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Rl1 #1022709-v1-marsh interplay

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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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  • 1. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Understanding the Interplay between the ADA, FMLA and Workers’ Compensation How to Minimize Litigation Risks and Reduce Insurance Costs Presented by Christina A. Stoneburner April 19, 2012 Valpak 1
  • 2. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild FMLA BASICS 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 Valpak 2
  • 3. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Covered Employer COVERED 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 Valpak 3
  • 4. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Eligible Employee ELIGIBLE 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 Valpak 4
  • 5. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Eligible Employee ELIGIBLE EMPLOYEE (cont’d): - 1250 hours worked in 12-months immediately preceding request for leave Valpak 5
  • 6. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Eligible Employee ELIGIBLE 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) Valpak 6
  • 7. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Calculation of Leave Period CALCULATION 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 Valpak 7
  • 8. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Calculation of Leave Period MILITARY 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 Valpak 8
  • 9. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Ineligible Employee Becomes Eligible If employee initially on non-FMLA leave, and becomes eligible for FMLA leave, rest of leave is FMLA leave (§825.110) Valpak 9
  • 10. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Leave Entitlements Under the FMLA Leave 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”). Valpak 10
  • 11. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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” ). Valpak 11
  • 12. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Continuation of Benefits During Leave Group 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 Valpak 12
  • 13. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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 Valpak 13
  • 14. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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 Valpak 14
  • 15. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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) Valpak 15
  • 16. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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” Valpak 16
  • 17. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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 Valpak 17
  • 18. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Reinstatement From Light Duty PROTECTION FOR EMPLOYEES WHO ASSERT 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. Valpak 18
  • 19. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Employer Notice Requirements §825.300: General Notice (combined poster and policy requirements): Explain Act & complaint procedures Post in conspicuous place – Electronic posting sufficient Must also provide in employee handbooks or other written guidance Valpak 19
  • 20. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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 Valpak 20
  • 21. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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 Valpak 21
  • 22. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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 Valpak 22
  • 23. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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. Valpak 23
  • 24. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild 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 Valpak 24
  • 25. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Americans with Disabilities Act The ADA prohibits employers from discriminating against qualified individuals with disabilities in all terms and conditions of employment. The statute requires employers to reasonably accommodate disabled employees who are otherwise qualified for their positions. 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. Valpak 25
  • 26. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Types of Accommodations Leave Transfers Modified Work Schedules Reduced Work Schedules Light Duty Valpak 26
  • 27. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Essential Functions Under the ADA, an employer is not required to remove an “essential function” as an accommodation - Job descriptions should realistically list essential functions Valpak 27
  • 28. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Interactive Process Employers are required to have a conversation about possible accommodations - Employers do not have to grant specific accommodation requested by employee - Request from employees need not be formal Valpak 28
  • 29. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Undue Hardship Employer does not have to grant accommodation if doing so would cause undue hardship, which may include: - Cost - Overall company financial resources - Availability of other employees to cover Valpak 29
  • 30. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Direct Threat Employer also can deny accommodation or terminate if employee is direct threat to him/herself or others - Be careful that this is not based on assumptions or prejudices Valpak 30
  • 31. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Workers’ Compensation There is no guarantee of leave under the statute - Employees may be entitled to medical coverage; - Weekly benefits - Permanency awards. Valpak 31
  • 32. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Light Duty Programs Employers are not Obligated to Create a Light Duty Position as an Accommodation - Employers may choose to have a light duty program that only applies to Workers’ Compensation injuries Valpak 32
  • 33. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Scenario Meredith was hired on May 12, 2010. On Monday, April 4, 2011, Meredith was pulling boxes off a warehouse shelf when the box fell on her. She is taken to the emergency room. The following day Meredith faxes in a doctor’s note that states she has a severe back sprain and will need to be out of work the rest of the week. Meredith has already used her sick leave for the year. - Is Meredith entitled to leave? - Do you have to notify the Workers’ Compensation Carrier? - Is Meredith entitled to Workers’ Compensation benefits? Valpak 33
  • 34. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Scenario (cont.) Meredith returns to work the following week. Meredith works through April and then complains that she still has significant back pain. Meredith brings in a doctor’s note that indicates that Meredith has a ruptured disc in her spine that is going to require surgery and then extensive physical therapy. The note indicates that it is expected that Meredith will need to be out of work for at least 10 weeks. - Is Meredith entitled to leave? Is the leave FMLA leave? - Is Meredith entitled to WC benefits? Valpak 34
  • 35. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Scenario (cont.) Meredith has had the surgery and completed four weeks of physical therapy. The WC doctor sends a report that Meredith is cleared to return to work but she cannot lift more than 20 pounds and cannot stand more than 20 minutes at a time. The company has a light duty program where it will transfer Meredith to a desk job until her restrictions are lifted. Meredith refuses the light duty position and asks for two more weeks leave. - Can you terminate Meredith? - Is Meredith entitled to WC benefits? Valpak 35
  • 36. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Scenario (cont.) After Meredith has exhausted her FMLA leave, Meredith has a setback in physical therapy and the doctor now indicates she is unable to work at all and will require 4 more weeks leave. - Do you have to give Meredith the leave? Valpak 36
  • 37. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Scenario (cont.) You have granted Meredith the additional 4 weeks leave. A few days before she is scheduled to come back, Meredith’s doctor indicates that she cannot return to work and will be reevaluated in 30 days.’ - Now can you terminate Meredith? Valpak 37
  • 38. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Scenario (cont.) After Meredith has been out of work for a total of 22 weeks, she is still unable to come back to work. She is still receiving WC benefits. You decide to terminate Meredith as you can no longer accommodate her. The day after you terminate Meredith, her union representative files a grievance and demands that Meredith be placed back at work because the company is obligated to give her leave while she receives benefits. - Is the union right? Valpak 38
  • 39. Understanding the Interplay between the ADA, FMLA and Workers’ Compensation © 2012 Fox Rothschild Contact Information Christina A. Stoneburner 973-994-7551 cstoneburner@foxrothschild.com Valpak 39
  • 40. Understanding the Interplay between the ADA, FMLA and Workers' Compensation How 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 LLP ATTORNEYS AT LAW Valpak 40
  • 41. 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
  • 42. Covered Employer COVERED 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
  • 43. Eligible Employee ELIGIBLE 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
  • 44. Eligible Employee ELIGIBLE 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 Fox Rothschild LLP ATTORNEYS AT LAW 1 1 ■ ■ Valpak 44
  • 45. Eligible Employee ELIGIBLE 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 Fox Rothschild LLP ATTORNEYS AT LAW Valpak 45
  • 46. Calculation of Leave Period CALCULATION 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
  • 47. Calculation of Leave Period MILITARY 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
  • 48. Ineligible Employee Becomes f employee initially on non-FMLA leave, an. •ecomes eligible for FMLA leave, rest of leave is FMLA leave (§825.110) Understanding the Interplay between the ADA,FMLA and Workers' Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 48
  • 49. Leave Entitlements Under the FM LA Leave 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 step-parent, foster parent or parentunder 18) or disabled child, ("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 LLP ATTORNEYS AT LAW Valpak 49
  • 50. Leave Entitlements Under the FM LA *COVERED LEAVE UNDER THE FMLA (CONT.) son, daughter or parent is on active duty or has been notified of an For any qualifying emergency arising out of the fact that a spouse , operation (referred to as military family p l port ") impending call to active duty status, in su of a contingency " eave = To provide care for a spouse, son, daughter,dparent, relative who is a covered servicemember or nearest blood who needs medical treatment, recuperation or therapy, is otherwise in out-patient status disability retired list for a seriousor is otherwise on the temporary 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 LLP ATTORNEYS AT LAW Valpak 50
  • 51. Continuation of Benefits During Group health plan §825.209 Leave The same benefits under the same circumstances as before leave was taken o 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 o Employee must still pay employee's 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
  • 52. Reinstatement Rights §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
  • 53. 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
  • 54. Transfer to Alternative Position §825.204 o Employee must be qualified for the position, Position must better accommodate recurring periods of leave, and Pay the same with the same benefits o 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 LLP ATTORNEYS AT LAW Valpak 54
  • 55. When Employee is Not Entitled to §825.216 Reinstatement 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 LLP ATTORNEYS AT LAW Valpak 55
  • 56. 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
  • 57. Reinstatement From Light Duty PROTECTION FOR EMPLOYEES WHO ASSERT 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 LLP ATTORNEYS AT LAW Valpak 57
  • 58. Employer Notice ments §825.300 General Notice (combinedposter andpolicy 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 LLP ATTORNEYS AT LAW Valpak 58
  • 59. Employer Notice 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
  • 60. Employer Notice 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 LLP ATTORNEYS AT LAW Valpak 60
  • 61. Employer Notice 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
  • 62. 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 LLP ATTORNEYS AT LAW Valpak 62
  • 63. ■ § 825.312 Require certification that can return to work Only for condition that caused need for FMLA leave o Address employee's ability to perform the essential functions of the job List of essential functions of job and notice that assessment will be o 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 o 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
  • 64. Americans with isabilities Act The ADA prohibits employers from discriminating against alified individuals with disabilities in all terms and conditions of employment The statute requires employers to reasonably accommodate disabled employees who are otherwise qualified for their positions. 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
  • 65. Types of Accommodations Leave Transfers Modified Work Schedules Reduced Work Schedules Light Duty Understanding the Interplay between the ADA, FMLA and Workers' Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 65
  • 66. ssential Functions required to remove an Under the ADA , an employer is not "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
  • 67. Interactive Process Employers are required to have a conversation aboutpossible accommodations - 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
  • 68. Undue Hardship Employer does not have to grant accommodation if doing so would cause undue 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
  • 69. Direct Threat Employer also can deny accommodation or terminate if employee is direct threat to him/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
  • 70. Workers' Compensation There is noguarantee of leave under the statute 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
  • 71. Employers are not Obligated to Create a Light Duty Position as an Accommodation - 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
  • 72. Scenario Meredith was hired on May 12, 2010. On Monday, April 4, 2011 Meredith was pulling boxes off a warehouse shelf when the box fell on her. She is taken to the emergency room a doctor's note that states she has a severe back sprain and will need to be out of work the rest of the week. Meredith has already used her sick leave for the The following day Meredith faxes in year 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 LLP ATTORNEYS AT LAW Valpak 72
  • 73. cenario (cont ) Meredith returns to work the following week. Meredith works through April and then complains that she still has significant back pain Meredith brings in a doctor's note that indicates that Meredith has a ruptured disc in her spine that is going to require surgery and then extensive physical therapy The note indicates that it is expected that Meredith will need to be out of work for at 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 LLP ATTORNEYS AT LAW Valpak 73
  • 74. cenario (cont ) Meredith has had the surgery and completed four weeks of physical therapy The WC doctor sends a report that Meredith is cleared to return to work but she cannot lift more than 20 pounds and cannot stand more than 20 minutes at a time. The company has a light duty program where it will transfer Meredith to a desk job until her restrictions are lifted Meredith refuses the light 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 LLP ATTORNEYS AT LAW Valpak 74
  • 75. cenario (cont ) After Meredith has exhausted her FMLA leave, Meredith has a setback in physical therapy and the doctor now indicates she is unable to work at all and will require 4 more 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
  • 76. cenario (cont ) You havegranted Meredith the additional 4 weeks leave A few days before she is scheduled to come back, Merediths' doctor indicates that she cannot return to work 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
  • 77. cenario (cont ) After Meredith has been out of work for a total work of 22 weeks she is still unable to come back to She is still receiving WC benefits , You decide to terminate Meredith as you can no longer accommodate her. The day after you terminate Meredith files a grievance and demands that Meredith , her union representative be placed back at work because the company is obligated to give her leave while she receives 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
  • 78. Contact Information Christina A. Stoneburner 973-994-7551 cstoneburner • foxrothschild.com Understanding the Interplay between the ADA, FMLA and Workers' Compensation © 2012 Fox Rothschild Fox Rothschild LLP ATTORNEYS AT LAW Valpak 78