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Employment Law:

Issues You Need to Know

Presented By:

Bill Duda

Columbia, SC Office

SCWCEA’s 1-Day Seminar“Reaching the End of the Road”

Objectives

Address the basics of each law

Identify employment law issues common to workers’ compensation claims

Discuss how to address overlapping rights in common workers’ compensation scenarios

Common Employment Laws

The Family and Medical Leave Act (FMLA) The Americans with Disabilities Act (ADA) The Fair Labor Standards Act (FLSA) Employee Retirement and Income Security Act (ERISA)

STD/LTD Consolidated Omnibus Budget Reconciliation Act

(COBRA) Health Insurance Portability and Accountability Act

(HIPAA) Genetic Information Nondiscrimination Act (GINA) Workers’ Compensation Retaliation (Section 41-1-80)

FMLA Basics Covered Employers:

All public employers; and Private employers w/50+ employees

Covered Employees Employed for at least 12 months total; Worked at least 1250 hours for the

employer during the 12 months immediately preceding the leave;

Works at a site w/at least 50 employees within a 75-mile radius; and

Who have a “serious health condition”

FMLA Basics “Serious Health Condition”

A physical or mental condition involving Inpatient care in a hospital, hospice or other

medical care facility or “continuing care” by a health care provider

“Continuing Care” A period of incapacity of more than three

consecutive full calendar days and any subsequent period of related treatment

Any period of incapacity due to pregnancy Any period of incapacity due to a chronic,

serious health condition

FMLA Basics

If covered, FMLA leave provides the employee: Pay and benefit

protection Job protection – same or

equivalent position Protection in w/c

situations typically limited to 12 weeks during any 12-month period Additional protection for

military-related situations

ADA Basics Covered Employers:

Employers w/15+ employees

Covered Employees Length of service irrelevant “Disabled” and Qualified “Regarded As” or “History of”

Requires employers to

Make reasonable accommodations Treat disabled employees equally Limits medical inquires

job-related, consistent with business necessity

Medical information confidentiality Locked up w/limited and controlled access Separate from personnel file

ADA Basics

ADAAA (effective January 1, 2009) Assume

Disability

And

Attempt to

Accommodate

Reasonable Accommodation Examples Job modification (how it is done) Reassigning non-essential job duties (who does it) Reasonable leave or extensions of defined leave

limitations Modified work schedule

FLSA Basics

Requires employers to Pay at least minimum wage for all hours worked Pay for overtime at a rate of 1.5 times the

employee’s “regular rate”

Provides exemptions from minimum wage and overtime requirements for certain employees paid in a certain way

ERISA Basics

ERISA – governs how benefits are delivered

STD/LTD – benefit plans to provide income during medical leave

COBRA – allows continuation in benefit programs, at the employee’s cost, after a “qualifying event”

HIPAA – prohibits disclosure of “protected health information” by “covered entities” such as health care providers, health plans and health care clearinghouses

GINA Basics

Prohibits employers from requesting or making employment decisions on employee’s genetic information, including family history

Exceptions exist, particularly for inadvertent receipt of such information, if “safe harbor” language is included in the request which results in genetic information being disclosed

Not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws”

GINA – Safe Harbor Language“The Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

SC Retaliatory Discharge

S.C. Code Ann. Section 41-1-80 No “discharge or demotion” for

wc claims made in good faith No such action for testifying in

any related proceeding “But for” standard. See Hinton v.

Designer Ensembles, Inc. 540 S.E.2d 94 (S.C. 2000)

Application to Workers’ CompInjury Occurs/Is Reported to Employer

Otherwise impermissible medical inquiries, related to the accident/injury, are now permitted under the ADA and FMLA

Accident reporting form

Confidential medical record? Depends…

Medical Release?

How broad? Too broad can be problematic

ADA, FMLA, GINA

Employ same principles as medical inquiries

Use GINA safe harbor unless genetic information intended for use as a defense to the injury claim

Application to Workers’ CompMedical Documentation Received

Keep in separate file, with limited access to those who need to know. (ADA? FMLA?)

ADA requirements are typically the strictest here, so comply with them as a matter of course

Ignorance can be bliss

Employee Is Taken Out of Work (Leave) FMLA eligible? If so, get the paperwork going

Ongoing - existing medical records may be enough

FMLA coverage? If so: Cannot force light duty, but TTD/TPD may be lost if light duty is

offered within restrictions Cannot count light duty time worked against FMLA leave

allotment

Application to Workers’ CompEmployee Is Taken Out of Work (Leave)

Other “light duty” considerations Permanent light duty is not typically a

reasonable accommodation

If the “light duty” position is created as a temporary position employer does not have to provide it as a permanent accommodation

Accommodations all have to do with the employee performing the “essential functions” of an existing position

No ADA obligation to create a position

Accommodations before MMI?

Pay can be reduced to meet lesser duties

Application to Workers’ Comp

Communication with Medical Providers

Workers’ Comp provides greater access to information than either the ADA or FMLA

SC provides for direct communication without consent if appropriate notice given

Consider limiting inquiries to those necessary to assess the nature and extent of the workers’ compensation injury

No genetic information unless relevant

Ignorance is bliss when it comes to the ADA

Application to Workers’ Comp

Fringe Benefits While On Leave ADA

Treat employees on ADA leave the same as other leave

FMLA Employer must maintain group health benefits during

FMLA leave (employee can be required to continue to pay his/her share)

Workers’ Compensation No specific protection in South Carolina

ERISA/COBRA (Group Health Plans)? Remember to check plan eligibility requirements

Application to Workers’ Comp

Use of STD/LTD

STD v. LTD – Statements of work-relatedness

Not dispositive

STD = not if work related

LTD = partial benefits possible even if work related

Reimbursement dictated by plan documents

HIPAA can complicate accessibility of records

Application to Workers’ CompLeave Duration

FMLA: 12 Weeks Unpaid Leave during a 12-month period

ADA: Case by case. Indefinite = unreasonable

May require extension of defined leave limits

Workers’ Comp: Some states prohibit terminations or adverse employment actions while an injured employee is recovering

In SC, no specific leave provision;

Employee is not entitled to a reasonable period of time for rehabilitation to demonstrate the ability to perform his former job duties - Horn v. Davis, 416 S.E.2d 634 (S.C. 1992)

Application to Workers’ Comp

Job Protection FMLA

Right to former or equivalent position if returning before exhaustion

ADA Not technically entitled to former position

However, if vacant and able to perform essential functions with/without reasonable accommodation employee should be reinstated

Workers’ Comp No specific protection in SC

Application to Workers’ Comp

Return to Work

Consider if FMLA requires same/equivalent position

Will an accommodation be needed?

If return is not possible, is there a vacant position for which the employee is qualified?

Consistency in employment decisions to avoid the appearance of retaliation

Application to Workers’ Comp

Clincher/Resignation/Release Global Settlements

Apportionment Issues – taxes and sufficient consideration

Employment Releases Lots of quirks – be mindful of them. Examples:

ADEA/OWBPA language – 21/7 day rule Participation in EEOC/SCHAC Tax issues (1099 v. W-2)

QUESTIONS

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