Navigating the Bermuda Triangle for HR - Bismarck, ND April 19, 2018 Disability Management 101 - HR Collaborative North ...

Navigating the Bermuda
    Triangle for HR
      Disability Management 101

         Bismarck, ND
         April 19, 2018

Seth Thompson
       • Labor and Employment
         Law
       • HR Counseling &
         Training
       • Construction Law
       • General Litigation

KrisAnn Norby-Jahner
                        • Attorney & Adjunct Professor

                        • Employment Law

                        • ERISA & Benefit Compliance

                        • Wage and Hour Compliance

                        • Policy Development
                        • HR Counseling & Training
                        • Litigation /Administrative Complaints –
                          Discrimination
J.D., Ph.D./ABD, M.A.   • Employment Mediation – Qualified
                          Neutral

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Lisa Edison-Smith
   • MSBA Certified Labor & Employment
     Law Specialist

   • Wage and Hour/Compliance

   • Labor Union Matters

   • HR Policies, Counseling & Training
   • Litigation /Administrative Complaints
   • Employment Mediation – Qualified
     Neutral

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The “Real” Bermuda Triangle
• Also known as the Devil's
  Triangle, part of the North
  Atlantic Ocean reported to be
  a mysterious trap for air and
  watercraft.

• Reported that at least 20
  planes and 50 ships and 1,000
  people have died or gone
  missing in the last 100 years.

The “HR” Bermuda Triangle
• Intersection of three major
  leave laws.
• Reported to be a mysterious
  trap and source of headaches
  and reduced productivity for
  countless HR professionals.
• At least 100 HR professionals
  have resigned or gone missing
  in the last 20 years due to
  perplexing leave issues.

The Bermuda Triangle
• Which law or laws apply and when?

• Legitimate action of an employer under one law, may
  violate the requirements of another law

• The benefits required to be provided to an employee
  under one law may only be suggested under another
  law

• How long must leave or other benefits be provided?

Today’s Objectives

• Review the basics of each law.

• Identify which law or laws apply and when.

• Review interplay between the three laws that
  employers need to consider when managing
  employee absenteeism.

I. Basics

Basics - Leave Laws
       • Prohibits discrimination against qualified individual.
       • Requires “reasonable accommodation” in
ADA      employment. NDHRA requirements for smaller
         employers.
       • Up to 12 weeks unpaid leave for qualifying serious
         health condition of employee or eligible family
FMLA     member.
       • Must maintain health benefits.

       • Provides lost wage, medical payments, and
WSI      rehabilitations benefits for work-related injuries.
       • North Dakota Workforce Safety and Insurance.

EEOC/ND DoL
               ADA/NDHRA

    WSI                    US DoL
Workers Comp               FMLA

ADA

ADA Arrives on the
       Scene When . . .
• Employer has 15 or more employees.
• Before hire and anytime while employed.
• Employee has an impairment that
  substantially limits a major life activity.
• The employee can perform the essential
  functions of the job with or without a
  reasonable accommodation.

Reasonable Accommodation
• Required, absent an undue hardship
• May include:
   – Light duty
   – Leave
      • Leave can be a reasonable
        accommodation
      • Reduced or part-time or
        intermittent leave
   – Reassignment
   – Job restructuring; physical changes
     or modifications

Leave as an Accommodation
• Unpaid leave unless employee is required by company
  policy to use or asks to use paid leave
• Benefits - No specific requirement as to the provision of
  benefits, but cannot discriminate between disabled
  employees and non-disabled employees with respect to
  benefits.
• Reinstatement - Employee should be reinstated to
  previous position unless unable to perform essential
  functions with or without reasonable accommodation

ADA - How Much Leave is
               Required?
• No set limit on amount of leave
  that may be taken
• Leave cannot be for an
  indefinite period
• Cannot otherwise pose an
  undue hardship
• Additional leave under the ADA
  should be closely analyzed after
  FMLA has expired

ADA – Reinstatement


   Employee granted leave as Reasonable Accommodation
    should be reinstated to same job unless the employee
    is unable to perform the essential functions of the
    position with or without reasonable accommodation.


   Transfer to vacant position must be considered if
    employee is unable to return to same job.

ADA – What Can You Ask?
Medical Information Requests

• An employer may require a medical examination
  (and/or inquiry) of an employee that is job-related and
  consistent with business necessity.

• An employer may make inquiries into the ability of an
  employee to perform job-related functions.

• Fitness-for-Duty certifications are permitted within
  these guidelines.

Interactive Process
• Probably most important in ADA, always engage in
  interactive process
• Interactive process is informal dialogue with
  employee to determine precise limitations created
  by disability and potential accommodations
• Document, document, document – if an
  accommodation is denied or can’t be identified,
  document efforts

Ok, where to next?

FMLA

What is FMLA?
• FMLA entitles eligible employees to take up to twelve work
  weeks of leave during any twelve-month period for specific
  reasons, including:
   – Serious health condition of the employee
   – Serious health condition of a child, spouse, or parent
   – Birth of a child, adoption or foster care
   – A “qualifying exigency” arising out of the fact that an employee's
     family member is on active duty in the Armed Forces
   – To care for an injured service member or veteran during
     rehabilitation (26 weeks)

FMLA Eligibility
• The employee employed with employer for 12
  months within the previous 7 years
• The employee worked at least 1,250 hours during
  the 12 months prior to the start of FMLA leave
• The employer employs 50 or more employees
  within a 75-mile radius of the worksite
• Full- or part-time, includes temp workers

What is a Serious Health
             Condition?
• Illness, injury, impairment, or physical or mental
  condition that results in incapacity of more than
  three consecutive days with visit to healthcare
  provider and either second visit or continuing
  regimen of treatment (can be RX) within 30 days
• Incapacity for pregnancy or prenatal care
• Any period of hospitalization requiring overnight
  stay

More About Serious Health
            Conditions
• Period of incapacity that is permanent or long-
  term such as Alzheimer’s, stroke, terminal illness
• Chronic conditions that may be episodic
  requiring treatment by healthcare provider
• Multiple treatments for non-chronic conditions
  that if left untreated would become serious
• Treatment for substance abuse is included if
  conditions for inpatient care/or continuing
  treatment met

FMLA Basics
• Unpaid – but may require use of paid leave time
• Benefits - Employer continues to contribute
  toward health insurance premium
• Schedule – may be intermittent, or reduced
  hours or days of work
• Return to Work - Guaranteed job restoration;
  benefits reinstated

FMLA Reinstatement


   Once an employee’s leave has expired, the
    employee must return to work or reinstatement
    is not required under FMLA


   An employer must return the employee to the
    same or an equivalent position.

FMLA – Light Duty
• May not require light
  duty in lieu of leave

• May not require that
  employee take more
  leave than is
  necessary

FMLA – What Can You Ask?
Medical Information Requests

• Medical certification of the
  need for the leave not to
  exceed what is requested in
  the Department of Labor
  (DOL) Certification of
  Healthcare Provider.

• Make use of Clarifications,
  Authentications,
  Recertification, Second and
  Third opinions

Workers Compensation

Workers’ Compensation
• Provides benefits to
  employee with injury or
  illness arising out of and in
  the course of employment
• Includes payment for
  medical expenses
• Pays lost wage benefits to
  qualifying individuals during
  absence from work

WSI Coverage
• All employers in or
  operating in North Dakota
  must provide workers’
  compensation insurance
  coverage
• Covers all employees,
  regardless of length of
  service

Workers’ Compensation
• No specific limit for the
  amount of leave an injured
  worker may have.
• 5-day waiting period on wage
  loss benefits.
• Light duty should be offered
  if available to reduce or
  eliminate the employee’s
  entitlement to wage loss
  benefits.

Medical Information - WSI
• Employee consents to release of
  medical information that pertains to
  the employee’s on-the-job injury

• Medical information necessary to
  determine if “work-related” and for
  consideration of payment

• Employee may be required to submit
  to examination by a physician chosen
  by employer or WSI

Benefits - WSI
• No specific requirement that
  employer maintain benefits
  under workers compensation
  law

• Consider interaction with
  other laws?

II. Thorny Questions

Navigating the Triangle
• Employee injured on the job, needs time off
• What laws might apply?
  – Americans with Disabilities Act as Amended
    (ADAAA) and NDHRA
  – Family Medical Leave Act (FMLA)
  – Workers’ Compensation laws
• What about policy?
  – Ex: Calls for termination after 6 months of leave

HR Insomnia
• ADA and FMLA leave keeps
  HR personnel up at night,
  asking questions such as:
  – Was the employee entitled to
    leave of absence?
  – Was the employee entitled to
    light duty?
  – Did we give proper notices and
    allow that employee enough
    leave?
  – Did we properly engage in the
    interactive process?

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Uncertain?
• Uncertainty: ADA, FMLA,
  and short-term and long-
  term disability

• SHRM Study: 58% of
  respondents reported
  uncertainty about whether
  an employee who
  requested FMLA leave
  was also covered by the
  ADA

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Successfully Navigating the
     Disability Maze

Step 1. Which Laws
           Might Apply?
• ADA – 15+ employees NDHRA – 1 employee

• FMLA – public agency (50 or more employees
  within 75 mile radius)

• Workers’ Compensation – any employees and
  work-related

Step 2. Which laws cover
    employee needs?
• ADA - “Substantially limiting impairment”,
  record of, or perceived as disabled

• FMLA – employee has serious health
  condition as broadly defined by regulations

• Workers’ Compensation – any work-related
  injury

Step 3. Which law will apply first?
 • Most Beneficial - Provide the leave under the law
   with the greatest rights and benefits for the
   employee.

 • Designate Leave – If leave is taken that is covered
   under ADA, WSI, and/or FMLA, designate
   concurrently as FMLA (if policy allows).

 • If FMLA & ADA apply – Grant FMLA leave first, if
   requested, and then consider duty of
   accommodation.

Step 4. Address Reinstatement Rights
• FMLA – Substantially
  equivalent job unless
  “key employee”
• ADA – Same job, unless
  unable to perform
  essential functions
• Workers’ Comp –
  Generally same job, but
  fact dependent

Step 5. Expiration of Leave
• FMLA – Able to return to
  work after expiration of 12
  weeks?
• ADA – Additional leave
  required? Interactive
  process to determine
  accommodation? Transfer?
• Workers’ Comp – FCE, TTD,
  duty under ADA?

Don’ts - “Cliff” Policies
• Policy that states employee will be
  terminated after certain length of leave
• 100% healed policies – must be 100%
  healed before return to work
• Per se illegal – rigid leave policies can
  lead to big damages
• Always conduct ADA accommodation
  analysis before ending employment
• Don’t assume “serious” means life
  threatening health condition

Do’s – Disability Management
• Stay in touch with employee and
  actively manage absence
• Have policies that require the
  employee to keep you informed of
  medical condition and check in often
• Do require consistent medical
  documentation (CHP)
• Review CHP’s and consider whether
  they are complete or require
  clarification

Do’s – Disability Management
• Consider use of the second
  certification process provided for by
  FMLA
• Have policies that require the
  concurrent use of FMLA with other
  leave
• Do engage in and document
  interactive process
• Document exhaustion of interactive
  process before termination of
  protected individuals

Brain Teaser #1

Is an FMLA “serious health” condition” always
protected as an ADA “disability”?

Brain Teaser #2

Are all employees who are protected by the
ADA or NDHRA covered under FMLA?

Brain Teaser #3

Is it safe to terminate the employment of an
employee who doesn’t return to work after 12
weeks FMLA?

Hypothetical

• ACME is a family-owned business located in Jackson, Mississippi
  with approximately 60 employees.
• Bob Jones has been employed with ACME since August 2014.
• Bob averages 40 hours per week.
• On Monday last week, Bob notified his supervisor that he would
  need to be absent due to severe back pain. Bob told his
  supervisor that he hurt his back lifting crates at work the week
  before and that the pain had not gone away.
• Bob called out for the next three days for the same reason.

• On Friday, Bob presented a doctor’s note for his absences to his
  supervisor.
• The note also indicates that Bob is in need of back surgery and
  will require approximately 10-16 weeks to recover.
• It is unknown at this time, but Bob’s doctor believes even after
  recovery from back surgery Bob may be unable to lift more than
  10 pounds

Riddle Me This . . .
1.   What laws protect Bob?
2.   Is Bob entitled to leave?
3.   If so, how much?
4.   Under what laws?
5.   What if Bob is able to return to
     work and presented light duty
     after 8 weeks but refuses?

Riddle Me This . . .
6. What medical documentation can Acme
   seek from Bob?
7. What will happen to Bob’s benefits while
   on leave?
8. Is Bob entitled to be reinstated to work for
   Acme?
  -   If he can return at 10 weeks?
  -   If he can return at 16 weeks?
  -   If he can return but the job requires frequent 50 lb.
      lifting?

Questions & Answers

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Thank You!
VOGEL LAW FIRM
       Locations in Fargo, Bismarck,
 Grand Forks, Moorhead and Minneapolis
      Ledison-smith@vogellaw.com

     For Copies of PowerPoint Slides
          www. Vogellaw.com

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The Fine Print
•   These materials do not constitute, and should not be taken as legal
    advice as to any particular situation. Although every effort has been
    made to insure the accuracy of these materials and comments at this
    seminar, neither the presenter nor the Vogel Law Firm assume any
    responsibility for any person’s reliance on written or oral information
    disseminated at or in connection with this seminar. Each participant
    should independently verify the accuracy of these materials and any
    statements at this seminar to determine the legal consequences of any
    given situation.

                          Vogel Law Firm 2018©

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