Rule No. Three: Ignorance is Bliss
    • What do we do with Bob? . . . Nothing (Except Treat Him Just Like Anybody Else – Provide Counseling and Possibly Discipline)
    • Let’s Change the Hypothetical . . . We’re Not Going to Go too Far out of our way to help Bob . . . We’re Going to Take “Appropriate Administrative Action” with Regard to Bob’s Employment Status … We’re going to Tube him …
    • What’s the First Thing Every Manager Would Do? Fire First, and THEN contact HR? No! How about . . . Check with the company’s Policies and Employment Records to Make Sure that We’re Okay to Proceed with a Termination?!
    • Big Dealership Employee Handbook Article XVI –Discharge and Discipline “The employer shall not discharge or suspend any non-probationary employee without just cause, and shall give notices of infractions/complaints to the employee in writing….” EDITORIAL NOTE]: The law defines “just cause” as, among many other things, violating reasonable work rules, insubordination, failure of attendance, etc…. Many dealerships have collective bargaining agreements explicitly containing this standard [
    • Employee Performance Feedback Employee: Bob B. Counter Supervisor: Ida S. Pizreviews Rating: Above Average Comments: Bob is a good performer. I wish I had a hundred more like him. We bowl together on Thursdays.
    • Rule No. 4: Please … Please . . . Please . . . Be Honest in your Performance Reviews (Even Though It’s Sometimes No Fun) (Pretty Please?!)
    • “Paper the File” (What you have to do when you haven’t followed Rule No. 4) What if we don’t have good documentation?
    • •Let’s Assume You Followed the Rules and Got Appropriate Documentation •You’ve Followed the Progressive Discipline Policy •You’ve Worked with Management/Ops, and They’ve Signed off on your Plans •You Go Through Channels, and Set Up the Meeting with Bob •And . . . Okay …
    • Bob is experiencing extreme psychological injury due to the unfair and predatory treatment by his supervisor. The stress has aggravated his ulcer. He will need in-patient psychotherapy for 6 weeks, or until his insurance money runs out. In addition, he has a substantial exacerbation of a pre- existing borderline personality syndrome, overlaid with explosive personality disorder, and Chronic ADD. Patient is disoriented times three, and cannot return to work at his normal job unless and until the main stressor in his life, his supervisor is removed from the workplace. The patient will need twelve weeks off of work, combined with intense psychotherapy. After that, he may return to work on an as- tolerated basis, so long as he does not have to work with his former supervisor. I am now discharging this patient, as there is nothing else I can do for him at the moment Dr. Laura Schlessinger, Ph.D.
    • ■ Put the gun down, cowboy ■ Self-Identified as (1) having a serious health condition; (2) having workers’ comp issues; and (3) being possibly disabled ■ Cat’s “Out of the Bag” Regarding the Medical Condition What to do?
    • Since the condition has been disclosed. . . You are hereby released from Rule 3…now we’ve got to start asking some medical questions.
    • Workers’ Compensation Injury? What he’s got ■ Stress ■ Ulcer ■ Explosive Personality Disorder ■ Borderline Personality ■ Attention Deficit What he wants ■ Twelve Weeks Off ■ Psychological Treatment ■ Medical Treatment ■ Modified Duty Job ■ Wage Loss Benefits ■ Medical Benefits
    • Rights Under the FMLA ■ Bob’s Entitled to Twelve Weeks Off of Work, either all at once or “intermittently” ■ Also entitled to same or substantially similar position on return
    • Do we have to give Bob FMLA? YES!
    • Rule No. 5: FMLA Rights Are - Absolute – (And NO, common sense doesn’t enter into it) Bob has a right to twelve weeks’ leave if his doctor says so
    • Twelve Weeks Are Up, and… Back to Work! ■ BUT! ■ Bob has “self- identified” as potentially disabled - We need to address the medical condition ■ADA DISABILITY CRITERIA: ■ A physical or mental impairment that substantially limits one or more major life activities; ■ A record of such an impairment; or ■ Being regarded as having such an impairment
    • Question: Does Bob Have a Legal Disability? Answer: We Have No Idea at This Point (but probably)
    • Rule Number 6: Know What You’re Talking About – Use all of Your Resources to Get the Information You Need
    • What Happens Next? ■ Second note says return to work with restrictions ■ Bob says he needs a few more weeks off to really heal up ■ You could assign Bob to a modified duty position • Is there an obligation to create a light duty position? • Can we insist that Bob accept light duty? • How can we use light-duty? Bob can return to on an as-tolerated basis, so long as he doesn’t have to work with numbers. Dr. Laura.
    • Big Dealership Accommodation Policy [I]t is the intent of the Dealership to enhance the health and well-being of our disabled employees by providing reasonable accommodation to them to assist them in returning to work, whether they have become disabled by illness or injury. . . . The Dealership will reasonably accommodate a qualified person’s disability as long as it does not cause undue hardship to the Dealership. Should our Dealership not have any jobs, with or without modification, that can be done by you with your skills, experience, and disability, we may be able to provide assistance to you in securing employment with another employer. . . .
    • Obvious Question: Since He Only Gets Light Duty if he Has a Legal Disability – then IS HE DISABLED?? (NOW We’ve GOT to Answer that Question)
    • Interactive Process ■ Employer and the employee enter into a dialogue to explore accommodation options. ■ Purpose is to determine job-related limitations, identify possible accommodations, assess effectiveness.
    • Rule No. 7: During the Interactive Process, the Employer CAN and SHOULD Obtain Medical Information
    • Is Bob a “Qualified” Disabled Person? Essential Functions for Bookkeeper: 1. Need to be able to count 2. Needs to be able accurately do his work 3. Need to show up for work 4. Need to work with his boss (you)
    • Bob, we’re not sure we can accommodate these rather extreme work restrictions, so . . .
    • Upon further review, it appears that Bob can perform all bookkeeping functions so long as his schedule is flexible, and he is not exposed to unreasonable or punitive stress by supervisor. -Dr. Laura
    • Q: Is it a “reasonable accommodation” to allow Bob a flexible schedule and a stress-free environment? A: Maybe, but let’s complete our medical investigation before making up our minds. . .
    • Independent Medical Report: I reviewed the available medical records, and conducted an independent medical examination on Bob B. Counter. He has no restrictions, has reached maximum medical improvement, and has suffered no permanent disability. I do not concur with Dr. Laura, and her radio show isn’t very good either. Freddie Backtwurk, M.D.
    • Bob, we are delighted that you have recovered. Please be at work at 7:30 a.m. on Monday, March 4, ready to perform all the essential functions of your job . . .
    • And if he doesn’t… ■ Can you say COBRA notice? ■ I knew you could
    • Thank You! Questions? Andrew Tanick Attorney at Law Certified Labor/Employment Law Specialist (612) 486-1623 Alec Beck Attorney at Law, SPHR Certified Labor/Employment Law Specialist (612) 486-1629
    • The information provided through the KPA webinars or HRM Support is provided by certified HR professionals and is not a substitute for legal advice where the facts and circumstances warrant. KPA recommends that users should always consult his or her own legal or other professional advisors and discuss the facts and circumstances that apply to the specific circumstance. HRM clients are automatically enrolled in a retainer with Fine, Boggs & Perkins, or Ford & Harrison and may consult them through the HR Advice Service included within HRM. The information provided through KPA webinars or HRM Support ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS AND KPA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION PROVIDED.