When Leaves Collide- Workers Compensation, ADA, FMLA. When Leaves Collide! Kathryn Carlson, SPHR April 19, 2017

Transcription

1 When Leaves Collide- Workers Compensation, ADA, FMLA When Leaves Collide! Kathryn Carlson, SPHR April 19,

2 Questions If you have questions during the presentation, please submit them using the Questions feature Questions will be answered at the end of the webinar If your question does not get answered, we will reach out to you individually

3 KPA + Succeed Management Solutions Passion to Prevent Premier provider of technology enabled compliance and HR management solutions Comprehensive risk management, safety, and compliance software platform

4 ROI In Understanding the Law Damages from Lawsuits and Fines Lost wages, back pay, reinstatement, retroactive benefits, compensatory damages and punitive damages and the cost of the legal fees Business Operations/Productivity Workdays lost, additional staffing costs, overtime pay 4

5 When an employee is injured on the job, suffers an occupational disease, requires a medical leave of absence, or indicates a medical problem preventing him/her from performing their normal and customary job duties, you must determine: Which laws apply? What does each law require? How will the laws intersect?

6 Workers Compensation Workers compensation leave management focus on what employees cannot do by focusing on the nature and percentage of their disability. Goal of workers compensation insurance is to provide suitable compensation for lost earnings that are the result of work-related accident resulting in injury. The law prevents discrimination and retaliation but does not provide job protected leave Employees can be barred from receiving workers' compensation benefits if the injury involves willful disregard of safety rules or intoxication from alcohol or illegal drugs Thirty-nine states and the District of Columbia require every employer with one employee or more to provide workers compensation coverage. The other eleven states have typically required coverage when there are 3-5 employees with certain exemptions.

7 Workers Compensation Employers may not make pre-employment inquiries into an applicant's Workers' Compensation history, the existence of a disability, or the nature or severity of a disability, whether on application forms, in job interviews, or in background or reference checks

8 Family and Medical Leave Act Provides a minimum level of unpaid, job-protected leave to eligible employees- 12 weeks or 26 workweeks of FMLA leave for military caregiver leave Covers those employees and the care of dependents who suffer from a serious health condition Protects those employees from adverse treatment because of the need for leave Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles

9 Americans with Disabilities Act Emphasizes what employee can do as opposed to focusing on an employee s limitations; Requires employers to evaluate an individual's fitness to perform the essential functions of the job on a case-by-case basis; and Employers must consider reasonable accommodation in the process of determine fitness Attempts to eliminate workplace disability discrimination

10 COBRA COBRA provides for continuation of benefits to qualified employees and/or their dependents upon a qualifying event. COBRA: Defines which benefit plans are covered; Defines a qualifying event; termination or reduction in hours, death or divorce, child is no longer a dependent, qualification for Medicare Defines who is entitled to continuation of coverage; employee and qualified dependents Determines how long continuation lasts; 18 months but can be extended due to disability Establishes the notification requirements

11 Workers Compensation Any employee who suffers an injury during the course and scope of their employment A physical or mental injury which causes disability or need for medical treatment. Can be specific, cumulative, or occupational disease

12 Family and Medical Leave Act Eligible employees are entitled to job-protected, unpaid leave: 1. For the birth of a child, to care for a newly-born child, or placement of a child with the employee for adoption or foster care; 2. To care for an immediate family member (spouse, child, or employee's parent) with a serious health condition; or 3. Because of the employee's serious health condition which makes the employee unable to perform the functions of the employee's job

13 Questions You Need to Ask Yourself 1. Are you a Covered Employer? 50 employees in a 75 mile radius 2. Is the employee a Covered Employee? 1250 hours worked in the last 12 months 12 months worked for the Employer Consecutive months or stints of employment not required Used less than 12 weeks of leave in the last 12 months 3. Is the condition a Covered Condition? Serious Health Condition or Pregnancy/Child Birth For oneself or to care for an immediate family member To Bond with a new child (biological, adopted or foster)

14 What is the 12 month period? Question: How is the 12 month period for determining whether an employee has taken the permitted 12 weeks calculated if there is no written policy? Answer: Calendar vs. Rolling 12-month period whichever gives employee the most rights. Have a written policy!

15 What is a Serious Health Condition? Answer: An illness, injury, impairment, or physical or mental condition that involves one or more of the following: 1. Hospital care; 2. Absence plus treatment 3. A permanent/long-term (chronic) condition requiring supervision; 4. Multiple treatments for nonchronic conditions, or; 5. Pregnancy Under some state laws, pregnancy is not a serious health condition

16 Question: What is a child? Answer: What is a child? Under 18 years of age OR over 18 years of age and incapable of self-care Because of a mental or physical disability Biological, adopted, foster child, stepchild, legal ward, child of domestic partner, in loco parentis

17 FMLA Military Leave SPECIAL RULES APPLY TO MILITARY LEAVE Longer DIFFERENT QUALIFICATIONS Additional overlaps

18 What is the key employee exception? Question: Can we designate this employee a key employee and deny leave? Answer: No, the employee can take the leave but employee may not have to reinstate Top 10% of all wage earners Must give leave Do not have to reinstate if it would cause substantial and grievance economic injury to reinstate not to grant the leave Must complete assessment prior to granting leave and then when request for reinstatement

19 FMLA Compliance Checklist Responding to the request for leave: Confirm Eligibility for and Availability of FMLA/state specific Leave. Evaluate Qualification for FMLA/ state specific Leave. Designate FMLA /specific Leave Don t forget to provide written designation!

20 FMLA Compliance Checklist During FMLA/ State Specific Leave Cannot request re-certification during initial stint of leave Do not allow employee to work during leave, this is different than interment leave When FMLA/CFRA Leave Ends Require a release to return to work applies to all types of leave not just FMLA leave Check in with the employee a few days prior to the leave ending

21 You Need a Good Written Policy Employee Eligibility Conditions Triggering Leave Duration of Leave Use of Accrued Paid Leave Maintenance of Health Benefits Re-instatement Notice and Medical Certification Failure to Return After Leave Limited Nature of This Policy Have all employees acknowledge the policy!

22 Leave Request Form Reason for Leave Type of Leave Requested Intermittent Leave/Reduced Work Schedule When will individual return to work? Certification

23 FMLA Notice and Designation Form Eligibility Designation of Leave Employee Requirements Key Employee Exception

24 Certification Forms Employee/Patient Condition Health Care Provider Information Additional Employee Information

25 American with Disabilities Act A qualified individual with a disability who, with or without reasonable accommodation, can perform the essential elements of the employee s job A physical or mental impairment that substantially limits one or more of the employee s major life activities, a record of such an impairment, or being regarded as having such an impairment

26 Collision and Confusion! ADA Disability is not always a FMLA serious health condition A serious health condition as defined by ADA is not always ADA disability Employees on Workers Comp Disability may not be covered by either ADA or FMLA Temporary impairments are not covered by the ADA

27 Conflicts and Confusion! Employees injured on the job under the Worker s Compensation provisions may still be eligible for FMLA leave Employees on Workers Comp must be put on FMLA leave - just as if they were on a nonwork related injury medical leave Employees on FMLA leave are entitled to have their health insurance covered for the first 12 weeks of Workers Comp, then they should be put on COBRA if your Health Plan is governed by ERISA

28 FMLA and WC Conflicts An available light duty position must be considered as a form of reasonable accommodation under the ADA. Workers' Compensation gives employers the option of providing light duty, but it is not required. The system encourages employers to provide light duty by financially penalizing those who do not. Yet FMLA prohibits employers from requiring employees to return to light duty positions during their 12-week protected period.

29 WC Claims and ADA Lawsuits The ADA and Workers' Compensation systems treat the concept of "disability" very differently Workers Compensation focus on cannot do ADA focus on can do Employers must not assume that an individual who is permanently disabled under the WC system is not entitled to additional protection under the ADA: Until they confirm that the disability precludes the employee from performing the job's essential functions even with reasonable accommodation so as to make them unqualified to return to work

30 FMLA and Workers Comp leave should run concurrently Don t Forget Always make sure the employee has received written notice for FMLA designation Rely on medical opinions, not your opinion Use objectively written job descriptions to establish physical requirements Make sure your labor posters are updated and on display

31 Additional Resources KPA and Succeed clients please see the additional training modules and program development resources in the HRDrive or the Risk Management Center, contact the Client Service Center at or use the Ask the HR Expert link for additional assistance.