The ADA, FMLA, and Workers’ Compensation Act: SHOOT!

1. The ADA, FMLA, and Workers’ Compensation Act: SHOOT!

2. Campbell Shatley, PLLC • Education Law/Employment Matters • Community Colleges and School Boards • Phone: 828-378-0064 • Email: Chris Campbell – chris@csedlaw.com • Email: Dean Shatley – dean@csedlaw.com • Email: Chad Donnahoo – chad@csedlaw.com • Email: Brian Elston – brian@csedlaw.com

3. The Trifecta of Employment Law • Americans with Disabilities Act, as Amended (ADA) • Family Medical Leave Act (FMLA) • Workers’ Compensation (W/C)

4. Rules of the Game • Back to Basics: An Overview ADA, FMLA, and W/C • Hot Button Topics • SHOOT! • Game Over: Short-term or Long-term Disability

5. Americans with Disabilities ActEmployee walks in the door . . . • Protects qualified individuals from discrimination on the basis of a disability. • The first step is to determine whether the employee has a disability: • Physical impairment • Record of such impairment • Regarded as having such impairment

6. Legal Update • January 1, 2009 Congress amended the ADA and now: • Broader definition of disability, • Mitigating measures are not considered in disability, • Disability only needs to substantially limit one major life activity, • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. • Post Amendment Focus • Is a “major life activity” substantially limited? • Reasonable Accommodation • Interactive Process

7. Interactive Process: Engage! • Determine nature, extent and length of disability and effect on job • Communicate through Employee to Medical Providers • Reasonable Accommodation vs. Undue Hardship • Determine Employee’s Qualifications • Essential Job Functions • Reassignment vs. Relocation • Job Restructuring • Modified Work Schedule • Undue Hardship = “significant difficulty or expense”

9. Family Medical Leave Act • Sets minimum leave standards for workers (like minimum wage, but with leave).

10. Eligible Employees • Has been employed by the employer for at least 12 months; and 2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave; and 3) Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

11. Under What Circumstances? • Birth or adoption of child • Placement of foster child • Serious medical condition of parent, spouse, or child • Because of a serious health condition that makes the employee unable to perform the functions of the employee's job • Military Service Exigency

12. Leave Time • Intermittent leave or reduced leave schedule

13. Workers’ Compensation • Unlike ADA and FMLA, the purpose of workers’ compensation is to compensate employees for on the job injuries. • It is a no fault system and typically driven by insurance carrier. • Similar to ADA and FMLA, retaliation or job discrimination is prohibited against employees who are involved in workers’ compensation claims.

14. Game Over = Short Term or Long Term Disability Consideration • If employee is disabled and cannot return to work with or without reasonable accommodation; and • If all available paid leave is exhausted; and • If additional unpaid leave is not reasonable/would constitute a hardship

15. Practice Tips

19. Hot Button Topics • Granting Unpaid Leave? • Mandatory Reassignment? • What Policies Should be in Place? • When is Leave Indefinite? • Is Attendance an Essential Job Function? • Can Individuals (Supervisors) be Liable Under the FMLA?

20. ADA, FMLA, W/C: SHOOT! • While at work, custodian attempts to empty trash into dumpster. When he picks up the bag, he feels a sharp pain in his back. It turns out that the trash bag was unusually full of text books and the trash bag was heavier than any other trash bag. The pain in his back does not substantially limit a major life activity. However, out of an abundance of precaution, the supervisor refuses to return the custodian to his or any position because the supervisor believes he cannot lift more than a few pounds.

21. ADA, FMLA, W/C: SHOOT! • While driving home from work, employee is involved in an auto-accident. The employee suffers a lacerated leg and has to have surgery. After a week in the hospital, employee is ready to return to work. Employee requests that he be able to come into work thirty minutes later because it takes him longer to get dressed in the morning.

22. ADA, FMLA, W/C: SHOOT! • In an unwitnessed fall, employee injures his back on the job. Employer goes to doctor and doctor writes employee completely out of work until next doctor’s appointment in two weeks. At the two week appointment, doctor writes employee out for an additional month. At the next appointment, doctor writes employee out for one more month. At the next doctor’s appointment, doctor recommends surgery and states that employee will be back to work in four months. Employee exhausts all his sick leave and vacation prior to date of surgery. • What if Physician says that recovery period is indefinite?

23. ADA, FMLA, W/C Policy • Employee on workers’ compensation comes back to work for light duty. While on light duty, employee suffers unwitnessed fall. Board member proposes new Workers’ Compensation Policy: Any employee suffering a workers’ compensation injury can only return to work when they are either 100% recovered or fully released by their treating physician.

24. ADA, FMLA, W/C: SHOOT! • Long standing custodian returns from back surgery after taking twelve weeks of FMLA leave. He notifies his employer that he is ready to return to work, but that he cannot return to his regular job because he cannot do the work.

25. ADA, FMLA, W/C: SHOOT! • Employee comes in office and says “I need six weeks off to get treatment for a back problem.”

26. When In Doubt, • Employee is on approved FMLA leave. The leave is also a reasonable accommodation. When the employee returns back to work, can he return to the same job or an equivalent job?

27. Employee Suffers on the Job Injury • What is going to apply? • W/C: Injury by accident arising and in the course of employment? • ADA: Not automatically. • FMLA: Not automatically.

28. Practice Tips • In employee separation agreements, including clinchers, be sure there is a full release of all claims. • Look at policies: FMLA, when applicable, can run concurrently with W/C and ADA. • Medical Certification: ADA and FMLA

29. Termination Framework • Employment termination may occur if: • Employee is unable to return to work at end of twelve weeks of FMLA leave; • Reasonable accommodation will not allow the employee to perform the essential functions of position(s); • Has the employee used up all applicable paid leave? • Would additional unpaid leave create an “undue hardship” or is the period of incapacitation “indefinite”? • Termination is not in retaliation for filing a W/C claim. • Is the employee eligible for short-term and/or long-term disability?

30. Campbell Shatley, PLLC • Education Law/Employment Matters • Community Colleges and School Boards • Phone: 828-378-0064 • Email: Chris Campbell – chris@csedlaw.com • Email: Dean Shatley – dean@csedlaw.com • Email: Chad Donnahoo – chad@csedlaw.com • Email: Brian Elston – brian@csedlaw.com