Employee Health/Medical Complaints

Decipher the ADAAA, FMLA and WC Puzzle

Puiggari ConsultingDecember 2010(505) 690-4052

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Statutes

• Americans With Disabilities Act and Amendments

• Family Medical Leave Act (And USERRA)

• Workers Compensation Act

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ISSUE

• Each Statute involves medical issues

• Each Statute requires actions by the employer

• Each Statute has different requirements

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Separate the AnalysisMany scenarios arise in which all three

statutes may need to be applied

However, the scope and application of each statute is widely divergent

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Separate the Analysis

Each law:• Was enacted for different purposes and

apply to different levels of illnesses and injuries

• Is applicable to different categories of employers and employees

• Has different requirements for bringing a claim

Must Do Separate Analysis

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• In General the ADAAA and WC statutes contain requirements much broader than the FMLA– Ex. ADAAA can require reasonable

accommodation. One form of reasonable accommodation can be paid or unpaid leave. FMLA only addresses unpaid leave

• In MT, there is no state FMLA but there is very liberal leave and accommodation provisions for pregnancy

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All 3 Statutes in Play

• The only time all 3 statutes are implicated is when employee is injured on the job and requests some sort of leave

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WHEN TO SIT UP AND TAKE NOTICE

• Whenever an employee’s ( or immediate family member’s) medical condition becomes an issue in his or her ability to perform the job

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STEPS

• Determine which of these laws applies (even if the employee does not mention any of them when requesting leave)

• Examine each law to determine if applicable• For applicable law determine type and amount

of leave• Examine each law to determine any other

rights employee may have or obligation employer may have

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Conflict Between Statutes

• ALWAYS APPLY LAW AND PROVISION THAT GIVES GREATER RIGHT TO EMPLOYEE

• To separate issues, there needs to be understanding of what each law requires

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WHAT TO DO!!!• If the employee mentions medical issue:

– GET MATTER TO HR AS SOON AS POSSIBLE– KEEP INFORMATION CONFIDENTIAL

These issues are complicated. Don’t judge seriousness yourself. Let HR do the job they are supposed to do.Don’t assume person is not “really” injured/disabled

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Overview of Each LawFMLA-Federal (50 or more)

• FMLA provides up to 12 weeks of unpaid leave during any 12 month period for:– Birth or adoption of child (includes foster care)– Employee’s care of spouse, child, or parent

with “serious medical condition”– Employee’s inability to perform one or more

essential function of the job due to “serious medical condition” * (determined by health care provider)

* This same as ADAAA requirement. ESSENTIAL THAT THERE BE GOOD JOB DESCRIPTIONS THAT ENUNCIATE ESSENTIAL FUNCTIONS OF JOB

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Other Provisions• Employer must maintain employees health

insurance• Employer must restore employee to original or

virtually identical job (terms of pay, benefits and other terms and conditions)

• Employees cannot loose any seniority for time they are on leave

• Applies to employers that have 50 or more employees in 75 miles, employees must have been employed for 12 months and worked 1250 hours prior to request for leave.

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Serious Medical Condition

• In Patient Care (hospitalized)• Illness keeps employee out for 3 or more days if

treated at least twice by a health care professional during the 3 day period—or one visit but requires continuing treatment

• Permanent long term problem supervised by physician where there is no effective treatment (severe stroke, alzheimer’s)

• Incapacity due to pregnancy or childbirth

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FMLA LEAVE

FMLA LEAVE:

– Continuous

– Intermittent (due to single qualifying reason)• If full attendance necessary for job may transfer

person to other position temporarily which better suits reduced hours (ex. Litigation paralegal)

– Part-time employees entitled to proportionate share

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FMLA reinstatement

3 Exceptions:

1. Employee would have been terminated anyway had they not been on leave

2. Key Employees (must be given leave but can be returned to different job even one with less pay)Must notify employee (when first receive request) you consider them to be Key employee and why.

3.Employee tells employer they do not intend to return to work after leave.

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Employer Obligations

• Provide poster with notice to employees of rights

• Must have same information in employee handbook or give to new employees upon hire

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Necessary Forms/Notice• If employee qualifies for FMLA

– Employer must:• Send employee letter designating time off as FMLA leave

– http://www.dol.gov/whd/regs/compliance/whdfs28d.pdf– Within 5 business days of ee request or er designation– Inform ee of eligibility status– If not eligible must say why

• Provide Employee notice of their rights and responsibilities

• Get medical certification– http://www.dol.gov/whd/forms/WH-380-F.pdf

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Rights and Responsibilities

• Notice must be in writing and include:– Leave may be counted as FMLA– How the 12 months is counted– Any requirement certification is necessary and consequences of

not providing it– Ee’s rights and er’s requirement of use of paid leave; and right to

unpaid leave– Instructions for payment of health insurance premium if ee does

not return after 12 weeks– Notice of designation of key employee– Ee’s right to job restoration and maintenance of benefits

See: http://www.dol.gov/whd/regs/compliance/whdfs28d.pdf

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FMLA Health Care Certification

Employer can send certification to health care provider listing essential functions and asking them to certify person can or can not do those functions.

A note saying person is excused from work for ___number of days is not sufficient and does not have to be accepted.

Employees obligation under FMLA to have doctor provide the necessary information

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FMLA

• Employer may not require worker to accept light duty job

• Employer may not require employee to accept “modification or accommodation” instead of light duty

• Employer can require paid leave run concurrently with FMLA leave and must be taken. However, employee must be notified of this in advance.

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Military

• Enhanced leave • USERRA• Get Help

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MT Pregnancy Leave• 49-2-310. Maternity leave -- unlawful acts of employers. It is unlawful for an employer or an

employer's agent to:      (1) terminate a woman's employment because of the woman's pregnancy;      (2) refuse to grant to the employee a reasonable leave of absence for the pregnancy;      (3) deny to the employee who is disabled as a result of pregnancy any compensation to which the employee is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer, provided that the employer may require disability as a result of pregnancy to be verified by medical certification that the employee is not able to perform employment duties; or      (4) require that an employee take a mandatory maternity leave for an unreasonable length of time.

• KEY POINTS: Because a woman is pregnant: can’t terminate, can’t refuse “REASONABLE” leave of absence, deny any other accommodation they are entitled to, can’t require employee to mandatory leave for unreasonable length of time; CAN ask for medical certification employee can’t perform job duties.

• What is unreasonable length of time, what is reasonable leave of absence.

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Pregnancy Leave cont’d49-2-311. Reinstatement to job following pregnancy-related

leave of absence. Upon signifying an intent to return at the end of a pregnancy-related leave of absence, the employee must be reinstated to the employee's original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other service credits unless, in the case of a private employer, the employer's circumstances have so changed as to make it impossible or unreasonable to do so.

– KEY POINTS: Employee must indicate to employer in some way they intend to return to work. Then employer must reinstate in original or equivalent job. Equivalent means equivalent.

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Breast Feeding

• Mandated time for employee– Both Federal and State law

• Necessary Time-Unpaid• Private place: Not bathroom

– Shielded from view and intrusion

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USERRA

• 38 U.S.C. 4301 et. seq – Provides Enhanced leave rights AND job

protections for employees absent/injured for military duty

– Prohibits discrimination in employment and retaliation against any person who was, is, or applies to be a member of a uniformed service or who performs or has an obligation to perform service in a uniformed service

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• Leave of absence for up to 5 years if

absent because of service (how this is counted is complicated)

• Must reinstate returning veteran to the position they would have held if his employment had not been interrupted by military service

• Applies to all employers regardless of size• Applies to all employees regardless of

length of service

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• Service includes training, active or inactive,

voluntary or involuntary and any absence required to ascertain if the person is fit for duty

• Notice by employee is required unless circumstances make it unreasonable

• Employer does not pay employee while gone• Employee must be allowed to elect to pay for

health benefits while gone• Entitled to all benefits would have had if

continuously employed (so 5 years accrued vacation)

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ADAAA

Prohibits Employers from discriminating against employees or applicants on the basis of :

– Existing disabilities– Record of a disability or – Regarded has having a disability

Requires employers to “reasonably accommodate” a qualified individual with a disability so the employee can perform the essential functions* of the job, unless such accommodation would create an undue hardship for the employer or threaten the health and safety of other individuals.

* There is that term again…..

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Definition-Disability An individual with a disability is a person who:

a. Has a physical or mental impairment that substantially limits one or more

major life activities;

b. Has a record of such an impairment; or

c. Is regarded as having such an impairment.

The Amendments Act did not change the actual definition of disability – the definition is exactly the same as it was. What did change is the meaning of some of the words used in the definition and the way those words are to be applied to individuals.

• The Amendments Act emphasizes the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA.

• The effect is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA

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AmendmentsThe Amendments Act:

a. Directs the EEOC to revise that portion of its regulations defining the term "substantially limits". The Act clarifies an impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be substantially limiting;

b. Expands the definition of "major life activities" by including two non-exhaustive lists:

1. the first list includes many activities that the EEOC has recognized (e.g., walking)

as well as activities that EEOC has not specifically recognized (e.g., reading,

bending, and communicating);

2. the second list includes major bodily functions (e.g., "functions of the immune

system, normal cell growth, digestive, bowel, bladder, neurological, brain,

respiratory, circulatory, endocrine, and reproductive functions");

c. states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;

d. clarifies that an impairment that is episodic or in remission is a disability if it would

substantially limit a major life activity when active; (cancer)

e. changes the definition of "regarded as" so that it no longer requires a showing that the

employer perceived the individual to be substantially limited in a major life activity, and

instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;

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Reasonable Accommodation• Employers must offer reasonable accommodation that

will allow employee to perform essential functions of job– Essential functions of job are those that are reason

for jobs existence, cannot be reassigned (require special knowledge) ; attendance always essential function

• Reasonable accommodation is not necessarily what employee requests

• Must engage in interactive process• Undue hardship: financial resources of co. not sufficient-

impact on operation of facility and other employees

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Interactive Process

• The ADA requires covered employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.

• The interactive process is the dialogue between the employer and employee with the objective of finding such an accommodation, a means by which a disabled employee can perform the essential functions of a job in the employer's workplace.

• The ADA requires the employer to interact with the disabled individual to make an accommodation for those limitations. Further, the interactive process requires the employer to engage in a form of individualized bargaining with the employee.

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Reasonable Accommodation• Employers must offer reasonable accommodation that

will allow employee to perform essential functions of job– Essential functions of job are those that are reason

for jobs existence, cannot be reassigned (require special knowledge) ; attendance always essential function

• Reasonable accommodation is not necessarily what employee requests

• Must engage in interactive process• Undue hardship: financial resources of co. not sufficient-

impact on operation of facility and other employees

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EEOC Definition• The EEOC,, defines the interactive process as :

"an informal, interactive process . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”

• The EEOC's interpretive guidelines state: "Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability."

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EEOC’s 4 Steps-Interactive Process(1)Analyze the particular job involved and determine its purpose and

essential functions;

(2) Consult with the [disabled] individual . . . to ascertain the precise job-related limitations imposed by the . . . disability and how those limitations could be overcome with a reasonable accommodation;

(3) In consultation with the [disabled] individual . . . identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

(4) Consider the preference of the [disabled] individual . . . and select and implement the accommodation that is most appropriate for both the employee and the employer.

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• both the employer and the employee have the responsibility of making the process interactive and productive. "[T]he employer and employee must work together in good faith to help each other determine what accommodation is necessary.” The responsibility to enter into the process is shared because "each party has information the other does not have and cannot easily obtain.“

• The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed.(25)

• The exact nature of the dialogue will vary. In many instances, both the disability and the type of accommodation required will be obvious, and thus there may be little or no need to engage in any discussion. In other situations, the employer may need to ask questions concerning the nature of the disability and the individual's functional limitations in order to identify an effective accommodation. While the individual with a disability does not have to be able to specify the precise accommodation, s/he does need to describe the problems posed by the workplace barrier.

• there are extensive public and private resources to help the employer identify reasonable accommodations once the specific limitations and workplace barriers have been ascertained.

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Medical Certification– ADA prohibits any pre-employment medical

examinations or inquiries about disability– Can make job offer contingent on post offer

medical examination (all individuals in that job category are required to have one, and examination is job related)

– If employee requests accommodation can send essential functions of job to Dr. and ask what employee can and cannot do without accommodation and what employee needs to be able to do essential functions.

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Don’t do….

Do not say things that suggest employee has disability

After someone is injured don’t say:

– well I don’t see how you are going to lift anything now….

– maybe you should apply for disability under our insurance policy

– your doctor may have released you to work but I don’t think it is safe for you do this kind of work now.

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Example Case• You have a disabled employee that has an

assistance dog, and she has worked for you for 5 years. She is a good employee with good evaluations. She doesn’t need any other accommodations except her dog. One day the employee comes to you and says her dog is getting older and slips on the linoleum floors of the office building. She believes the dog will be hurt by this eventually. She would like an accommodation.

• What do you do?

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Workers Compensation• Applies to all employers• Must be work related injury (employee cannot

perform job either temporarily or permanently)• Provides wages and medical care• Impairment/injury (what is wrong with person

after MMI by Dr.) under Act is not necessarily a serious medical condition under ADAAA

• MMI is the date after which further recovery can no longer be anticipated

• Employer does not have to continue to employee worker that cannot perform job

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WC Cont’d• Not required to offer accommodation• Most employers offer light duty—insurance

reasons• If terminated once employee is recovered,

if job opening similar to pre injury job must hire that employee

• IME: if dispute regarding extent of employee’s injury—if employee refuses IME forfeits benefits (for period of refusal)

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Goal Difference between ADA, WC and FMLA

• WC gives medical treatment and wages to injured workers (does not require they work)-enforced by state

• ADA designed to get employees to work by requiring employers to give accommodations to allow them to work

• FMLA goal of ensuring employees can return to jobs after taking time off for own or family members health condition

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Interaction of Laws

• Remember an employee with a disability/injury as defined by WC may not have disability as defined by ADA (temporary, not long term etc) and an employee eligible for FMLA may not have a disability as defined by the ADA.

• To request an accommodation the employee need not use those words…they may just ask for a change in schedule or what they are doing

• Look at the situation and analysis under each law: Make sure to do this at every stage…including when employee returns to work from WC or FMLA leave…now are they disabled under ADA and need accommodation?

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ADA WC FMLA

Ability to Request Medical Information

Yes If employee asks for accommodation If employee needs extended leave (past WC or FMLA). If disability not obvious to see if employee disabled. To see if employee needs accommodation. To see if certain accommodation will work and permit employee to perform job.Can require employee to submit medical excuses for all absences.Can require IME to see if can perform essential functions or to ascertain type of accommodation or to see if employee poses “DIRECT THREAT” to themselves or others (employer pays for exam)If employee refuses generally will defeat ADA claim

Yes. Will get Drs. Notes for WC information. Also can request IME from employer doctor . Employee must cooperate or benefits cut off during time they do not comply. Can also ask doctor if employee can perform essential functions of position upon release to return to work. (if not look to ADA. If not disabled then employer can terminate)

Yes DOL form Get certification at start to see if there is serious medical condition Recertification every 30 days Can require IME –employer pays for examination

Health Benefits

Not required to maintain if employee on leave

Must maintain while employee on WC leave

Required to maintain while employee on FMLA leave. No need to maintain other benefits

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ADA WC FMLA

Notice

Employee obligation to request accommodationHowever, if employer suspects (FMLA,WC etc) don’t wait.Engage in INTERACTIVE PROCESS!!!—* MOST TRICKY: employee out on WC or FMLA leave and returns—may be subject to ADA protection and may need reasonable accommodation—may ask indirectly (I need to be excused from typing, I would like to work less hours etc.). Need to assume this is request for accommodation and inform HR.

1st report of injury must be submitted by employee. If employer aware of injury ensure it is done

Employee obligation to request leave 30 days in advance if doable.Employer can designate leave as FMLA if tells employee doing so in advance (if leave qualifies) and should do so.If employee only asks for FMLA ensure they understand employer may need to look at ADA also in future-if after 12 weeks still have condition (then ADA interactive process if condition is disability)

Leave

Accommodation can be time off, working part-time, etc.Any time off can be unpaid.Analyze under both ADA and FMLA; employee gets greater benefits.If FMLA and WC time off exhausted, additional leave can be reasonable accommodation (if condition is disability). There is no limit to amount of leave that can be “reasonable”. Do not need to give additional leave or can stop leave when it becomes undue hardship (look at needs of business, cost, can you fill in position with someone else etc).

WC leave per statute Limit 12 weeks: can be done all at once, or in blocks or intermittent. If not at all at once very important to keep records. No requirement to give beyond 12 weeks

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Other Position

If exhausted leave under FMLA and WC and it is disability employer can give more leave as reasonable accommodation.If employee cannot do former job anymore if Employer has equivalent position and employee can be reassigned without undue hardship, this is reasonable accommodation. If there is no equivalent position, but lesser one and employee will accept it then Employer must reassign employee. Employer is not required to create light duty position.Employer can ask for medical certification (and information) from physician to ascertain whether or not condition is disability.

Can create light duty positions-but not required. This helps with WC insurance

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Return to Work

If WC injury, or FMLA and then disability, must accommodateCan only refuse to accommodate (return to work) if employee cannot do essential functions of prior job, if there is no other position that can be accommodation or if the employee is a direct threat to themselves or others.

Employer decides, based on medical information from doctor, when employee needs to return. No need to consider ADA if condition not disability (short term, resolved etc.). If there is continuing condition see if it is disability under ADA.Return to same job under WC (unless accommodation under ADA), only if recovered and job available

After 12 weeks return to original job or virtually identical (pay, benefits, T& C of job). IF can’t perform essential functions of job then see if it is disability under ADA and you must offer accommodation. Don’t have to reinstate key employee.Key employee: has statutory definition but typically is person co. cannot function without and can’t be replaced by temporary person

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ADA WC FMLA

Fitness for Duty

IF WC injury that is disability and do fitness for duty evaluation only for essential functions of job if employer reasonably believes employee’s injury impairs ability to perform essential functionsCan ask for fitness for duty if employer thinks employees disability direct threat to themselves or others and if only related to job’s essential functions.IF employee cannot perform essential functions then must see if accommodationDoctor’s evaluation must be accepted.

Employer can contact health care provider, see medical records, ask for IME.Can send fitness for duty certifications listing essential functions and have medical provider certify employee can do them.

Can demand physical examination to determine if employee capable of performing essential functions of job but can only relate to medical condition took leave for or that resulted in WC injury. Note from health care provider must be accepted by Employer. So if not just says “employee can return to work” you cannot question that (don’t assume they can’t or then violate ADA—regarded as disability). Cannot request more details or further medical evaluation. Can’t contact health care provider

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Reasonable Accommodation

Yes. Employer must offer reasonable accommodation.Employee must request reasonable accommodation: need not be direct request or use of those words.If employer suspects there is a disability (disability not obvious) can request medical certification or can ask employee if they need an accommodation. If employer knows there is disability use interactive process. Ask employee if they need accommodation.If employee asks for accommodation, employer can ask for medical information to establish if disability, what kind and if the accommodation would permit employee to perform essential job functions. Employer can get copies of medical records.Ex. Secretary to two litigation lawyers asks for relief from typing. This essential function—get medical certification, designate as FMLA leave if give time, if carpal tunnel because of work then WC also.Reasonable accommodations can include; leave (full or part time), reduced hours, job restructuring. USE JAN (JOB ACCOMMODATION NETWORK).

No. If injury is disability then see if ADA applies

No.

Termination

Yes but make sure employee cannot perform essential functions of job, with or without reasonable accommodation (so only if not other position, can’t restructure job etc), or it would be undue hardship and the employee has exhausted all absences allowed under leave policies.

Yes. Can be terminated if have policy that employees with injuries that cannot come back to original job within ___ days (i.e. cannot perform essential functions of job) will be terminated and co. applies policy consistently. Also must apply to all employees—not just those with WC injuries. Also employee must have exhausted WC leave.

Yes. Leave expired and employee cannot return to former job because cannot perform essential functions. If condition is disability then look at ADA

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NOTES:• All medical information must be kept in separate file (from personnel file)

and kept locked• Supervisors should not have unlimited access to medical information but

only told what they need to know.

• RESOURCES:www.eeoc.gov

• http://askjan.org• http://erd.dli.mt.gov/human-rights/employer-resources.html• http://www.dol.gov/whd/fmla/