How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA

How to Manage the ADA and Employee Leave Laws

Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA

Alec Beck

Partner,

Minneapolis Office

Andrew Tanick Managing Partner,

Minneapolis Office

Ford and Harrison, LLP

Moderator

Becky Ross

Marketing Manager

(303) 228-8753

bross@kpaonline.com

Presenter

Alec Beck

Partner

Ford and Harrison, LLP

abeck@fordharrison.com

Presenter

Andrew Tanick

Managing Partner, Minneapolis Office

Ford and Harrison, LLP

atanick@fordharrison.com

Employees who Cannot

(or will not) Work Balancing the ADA, Workers’

Compensation and the FMLA

Presented by FordHarrison Attorneys:

Andy Tanick

Alec Beck

Purpose of the Statutes

■ Workers’ Compensation – WAGE

PROTECTION

■ Family and Medical Leave Act [“FMLA”] –

Right to be ABSENT FROM Work

■ Americans with Disabilities Act [“ADA”] –

Right to be AT WORK if qualified

■ Occupational Safety and Health Act – Right

to a SAFE WORKPLACE

Workers’ Compensation

Applies to Most Workplace Physical or

Psychological Injuries

Pays for Most Lost Wages, as well as

Medical Benefits, Permanent Disability,

Rehabilitation Benefits and Retraining

Employers Must Report all Potential Work

Injuries to the Applicable State Department

Employees on Workers’ Compensation may

be Offered Light-Duty

Family and Medical Leave

Act

Employees who have been at the Employer for at

least one year, and have worked 1250 hours.

Entitled to twelve weeks’ leave

Serious Health Condition or the employee or a

member of the Employee’s family

Birth or Adoption of a Child

Leave may be taken “intermittently”

OSHA ■ Occupational Safety and Health Act

■ Requires Employers to Create and Provide a Safe Workplace

■ Provides Standards for Employers to Create a Safe Workplace (e.g., Ergonomic Standards for Work Stations)

■ All Workplace Accidents must be Reported to the applicable State Department (in “deferral states” or the federal OSHA office

Americans with Disabilities Act Protects persons with physical or mental impairments that

limit major life activities

Only protects employees who are “qualified” (i.e., can

perform all the job’s essential functions)

Covered employees may be entitled to “reasonable

accommodation” in order to allow them to become fully

qualified for their jobs

Once someone has disclosed a potential disability (and not

before!), employers have an obligation to find out of a

reasonable accommodation exists.

ADA: Who is Protected?

■ Qualified Individuals with

Disabilities – A disabled individual

who can perform the “essential

functions” of his/her job with or

without “reasonable

accommodation”

ADA: Definitions - Disability

1. A physical or mental

impairment that substantially

limits one or more major life

activities

2. Record of having such an

impairment

3. Being “regarded as” having

such an impairment

ADA Amendments Act

(ADAAA)

Effective January 1, 2009

Final Regulations effective May 24,

2011

Reasons for ADAAA

■ Congress felt Courts were construing

definition of “disability” too narrowly

■ The Supreme Court’s decisions in

Sutton v. United Airlines and in Toyota

Motor Mfg. v. Williams

■ The EEOC’s regulation defining

“substantially limits” as “significantly

restricted” was too high a standard

Overview: Changes to

Meaning of Disability 1. Expanded the definition of “major life activities.”

2. “Substantially Limits” redefined and broadened.

3. “Mitigating Measures” not considered.

4. List of Impairments that will “virtually always” be

disabilities.

5. Term “disability” to be interpreted broadly, no need

for extensive analysis.

6. “Regarded as” broadened.

Changes to Major Life Activities

■ Additions (in bold), include:

■ Caring for oneself, performing manual

tasks, seeing, hearing, eating,

sleeping, walking, standing, sitting,

reaching, lifting, bending, speaking,

breathing, learning, reading,

concentrating, thinking,

communicating, interacting with

others, and working.

Changes to Major Life Activities

(cont.)

■ Major Life Activities now include “operation of a major bodily function,” including:

■ Functions of the immune system, special sense organs, and skin; normal cell growth; digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions

Substantially Limits Redefined

■ The term “Substantially Limits” to be determined

based on nine new "rules of construction,”

including:

■ “Substantially Limits” to be determined

broadly

■ An impairment is a disability “if it substantially

limits the ability of an individual to perform a

major life activity as compared to most people

in the general population.” Need not prevent,

or significantly or severely restrict.

Substantially Limits Redefined

(cont.)

■ Impairment lasting fewer than six months can

be substantially limiting

■ The primary focus under the ADA will be

whether covered entities have complied with

their obligations and whether discrimination

has occurred, not whether an individual’s

impairment substantially limits a major life

activity.

Substantially Limits Redefined

(cont.)

■ Scientific, medical, or statistical analysis not

required in comparing an individual to “most

people in the general population”

■ An impairment that is episodic or in remission

is a disability if it would substantially limit a

major life activity when active (e.g., MS,

epilepsy, bipolar disorder, cancer).

Mitigating Measures

■ Cannot take into account the “ameliorative effects” of mitigating measures

■ Person is “individual with a disability” if impairment would substantially limit a major life activity without benefit of the mitigating measure (e.g., meds)

■ Exception: ordinary eyeglasses and contact lenses

“Regarded as”

■ No longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity

■ New Amendments Act standard: an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA based on an impairment or perceived impairment (e.g., carpel tunnel syndrome)

Example: Obesity

Disabled Under ADAAA?

■ George weighs 400 pounds. He seems to have problems breathing, but has not been diagnosed with any underlying illnesses that cause his obesity or any conditions resulting from his obesity. His employer has noticed that he seems to be wheezing some, but doesn’t think he has any diagnosable impairment. Still, his employer is concerned that the breathing problems and weight are interfering with his productivity. His boss, Donald Trump, fires him.

Pre-ADAAA

■ No. There is no proof that the employer

thought George was substantially limited

in any major life function because of his

breathing.

Post - ADAAA

■ Yes. Since employer took action

against George because of perceived

impairment (whether real or not).

Rule No. 1:

A Workplace Medical Condition Will

Involve EACH of these Statutes

Second Rule – Analyze Each

Injury in the Following Order:

■ FMLA (For now Obvious Reasons)

■ OSHA (File the Correct Forms)

■ Workers’ Compensation (Ditto)

■ ADA/Disability Discrimination

■ LTD/STD Issues

■ COBRA (Any Time Employee is

Gone)

Complying with the law – and

still trying to keep the lights on

■ Our natural orientation is to be supportive

■ A good business model requires helping all employees be successful in their jobs

■ Where the “good business model” doesn’t do the trick, the labor contract probably does

But...

■ Handling medically-related issues can be extremely complicated, and leads to cynicism and corner-cutting

■ The challenge is to comply with the law while protecting both employee AND employer rights

■ Sometimes the process seems ridiculous or impossible

Let’s take an example to illustrate this subject...

Hypothetical Situation

Bob’s qualifications are a

bit substandard

Bob is somewhat “quirky”

Performance issues

Personality issues

Due to a pressing need

for a bookkeeper, you

hired “Bob”

He’s not just “eccentric”

Exhibiting anti-social traits

Talking to himself

Talking to the water cooler

Bad personal hygiene

Missing a good deal of work

Doesn’t like you much

Bob’s Got Issues . . . but it doesn’t stop there . .

.

You’ve got a Dilemma . . .

(1) You’re a Good Person

(2) You Want to Do the Right Thing

(3) Bob Obviously Needs Help

(4) What Should you Do?

(5) Ask Him if Something’s Wrong?

If Bob says “yes”...

Then you’ve taken on obligations you didn’t have before.

NO.

Rule No. Three:

Ignorance is Bliss

What do we do with Bob?

. . . Nothing

(Except Treat Him Just Like Anybody Else

– Provide Counseling and Possibly

Discipline)

Let’s Change the Hypothetical . . .

We’re Not Going to Go too Far

out of our way to help Bob . . .

We’re Going to Take “Appropriate

Administrative Action” with

Regard to Bob’s Employment

Status

… We’re going to Tube him …

What’s the First Thing Every Manager Would

Do?

Fire First, and THEN contact

HR?

No! How about . . . Check with the

company’s Policies and Employment

Records to Make Sure that We’re

Okay to Proceed with a Termination?!

Big Dealership Employee Handbook

Article XVI –Discharge and Discipline

“The employer shall not discharge or suspend any non-probationary employee without just

cause, and shall give notices of infractions/complaints to the employee in

writing….”

EDITORIAL NOTE]: The law defines “just cause” as,

among many other things, violating reasonable work rules, insubordination, failure of attendance, etc…. Many dealerships have collective bargaining agreements

explicitly containing this standard

[

Employee Performance

Feedback

Employee: Bob B. Counter

Supervisor: Ida S. Pizreviews

Rating: Above Average

Comments: Bob is a good

performer. I wish I had

a hundred more like

him. We bowl together

on Thursdays.

Rule No. 4:

Please …

Please . . .

Please . . .

Be Honest in your

Performance Reviews (Even

Though It’s Sometimes No

Fun)

(Pretty Please?!)

“Paper the File”

(What you have to do when you

haven’t followed Rule No. 4)

What if we don’t have good

documentation?

•Let’s Assume You Followed the Rules and Got Appropriate Documentation

•You’ve Followed the Progressive Discipline Policy

•You’ve Worked with Management/Ops, and They’ve Signed off on your Plans

•You Go Through Channels, and Set Up the Meeting with Bob

•And . . .

Okay …

Bob is experiencing extreme psychological injury due to the

unfair and predatory treatment by his supervisor. The stress

has aggravated his ulcer. He will need in-patient

psychotherapy for 6 weeks, or until his insurance money runs

out. In addition, he has a substantial exacerbation of a pre-

existing borderline personality syndrome, overlaid with

explosive personality disorder, and Chronic ADD. Patient is

disoriented times three, and cannot return to work at his

normal job unless and until the main stressor in his life, his

supervisor is removed from the workplace. The patient will

need twelve weeks off of work, combined with intense

psychotherapy. After that, he may return to work on an as-

tolerated basis, so long as he does not have to work with his

former supervisor. I am now discharging this patient, as there

is nothing else I can do for him at the moment

Dr. Laura Schlessinger, Ph.D.

■ Put the gun down, cowboy

■ Self-Identified as (1) having a

serious health condition; (2)

having workers’ comp issues;

and (3) being possibly disabled

■ Cat’s “Out of the Bag”

Regarding the Medical

Condition

What to do?

Since the condition

has been disclosed. . .

You are hereby released from Rule 3…now

we’ve got to start asking some medical

questions.

Workers’ Compensation Injury?

What he’s got

■ Stress

■ Ulcer

■ Explosive

Personality Disorder

■ Borderline

Personality

■ Attention Deficit

What he wants

■ Twelve Weeks Off

■ Psychological

Treatment

■ Medical Treatment

■ Modified Duty Job

■ Wage Loss Benefits

■ Medical Benefits

Rights Under the FMLA

■ Bob’s Entitled to Twelve

Weeks Off of Work, either

all at once or “intermittently”

■ Also entitled to same or

substantially similar position

on return

Do we have to give Bob

FMLA?

YES!

Rule No. 5:

FMLA Rights Are

- Absolute –

(And NO, common sense doesn’t enter into it)

Bob has a right to twelve weeks’ leave if his

doctor says so

Twelve Weeks Are Up, and…

Back to Work!

■ BUT!

■ Bob has “self-

identified” as

potentially

disabled

- We need to

address the

medical

condition

■ ADA DISABILITY

CRITERIA:

■ A physical or mental

impairment that

substantially limits one or

more major life activities;

■ A record of such an

impairment; or

■ Being regarded as having

such an impairment

Question: Does Bob

Have a Legal

Disability?

Answer: We Have No Idea at This Point

(but probably)

Rule Number 6:

Know What You’re Talking About –

Use all of Your Resources to Get the

Information You Need

What Happens Next?

■ Second note says return to

work with restrictions

■ Bob says he needs a few

more weeks off to really heal

up

■ You could assign Bob to a

modified duty position

• Is there an obligation to create a light duty

position?

• Can we insist that Bob accept light duty?

• How can we use light-duty?

Bob can return to

on an as-tolerated

basis, so long as he

doesn’t have to

work with numbers.

Dr. Laura.

Big Dealership

Accommodation Policy

[I]t is the intent of the Dealership to enhance the

health and well-being of our disabled employees by

providing reasonable accommodation to them to

assist them in returning to work, whether they have

become disabled by illness or injury. . . . The

Dealership will reasonably accommodate a qualified

person’s disability as long as it does not cause undue

hardship to the Dealership. Should our Dealership not

have any jobs, with or without modification, that can

be done by you with your skills, experience, and

disability, we may be able to provide assistance to you

in securing employment with another employer. . . .

Obvious Question:

Since He Only Gets Light Duty if he

Has a Legal Disability – then

IS HE DISABLED??

(NOW We’ve GOT to Answer that

Question)

Interactive Process

■ Employer and the employee enter into a dialogue to explore accommodation options.

■ Purpose is to determine job-related limitations, identify possible accommodations, assess effectiveness.

Rule No. 7:

During the Interactive Process, the

Employer CAN and SHOULD Obtain

Medical Information

Is Bob a “Qualified” Disabled

Person?

Essential Functions for Bookkeeper:

1. Need to be able to count

2. Needs to be able accurately do his

work

3. Need to show up for work

4. Need to work with his boss (you)

Bob, we’re not sure we can

accommodate these rather

extreme work restrictions,

so . . .

Upon further review, it appears

that Bob can perform all

bookkeeping functions so long as

his schedule is flexible, and he is

not exposed to unreasonable or

punitive stress by supervisor.

-Dr. Laura

Q: Is it a “reasonable

accommodation” to allow Bob

a flexible schedule and a

stress-free environment?

A: Maybe, but let’s complete our medical

investigation before making up our minds. . .

Independent Medical Report:

I reviewed the available medical records,

and conducted an independent medical

examination on Bob B. Counter. He has

no restrictions, has reached maximum

medical improvement, and has suffered

no permanent disability. I do not concur

with Dr. Laura, and her radio show isn’t

very good either.

Freddie Backtwurk, M.D.

Bob, we are delighted that you have

recovered. Please be at work at 7:30

a.m. on Monday, March 4, ready to

perform all the essential functions of

your job . . .

And if he doesn’t…

■ Can you say COBRA notice?

■ I knew you could

Thank You! Questions?

Andrew Tanick

Attorney at Law

Certified Labor/Employment Law Specialist

atanick@fordharrison.com

(612) 486-1623

Alec Beck

Attorney at Law, SPHR

Certified Labor/Employment Law Specialist

abeck@fordharrison.com

(612) 486-1629

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