Employee Medical Issues Puiggari Consulting Regional 2013 (505) 690-4052.

Employee Medical Issues

Puiggari ConsultingRegional 2013

(505) 690-4052

Statutes

• Americans With Disabilities

Act and Amendments

• Family Medical Leave Act

• Workers Compensation Act

• USERRA

• MT Pregnancy 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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Class ActivityYou have a no fault attendance policy. Under the policy employees accumulate

absences from work regardless of the reason (excluding fmla, jury and other required exceptions). Once they exceed maximum amount employment is terminated…no questions asked.

Do you see any issues?

Your attendance policy requires the employee provide a medical note stating the reason the employee was absent from work. Employee did this to enable it to categorize the absence as medical or not.

Do you see any issues?

You have an employee that is a supervisor and one of the essential functions of the job is to perform home visits. She injures her back and the co. gives her a lot of time in addition to FMLA. She returns to work after 8 months at full duties. 2 months later employee reinjures her back. She is given more time, but states that she cannot do home visits without an accommodation. The only accommodation is relieving her of the essential function of doing home visits.

what are the issues?

• Your standard application states that a high school diploma is required to apply.

Does this violated the ADA

– Why or why not

• Employer has a policy that requires all employees that perform hazardous duties (driving, plows, heavy machinery etc.) to report to HR if they are taking any medication that may affect their ability to safely perform their jobs.

– Does this violate the ADA

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Answers 1) Employers have an affirmative duty under ADA to accommodate qualified

individuals with disabilities who for some reason cannot report regularly to work (unless this undue hardship)

2) ADA permits employers to make inquiries into the ability of an employee to perform job related functions but it prohibits employers from making inquiries as to whether such employee is an individual with a disability or as to the nature and severity of the disability unless it is job related. Because this is not inquiry under FMLA or ADA for accommodation but under attendance policy this is a violation.

3) The court held that the county’s willingness to excuse employee’s inability to perform site visits during a fairly lengthy but temporary period of time the prior year was not evidence that those duties were nonessential. A reasonable accommodation was not to eliminate an essential function of her job. In order to have to accommodate the ee must provide an estimated date they can resume all duties and second the leave request must ensure the essential functions can be undertaken the near future. There is no definite time but the court said 6 months was too long to be reasonable.

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4) It might. If the reason someone doesn’t have a HS diploma is due to a disability and there is no reason the person needs the HS diploma to do the job. If the diploma is necessary employer may need to determine if the person can still perform essential functions

5) Hazardous requirement and safely: this makes the inquiry job related and consistent with business necessity as required by the ADA. If a report is made consult with employee’s doctor as needed. In policy tell employees if they have to be on meds indefinitely you will have to assess whether they are medically qualified to continue their jobs.

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Separate Analysis• Many scenarios arise in which all statutes

may need to be applied

• the scope and application of each statute is widely divergent: Enacted to address different issues

• Class– FMLA d why was it enacted– ADA why was it enacted– WC what is there a WC case– USERRA Why do we need this

• 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 the ADA, FMLA and WC statutes are all 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

MT HRD• http://courts.mt.gov/library/default.mcpx

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Use MT HRD • http://erd.dli.mt.gov/human-rights/complaint-process/decisions.html

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FMLA-Federal (50 or more)What does Employee get

• 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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FMLA LEAVE

– Continuous or 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– Can Require Employee take paid accumulated

leave at same time

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Employer IssuesIs it is 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•Incapacity due to pregnancy or childbirth

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One of Most Important Employer Tools:FMLA Health Care Certification

Employer can require certification from health care provider

– must give employee 15 days to obtain– lists essential functions and asks to certify person

can or can not do those functions. – Can get second opinion (er pays) (if opinions differ-3rd

opinion dr. approved by both ee and er)

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

Certification• Employees obligation under FMLA to have doctor provide the

necessary information• Can recertify (if original says more than 30 days, if significant

change in circumstances, ee requests extension)• Do not get medical records, cannot contact doctor directly (except to

ask about certification). If need third opinion other doctor can call employee our doctor (with employee permission) to ask about information in certification

• http://www.dol.gov/whd/forms/WH-380-F.pdf• Cannot ask for more information than is on form for

FMLA (can seek additional information for purposes of workers' compensation benefits, paid disability or other paid leave)

• Must accept information on form

• Keep medical information separate

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FMLA –return to work Certification

• certification addresses whether the employee can perform the essential functions of the job, based on conditions relating to leave only.

• The employer may require this for any medical leave if the employer uniformly requires it as a condition of post-FMLA reinstatement.

• The employer may require this up to once every 30 days for intermittent or reduced-schedule leave, if there is a reasonable belief of a significant risk of harm to the employee or to others related to the reason for the leave.

• The certification is at the employee’s expense, and as such, the employer cannot dictate the type of HCP. (Doctor’s word is law)

• However, failure of the employee to provide this may result in a delay or denial of reinstatement.

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MT Pregnancy Leave• 49-2-310. Maternity leave -- unlawful acts of employers.

• 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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MT HRts Bureau

• Reasonable Maternity Leave - An employee is entitled to a reasonable leave of absence for the temporary disabilities associated with childbirth, delivery and related medical conditions. The employer may not place restrictions on the leave which would not apply to leaves of absence for any other valid medical reason.

Case Scenerio• Employee Ruby worked as a nurse. She was supposed to float among

different units but was only trained for one unit. She was transferred to another unit. When Ruby told her supervisors she was uncomfortable working in the unit without specific training she was told he had not choice. Ruby went to HR. During the meeting she was crying and shaking so severely she asked for an ambulance. HR let her go home and would talk the following day. The next day Ruby went to her doctor and was diagnosed with situational anxiety. The doctor also gave her a note recommending she take the rest of the week off. Ruby immediately gave the note to the HR department. Later the same day Ruby was called at home and told she was terminated because she refused a work assignment. Later the hospital filed a complaint with the Board of Nursing saying Ruby refused an assignment and walked off the job.

• Was this a violation of the FMLA?

• Did the Hospital know Ruby had a serious medical condition and therefor have notice she needed FMLA leave?

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Best Practices for FMLALegally administer and prevent abuse•Medical certification, recertification, and second/third opinions

• Don’t accept incomplete, inadequate or suspect medical certifications

•An honest belief employee is abusing is strong defense (er must do complete and exhaustive investigation of facts)•Use care and follow process if leave to care for family member

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Best Practices for FMLA• Where FMLA ends and ADA begins

– Critical employers engage in interactive process. Communicate during FMLA and after it ends and in between. If employee asks for more leave find out what they can and can’t do, if reasonable accommodations available if leave will help them. Document

• Use Government guide to FMLA in discussions with employees. Helps them understand their obligations (what information have to give and that they must cooperate)

• http://www.dol.gov/whd/fmla/employeeguide.htm

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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

– Standard ProvisionsLeave 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 (including benefits—vacation time)

Applies to all employers regardless of size

Applies to all employees regardless of length of service

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USERRA-New Provisions

VOW (VOW to Hire Heroes Act)

and

the National Defense Authorization Act of 2012

– Both Expand protections under USERRA

– `Protect against hostile work environment based on military service (don’t forget Cat’s Paw—rely on info from biased person to make decision)

– Extends USERRA reemployment rights to National Guard called for domestic assignments

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ADA-Basic Provisions

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 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.

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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 effect of the Amendments 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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Recent Amendments• Expands the definition of "major life activities“

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");

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

• an impairment that is episodic or in remission is a disability if it would

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

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Reasonable Accommodation• Employers must offer reasonable

accommodation that will allow employee to perform essential functions of job

• 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

Interactive Process

• 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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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;

(1)Ask questions. nature of disability, what can and can’t do

(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.

Obligation on employee to cooperate in process

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Medically related inquires

• A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity

• restrictions on inquiries and examinations apply to all employees, not just those with disabilities

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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)

– After employment begins, can make disability related inquiries and require medical examinations only if they are job-related and consistent with business necessity

Disability-related inquiries may include the following:

– asking an employee whether s/he has (or ever had) a disability or how s/he became disabled or inquiring about the nature or severity of an employee's disability;(20)

– asking an employee to provide medical documentation regarding his/her disability;

– asking an employee's co-worker, family member, doctor, or another person about an employee's disability;

– asking about an employee's genetic information;(21)

– asking about an employee's prior workers' compensation history;(22)

– asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee's taking of such drugs or medications;(23) and,

– asking an employee a broad question about his/her impairments that is likely to elicit information about a disability (e.g., What impairments do you have?)

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Questions that are permitted• asking generally about an employee's well being (e.g., How are

you?), asking an employee who looks tired or ill if s/he is feeling okay, asking an employee who is sneezing or coughing whether s/he has a cold or allergies, or asking how an employee is doing following the death of a loved one or the end of a marriage/relationship;

• asking an employee about nondisability-related impairments (e.g., How did you break your leg?)

• asking an employee whether s/he can perform job functions; • asking an employee whether s/he has been drinking asking an

employee about his/her current illegal use of drugs asking a pregnant employee how she is feeling or when her baby is due; and,

• asking an employee to provide the name and telephone number of a person to contact in case of a medical emergency

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When can Ask for Medical Opinion

• If employee requests accommodation employer is entitled to know that an employee has a covered disability and requires reasonable accommodation. So the employer 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.

• Can’t get all medical records

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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.

Undue Hardship• Don’t need to accommodate if undue

hardship– Document

• Significant losses in productivity because work by less effective temp workers or substitutes or overburdened employees

• Lower quality and less accountability for quality

• Lost sales

• Less responsive customer service and increased dissatisfaction

• Deferred projects

• Increased burden on management to find replacement workers or readjust workflow or priorities

• Increased stress remaining workers

• Lower morale

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FMLA / ADA • When FMLA ends and ADA begins

– Interactive process– Communicate during FMLA and after it ends– If employee requests additional leave after

FMLA expires, • Need to know what they can and can’t do• Whether reasonable accommodations are

available to help them perform essential functions• Whether additional leave will help them perform

those essential functions

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Class Fun Tests• You have an employee that has a disability. The employee comes

to work with a miniature horse. She states it is housebroken• Do you allow this accommodation: yes or no

• You have an employee that is a firefighter. They have ADD. They are taking a promotional exam. They would like extra time to take the exam– Do you allow this accommodation: yes or no

• You have an employee that has seasonal affective disorder and wishes to be moved to a window office– Do you allow this accommodation: yes or no

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Case

• Employee takes FMLA leave to colon cancer surgery. He returns to work and then takes intermittant leave (to address several reoccuring health issues). This occurs for about one year. Then employee presents note from doctor that he still has cancer and fatigue and must be out two weeks. Day before return, employer gives employee note that he has exhausted FMLA leave. Same day employee gives note saying he may return in 3 weeks. Co. Terminates.

– Did this violate FMLA or ADA

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Answer• Did not violate either

– Additional leave can be a reasonable accommodation under the ADA but only where the employee gives the employer an anticipated return date. If employee requests leave of unspecified duration it is not a request for reasonable accommodation.

– In this case company concluded return to work date uncertain because he failed to return by the date in his first note and second said he may return in 3 weeks. In light of his diagnosis, frequent absences and failure to return by date in first note, return date uncertain

– So for those cases where employee takes off does not return and gives another note can use this analysis

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Ex. Of Accommodations

• Bending no fault attendance policy• Extra time to take promotional exam (firefighter with ADD

allowed extra time to take exam) • Window Office • Miniature horse: public businesses must accept

miniature horses as well as dogs as service animals (unless no housebroken)

• Transfer to a different job (vacant) even if there is more qualified non disabled candidates (if ee meets minimum qualifications): split in circuit

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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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Gina

• When ask for medical information for FMLA or ADA be aware of GINA (Can’t get genetic information or use it).

• In release make sure indicate that you do not want them to provide genetic information—if you do this then there is an exception if you inadvertently get genetic information.

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Model Safe Harbor Provision

• “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order 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.”

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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 note 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

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