EEOC Speaks Out on Workers Compensation ADA Obligations

Employers Must Begin Interactive Process for Return to Work Sooner Than Thought
Dated: December 4, 2014

[WorkCompRoundUp is authorized to provide this information on behalf of EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD.]
EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD Provide Guidance on When Employers Must Start Discussion Regarding Return to Work Accommodations

 

This may be surprising news for some readers: In workers’ compensation, MMI should not be viewed as the trigger for ADA-related protections and obligations.

 

Background: A common practice in workers’ compensation claims management may not be legal. Employers / claims organizations that postpone the reasonable accommodation process until an injured worker’s medical condition has reached MMI (maximum medical improvement) may be violating the ADA, now that the definition of “disability” has been broadened. Prior to MMI, if medical restrictions have been established by the treating physician, employers often decide whether to offer temporary transitional work without involvement of injured workers. If not, the workers remain out of work – and may end up losing their jobs. Jennifer Christian, MD, MPH who chairs ACOEM’s Work Fitness & Disability Section, asked Aaron Konopasky, JD, PhD, a senior attorney advisor to the EEOC about this. She was surprised to hear that the ADA does apply at any time – whenever a medical condition has the potential to significantly disrupt an employee’s work participation. This means that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process. Christian and Konopasky agreed to co-author a brief summary of the way these two programs interact during the post-injury period, which appears below. Please forward this on to anyone who needs to know.

 

In the Worker’s Compensation context, ADA-related issues can arise at any of several points along the injury management timeline. As a practical matter, employers should be pro-actively evaluating and managing Worker’s Compensation and ADA legal issues concurrently.

 

This is because an employer’s reasonable accommodation-related obligations begin as soon as the employer knows that an individual worker is having trouble at work because of a serious medical problem. By definition, if a doctor informs the employer that a worker has medical restrictions/limitations due to a work-related condition, whether or not the employee is actually working, the employer is now aware that a medical problem is having an impact on the employee’s ability to work. If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA.

 

Although the employer can stop at this point to determine whether the individual is a “qualified individual with a disability,” it may not be worthwhile. Since employees with workers’ comp injuries are already employed at the time of injury, one can presume they meet the requirement of being “qualified” for the job. And, under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA “disability.” An extended inquiry regarding the applicability of the ADA could result in unnecessary delay during a critical period.

 

Thus, whether or not the worker’s condition is stable and has reached maximum medical improvement (is at MMI) has no relevance, either (a) to the time when the employer’s obligation to engage in the interactive process begins or (b) to the time when a worker should be considered a qualified individual with a disability under the ADA. For more details about specific times when the ADA may apply, read below.

 

1. At the time a person is injured.
No matter whether the resulting condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense. Examples might include specialized equipment, removal of non-essential job functions, and special scheduling. Individualized assessment is a key precept of the ADA, so a blanket policy is not appropriate. Employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA. It should be noted, though, that the ADA cannot be used to deny a benefit or privilege to which the employee is entitled on a separate basis. If, for example, the individual has other types of leave available at his or her discretion, whether paid (such as vacation leave) or unpaid (such as FMLA leave), the employer cannot deny that leave based on the fact that he or she could remain on the job with a reasonable accommodation.

 

2. While recovering out of work due to injury
The ADA may apply as soon as the worker’s condition becomes stable enough that on-the-job reasonable accommodations might allow the individual to perform the essential functions of the job (whether or not there has been a formal declaration of MMI). A blanket policy is not appropriate at this juncture, either. At this point, the employer should re-engage the interactive process to determine whether a reasonable accommodation would allow the individual to return to their usual job. As mentioned above, employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA.

 

3. When the individual has exhausted his or her leave and workers’ compensation benefits, and is still unable to return to the original position, even with an on-the-job reasonable accommodation.
At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation, such as additional unpaid leave or, if the individual is not expected to regain the ability to do the essential functions of his or her current position, reassignment to a vacant position (if one is available). Again, a blanket policy is not appropriate.

 

In summary, legal obligations under Worker’s Compensation and ADA legal issues should not be assumed to be sequential, because they may run simultaneously. Duration is not the key issue; the main issue is the nature of the condition and its impact on the ability to function at work.

 

 

CLARIFICATION To MEMO dated December 4, 2014
Dated: December 11, 2014

The EEOC’s Aaron Konopasky and I were glad to see many thoughtful comments in response to our message about the ADA in workers’ compensation last week in the forums where it was posted. Our summary was primarily written to dispel two common myths:

  1. In workers’ compensation, the time to think about the ADA is at MMI. This is NOT true. MMI is late among several points in the post-injury timeline when the ADA needs to be considered.
  1. The ADA’s requirement for an interactive process doesn’t apply in decision-making about transitional work assignments. This is NOT true. Injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

 

However, based on the comments we have received, we want to clarify that the ADA has several other significant implications for how employers should respond to existing employees who develop health problems. The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another. The fundamental purpose of the ADA’s employment provisions is to help people with disabilities get and keep jobs, as long as they are qualified to do the work and can meet productivity standards. The cause of the disability is irrelevant. It does not matter what other types of policies or programs are also involved — whether workers’ compensation, FMLA, sick pay, or disability insurance programs. A disability can be newly acquired, transitory, fluctuating, progressive, or longstanding and stable. It can be the result of injuries, illnesses, congenital conditions, or the natural aging process. The only relevant question is whether the disability is now or is perceived as potentially having a significant impact on someone’s ability to perform their job, take home their regular paycheck, and stay employed.

 

Here are 5 more practical implications for management of ALL types of health-related employment situations:

 

  1. As the Federal agency that enforces the employment provisions of the ADA, EEOC’s biggest concern in situations involving disability leaves of any type will be that someone with a disability is being forced to take leave even though he or she could do the essential functions of the job with a reasonable accommodation. Everyone involved in the decision to keep someone out of work — doctors, third-party benefit administrators, managed care companies, workplace supervisors and employee program managers — should keep that fact firmly in mind, so that people with disabilities are not needlessly forced out of the workplace.

 

  1. Only the employer is accountable for complying with the employment provisions of the ADA. However, treating physicians and the employer’s vendors (benefits claims administrators, managed care companies) who fail to communicate with the employer during the stay-at-work and return-to-work process may be exposing the employer to increased risk/liability. When a vendor or a doctor (especially one who has been selected by the employer) fails to notify the employer that an employee described difficulty working or an adjustment that might allow them to work, the employer could be held liable for failing to provide that accommodation — even though the information was never properly passed along. Doctors and vendors also can help educate employees and small or unsophisticated employers to ensure that the law is followed.

 

  1. Some employees may express the desire to remain on leave, rather than return to work with a reasonable accommodation. Of course, employees with disabilities must be allowed to use accumulated sick or annual leave, just like any other employee. And they may have a legal right to insist on leave if, for example, they qualify for FMLA. But if an individual with a disability has no discretionary leave, and a reasonable accommodation would allow performance of job functions in a manner that is safe and consistent with his or her medical needs, then the employee may be required to return to work with the accommodation.

 

  1. Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA, especially when they were not part of the decision-making process that has put them out of work. The employee must be actively involved in arranging any temporary or long-lasting adjustments to their usual jobs in order for the employer to meet the interactive process obligation. With respect to specific cash payments made under workers’ compensation—

 

A.  Temporary Total Disability (TTD) Benefits – There is little difference between cash payments under workers’ comp TTD and disability benefit programs for personal health conditions except how the amounts are calculated. Employees are usually receiving them for one of four reasons:

 

  1. The doctor wrote “no work” because their patient’s medical condition is so severe or unstable that it is unsafe for them to do anything except try to get better;
  2. The doctor wrote “no work” because of a perception that the employer cannot or will not provide safe and suitably modified work on a temporary or long-term basis;
  3. The doctor released their patient to work with restrictions, but state or federal law, or a union contract means that the employee cannot work until fully able to do the essential functions of their job, so the employee is put out of work temporarily.
  4. The doctor released their patient to work with restrictions, but the employer said they cannot meet those restrictions (cannot find appropriate work to assign them within their current work capacity) so the employee is put out of work.

 

In all but # 1 above, the ADA may apply. However, the employee is often not consulted as these decisions are being made. As stated above, giving the employee money is not a reasonable accommodation, and the ADA requires that the employer interact with the employee in looking for a solution that will enable the employee to stay at work.

 

B. Other types of cash benefits: Temporary Partial Benefits, Permanent Partial Benefits and Permanent Total Benefits -These cash awards help compensate employees for economic loss as a result of their injuries. However, as stated above, giving people money is not a reasonable accommodation, and does not accomplish the public purpose of the ADA.

 

5. Employers sometimes limit the length of transitional work assignments (TWA) in order to avoid them turning into required permanent accommodations or becoming subject to union job bid rules. To avoid ADA liability, a “usual” 90-day limitation policy that provides for an individualized assessment of the individual’s situation and possible extension is more appropriate. If there is a specific reason why extending a particular employee’s TWA or granting extra (paid or unpaid) time off to heal more completely will allow them to keep their job that might be a reasonable accommodation. Some temporary adjustments are reasonable accommodations (including, for example, temporary use of adaptive equipment or temporary relocation of a workstation to the ground floor) and may need to be extended unless doing so would involve significant difficulty or expense. However, TWAs may have other aspects that can be discontinued without fear of ADA liability, including temporary reductions in productivity requirements and elimination of essential job functions. These measures go beyond what the ADA requires.

 

 

Please note that this material is an informal discussion and does not constitute an official opinion or interpretation of the EEOC.

 

 

Aaron Konopasky, J.D., Ph.D
Senior Attorney Advisor
ADA/GINA Policy Division
Equal Employment Opportunity Commission
Email: aaron.konopasky@eeoc.gov

 

Jennifer Christian, MD, MPH
President, Webility Corporation
Chair, Work Fitness & Disability Section
American College of Occupational & Environmental Medicine
Email: Jennifer.christian@webility.md

 

If you would like to hear directly from the EEOC, inquiries can be submitted by mail to:

EEOC Office of Legal Counsel
131M Street, NE
Washington, DC 20507

 

Download A Printable Copy of This Memo

The Best Tidbits of News from the Workers Comp Community

 

 
In The Washington Post's On Small Business Blog, MCA's Director of Nurse Case Management, Barbara DeGray, discusses techniques for overcoming feelings of isolation for remote employees. Read more…
 
 
 
Longtime insurance technology executive Mark Stergio has been named CEO and senior vice president of risk management information systems (RMIS) provider Risk Sciences Group (RSG, Atlanta). He will be responsible for continuing the development of a long-term strategy for RSG that focuses on innovative technology, effective analytics and easy-to-use applications that help clients control their overall cost of risk, according to the company.  Read more…
 
 
 
MSP & MIR Program Featured at This Year's  
Worker's Compensation Conference   
 
Bret Cade, Executive Vice President of Sales & Marketing at Gould & Lamb, will be the featured moderator for the 2012 WCI Conferences' full-day program titled "Providing Clarity in a Land of Confusion".  This comprehensive breakout, sponsored by Gould & Lamb, will seek to clarify what has become an extremely complicated process, creating enormous issues for the workers' compensation industry, soon to further expand into the general liability area.  Conference Homepage
 
 
 
Lexis Nexis Lays out Blueprint for HIPAA & ADA Compliant Wellness Programs   
 
 
“Blueprint for HIPAA and ADA Compliant Wellness Programs: Encouraging Good Health Reduces Workers' Compensation Expenses, by John Stahl, Esq. The article "Guidance for a Reasonably Designed, Employer-Sponsored Wellness Program Using Outcomes-Based Incentives" in the Journal of Occupational and Environmental Medicine demonstrates how employer-sponsored outcomes-based wellness programs (wellness programs) reduce workers' compensation and other employment-related healthcare costs.” Read more.
 
 
“Court Dismisses Injured Worker's Tort Action Against Carrier for Five-Month Delay in Medical Benefits, by Thomas A. Robinson. A Texas appellate court recently affirmed the dismissal of a tort claim filed against a workers' compensation carrier, another defendant (Southwest) that had provided administrative services, and a physician alleging that the trio were liable for damages under common-law bad faith, statutory bad faith, and fraud theories associated with the carrier's delay of five months in paying benefits to the plaintiff-worker. Read more about this case and other cases involving incarceration, borrowing employer, and causation of injury.”
 
 
“Workers' Comp, Texas Style: A Highly Regulated System in a Pro-Business State, by Stuart D. Colburn and Albert Betts, Jr. Cotton, cattle and oil were the primary economic engines when Texas first adopted workers' compensation. In the 100+ years since, the economy and workers' compensation laws have changed dramatically. The shift from an agricultural to a manufacturing and then to an information based economy changes the frequency and type of injuries sustained at work. Health insurance, Medicare/Medicaid, and disability insurance alter the landscape of both a social safety net for employees and higher costs for employers.” Read more.
 
 

Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com Contact mstack@reduceyourworkerscomp.com

 

 


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Americans with Disabilities Act and Workers Comp Coordination

The Americans with Disabilities Act extends the ability of workers with disabilities to be employed with reasonable accommodation. Medical examinations and review of prior medical records are frequently necessary for a vocational expert to comment on what jobs can be done by an individual with a disability and what the earning capacity would be. The vast number of ADA examinations are for pre-employment purposes. The use of ADA for examinations of workers in serious comp claims has received little attention.

 

 

In serious workers comp claims, precisely the same issues relevant to a pre-employment ADA exam appear about a year after date of accident, a time at which a permanent rate of disability and amount of wage loss in NY claims will be considered. Settlements will also be discussed. (WCxKit)

 

 

Using New York as an example (settlement procedures vary widely from state to state), an ADA examination and conference can be an effective RTW strategy and greatly reduce post-injury loss of earnings. In addition, ADA compliance is not subject to oversight and regulation by state workers comp agencies. Nor does an ADA medical exam count as a workers comp IME.

 

 

The ADA compliance exam must be done by the employer as part of a good faith effort to return a worker to employment. The worker, however, must indicate an interest in return to work for the employer; the exam cannot be forced.

 

 

A typical procedure might be as follows, subject to many modifications under collective bargaining agreements.

 

 

  1. After a reasonable period, the employer may ask the worker if there is interest in returning to work, on a trial basis and with reasonable accommodations.

 

  1. 2. A face-to-face conference may be scheduled, with spouse present, to discuss the possibilities and the wages which would be paid.

 

  1. A medical exam may be necessary to determine what accommodations might be necessary.

 

  1. A vocational expert should compose a report and comment on wage earning capacity.

 

  1. An effort to place the worker into a suitable job must be made.

 

 

In NY, settlement figures for comp PPD claims cluster at 50% disability, resulting in many claims with over $400/wk. rates. With a proper ADA program, many of these can be held to $100/wk., less, or even no wage loss.

 

 

A fact known to nearly every Social Security disability attorney is that the spouse is usually highly supportive of RTW, not extended disability. Involving the spouse in RTW  discussions will produce far better results. (WCxKit)

 

 

The ADA exam and conference are part of the employer/employee relationship, not the workers comp claim, and are therefore outside the control of a comp board.

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

 

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3 Ways to Untangle a Complex Web of FMLA and State Leave Laws

By Martha J. Cardi J.D.

 
Think workers comp is hard to manage? Try FMLA, state and other leaves of absence.
 
 
These overlapping and ever-changing leave laws are so complicated many employers either grant too much leave in fear of being out of compliance, or refuse leave that legitimately should be granted, exposing the employer to risk of lawsuits.
 
 
How employers (and/or their TPAs) manage FMLA can have a big impact on costs, productivity, employee morale and, perhaps most important, reduce the risk of legal action for claims of noncompliance. Quite simply, it pays to devote the resources to make sure it is done right.
 
 
To give you an idea of how complicated managing these leaves can be, consider three hypothetical scenarios and how they should be correctly handled. While reading, keep in mind that, while these scenarios look overblown, in real life they actually can get much more complicated than this.
 

1. Pregnant Employee With Multiple Births
 
This scenario illustrates the interaction of FMLA and state leaves for an employee with a complicated pregnancy.
 
 
Judy in Massachusetts is employed by a company that is covered by both the FMLA and the Massachusetts Maternity Leave Act (MMLA). She becomes pregnant with multiple fetuses with a due date of October 15 and is put on bed rest by her OB effective April 15. On August 30 she delivers eight babies, all of which survive.
 
 
How much job-protected leave does Judy get, and under which statutes?
 
April 15 – July 8

1.    The MMLA covers only the birth or adoption of a child or children, not pre-birth pregnancy-related disabilities. Therefore, the MMLA does not cover any of her pre-birth time off.
 
2.    The FMLA does cover pregnancy-related disabilities, so this provides job protection for Judy for up to 12 weeks during her period of bed rest.
 
3.    After 12 weeks, Judy exhausts her FMLA on July 8 (assuming she has not taken any other FMLA time in the prior 12 months).
 
July 9 – August 14

1.    Judy is out of FMLA and the MMLA has not yet come into effect. She is likely still protected, however, under the Americans with Disabilities Act (as amended by the ADA Amendments Act effective January 2009) and under the Massachusetts equivalent nondiscrimination law. 
 
2.    Judy also may be protected by both federal and Massachusetts sex or pregnancy discrimination laws if her employer allows leaves of absence to employees for non-pregnancy-related temporary disabilities.
 
3.     Her employer would be wise to provide an extended leave of absence due to her pregnancy and/or pregnancy disability to cover the period from FMLA exhaustion until the MMLA provides the employee with parental/bonding leave.
 
August 15 –

Once Judy
has given birth, the MMLA allows eight weeks of job-protected leave per birth or adoption. So, for having eight babies, she is entitled to 64 weeks of leave, eight for each baby.
 
 
2. California Family Rights Act and FMLA
This scenario about how FMLA and state laws interact in a domestic partnership with multiple illnesses shows how the timing of multiple leaves can have a huge impact.
 
 
Marie and her registered domestic partner Susan live together with Susan’s 10-year-old child, Thomas. Thomas is diagnosed with a serious health condition and needs physical care at home. Both Marie and Susan work for California employers that are covered by both the California Family Rights Act (CFRA) and the FMLA.
 
 
Can Marie and Susan take time off to care for Thomas?
 
1.  Both FMLA AND CFRA provide 12 weeks of job-protected leave within one leave year to care for certain family members as defined by the statutes. As Thomas’s mother, Susan is entitled to take up to 12 weeks of job-protected leave under both FMLA and CFRA to care for him. Her leave under each act runs concurrently. After 12 weeks she has exhausted her FMLA and CFRA entitlements for her employer’s defined leave year.  

 

2.  After Susan has exhausted her leave rights, Marie takes time off to care for Thomas. Marie also is entitled to 12 weeks off under each leave act. CFRA provides time off to care for a child with a serious health condition under two conditions. (1) If the child is the child of the employee’s domestic partner and/or (2) a child with whom the employee stands “in loco parentis” (in the place of a parent or like a parent, providing care and/ or support).

 

3.  The FMLA does not provide leave to care for the child of a domestic partner, but does provide time off to care for a child with a serious health condition if the employee is in loco parentis to the child. Because Marie, Susan, and Thomas all live together and Marie helps provide financial support and parenting care for Thomas, she qualifies for this leave and in caring for Thomas, exhausts both her FMLA and CFRA rights for the leave year.

Note that the result would be the same if Marie and Susan work for the same employer. Neither FMLA nor CFRA require parents employed by the same employer to share time off to care for a child with a serious health condition.

 

To understand the complexity of these laws, suppose that before Thomas’s illness, Susan had experienced her own serious health condition. Marie stayed home from work for 12 weeks to provide Susan with physical care during her injury and recovery. This leave is covered by CFRA, which provides leave rights to care for a registered domestic partner with a serious health condition. Susan has exhausted her CFRA time for the leave year, but, her time off does not count toward her FMLA leave rights, as the FMLA does not provide job-protected leave to care for a domestic partner with a serious health condition.

 

Then when Thomas becomes ill with a serious health condition and needs physical care at home. Marie can take another 12 weeks of leave during the leave year to care for Thomas because she stands in loco parentis to him, and her FMLA rights were not exhausted during her time off to care for Susan.

Note that if Susan’s and Thomas’s serious health conditions occurred in reverse order, Susan’s CFRA and FMLA rights both would have been exhausted in caring for Thomas first, and she would not have had any job-protected time left under CFRA to care for Susan. 

 

 
3. Caring for an Injured Military Service Member
 
This scenario illustrates how caring for someone injured in the line of duty differs and interacts with caring for an injured civilian.
 
 
Henry is an employee of a company covered by FMLA. When his son, Josh, a serviceman in the US Navy, is injured on an aircraft carrier during an engagement and is sent home, can Henry take time off to care for Josh?
 
 
An employee may take up to 26 weeks of job-protected leave in one 12-month period in order to care for a son, daughter, spouse, or parent who has been injured in the line of duty on active duty, or if the employee is designated by the injured service member as his or her “next of kin” per the regulations.
 
The 12-month period is measured forward from the first date of leave for this reason, regardless of the method used by the employer to calculate an employee’s leave entitlement for other FMLA reasons (e.g., rolling back, calendar year, or other fixed year).
 
 
The 26 weeks includes the employee’s 12 weeks of leave for other FMLA-qualifying reasons, but the military caregiver leave must be applied first, so that if the employee does not use the full 26 weeks for caregiver leave, he or she still has the remainder of the 26 weeks, up to 12 weeks maximum, to use for other FMLA reasons.
Assume Henry’s employer uses the 12-month rolling backward method of calculating employee FMLA leave entitlements.
 
 
1.     Henry has taken no previous FMLA leave since he became eligible, and may take up to 26 weeks to care for Josh.

 

2.     Josh recovers and Henry is no longer needed to care for him after 8 weeks. Henry returns to work and under the regulations forfeits the remaining 18 weeks of military caregiver leave as a result.
 
3.      A month after returning to work Henry requests FMLA time off to care for his wife, who has a serious health condition. His employer is required to apply the military caregiver leave first, up to the 26 weeks. Because Henry used less than 14 weeks of the caregiver leave entitlement, he still has up to 12 weeks of FMLA entitlement for other reasons. 

 

4.     Suppose, however, that five months before Josh’s military injury, Henry had taken leave because he adopted a child and took 12 weeks of FMLA leave to bond with the adopted child. When Josh is injured, Michael is still entitled to 26 weeks of leave to care for him, because the 12-month period for this leave reason is always measured forward from the first date of the leave. If his care is needed that long, he can take up to the full 26 weeks despite having taken 12 weeks within the past year, measured rolling backward.
 
5.      Fortunately, Josh recovers within eight weeks, no longer needs Henry’s care, and Henry returns to work. Henry then forfeits the remainder of the 26 weeks of military caregiver leave.
 
6.      A month after returning to work Henry requests FMLA time off to care for his wife, who has a serious health condition. Although Henry has only taken a total of 20 weeks, he no longer has any FMLA time available to use for his wife’s care. Looking back 12 months in accordance with his employer’s rolling back method, Henry has already taken 12 weeks of leave for reasons not related to the military caregiver leave (the adoption and bonding time). Thus, he has no regular FMLA time left to care for his wife.
 

What Should You Be Doing to Better Manage Leaves?

The takeaway from these examples is that leave laws form a complex web that continually has to be untangled for each case. In addition, these laws are constantly being amended and updated as challenges are decided on in court. (WCxKit)

 
 
Every employer should:
 
1.    Make sure supervisors are aware that leave laws are complex and that they should not try to handle leave requests without help from their HR, benefits, or legal department.
 
2.    Make sure supervisors are aware their attitude is important, and that if they respond negatively to requests for leave, it could be construed as FMLA interference and expose the employer to potential legal action.

 

3.    Understand that employers do not have to grant every leave request just to avoid the risk of noncompliance. With proper understanding of leave laws, there are many ways that employers can reduce the burden of unnecessary leaves while still giving employees the leaves to which they are entitled.
 

Up-to-Date Leave Law Information is the Key.
 
No human being can be expected to hold this kind of complexity in his or her head, and researching leaves on various government databases is both time consuming and increases the risk of missing any important change or guidance on a gray area. Be sure you have the most current information on FMLA, state and other leave laws available in a format that is easy to search, complete and always up-to-date. If you encounter any “gray areas” in leave laws, be sure to seek expert advice to minimize the risk of legal challenges.
 

Martha J. Cardi J.D.
is Chief Compliance Officer for Reed Group and Chief Editor of Reed Group’s Leave of Absence Advisor, a web-based resource for administering FMLA, state and other leave laws. More info at www.reedgroup.com. Contact at services@reedgroup.com.

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©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Better Rules for Americans with Disabilities at Rail Stations

U.S. Transportation Secretary Ray LaHood recently announced that individuals with disabilities will have greater access to inter city, commuter and high-speed train travel as a result of a new rule requiring new station platform construction or significant renovation to enable those with disabilities to get on and off any car on a train, according to a report from the agency.
 
 
This will help give passengers with disabilities better access to rail travel across the country,” said LaHood. “By putting this protection in place, passengers with disabilities will be able to get on and off any accessible car that is available to passengers at a new or altered station platform.” (WCxKit)
 
 
The U.S. Department of Transportation (DOT) is amending its Americans with Disabilities Act (ADA) regulations to require inter city, commuter and high-speed passenger railroads to ensure, at new and significantly renovated station platforms, that passengers with disabilities can get on and off any accessible car of the train.  Passenger railroads must provide level-entry boarding at new or altered stations in which no track passing through the station and adjacent to platforms is shared with existing freight rail operations. 
 
 
For new or altered stations in which track shared with existing freight rail operations precludes compliance, passenger railroads will be able to choose among a variety of means to meet a performance standard to ensure that passengers with disabilities can access each accessible train car that other passengers can board at the station. These options include providing car-borne lifts, station-based lifts, or mini-high platforms. 
 
 
The Department will review a railroad’s proposed method to ensure that it provides reliable and safe services to individuals with disabilities in an integrated manner. 
 
 
The rule also requires that transit providers carry a wheelchair and occupant if the lift and vehicle can physically accommodate them, unless doing so is inconsistent with legitimate safety requirements.  (WCxKit)
 
 
In addition, it codifies the existing DOT mechanism for issuing ADA guidance and makes minor technical changes to the Department’s ADA rules.
 
 
Author Robert Elliott, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.

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WORK COMP CALCULATOR:  www.LowerWC.com/calculator.php
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Protests Held to Raise Awareness of Pay Discrimination Against the Blind

 
The National Federation of the Blind (NFB), the oldest and largest nationwide organization of blind people, held more than 20 informational protests across the United States to raise awareness about the practice of paying below the federal minimum wage to Americans with disabilities.
 
 

The Rehabilitation Act is supposed to provide services to disabled Americans so that they can obtain competitive employment, but Title V, Section 511 of the proposed Rehabilitation Act language reinforces Section 14(c) of the 1938 Fair Labor Standards Act (FLSA), which allows certain entities holding special wage certificates to pay workers with disabilities less than the federal minimum wage.

 

According to the NFB, the protests were held July 26, the 21st anniversary of the Americans with Disabilities Act, at the primary district office locations of United States senators serving on the Senate Committee on Health, Education, Labor and Pensions (the HELP Committee). The HELP Committee is currently considering legislation—the Workforce Investment Act—which would reauthorize the payment of subminimum wages to disabled workers.(WCxKit)
 
 
Dr. Marc Maurer, president of the National Federation of the Blind said, “Unequal pay for equal work on the basis of disability is unfair, discriminatory, and immoral. We urge the senators who serve on the HELP Committee to eliminate the indefensible practice of paying disabled workers less than the federal minimum wage.”
 
 
Twenty-one informational protests were held in 16 states, including Alaska, Arizona, Colorado, Georgia, Iowa, Illinois, Kansas, Kentucky, Maryland, Minnesota, North Carolina, Oregon, Pennsylvania, Tennessee, Washington, and Wyoming.
 
 
Unfortunately, the reauthorization vote on the Workforce Investment Act (WIA)  scheduled for August 3, 2011 did not take place and as of August 11 is still stalled in committee.(WCxKit)
 
 

 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.

 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Obesity Drives the Cost of Work Injuries Sky High

If you were the producer of a Broadway show, would your hire a 300-pound ballerina? The idea seems absurd, but most employers shy away from hiring and retaining obese employees. (Obesity discrimination is illegal in Michigan, the District of Columbia, San Francisco, and Santa Cruz, CA). Obesity is not a disability that falls under the Americans with Disabilities Act (ADA) unless is has a proven physiological cause. We do not advocate obesity discrimination, but feel you should be aware that the more obese people you hire and employ, the higher the cost of your workers compensation insurance will be. This is also true in life insurance, one must fall into the appropriate body weight range to qualify for reasonably priced life insurance. Sad but true. And there may be ample justification for such increase in rates.
 

There are many ways to define obesity. To most people, a “fat person” is someone who weights 50 or 100 pounds more than they do.  Medically speaking, a person with a body mass index – BMI (a weight-to-height ratio, calculated by dividing one's weight in kilograms by the square of one's height in meters) of 18.5 to 24.9 is considered to be of normal weight, 25 to 29.9 is considered to be overweight, with 30 and above is considered obese. The doctor once told my husband he was obese which was very surprising because I don't view him as obese — a beer tummy maybe, but certainly not obese to my way of thinking.

 
In a often-cited Duke University study based on 100 full-time employees with a body mass index of 40, the impact of obesity on the cost of workers compensation is tremendous. Statistics show the impact on workers compensation cost of obese employees who are injured on the job including:
 
 
1.  Claims: Obese employees have twice as many workers compensation claims (11.65 claims vs. 5.8 claims for non-obese employees.)
 
2. Lost days from work: Obese employees lose 13 times more work days for their injury (183.63 days vs 14.19 days).
 
3. Medical cost: Obese employees medical cost is seven times higher ($51,901 vs. $7,503).
 
4. Indemnity Cost: Obese employees indemnity cost is 11 times higher ($59,178 vs. $5,396).
 
 
Another study by researchers at John Hopkins found similar results with a direct correlation between the number of injuries and the amount of obesity, with the odds of injury at work increasing with the waistline. The more obese the employee, the greater the odds the employee would be hurt on the job.
 
 
With nearly two-thirds of all American adults either overweight or obese, obesity is now being divided into subgroups with their own definitions including:
 
1.      Overweight – 1 to 29 pounds above normal
 
2.      Obese – 30 to 59 pounds overweight
 
3.      Severely obese – 60 to 99 pounds overweight
 
4.      Morbidly obese – at least 100 pounds overweight
 
5.      Super obese – 200 or more pounds overweight
 
 
Per the Center for Disease Control and Prevention, in 2007 about one-fourth (26 percent) of all employees were in the obese or a higher category. It is projected that by the year 2020, 40 percent of men and 43 percent of women will be classified as obese or higher. When you include the overweight people with the obese, by 2020 it is predicted that 70 percent of all employees will be overweight, with the number of overweight people continuing to grow (no pun intended).
 
 
What does this mean for workers compensation? Well, any one who has been involved with or who has handled their share of workers compensation claims know the injuries most common to obese employees involve their back, lower extremities (knees and ankles primarily), wrist (carpal tunnel claims and women with obesity “go hand-in-hand”) and hands. Obese employees generally hurt their back when trying to lift heavy weights or lift any weight improperly, and the obese employees hurt their backs, knees and ankles more severely when they slip and fall. Due to their obesity, obese employees have a significantly higher percentage of musculoskeletal injuries than non-obese employees.
 
 
The additional strain placed on the employee's musculoskeletal system by the additional weight is only one factor that delays the employee's recovery from an injury. Obese employee's often have other comorbidity problems besides their weight that delays their recovery from injury. Other medical issues among obese employee's interfering with their recovery include hypertension, heart disease and diabetes. open-ended According to the National Counsel on Compensation Insurance, these comorbidity issues can increase the cost of a work comp claim by an astounding 30 times.
 
 
As an employer, there are some steps you can take to reduce the cost of workers compensation related to obesity. The following are some approaches employers have taken to deal with this issue:
 
1.      Health insurance premium discounts for employees with a BMI of 18 to 25.
 
2.      A weight-reduction program offered through your human resources department.
 
3.      Encourage physical activity at work whether it is taking the steps instead of the elevator or parking at the far end of the parking lot.
 
4.      Use weight loss seminars from Weight Watchers or Jenny Craig.
 
5.      On-site or off site fitness centers with free membership or reduced price membership.
 
6.      A fitness program that includes healthy eating, health improvement seminars, exercise classes, and company sponsored athletic teams.
 
7.      Use of the company intranet to post weight loss guides, cooking light suggestions, and any topic on good health.
 
8.      A recognition program for employees who meet a weight-loss goal.
 
 
Encouraging your employees to be healthy pays off in lower workers compensation cost and provides for a healthier, happier work force.  Insurance companies – yes – the very same ones selling life insurance and workers compensation need to get in line to promote wellness, health and fitness just as much as any other employer. My daughter worked for an insurance company and the supervisor had a candy dish on her desks, ice-cream sundae Wednesday, birthday cakes often and pot luck Friday once a month. Ice Cream Sundae Wednesday? Ya think everyone was bringing in Frozen Yogurt?
 

Author Rebecca Shafer
, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact:RShafer@ReduceYourWorkersComp.com .

 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

ADAAA Increasing the Interpretation of Disability Goes Into Effect

The EEOCs final regulations to implement the ADA Amendments Act (ADAAA) were published in the Federal Register recently (3/25/11) and go into affect May 25, 2011. The final regulations reflect significant changes in the interpretation of the ADAs definition of “disability” but not in the actual definition of the term "disability."
 
 
The ADAs definition of the term “disability” has not changed. The ADA believes a disability to be a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. However, the law makes major changes in how those terms are interpreted:
 
1.      An impairment does not need to prevent or significantly restrict performance of a major life activity to be considered a disability.
 
2.      What is considered an impairment must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA
 
3.      “Mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability (with the exception of ordinary eyeglasses or contact lenses.)
 
4.      The term “major life activities” includes “major bodily functions.”
 
5.      Impairments that are episodic, such as epilepsy, or in remission, such as cancer, are disabilities if they would be substantially limiting when active.
 
 
The final regulations will go into effect 60 days from March 25, so on May 25.
 
 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com.
 
 
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

New Federal Guidelines for Disabled Using Service Animals

A new set of federal guidelines regarding service animals for the disabled be they at work or outside the office was unveiled recently by the U.S. Department of Justice for the Americans with Disabilities Act (ADA). The new recommendations limit service animals to dogs and housebroken miniature horses.
 
 
According to the Associated Press, the new guidelines are not binding to states, municipalities and other agencies, which are free to enact the policy or to comprise their own. Individuals, however, who rely on other types of animals to assist them in managing physical disabilities and conditions, are reportedly expressing concerns. (WCxKit)
 
 
The DOJ chose to revamp its service animal regulation due to comments from businesses, state and local governments and individuals with disabilities, including several who use service animals, according to a department spokesman. People were putting vests on pocket pets and calling them service animals, the spokesperson noted. "Changes were needed."
 
 
As it turns out, federal agencies are not in sync when it comes to animals.
 
 
The U.S. Department of Transportation and the U.S. Department of Housing and Urban Development permit service animals of all kinds as well as emotional support animals, although some airlines may require advance notice, a doctor's note and some additional documentation. (WCxKit)
 
 
The Department of Justice posted its proposed rules in 2008 and the adopted version was not much different, so people have had time to react, according to a policy analyst for the Disability Rights Education and Defence Fund (DREDF).
 
  
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com or 860-553-6604.
 
 
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Alleged Violations in Discrimination Disability Related Inquiries Lead to Fines

FAPS Inc., an automotive port processor, is charged by the EEOC in a recent discrimination lawsuit with engaging in an ongoing pattern or practice of race discrimination against African-Americans in recruitment and hiring. The suit also charges  FAPS  made improper pre-employment disability-related inquiries of applicants. Both these alleged practices violate federal law.
 
According to the EEOC’s suit, EEOC v. FAPS Inc., filed in the U.S. District Court for New Jersey, FAPS has had, and continues to have, a statistically significant smaller percentage of African-American employees in entry-level positions than would be expected given the relevant labor market in the area where FAPS is located. FAPS maintains more than 250 acres and 575,000 square feet of under-roof processing at its terminal complex. (WCxKitz)
 
The EEOC contends FAPS, instead of advertising job openings, has almost exclusively utilized word-of-mouth recruiting for hiring of employees for entry-level  positions, resulting in a statistically significantly smaller percentage of African-American applicants for those jobs. 
 
In addition, FAPS refused to hire qualified African-American applicants who did apply for entry-level positions because of their race, instead hiring less qualified or similarly qualified non-African-Americans applicants for such positions. (WCxKit) FAPS Inc. falsely told African-Americans applicants that no such positions were available when, in fact, the defendant was hiring non-African-Americans applicants for these positions. In addition, FAPS Inc. unlawfully included disability-related questions on job applications, the suit charges.
 
The agency seeks injunctive relief to end the discriminatory practices, plus back pay and compensatory and punitive damages to compensate African-American applicants who were not hired or who were deterred from applying for jobs due to their  race. (WCxKitz)
 
“The ADA  prohibits an employer from asking disability-related questions of job  applicants before a job offer is made because job applicants have the right to  be judged on their ability to do the work, and not on prejudice about their  mental or physical disabilities,” said Rosemary DiSavino, the EEOC trial  attorney who will be litigating this case. “This lawsuit should teach employers to review their application forms and remove illegal questions.”
 
  Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact:  Info@ReduceYourWorkersComp.com or 860-553-6604.
 
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

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