Bismarck, ND

April 19, 2018

Navigating the Bermuda

Triangle for HRDisability Management 101

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

• Employment Mediation – Qualified Neutral

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J.D., Ph.D./ABD, M.A.

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, mayviolate the requirements of another law

• The benefits required to be provided to an employeeunder one law may only be suggested under anotherlaw

• 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

ADA

• Prohibits discrimination against qualified individual.

• Requires “reasonable accommodation” in employment. NDHRA requirements for smaller employers.

FMLA

• Up to 12 weeks unpaid leave for qualifying serious health condition of employee or eligible family member.

• Must maintain health benefits.

WSI• Provides lost wage, medical payments, and rehabilitations benefits for work-related injuries.

• North Dakota Workforce Safety and Insurance.

EEOC/ND DoL

ADA/NDHRA

US DoL

FMLA

WSI

Workers Comp

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.

• 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

Reasonable Accommodation

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

� 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 – Reinstatement

Medical Information Requests

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

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

• Fitness-for-Duty certifications are permitted withinthese guidelines.

ADA – What Can You Ask?

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

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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

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?

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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©