Brendan Feheley, an associate with the Columbus, Ohio, law firm of Kegler, Brown, Hill & Ritter explains the governing regulations that apply to employee medical conditions, including FMLA, ADA, Workers' Compensation, OSHA and COBRA. He goes in-depth through hypothetical scenarios and offers the audience best practices and guiding principles so that they can more effectively manage employee medical conditions and protect the business.

1. I’ve Fallen and Can’t Get Up…Managing your employees medical conditions. Presented by : Brendan FeheleyKegler, Brown, Hill & Ritter

2. It’s not all bad… I have suggested that he loosen his pants before standing, and then, when he stands with the help of his wife, they should fall to the floor. The patient has no past history of suicides. The patient had waffles for breakfast and anorexia for lunch. Between you and me, we ought to be able to get this lady pregnant. The patient was in his usual state of good health until his airplane ran out of gas and crashed.

3. Overview Employee’s medical conditions involve various laws: FMLA ADA Workers Compensation OSHA COBRA

4. Here we go Hypo Sam is an employee at Hazard County Hospital. One day while walking through the halls, in her ordinary shift Sam slips. As she is falling she lunges for a rail nearby. Sam hits the railing, causing a deep laceration on her wrist, she is unable to stop her fall and crashes into the cement floor. Immediately she complains of pain in her back.

5. Immediate actions FMLA Workers Compensation ADA OSHA

6. FMLA Eligibility? 1250 hours 12 months Serious health condition? an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider. "continuing treatment by a health care provider" must include either (1) a period of incapacity lasting more than three consecutive calendar days and treatment two or more times by a health care provider, or (2) treatment by a health care provider on one occasion resulting in a regimen of continuing treatment under the provider's supervision Which one? Notice and Certification

7. FMLA If Sam is incapacitated for 3 or more days, or has a regimen of continuing treatment then this qualifies as a serious health condition What evidence is sufficient? Medical documentation? Lay testimony? Combination? Assume Sam is eligible and her condition qualifies…

8. Workers Comp… Compensable injury? Not so fast. Idiopathic injuries not compensable. More than one injury? Back Wrist Investigation Witnesses…? Drugs & Alcohol Objective evidence

9. OSHA Reportable injury? An occupational injury or illness that requires medical treatment more than simple first aid must be reported. What happens if she doesn’t report the injury until 7 days later? Recordable? Loss of consciousness Days away from work Restricted work Job transfers Affects routine (essential) job functions "Significant" injury's or illnesses diagnosed by physician such as cancer. Medical treatment beyond first aid You sure? Investigate Location of railings, possible fluids on floor.

10. ADA Disability (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; What do we know now? Qualified for position?

11. The Show Goes on After a day Sam is released from the hospital. She has a herniated disc in her back which will require treatment and eventually surgery. The condition of her back makes it difficult for her to do her job and requires her to miss work periodically, for appointments and sometimes due to pain.

12. Analysis FMLA Periodic need to miss work… Intermittent leave Begin counting… Need to ensure that entire medical certification form is filled out. Specifically the portion regarding how often and for what duration work will need to be missed. Don’t let doctor off hook. Treatment schedule… § 825.203 Scheduling of intermittent or reduced schedule leave. then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations. Transfer?

13. Workers Compensation Herniated Disc… Additional condition Probably substantial aggravation. Looking for objective evidence of change in the condition caused by work. Make sure you’re reviewing the FMLA documents to determine if they help you. Temporary Total Disability? If transferred to part-time then wage loss. Does Sam have restrictions? Can you accommodate? Light duty? Temporary total

14. ADA Herniated disc… ADA condition? ADAAA Walking Standing Lifting Bending Working But surgery will fix condition… Old cases temporary conditions not disabilities EEOC regulations “someone could have disability if back condition requires 20 lb. lifting restriction and lasts for several months or more” Time for “Interactive Dialogue?” Performance issues?

15. ADA (cont.) Examination? Job related? Have job description. Safety concern? Document performance problems that create safety concern. If exam is done can it be used for FMLA Yes new regulations permit use of information obtained under other laws.

16. Sam’s Condition Continues Sam’s surgery is 8 weeks out. She comes to you and states that she is unable to continue doing her job due to the pain that she suffers on a daily basis. She believes that she will be able to return to work after her surgery.

17. FMLA 8 weeks off work. Foreseeable leave time. Substantial change in condition? Recertification? If so check to see if date of return is definite. Also try and determine what Sam will be able to do when she returns (will she need restricted duty). Transfer possibility? Need to check to see exactly what problems are, exactly why employee can’t work. Wages and terms and conditions of employment

18. Workers Comp Temporary total. Fight it early, get an IME Might help with ADA issues. Determine what root of problem is and what caused it. Was she working within restrictions, were restrictions accurate. Surveillance? Expensive, may depend on what you’re seeing.

19. ADA Reasonable accommodation? Engage in Interactive process. Ask Sam if there is any way you can assist her in doing her job. Get documentation from the doctor of problems. Check against job description. Transfer Only to vacant positions Where employee is qualified or could become qualified with reasonable amount of training. Work from home???

20. Condition After Sam’s surgery her back is in a condition that would allow her to return to work, however the cut she got has become infected and her arm now needs to be amputated. She will miss an additional 6 weeks. Can she come back at all?

21. FMLA New condition. Start the process over again. Eligibility Make sure the letter to Sam states how much time she has remaining Definitely less than 4 weeks because missed time for treatments and then missed 8 weeks. New certification New Condition New Cert. Make sure documentation indicates when Sam is expected to return (ADA). Roll over to Company offered medical leave? Job restoration?

22. Workers Comp. New condition Additional allowance Key issue, what caused infection (remember Sam wasn’t working). No evidence work caused infection. Scheduled Loss Amputation of arm is going to result in a loss of use award if claim is allowed. Possible PTD??? Pre 2006 statutory Modified duty off site. Transfer? Restrictions?

23. ADA Can you accommodate? Extension of leave time… Interactive Dialogue again Key question: What does Sam need in order to be able to do her job. Key word NEED not WANT. Changing workstation? Work from home? Changing job? Examination? Important to have good job description.

24. COBRA If can’t return to work Expired leave time Can’t accommodate Employee may be eligible for an additional 11 months of cobra (beyond 18) But SSA needs to find the employee is disabled.

25. Conclusion 3 tips Identify early and coordinate What comes in as workers comp may well be ADA, FMLA, OSHA. Take advantage of information from all sources Different laws allow for examinations at different times Communicate with the employee Early and often Assists with coordination of strategy/defense.

26. Thank You! Brendan Feheley Kegler Brown Associate bfeheley@keglerbrown.com (614) 462-5482 65 East State St., Suite 1800, Columbus OH 43215 http://www.slideshare.net/KeglerBrown