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- 1. State University of New York Human Resources Association (SUHRA) SUNY Employee RelationsSUNY Employee Relations Institute (ERI) 2012Institute (ERI) 2012 Workers Compensation Presentation December 4, 2012 by: Mike Ryan, NYS Department of Civil Service and John Farruggio, SUNY Upstate Medical University
- 2. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Workers CompensationWorkers Compensation
- 3. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 http://www.youtube.com/watch?v=GVPLqvbSkyk&fea 48-205 Hopefully you will never have to deal with these stooges when it comes to on the job injuries…
- 4. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 If an employee does have a work relatedIf an employee does have a work related injury/illnessinjury/illness It is essential that an employee report any job-related accident immediately to his or her supervisor and seek first aide or other medical treatment when necessary Additionally, an accident/injury report signed by the supervisor must be completed and forward to the HR section responsible for filing with the insurance carrier for New York State which is the The State Insurance Fund (SIF) Failure to do so could result in loss of benefits available to the employee for an absence due to an occupational injury NOTIFY THE ACCIDENT REPORTING SYSTEM (ARS) at 1-888-800-0029 to report a work-related injury or illness HOWEVER, a call to the ARS does not automatically initiate a workers' compensation report to the WCB and the SIF unless certain criteria are met, including: – Medical treatment beyond first aid; and/or – One lost work shift (one FULL lost work day); and/or – More than two first-aid treatments.
- 5. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Workers Comp Leave for Classified Service EmployeesWorkers Comp Leave for Classified Service Employees (CSEA and PEF Represented)(CSEA and PEF Represented) Employees who incur an occupational injury or disease are eligible for benefits provided under the NYS Workers’ Compensation Law medical & wage replacement Under these rules, employees who are absent because of a job- related injury or disease may be granted leave with pay (current maximum per week $772.96 per week or 2/3rds. salary-whichever is greater) without charge to leave credits, subject to a 5-day waiting period Absences may be charged to accumulated leave credits (including sick leave), as supplemental income per contract provisions
- 6. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Workers Comp Leave for Classified Service EmployeesWorkers Comp Leave for Classified Service Employees (CSEA and PEF Represented)(CSEA and PEF Represented) Entitled to Workers’ Compensation leave as provided in the State attendance and leave rules which include FMLA rights ADA (as well as NYSDHR Law) rights must be considered subsequent to FMLA Light duty vs. reasonable accommodations
- 7. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Impact on BenefitsImpact on Benefits Health insurance (NYSHIP)-continued at employee’s current cost (billed by CS) while on FMLA Retirement-generally, credit is not given for leaves of absence without pay or for any period of time an employee does not receive salary. There are exceptions for those employees receiving workers’ compensation benefits. This benefit is limited to the first 12 months of leave for each injury. Tier 3, 4 or 5 members must make the applicable 3% contributions to cover this time; calculated on the salary earned at the time of leave. Earning accruals-continue to earn, but no anniversary personal leave credits until employee returns to work Tax deferred annuity (403b or 457b)-if no regular compensation, no pre-tax deductions
- 8. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Disability Leaves of Absence, Termination andDisability Leaves of Absence, Termination and ReinstatementReinstatement CS law section 71-- set forth the due process which must be provided to employees (including probationary) Regulation 5.9 supplements Section 71 with detailed procedures for restoration to duty from workers’ compensation leave termination of service upon exhaustion or termination of workers’ compensation leave or reinstatement following termination due to a disability arising from occupational injury or disease
- 9. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 SectionSection 7171 Governs leaves for disability due to occupational injury or disease Must be applied consistent with the requirements of the State Human Rights law, the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA)
- 10. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 SectionSection 71 (Cont.)71 (Cont.) Provides that an employee separated from the service by reason of occupational injury or disease shall be entitled to a leave of absence for a cumulative of one year & two years for a disability resulting from an assault sustained in the course of or arising out of employment Make sure to count time as FMLA leave, if an employee qualifies and notify them that such leave will be designated as such While an employee cannot be terminated while they are on FMLA leave, you may count the time toward the one year leave requirement
- 11. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 SectionSection 71 (Cont.)71 (Cont.) Also provides the right of an employee who has been terminated pursuant to section 71 to be reinstated within one year after the termination of the disability
- 12. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 20 Day Letter20 Day Letter After workers compensation leave has begun, but no later than the 21st cumulative workday of absence, agencies must notify employee in writing of the following: effective date of beginning of leave (including FMLA designation if applicable) right to a leave of absence for one or two cumulative year(s), unless found to be permanently disabled or terminated for some other reason right to apply for restoration to duty at any time during leave (with adequate medical) right to apply for reinstatement, including a right to a hearing to contest finding of unfitness for duty
- 13. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Follow Up on LeaveFollow Up on Leave At the 3-4 month internal, contact employee on their condition, recuperation, treatment, updated medical etc. If unable to RTW review possible benefit options such as disability retirement, SS disability, retiree health insurance Consider for AEH exam upon clearance from doctor
- 14. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Financial Incentive To RTW…Maybe • http://www.colbertnation.com/the-colbert-report-vi
- 15. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 MANDATORY ALTERNATE DUTY (MAD)MANDATORY ALTERNATE DUTY (MAD) Designed to assist employees in returning to work prior to resumption of full job duties Employee must be classified as partially disabled at 50 percent or less by the State Insurance Fund (SIF); and have a prognosis of full recovery (defined as the ability to perform the full duties of the job in which the employee was injured) within 60 calendar days (defined as 60 calendar days prior to the date of full recovery given by the examining physician) If a quailed employee does not request an alternate duty assignment, agency management may direct the employee to return to work on an alternate duty basis
- 16. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 MANDATORY ALTERNATE DUTY (MAD)MANDATORY ALTERNATE DUTY (MAD) CONTINUEDCONTINUED MAD may not necessarily fall within the employee’s regular salary grade, title series or job duties When developing an assignment, management is not restricted to the employee’s former work location, work schedule, or workweek Nothing in this policy abrogates management’s rights to have the employee examined by a physician selected by management as a condition of allowing the employee to return to full duties
- 17. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Termination of Service LetterTermination of Service Letter Provides that employment shall be terminated as a matter of law where employee: has exhausted one or two year(s) leave of absence; OR is permanently incapacitated from performing essential duties of position.
- 18. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 30 Day Letter30 Day Letter Requires that employee be given 30 days notice of termination but should not be served more than 60 days prior to proposed termination and include the following: proposed effective date of termination reason of termination right to apply for restoration to duty obligation to submit to a medical exam to determine fitness for duty right to hearing to contest a finding of unfitness right to apply for reinstatement
- 19. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Restoration to DutyRestoration to Duty Employee can apply at any time for restoration to duty, but not more than once every six months If employee is found to be fit, they must be restored to duty If unfit or permanently incapacitated and employer refuses to restore to duty the former employee may request a hearing Employee has a right to be represented at hearing Hearing Officer makes recommendation to appointing authority.
- 20. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 HearingsHearings Appointing authority makes final determination to: continue leave restore to duty terminate
- 21. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 ReinstatementReinstatement Request must be made within one year of termination of disability Must apply to DCS for medical examination Provide duty statement to EHS and employee applicant must be notified in writing of findings of physician by certified mail If found fit, employee must be reinstated or placed on preferred list If employee is found unfit, may apply to the President of the Civil Service Commission within 10 days of service of the adverse medical determination
- 22. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Case StudyCase Study On June 1, 2012, a full-time CSEA-represented employee (KBS 1) with five years of service is hit by an automobile in the traffic circle on campus on her way to report to work. She is taken to the Emergency Room and is admitted for six consecutive days. You receive documentation from the employee’s doctor that indicates that she cannot return to work until September 16, 2012.
- 23. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Case Study ContinuedCase Study Continued What forms need to be completed when you become aware of the June 1 accident? Why? What portion of this leave (if any) will be considered qualifying leave under the FMLA? What possible sources of income replacement might this employee be eligible to receive?
- 24. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Case Study ContinuedCase Study Continued On September 16, 2012, the employee calls her supervisor andOn September 16, 2012, the employee calls her supervisor and states that she will need to be absent from work for another twostates that she will need to be absent from work for another two weeks.weeks. On September 20 you receive aOn September 20 you receive a Certification of Health Care Provider (CHCP) form that states the employee can return toCHCP) form that states the employee can return to work on October 1st, but the following restrictions will apply forwork on October 1st, but the following restrictions will apply for a period of six weeks:a period of six weeks: -Can’t work in excess of three days each week-Can’t work in excess of three days each week -Can’t lift more than 20 pounds-Can’t lift more than 20 pounds -No prolonged standing-No prolonged standing The CHCP also indicates that a follow-up visit has beenThe CHCP also indicates that a follow-up visit has been scheduled for November 1scheduled for November 1
- 25. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Case Study ContinuedCase Study Continued On September 16, what do you tell the employee when she calls to say that she will be out another two weeks? What do you do when you receive the September 20 CHCP? If the employee returns to work on light duty on October 1 for six weeks and is once again continuously absent due to the same injury, what actions can you take?
- 26. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Case Study Continued What happens if the employee remains out of work for a cumulative period of one year? Can the employee be counseled or disciplined for her absence starting June 1, 2012? How, if at all, would your answers to the questions noted above have changed if the employee had a history of documented time and attendance abuses?
- 27. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Comp Leave for Unclassified Service EmployeesComp Leave for Unclassified Service Employees WorkersWorkers (UUP Represented & M/C Affiliated)(UUP Represented & M/C Affiliated) Employees who incur an occupational injury or disease are eligible for benefits provided under the NYS Workers’ Compensation Law just like Classified service employees Entitled to Workers’ Compensation leave (not as clearly defined as provided in the State attendance and leave rules ) which include FMLA rights
- 28. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Comp Leave for Unclassified Service EmployeesComp Leave for Unclassified Service Employees Workers ContinuedWorkers Continued (UUP Represented & M/C Affiliated)(UUP Represented & M/C Affiliated) Employees who are absent because of a job-related injury or disease may be granted leave with pay (current maximum per week $772.96 per week or 2/3rds. salary-whichever is greater) without charge to leave credits, subject to a 5-day waiting period OR May charge accumulated leave credits (including sick leave), to remain in a full-paid status during leave May result in refund of employee accruals on a pro-rated basis (66%) and reimbursement by SIF to agency subsequent to a WCB Notice of Decision
- 29. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Impact on BenefitsImpact on Benefits Health insurance (NYSHIP)-continued at employee’s current cost (billed at employee rate by CS if employee is paid by SIF) while on FMLA only Retirement- ERS credit is not given for leaves of absence without pay or for any period of time an employee does not receive salary. There may be exceptions for those employees receiving workers’ compensation benefits. This benefit is limited to the first 12 months of leave for each injury. Tier 3, 4 or 5 members must make the applicable 3% contributions to cover this time; calculated on the salary earned at the time of leave. SUNY ORP contributions are only made when an employee remains in a paid status. Leave doe not delay vesting period.
- 30. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Impact on BenefitsImpact on Benefits Earning accruals-continue to earn if employee elects to charge available accruals and remain in a paid status. If employee elects to receive benefits directly from the SIF, will not continue to earn vacation and sick leave accruals. Tax deferred annuity (403b or 457b)-if no regular compensation, no pre-tax deductions
- 31. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 20 Day Letter20 Day Letter After workers compensation leave has begun, but no later than the 21st cumulative workday of absence, agencies must notify employee in writing of the following: effective date of beginning of leave (including FMLA designation if applicable) timeframe of when initial and follow up CHCP form due option to be paid by SIF or charge own accruals additional sick leave {Article 23.4 (g)}/leave donation health insurance continuance (cost/payment)
- 32. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Options while on Leave At the 3-4 month internal, contact employee on their condition, recuperation, treatment, updated medical etc. UUP-represented employees shall be granted a 5-year leave (without pay) for disability and shall be continued on such leave until • the disability ceases, • the employee reaches age 65, • or death, whichever event occurs first. Notwithstanding the foregoing, after five calendar years on such leave, an employee shall not have any right or entitlement to be restored to regular employment status
- 33. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 SeparationSeparation Review service/disability retirement options (ERS) Retirement eligibility (ORP) Retiree health insurance entitlement Social Security Disability LTD & Optional disability benefits ADA reasonable accommodations IME pursuant to Article 23.8
- 34. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 Final ThoughtsFinal Thoughts Train managers and employees to be safety-conscious Review each claim for content and continuance of benefits Communicate with employee while on leave and consider rtw assignment
- 35. State University of New York Human Resources Association (SUHRA) SUNY ERI 2012SUNY ERI 2012 ClosingClosing Any Questions-Any Questions-
Editor's Notes
- SUNY ERI Presentation on Workers Compensation 12/4/12 Good afternoon, my name is John Farruggio and I am the HR Benefits Manger at SUNY Upstate Medical University. First let me say what an honor it is to be able to speak before my esteemed colleagues on this fascinating and trouble-free subject known as workers comp. As a matter of background, I have worked for Upstate for almost 25 years and have held various positions in HR that include employment and recruitment, employee/labor relations, and since 2008, benefits. That being said, I have had a wide variety of experience when it comes to managing, processing and tracking leaves associate with work related injuries/illnesses. Before we get started, please indulge me for a few minutes so that we can set up our course objectives and why the information presented today is of importance.
- Since most of the on-job job injury reports that come across our desks will not necessary include “Act of God” events as seen in this cartoon, it is vital that you have a good understanding as to how the w/c process on each of your campuses must operate to comply with the variety of legal, contractual, and regulatory requirements and how in the midst of this multi-layer process can your HR operation “managed” such employee leaves. Most of you are probably thinking I am lucky if I can “contain” let alone manage workers comp. leaves. If you are not captivated by this learning objective, then (in order to retain your level of interest), ask yourself, why should this subject matter be important to me? Wait for participant responses… Let take a quick pre-training quiz called “You be the Judge”….Can Pot-Smoking Whiskey-Guzzling Employees get workers comp? You will be glad to know that in NYS, to be eligible for Workers’ Compensation a worker must suffer from job injury or disability resulting from employment. All work-related injuries and occupational diseases are covered with the exception of injuries resulting solely from a worker’s intoxication from drugs or alcohol, or from the intent to injure himself or someone else. However, citizenship/Legal Alien Status is NOT a condition of eligibility. Even illegal aliens are covered by Workers’ Compensation.
- Most of you (including myself until recently), probably were not aware that Section 7 of the Civil Service Law was amended in Chapter 171 of the Laws of 2007 to require that the President of the Civil Service Commission prepare an annual report describing occupational injuries, illnesses and workers’ compensation claims in Executive Branch state agencies (which includes SUNY). SEE COPY OF PRINTED REPORT. The reported results (while not completely cumulative of all claims) includes workers’ compensation experience through the Accident Reporting System (ARS) and a summary of workers’ compensation claims experience provided by the NYSIF with employee population data are obtained from The Department of Civil Service New York State Electronic Personnel System (NYSTEP). So you may ask yourself how does report affect me and why should care? There were 15,596 work related claims in FY 2010/2011 Workers’ compensation incident rate increased from 9.9% to 10.3% in FY 2010/2011 resulting in an increase in medical cost and unproductive work hours Slightly over 28% of workers’ compensation incidents in FY 2010/2011 resulted in lost time Sprains, Strains, Tears were the category of incidents with the highest incident rate at 29.4% in FY 2010/2011 The leading incident causes in all four fiscal years reported were: Falls To Floor, Walkway, Or Other Surface; Bodily Reaction and Exertion; Falls; and Overexertion In Lifting The top three body parts injured in all four fiscal years were: Back, Knee(s); and Shoulder Besides the importance of creating and maintaining a safe and health work environment, w/c related costs are constantly increasing and has a negative impact on operational expenses which should be a concern for not only HR but managers and employees.
- It is the responsibility of the injured employee to NOTIFY their supervisor and the way in which it occurred as soon as possible, following the campus accident reporting procedures. If an employee fails to inform the employer in writing within 30 calendar days of the date of the accident causing the injury, the employee may lose the right to workers' compensation benefits. In the case of an occupational disease, the employee must file a claim within two years after he/she knew or should have known the disease was work-related, whichever is later. The New York State Department of Civil Service has entered into said insuring agreement with the State Insurance Fund, contract number C177594, securing the State's liability for the payment of workers' compensation in accordance with the Workers' Compensation Law. It is the responsibility of the campus HR Dept. to REPORT the injury to the SIF immediately, following Workers' Compensation Law reporting requirements, including completion of Form C-2 for the SIF and the WCB within 10 calendar days. Note: The Workers' Compensation Law requires a written report from your agency with respect to every accident resulting in personal injury that causes a loss of time from regular duties beyond the working day or shift on which the accident occurred, or that requires medical treatment beyond first aid or more than two treatments by a doctor or persons rendering first aid. A report of an occupational disease should also be made by your agency on the C-2 form. THIS REMINDS ME OF A STORY I HEARD ABOUT A PIRATE WHO TRIED TO CLAIM W/C BENEFITS MANY YEARS AFTER HIS INJURIES WERE SUSTAINED….
- Under New York State Workers’ Compensation Law (Section 88-C) of the Workers' Compensation Law, as amended by Chapter 103 of the laws of 1981, provides for workers' compensation coverage of New York State employees, employees who are disabled due to a workers’ compensation incident (injured in the course of employment) are entitled to a wage replacement for lost salary and medical benefits related to the incident. This type of “insurance” is in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence. The tradeoff between assured, limited coverage and lack of recourse outside the worker compensation system is known as "the compensation bargain.“ What Are Your Medical Benefits? You are entitled to all necessary medical care that your injury or your process of recovery may require. The broad range of services available covers medical, osteopathic, dental, podiatric, psychological and chiropractic treatment, surgery and hospital care, x-rays, laboratory tests, prescribed drugs, authorized nursing services, and the provision, repair or replacement of medical or surgical appliances or prosthetic devices, as necessary, required by the injury. You are free to choose any physician, podiatrist, chiropractor, outpatient clinic of a hospital, or health maintenance organization authorized to give medical care by the WCB. You can obtain a list of authorized medical providers from your local WCB office. Cost of necessary medical services is paid by the SIF. Your doctor may not collect a fee from you. However, if your compensation claim is disputed by the SIF, your doctor may require you to sign Form A-9 guaranteeing payment if the WCB disallows your claim or if you do not pursue your claim. You should coordinate with your health care and workers' compensation providers so that bills can be submitted in the event that injuries are not compensable. One way to avoid problems is to select treating physicians who are authorized by both the WCB and who are participating providers under your health insurance plan. DO NOT submit bills to two carriers, one as ordinary and one as occupational disability, because it will result in denial of both benefits. In the event your workers' compensation claim is disputed, you will still be eligible for some coverage under the Health Insurance Article of your contract. What Wage Replacements Are Available? The level of wage replacement is determined by the negotiated agreement that covers the injured employee. The various levels of wage replacements include: Statutory Benefits provide a weekly payment calculated according to the following formula: 2/3 x injured employee's average weekly wage for the previous year (up to a maximum amount) x percent of disability. The maximum amount is based on the New York State Average Weekly Wage (NYSAWW). The NYSAWW is the average weekly wage of the State of New York for the previous calendar year as reported by the Commissioner of Labor to the Superintendent of Insurance on March 31 of each year. Refer to the schedule of maximum rates from the Department of Labor at: http://www.labor.ny.gov/stats/avg_wkly_wage.shtm. Note: The benefit rate a claimant receives is determined by the date of injury and does not increase with any subsequent changes in maximum benefits. The wage component is equal to two-thirds of the employee’s average weekly wage not to exceed a maximum established under the Workers’ Compensation Law. The current statutory maximum is $772.96 per week or 2/3rds. salary-whichever is greater. Is There A Waiting Period? Employees who are eligible for wage replacement benefits pursuant to the Workers' Compensation Law receive no wage replacements for the first seven calendar days of disability (which is the Workers' Compensation Law waiting period), unless the disability extends beyond 14 calendar days. If your disability lasts between eight and 14 calendar days, you may be entitled to wage replacements for the days that fall within that period. If your disability extends beyond 14 calendar days you may be entitled to wage replacement benefits retroactive to your first day of disability. You have the option of using accrued leave credits to cover your absences during the first seven calendar days. You must advise your agency if you do not want to charge credits during the waiting period. Employees who remain on their agency's payroll on Workers' Compensation Leave at full pay, receive benefits from the first day of disability. Can You Use Your Leave Accruals? The use of leave accruals depends on the negotiated agreement applicable to you. The majority of employees may not charge leave credits except during the first seven calendar days of the initial waiting period. If, when you return to work you are absent for partial days that are related to your Workers' Compensation incident, you may use your leave accruals to cover these absences. For any full days of absence, you will be placed on leave without pay and may be eligible for wage replacement benefits from the SIF. (See specific contract language to determine what benefits are available and the section below on Other Benefits concerning your entitlements while on leave without pay.) When Will You Receive Wage Replacement Payments? If the SIF, as New York State's insurance carrier, accepts responsibility for your claim, the first payment must be made within 18 calendar days after your disability begins or 10 calendar days after you notify your employer, whichever is later, but in no case will payment be made without medical documentation of a disability. In order for the SIF to pay wage replacement benefits, they need to have an accident report from your employer and a medical report from your physician indicating your disability is related to your injury. Payments are then due every two weeks for the period of your disability. If you receive notice from the SIF that your claim is being disputed, call the SIF or your agency. Note: If your contract provides for a supplemental wage payment, you will receive two checks at approximately the same time at the beginning of your disability - a check from your agency for the two weeks you worked prior to your accident (lag pay check), and a wage replacement check from the SIF for the initial period of your disability. As a result of receiving these two checks at approximately the same time, you are now no longer on a two-week lag payroll cycle. Consequently, when you recover, return to work and are restored to your agency's payroll, you will be required to make up this two-week lag period. Consequently, you will not receive your first agency pay check until you have worked for approximately four weeks while your the SIF disability payments will stop close to your return to work date. How Will Your Wage Replacement Rate Be Determined? If you are classified as "totally" disabled and are eligible for wage replacement benefits, you will receive two-thirds of your average weekly wage, but no more than the maximum benefit allowed. Your average weekly wage is determined by the SIF based on payroll records for the year prior to the date of disability or accident. If you are eligible for supplemental payments, you will receive a total wage replacement (statutory benefit plus supplemental payment) that equals 60 percent of pre-disability gross wages. Under the Workers' Compensation Law, disabilities are classified under several groups. When a disability is classified as total, you will receive the benefits maximum based on your average weekly wage. When your disability is classified as partial, you will receive a percentage of your benefit maximum based on your average weekly wage and you may qualify to participate in either the Mandatory Alternate Duty Program or Light Duty Assignment described above. Contact your agency for details. Under some contracts, a Supplemental Pay Program, which supplements the Statutory Benefit for up to nine months so that the total wage replacement equals 60 percent of the employees pre-disability gross wages. Under some contracts, injured employees may receive up to six months of leave at full pay. Benefits vary not only by negotiated agreement but also by the date of disability, the severity of the disability, and the options exercised by the employee. Consult your union contract for the specific details of each benefit. Please see: Article 11 of the CSEA Agreements, Article 13 of the PEF
- Whenever an employee experiences lost time (i.e. continuous absence) based on a work-related injury, such should be counted against their 12 weeks of FMLA entitlement if eligible. Failure to simultaneously designated FMLA concurrent with W/C leave may leave the campus susceptible to providing additional leave to an ee for other types of leave subsequent to the ee’s rtw. Note: that for leaves that span two calendar years ensure FMLA is designated the second year if the ee is eligible. Also, if an employee is out subsequently to an old injury, ensure that they receive their entitled 12 weeks of FMLA prior to termination under Section 71 of CS Law (which may extend cumulative leave beyond 1-2 years timeframe). See FMLA, ADA, and W/C Chart. If an ee on w/c leave exhausts his/her FMLA and CS Law entitlement, beware that you do not circumvent their rights to perform the essential function of their job with reasonable accommodations as for the most part those out due to a w/c injury/illness will be considered “disabled” under the law(s). This is why reference to the ADA and rights to request reasonable accommodations is critical in both the initial leave notice and subsequent pre-term and term letters. Reasonable accommodations do not require that the employer create a job, place them in a job for which they are not qualified or bump a current employee, but it has equated (according to the courts and the EEOC) to reassignment, transfer or appointment (i.e. 55b), job restructuring, and placement into a part-time vacancy. A RECENT COURT CASE AFFIRMED THAT IF A DISABLED EMPLOYEE IS MINIMUMLLY QUALIFIED FOR A VACANCY, AND CAN PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB WITH OR WITHOUT REASONABLE ACCOMMODATIONS, HE/SHE SHOULD BE GIVEN PREFERENTIAL TREATMENT/CONSIDERATION IN PLACEMENT. If the ee inquires about reasonable accommodations, it is vital that you engage in the interactive process and show a good faith effort in trying to determine with the ee and their manager what a reasonable accommodation may entail. Remember, it does not have to be the “best” accommodation or the one the ee requests, but a adequate and reasonable one (which may change over time based on changes in employer operational needs and/or the ee’s degree of disability). In terms of light duty vs ADA permanent accommodations, rtw restricted duty assignments (ie. Under MAD) done on a limited duration (i.e. 30-90 days) may include “make work assignments” as allowed under the labor agreements.
- Employees have the option of being billed for their share of NYSHIP premiums or being billed for arrears upon their rtw (max $100 per PP). If they elect to defer payment and fail to rtw or elect to file for retiree health insurance, they must re-pay owed premiums or be discontinued from coverage. Other deductions such as union dues and premiums for supplemental insurance coverage cease. May wish to “catch up” with TDA contributions upon rtw by completing an updated SRA with HR.
- Scheduled Loss of Use: Each limb, digit, eye, and ear is assigned a value in number of weeks for a total loss of use of that body part. Benefits are payable based on the percentage loss of use suffered by the injured worker. If injured persons return to work prior to the number of weeks allowed for their loss, they receive a lump payment of the balance of weeks to which they would have otherwise been compensated. To add insult to injury (no pun intended) Workers’ Compensation benefits are not taxable.
- Implement a comprehensive safety program that provides for regular meetings that promote safety, share written guidelines and hazard communications (ie. MSDS sheets), and maintain annuals RTW training. Review injury reports, verify listed witnesses, request IME and possibly surveillance by the SIF. So often in workers’ compensation cases, a claimant’s physician will submit and testify to a total disability on behalf of the claimant — but, when faced with the specific criteria enumerated above, they often must concede that a claimant does not have a total disability. This decision supports the idea that is unacceptable for a doctor to testify to a total disability with having absolutely no knowledge of how claimants spend their day. This decision supports a finding of a total disability in circumstances where it is warranted and should be relied on when pursuing a finding that a claimant presents with less than a total disability. Contact ee periodically (based on follow up doctor appts.) to see how they are progressing and when they may expect to be able to rtw, advise of Section 71 leave limits, and MAD option.