TRIANGLE OF DISABILITY LAW

Transcription

1 NAVIGATING THE BERMUDA TRIANGLE OF DISABILITY LAW MANAGING DISABILITIES IN THE WORKPLACE E. JASON TREMBLAY ARNSTEIN & LEHR LLP

2 NAVIGATING THE BERMUDA TRIANGLE OF WORKPLACE LAW The Issue: Tough employment decisions need to be made in the TRIANGLE of three very different bodies of law: (1) the Americans With Disabilities Act; (2) the Family and Medical Leave Act; (3) the Illinois Workers Compensation Act.

3 THE PROBLEM ADA YOUR POLICY WC FMLA

4 A TRIANGULAR ANALYSIS To analyze questions such as these: 1. Do I need to give this employee leave? 2. How long must this leave be? 3. Must I pay for this leave? 4. What about benefits during the leave?

5 MORE QUESTIONS 5. Can I terminate this employee because she can t do the job anymore? 6. I reduced force while this employee was on leave, do I still have to reinstate him? 7. Do I need to provide time off so that this employee can go to the doctor? 8. Can employee be penalized for time off?

6 A SUGGESTED APPROACH TO NAVIGATE THE TRIANGLE 1. Determine which of the laws apply to the situation presented: ADA, FMLA, WC. 2. Apply the law(s) to the define employee and employer rights and obligations. 3. Determine if employer policies or contracts change approach. 4. Implement decision (and be consistent).

7 THE FIRST STEP IS THE TOUGHEST Dramatically different applications of these three laws in numerous aspects: Purpose of law. Federal/State. Penalties/Remedies. Employer coverage: Size, Facility size. Employee eligibility: Hours of service? Injury or illness necessary for protection.

8 MORE DIFFERENCES Amount of leave allowed. Reinstatement rights after leave. Workplace accommodation? Intermittent leave available? Protection against Discrimination/Retaliation/other interference.

9 FIRST PRONG OF TRIANGLE: AMERICANS WITH DISABILITIES ACT

10 ADA COVERED EMPLOYERS 15 or more employees in at least 20 workweeks in calendar year. Includes all employees on payroll full-time and part-time employees. Beware of integrated enterprises.

11 PARALLEL STATE/LOCAL LAWS Illinois Human Rights Act (1 employee) Cook County Human Rights Ordinance Chicago Human Rights Ordinance

12 PROHIBITED ADA DISCRIMINATION It is unlawful to discriminate against a qualified individual on the basis of a disability in regard to: Recruitment Advertising Job Application Procedures Hiring & Rehiring Upgrading & Promotion Demotion Transfer Layoff & Recall Termination

13 IT IS ALSO UNLAWFUL: To fail to make a reasonable accommodation to the known limitations of a disabled person unless the employer can prove the accommodation would impose an undue hardship on the operations of its business. To deny a disabled person any employment opportunity because a reasonable accommodation is required.

14 DISABILITY MEANS A physical or mental impairment that substantially limits or restricts the ability of the individual to perform one or more major life activities. Remember that an individual may be disabled but not qualified or protected by the ADA.

15 MAJOR LIFE ACTIVITIES Caring for oneself Performing Manual Tasks Walking Seeing Running Eating Hearing Speaking Learning Working Concentrating Breathing Standing

16 DISABILITY ALSO INCLUDES: Having a record of an impairment. (e.g., employee has eye surgery that corrects vision, etc.). Being regarded as having such an impairment. (e.g., employer perceives the employee has a back disability severe enough to make him ineligible for a job, etc.).

17 WHO IS QUALIFIED UNDER THE ADA? Has the requisite skill, experience & education. To perform the essential job functions. With reasonable accommodation, if necessary. DAY ONE ELIGIBILITY.

18 WHAT MAKES A JOB FUNCTION ESSENTIAL The job exists to perform that function. The function can be done only by a few people. The function is highly specialized.

19 EVIDENCE OF ESSENTIAL JOB FUNCTION Employer s judgment. Written pre-interview job descriptions. Time spent performing the function. The consequences of having someone else perform the function. The work experiences of past or present incumbents.

20 REASONABLE ACCOMMODATIONS MODIFICATIONS TO: Job application process. Work environment. Benefits and privileges of employment.

21 EXAMPLES OF REASONABLE ACCOMMODATIONS Making existing facilities physically accessible. Job restructuring. Modification of work schedules. Reassignment to vacant positions. Modification of equipment. Unpaid leave of absence. Transportation. Modification of non-essential job duties. Light Duty. Working from home?

22 WHEN DOES THE DUTY TO ACCOMMODATE ARISE? Person must have a qualified disability. Employer must have knowledge of the disability. Person seeks accommodation. Accommodation is necessary for the employee to perform the essential functions of the job. Accommodation is reasonable and does not create an undue hardship. Employee must cooperate.

23 WHAT IS NOT REQUIRED BY REASONABLE ACCOMMODATION Does not require an employer to provide what the employee requests. An employer has no obligation to eliminate the essential functions of the job. An employer is not required to create a new position. An employer is not required to violate a bona fide seniority system at the expense of other employees in order to provide a reasonable accommodation.

24 ADA REMEDIES Federal or state court action. Jury or bench trial. Compensatory and punitive damages. Class action available. EEOC enforcement available. Back/front pay/attorney fees.

25 SECOND PRONG: FEDERAL FAMILY AND MEDICAL LEAVE ACT Enacted in While gender neutral it is designed to remove impediments to woman s progress in workplace due to childbirth/family responsibilities. Like ADA leave, FMLA is unpaid. Small employer, small situs exception/75 mile radius rule.

26 IS THE COMPANY COVERED? Employer Employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Includes part-time employees.

27 IS THE EMPLOYEE ELIGIBLE? For an employee to qualify for leave, he or she must have been employed: For at least 12 months; Worked for at least 1,250 hours of service during the previous 12 months; and Employed at a site where 50 or more employees are employed by employer within 75 miles. Hours of service are based on hours actually worked.

28 WHEN CAN AN EMPLOYEE USE FMLA LEAVE? An eligible employee is entitled to 12 workweeks of leave during any 12-month period for any of the following: Birth or adoption of employee s child. Care for spouse, child, or parent of employee with serious health condition. Employee s own serious health condition. Any qualifying exigency due to spouse s, child s, or parent s active duty in the Armed Forces.

29 WHAT IS A SERIOUS HEALTH CONDITION? Serious Health Condition an illness, injury impairment, or physical or mental condition that involves: Conditions requiring overnight stay in hospital or other medical care facility. Conditions that incapacitate the individual for more than three consecutive days and requires ongoing treatment by a health care provider. Chronic conditions that cause occasional periods of incapacitation, which involve treatment by health care provider at least once a year. Pregnancy (including prenatal medical appointments, morning sickness and bed rest).

30 ADDITIONAL FMLA DEFINITIONS Definitions of Son or Daughter and Parent include individuals standing in loco parentis. Day-to-day responsibilities to care for and financially support a child. Definition of spouse now includes those same sex marriages recognized under state law.

31 WHAT DOES FMLA ENTITLE EMPLOYEE TO? Twelve weeks of unpaid leave. Job protection and reinstatement rights. Continuation of health insurance while on leave. Leave can t be held against the employee (promotion, attendance, etc.). Intermittent leave, if necessary.

32 EMPLOYEE S FMLA NOTICE OBLIGATIONS If need for leave is foreseeable and for birth or placement of child, employee must provide at least 30 days notice. If need for leave is due to medical treatment of a serious health condition. Employee must make a reasonable effort to schedule the treatment so that it does not unduly disrupt the operations of the employer. Provide 30 days notice or notice as soon as practicable. Employee does not need to use the term FMLA.

33 EMPLOYER FMLA NOTICE REQUIREMENTS Within 5 days of employee notice, employer must notify employee whether they are eligible for FMLA leave (Eligibility and Summary of Rights Notice). Contemporaneous with eligibility notice, employer should also submit to employee a medical certification form (in cases of serious health condition). Once employer has enough information to determine requested leave is FMLA qualifying, employer must send employee the Designation Notice designating the leave as FMLA qualifying (or not).

34 SUBSTITUTING LEAVE Employee can choose to substitute accrued paid leave for FMLA leave. If employee does not choose to substitute, employer can require it. Whether paid leave qualifies for substitution is up to employer s policy. Paid leave should run concurrently.

35 FMLA INTERMITTENT LEAVE Leave may be taken intermittently if it relates to a serious health condition and medically necessary or for a qualifying exigency. Leave is calculated on a workweek basis from hours expected to be worked. Employer may temporarily transfer employee during period that intermittent leave is necessary.

36 FMLA NOTICE POSTING Employers must post a notice that includes the pertinent provisions of the FMLA and information pertaining to filing a charge. Available on the DOL website. If you have an employee handbook, the policy must also be placed in the handbook. Otherwise, a copy should be given to employee upon hire.

37 THIRD PRONG OF THE TRIANGLE: WORKERS COMPENSATION State Law: Illinois is typical. Trade-off: No-Fault system for Loss of Right to Sue Employer. Coverage for accidental injuries and occupational illnesses arising out of or occurring in the course of employment. Almost all employers covered. DAY ONE COVERAGE for employees.

38 PAYMENT FOR WC LEAVE? Of course, temporary total disability (TTD) pay is available. Unlike ADA and FMLA, which are essentially unpaid leave (except where paid leave is substituted), WC leave is paid leave.

39 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Temporary Total Disability (TTD) A. Claimant is generally entitled to two-thirds (2/3) of their average weekly salary, subject to the statewide maximum and minimum wage rate in effect on the date of injury.

40 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Temporary Total Disability (TTD) B. TTD benefits are paid: When the employee is unable to work and has a total loss of wages; and When the employee is still recovering and is able to do some type of work, but the employer cannot provide work within the limitations the doctor has set.

41 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Temporary Total Disability (TTD) C. TTD benefits are paid until the employee s condition has become stabilized and treatment and convalescence are not likely to result in additional improvement (maximum medical improvement).

42 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Temporary Partial Disability (TPD) A. TPD benefits are paid when an employee is working at a lesser-paying job or is working fewer hours because of the temporary effects of a workplace accident or disease.

43 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Temporary Partial Disability (TPD) B. Benefits are paid when the employee is offered a wage reduction because of the disabling effects of the injury or disease during the health period. For example, if an employee s TTD benefit is $582 per week and he is offered work within his limitations at 75% of his former wage, the employee remains entitled to 25% of $582, or $ per week.

44 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Temporary Partial Disability (TPD) C. TPD benefits are paid until the end of the injured employee s healing period or until the employee returns to his previous wage rate, whichever occurs first.

45 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Permanent Total Disability (PTD) A. PTD benefits are paid when an employee has permanently and totally lost his or her wage earning capacity. The law defines a permanent total injury as the total inability to return to work and/or the loss of both eyes, the loss of both arms, the loss of both legs, the loss of an arm and a leg and other extreme conditions determined by the DWD to prevent the injured employee from working.

46 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Permanent Total Disability (PTD) B. Permanent total disability benefits amount to two-thirds of the employee s own average weekly rate subject to the maximum amount specified by law. The maximum rate for a permanent disability is set by law at a lower monthly figure, and the rate depends on the date of injury.

47 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Permanent Total Disability (PTD) C. Weekly benefits are paid for life.

48 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Permanent Partial Disability (PPD) A. PPD benefits are paid to an employee whose wage-earning capacity has been permanently lost and benefits are payable as long as the partial disability exists.

49 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Permanent Partial Disability (PPD) B. The PPD benefits are paid during the healing period and in addition for the period specified in the statutory schedule at the rate of two-thirds of the employee s average weekly earnings.

50 BENEFITS AVAILABLE UNDER WORKER S COMPENSATION STATUTE Permanent Partial Disability (PPD) C. The duration of PPD benefits are paid either according to a schedule of loss or as a nonscheduled injury. Scheduled injuries are (as example) 1) The loss of an arm at the shoulder, 500 weeks; 2) The loss of an arm at the elbow, 450 weeks.

51 REINSTATEMENT AFTER WC LEAVE LENGTH OF LEAVE??????????

52 PROTECTION AGAINST RETALIATION OR NON-REINSTATEMENT The seminal decision of Kelsay v. Motorola by the Illinois Supreme Court. The claim of retaliatory discharge when WC is cause of termination. Unlimited compensatory and punitive damages.

53 HYPOTHETICALS Francine is a dock worker at your shipping terminal. She tore her rotator cuff when a large stack of freight fell on top of her. She has been off work for 2 months collecting workers compensation. Francine s time off work was never designated as FMLA. There is no indication that Francine will be back to work soon. The Company has light duty clerical work that fits within her medical restrictions, but you don t think she would be interested.

54 HYPOTHETICALS Mary has been a long time employee of the Company. She qualified for FMLA leave due to her own serious health condition fibromyalgia. Her physician requested that she take 4 weeks off to control her condition. After 4 weeks, her physician provided her a note that specified that she could come back to work on a modified work schedule and with fairly minor modifications to her workspace, such as an ergonomic chair and adjustments to the lighting in her office. The Company informed her that she could not return to work until she was fully healed and had no restrictions.

55 HYPOTHETICALS Jennifer is a FMLA eligible employee. She is pregnant. Between September 2014 and November 30, 2014, Jennifer called in sick five separate times stating either that she had morning sickness or would be absent for a doctor s appointment. On December 15, 2014, Jennifer notified her employer that she intended to take 12 weeks of leave for the birth of her child, which would begin on March 3, However, on January 3, 2015, Jennifer called in and explained that she needed to take an immediate leave of absence due to complications with her pregnancy.

56 HYPOTHETICALS Susan, who was once a well-liked employee, has become withdrawn and moody over the last several months. Susan s manager knows that she has taken time off from work to see a psychologist in the past. Her colleagues said that they have seen some disturbing posts on Facebook about being lonely, and they have also heard that her family has a history of mental illness.

57 HYPOTHETICALS Susan has taken intermittent time off, and has admitted that she is taking a variety of drugs to help with diagnosed depression and bi-polar disorder. Susan comes back to work with a doctor s note confirming the diagnosis. However, Susan s co-workers have noticed that she has erratic mood swings, and at times she has fallen asleep at her desk. When the manager speaks with Susan, she mentions that she can t afford to take any more unpaid leave.

58 QUESTIONS? E. Jason Tremblay Arnstein & Lehr LLP 120 S. Riverside Plaza Suite 1200 Chicago, Illinois (312)