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I was part of a panel and did a presentation at Marsh & McLennan in NYC last week. The topic was on reducing workers' compensation costs and I spoke on understanding the interplay between the WC law, ...

I was part of a panel and did a presentation at Marsh & McLennan in NYC last week. The topic was on reducing workers' compensation costs and I spoke on understanding the interplay between the WC law, ADA and the FMLA.

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    Rl1 #1022709-v1-marsh interplay Rl1 #1022709-v1-marsh interplay Presentation Transcript

    • Understanding the Interplay between theADA, FMLA and Workers’ CompensationHow to Minimize Litigation Risks and Reduce Insurance Costs Presented by Christina A. Stoneburner April 19, 2012 Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 1
    • FMLA BASICSProvides eligible employees with up to 12weeks of unpaid leave for qualifying reasons(or 26 weeks to care for a coveredservicemember) in a 12-month periodBenefit continuationGenerally, right to reinstatement Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 2
    • Covered EmployerCOVERED EMPLOYER §825.104, 825.105- Employs 50 or more employees- For 20 or more calendar weeks in the current or preceding year- Foreign employees are not counted Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 3
    • Eligible EmployeeELIGIBLE EMPLOYEE §825.110- 12-Month Service Requirement 12 months need not be consecutive Separate periods of employment counted if the break in service does not exceed 7 years – Breaks in excess of 7 years: » National Guard or Reserve military service; or » Written agreement re: intention to rehire » May consider prior employment outside gap if do so for all employees with similar breaks Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 4
    • Eligible EmployeeELIGIBLE EMPLOYEE (cont’d):- 1250 hours worked in 12-months immediately preceding request for leave Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 5
    • Eligible EmployeeELIGIBLE EMPLOYEE (CONT.)- Employed at a worksite where 50 or more employees employed within 75 miles of worksite Employee’s work site for purposes of 50 employee/75 mile rule is the site to which the employee reports to work or, if none, from which the employee’s work is assigned (§825.111) Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 6
    • Calculation of Leave PeriodCALCULATION OF THE 12-MONTH LEAVE PERIOD: the calendar year (January - December). a fixed leave year a "rolling" 12-month period measured backward from the date of any FMLA leave usage the 12-month period measured forward from the date of the first FMLA leave usage Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 7
    • Calculation of Leave PeriodMILITARY CAREGIVER MEDICAL LEAVE 12- MONTH LEAVE PERIOD: Is always on a rolling forward basis - Even if employer uses some other method for calculating the leave period for other family, medical, and military family leave Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 8
    • Ineligible Employee Becomes EligibleIf employee initially on non-FMLA leave, andbecomes eligible for FMLA leave, rest of leaveis FMLA leave (§825.110) Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 9
    • Leave Entitlements Under the FMLALeave is covered under the FMLA (§825.112): - To care for their newborn child and for the adoption or foster placement of a child (“family leave”); - For the serious health condition of their spouse, minor (child under 18) or disabled child, step-parent, foster parent or parent (“family leave”); or - For their own serious health condition, including pregnancy and on-the-job illness or injury, which makes them unable to perform at least one of the essential functions of their position (“medical leave”). Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 10
    • Leave Entitlements Under the FMLA COVERED LEAVE UNDER THE FMLA (CONT.): - For any qualifying emergency arising out of the fact that a spouse, son, daughter or parent is on active duty or has been notified of an impending call to active duty status, in support of a contingency operation (referred to as “military family leave”) - To provide care for a spouse, son, daughter, parent, or nearest blood relative who is a covered servicemember and who needs medical treatment, recuperation or therapy, is otherwise in out-patient status or is otherwise on the temporary disability retired list for a serious illness or injury incurred in the line of duty (referred to as “military caregiver medical leave” ). Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 11
    • Continuation of Benefits During LeaveGroup health plan §825.209- The same benefits under the same circumstances as before leave was taken- If the Employer changes the health plan for all employees while an employee is on FMLA leave, must be allowed to enroll as if not on leave- Employee must still pay employee’s share of health insurance premiums Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 12
    • Reinstatement Rights§825.214 Generally, employee is entitled to reinstatement to the same position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 13
    • Transfer to Alternative Position if Intermittent or Reduced Schedule§825.204- Require temporary transfer to available, alternative position Only if leave is foreseeable based on planned medical treatment for employee, family member, or covered servicemember or Where employer agrees to permit intermittent or reduced schedule leave for birth of child or placement for adoption or foster care Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 14
    • Transfer to Alternative Position§825.204- Employee must be qualified for the position,- Position must better accommodate recurring periods of leave, and- Pay the same with the same benefits. No requirement of equivalent duties.- Reinstate to the same or equivalent position held when left (may not require employee to take more leave than requires) Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 15
    • When Employee is Not Entitled to Reinstatement§825.216 Employee would not have been employed even if not on leave - Employee would have been laid off - Position eliminated due to permanent restructuring Be cautious restructuring is not seen as excuse to interfere with FMLA rights Employee does not return fitness-for-duty certification “Key Employee” Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 16
    • Key Employee Defined§825.217, 825.218 Salaried employee who is among highest paid 10% of employees employed within 75 miles of worksite Denial of reinstatement only if to prevent “substantial and grievous economic injury to operations of employer” Must notify employee at outset of leave if designated as key employee and potential consequences for reinstatement Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 17
    • Reinstatement From Light DutyPROTECTION FOR EMPLOYEES WHOASSERT FMLA RIGHTS §825.220 Voluntary acceptance of a light duty assignment – Not waiver of restoration right – Right to restoration ends at the end of the applicable 12-month FMLA leave year. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 18
    • Employer Notice Requirements§825.300: General Notice (combined posterand policy requirements): Explain Act & complaint procedures Post in conspicuous place – Electronic posting sufficient Must also provide in employee handbooks or other written guidance Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 19
    • Employer Notice Requirements§825.300: Eligibility Notice: Notify employee within 5 business days of request or knowledge of need for FMLA-qualifying leave If ineligible employee, provide at least one reason why Notice may be oral or written Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 20
    • Employer Notice Requirements§825.300: Rights & Responsibilities Notice Written notice: expectations & consequences Each time the Eligibility Notice is provided Examples of information included: – Whether the leave may be designated FMLA leave – Applicable 12-month period – Certification requirement – The right to substitute paid leave – Premium payments and consequences of failure to pay and/or return – Key employee status Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 21
    • Employer Notice Requirements§825.300: Designation Notice: Written notice within 5 business days (absent extenuating circumstances) Amount of leave—if know, # of hours/days/weeks Leave that does not qualify Any fitness-for-duty requirements Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 22
    • General Rule§ 825.305- Notice of certification requirement Request within 5 business days of notice of need for leave- Employee must provide the certification within 15 calendar days- Complete and sufficient requirement—notify of problems in writing 7 calendar days to cure deficiencies, unless not practicable- Certification each subsequent leave year for conditions lasting beyond a single leave year. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 23
    • Fitness for Duty Certifications§ 825.312- Require certification that can return to work Only for condition that caused need for FMLA leave- Address employee’s ability to perform the essential functions of the job List of essential functions of job and notice that assessment will be required must be provided in the designation notice- Can require fitness for duty certification for each continuous leave- Every 30 days if reasonable for intermittent and reduced schedule leave 15 days to provide certification under the every 30 days rule Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 24
    • Americans with Disabilities ActThe ADA prohibits employers from discriminatingagainst qualified individuals with disabilities in all termsand conditions of employment. The statute requiresemployers to reasonably accommodate disabledemployees who are otherwise qualified for theirpositions. Disability is defined under the ADA as:- a physical or mental impairment that substantially limits one or more major life activities;- a record of such an impairment; or- being regarded or perceived as having such an impairment. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 25
    • Types of AccommodationsLeaveTransfersModified Work SchedulesReduced Work SchedulesLight Duty Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 26
    • Essential FunctionsUnder the ADA, an employer is notrequired to remove an “essential function”as an accommodation- Job descriptions should realistically list essential functions Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 27
    • Interactive ProcessEmployers are required to have aconversation about possibleaccommodations- Employers do not have to grant specific accommodation requested by employee- Request from employees need not be formal Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 28
    • Undue HardshipEmployer does not have to grantaccommodation if doing so would causeundue hardship, which may include:- Cost- Overall company financial resources- Availability of other employees to cover Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 29
    • Direct ThreatEmployer also can deny accommodationor terminate if employee is direct threat tohim/herself or others- Be careful that this is not based on assumptions or prejudices Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 30
    • Workers’ CompensationThere is no guarantee of leave under thestatute- Employees may be entitled to medical coverage;- Weekly benefits- Permanency awards. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 31
    • Light Duty ProgramsEmployers are not Obligated to Create aLight Duty Position as anAccommodation- Employers may choose to have a light duty program that only applies to Workers’ Compensation injuries Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 32
    • ScenarioMeredith was hired on May 12, 2010. On Monday, April4, 2011, Meredith was pulling boxes off a warehouseshelf when the box fell on her. She is taken to theemergency room. The following day Meredith faxes ina doctor’s note that states she has a severe backsprain and will need to be out of work the rest of theweek. Meredith has already used her sick leave for theyear.- Is Meredith entitled to leave?- Do you have to notify the Workers’ Compensation Carrier?- Is Meredith entitled to Workers’ Compensation benefits? Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 33
    • Scenario (cont.)Meredith returns to work the following week. Meredithworks through April and then complains that she stillhas significant back pain. Meredith brings in a doctor’snote that indicates that Meredith has a ruptured disc inher spine that is going to require surgery and thenextensive physical therapy. The note indicates that it isexpected that Meredith will need to be out of work forat least 10 weeks.- Is Meredith entitled to leave? Is the leave FMLA leave?- Is Meredith entitled to WC benefits? Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 34
    • Scenario (cont.)Meredith has had the surgery and completed fourweeks of physical therapy. The WC doctor sends areport that Meredith is cleared to return to work but shecannot lift more than 20 pounds and cannot stand morethan 20 minutes at a time. The company has a lightduty program where it will transfer Meredith to a deskjob until her restrictions are lifted. Meredith refuses thelight duty position and asks for two more weeks leave.- Can you terminate Meredith?- Is Meredith entitled to WC benefits? Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 35
    • Scenario (cont.)After Meredith has exhausted her FMLAleave, Meredith has a setback in physicaltherapy and the doctor now indicates sheis unable to work at all and will require 4more weeks leave.- Do you have to give Meredith the leave? Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 36
    • Scenario (cont.)You have granted Meredith the additional4 weeks leave. A few days before she isscheduled to come back, Meredith’sdoctor indicates that she cannot return towork and will be reevaluated in 30 days.’- Now can you terminate Meredith? Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 37
    • Scenario (cont.)After Meredith has been out of work for a totalof 22 weeks, she is still unable to come back towork. She is still receiving WC benefits. Youdecide to terminate Meredith as you can nolonger accommodate her. The day after youterminate Meredith, her union representativefiles a grievance and demands that Meredithbe placed back at work because the companyis obligated to give her leave while shereceives benefits.- Is the union right? Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 38
    • Contact Information Christina A. Stoneburner 973-994-7551cstoneburner@foxrothschild.comUnderstanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Valpak 39
    • Understanding the Interplay between theADA, FMLA and Workers CompensationHow to Minimize Litigation Risks and Reduce Insurance Costs Presented by Christina A. Stoneburner April 19, 2012 Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 40
    • FMLA BA ICS Provides eligible employees with up to 12 weeks of unpaid leave for qualifying reasons (or 26 weeks to care for a covered servicemember) in a 12-month period■ Benefit continuation Generally, right to reinstatement Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 41
    • Covered EmployerCOVERED EMPLOYER §825.10 , 825.105- Employs 50 or more employees- For 20 or more calendar weeks in the current or preceding year- Foreign employees are not counted Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 42
    • Eligible EmployeeELIGIBLE EMPLOYEE §825.110- 12-Month Service Requirement 12 months need not be consecutive Separate periods of employment counted if the break in service does not exceed 7 years Breaks in excess of 7 years » National Guard or Reserve military service; or » Written agreement re: intention to rehire » May consider prior employment outside gap if do so for all employees with similar breaks Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 43
    • Eligible Employee ELIGIBLE EMPLOYEE (contd) - 1250 hours worked in 12-months immediately preceding request for leave Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild1 1 ■ ■ Fox Rothschild LLP ATTORNEYS AT LAW Valpak 44
    • Eligible EmployeeELIGIBLE EMPLOYEE (CONT.) Employed at a worksite where 50 or more employees employed within 75 miles of worksite Employees work site for purposes of 50 employee/75 mile rule is the site to which the employee reports to work or, if none, from which the employees work is assigned (§825.111) Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 45
    • Calculation of Leave PeriodCALCULATION OF THE 12-MONTH LEAVE PERIOD the calendar year (January - December) a fixed leave year a rolling " 12-month period measured backward from " the date of any FMLA leave usage the 12-month period measured forward from the date of the first FMLA leave usage Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 46
    • Calculation of Leave PeriodMILITARY CAREGIVER MEDICAL LEAVE 12- MONTH LEAVE PERIOD■ Is always on a rolling forward basis Even if employer uses some other method for calculating the leave period for other family , medical, and military family leave Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 47
    • Ineligible Employee Becomes f employee initially on non-FMLA leave, an.•ecomes eligible for FMLA leave, rest of leaveis FMLA leave (§825.110) Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP LAW ATTORNEYS AT Valpak 48
    • Leave Entitlements Under the F M LALeave is covered under the FMLA (§825.11 2) - To care for their newborn child and for the adoption or foster placement of a child ("family leave") , - For the serious health condition of their , minor (child under 18) or disabled child, step-parent, foster parent or parent ("family leave") ; or - For their own serious health condition , including pregnancy and on-the-job illness or injury, which makes them unable to perform at least one of the essential functions of their position ("medical leave") Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 49
    • Leave Entitlements Under the F M LA COVERED LEAVE UNDER THE FMLA (CONT.) * For any qualifying emergency arising out of the fact that a spouse , son, daughter or parent is on active duty or has been notified of an impending call to active duty status, in su p port of a contingency operation (referred to as "military family leave ") = To provide care for a spouse, son, daughter,dparent, or nearest blood relative who is a covered servicemember who needs medical treatment, recuperation or therapy, is otherwise in out-patient status or is otherwise on the temporary disability retired list for a serious illness or injury incurred in the line of duty (referred to as "military caregiver medical leave" ). Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 50
    • Continuation of Benefits During LeaveGroup health plan §825.209 The same benefits under the same circumstances as before leave was takeno If the Employer changes the health plan for all employees while an employee is on FMLA leave, must be allowed to enroll as if not on leaveo Employee must still pay employees share of health insurance premiums Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 51
    • Reinstatement Rig hts§825.214 Generally, employee is entitled to reinstatement to the sameposition or to an equivalent position with equivalent pay , and other terms and conditions of employment Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP Valpak 52
    • Transfer to Alternative Position if Intermittent or Reduced Schedule§825.204- Require temporary transfer to available, alternative position Only if leave is foreseeable based on planned medical treatment for employee, family member, or covered servicemember or Where employer agrees to permit intermittent or reduced schedule leave for birth of child or placement for adoption or foster care Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 53
    • Transfer to Alternative Position§825.204o Employee must be qualified for the position,o Position must better accommodate recurring periods of leave, and Pay the same with the same benefits No requirement of equivalent duties.o Reinstate to the same or equivalent position held when left (may not require employee to take more leave than requires) Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 54
    • When Employee is Not Entitled to Reinstatement§825.216 Employee would not have been employed even if not on leave Employee would have been laid off = Position eliminated due to permanent restructuring Be cautious restructuring is not seen as excuse to interfere with FMLA rights Employee does not return fitness-for-duty certification "Key Employee " Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 55
    • Key Employee efined§825.217, 825.218 Salaried employee who is among highest paid 10% of employees employed within 75 miles of worksite Denial of reinstatement only if to prevent "substantial and grievous economic injury to operations of employer " Must notify employee at outset of leave if designated as key employee and potential consequences for reinstatement Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 56
    • Reinstatem ent From Lig ht D utyPROTECTION FOR EMPLOYEES WHOASSERT FMLA RIGHTS §825.220 Voluntary acceptance of a light duty assignment Not waiver of restoration right Right to restoration ends at the end of the applicable 12-month FMLA leave year. Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 57
    • Employer N otice ments§825.300 General Notice (combinedposterandpolicy requirements) . Explain Act & complaint procedures Post in conspicuous place Electronic posting sufficient Must also provide in employee handbooks or other written guidance Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 58
    • Employer N otice ments§825.300 Eligibility Notice . Notify employee within 5 business days of request or knowledge of need for FMLA-qualifying leave If ineligible employee, provide at least one reason why Notice may be oral or written Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 59
    • Employer N otice ments§825.300: Rights & Responsibilities Notice Written notice: expectations & consequences Each time the igibility Notice is provided Examples of information included Whether the leave may be designated FMLA leave Applicable 12-month period Certification requirement The right to substitute paid leave — Premium payments and consequences of failure to pay and/or return — Key employee status Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 60
    • Employer N otice ments§825.300 Designation Notice • Written notice within 5 business days (absent extenuating circumstances) Amount of leave if know, # of hours/days/weeks Leave that does not qualify Any fitness-for-duty requirements Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 61
    • eneral Rule§ 825.305 Notice of certification requirement Request within 5 business days of notice of need for leave Employee must provide the certification within 15 calendar days Complete and sufficient requirement notify of problems in writing 7 calendar days to cure deficiencies, unless not practicable Certification each subsequent leave year for conditions lasting beyond a single leave year. Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 62
    • ■ § 825.312 Require certification that can return to work Only for condition that caused need for FMLA leave o Address employees ability to perform the essential functions of the job List of essential functions of job and notice that assessment will be required must be provided in the designation notice o Can require fitness for duty certification for each continuous leave o Every 30 days if reasonable for intermittent and reduced schedule leave 15 days to provide certification under the every 30 days rule Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 63
    • Am ericans with isabilities ActThe ADA prohibits employers from discriminatingagainst alified individuals with disabilities in all termsand co ndi tions of employment The statute requiresemployers to reasonably accommodate disabledemployees who are otherwise qualified for theirpositions. Disability is defined under the ADA as- a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or- being regarded or perceived as having such an impairment. Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 64
    • Types of AccommodationsLeaveTransfersModified Work SchedulesReduced Work SchedulesLight Duty Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 65
    • ssential FunctionsUnder the ADA , an employer is notrequired to remove an "essential function "as an accommodation - Job descriptions should realistically list essential functions Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 66
    • Interactive ProcessEmployers are required to have aconversation aboutpossibleaccommodations- Employers do not have to grant specific accommodation requested by employee- Request from employees need not be formal Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 67
    • Undue HardshipEmployer does not have to grantaccommodation if doing so would causeundue hardship , which may include- Cost- Overall company financial resources. Availability of other employees to cover Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 68
    • Direct ThreatEmployer also can deny accommodationor terminate if employee is direct threat tohim/herself or others- Be careful that this is not based on assumptions or prejudices Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 69
    • Wo rkers CompensationThere is noguarantee of leave under thestatute Employees may be entitled to medical coverage ,- Weekly benefits Permanency awards Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 70
    • Employers are not Obligated to Create aLight Duty Position as anAccommodation- Employers may choose to have a light duty program that only applies to Workers Compensation injuries Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 71
    • ScenarioMeredith was hired on May 12, 2010. On Monday, April4, 2011 Meredith was pulling boxes off a warehouseshelf when the box fell on her. She is taken to theemergency room The following day Meredith faxes ina doctors note that states she has a severe backsprain and will need to be out of work the rest of theweek. Meredith has already used her sick leave for theyear Is Meredith entitled to leave?- Do you have to notify the Workers Compensation Carrier?- Is Meredith entitled to Workers Compensation benefits? Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 72
    • cenario (cont )Meredith returns to work the following week. Meredithworks through April and then complains that she stillhas significant back pain Meredith brings in a doctorsnote that indicates that Meredith has a ruptured disc inher spine that is going to require surgery and thenextensive physical therapy The note indicates that it isexpected that Meredith will need to be out of work forat least 10 weeks© Is Meredith entitled to leave? Is the leave FMLA leave?o Is Meredith entitled to WC benefits? Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 73
    • cenario (cont )Meredith has had the surgery and completed fourweeks of physical therapy The WC doctor sends areport that Meredith is cleared to return to work but shecannot lift more than 20 pounds and cannot stand morethan 20 minutes at a time. The company has a lightduty program where it will transfer Meredith to a deskjob until her restrictions are lifted Meredith refuses thelight duty position and asks for two more weeks leave Can you terminate Meredith? o Is Meredith entitled to WC benefits? Understanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild ATTORNEYS AT LAW LLP Valpak 74
    • cenario (cont )After Meredith has exhausted her FMLAleave , Meredith has a setback in physicaltherapy and the doctor now indicates sheis unable to work at all and will require 4more weeks leave Do you have to give Meredith the leave? Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP Valpak 75
    • cenario (cont )You havegranted Meredith the additional4 weeks leave A few days before she isscheduled to come back, Merediths doctor indicates that she cannot return towork and will be reevaluated in 30 days Now can you terminate Meredith? Understanding the Interplay between the ADA ,FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP Valpak 76
    • cenario (cont )After Meredith has been out of work for a totalof 22 weeks ,she is still unable to come back towork She is still receiving WC benefits Youdecide to terminate Meredith as you can nolonger accommodate her. The day after youterminate Meredith , her union representativefiles a grievance and demands that Meredithbe placed back at work because the companyis obligated to give her leave while shereceives benefits Is the union right? Understanding the Interplay between the ADA ,FMLA and Workers Compensation 0 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 77
    • Contact Information Christina A. Stoneburner 973-994-7551cstoneburner • foxrothschild.comUnderstanding the Interplay between the ADA, FMLA and Workers Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 78