The workers’ compensation landscape is filled with pitfalls that can trap the uninformed. In addition to the many procedure hurdles presented under a workers’ compensation act, other challenges including complaints or penalties under FMLA, ADA and other discrimination claims. Proactive members of the claims team need to be informed on these issues to run an efficient operation and prevent troubles for the people they seek to serve.
Common Pitfalls Associated with Work Comp
There are many legal issues surrounding a workers’ compensation claim. Some of the most common include:
Family Medical Leave Act (FMLA)
FMLA is a federal law that applies to qualified employees and employers. Employers covered under this law generally must have over 50 employees, or are a public agency or a school. In order to qualify, an employee must work for the employer for one year, work 1,250 hours during a 12-month period and have a “serious health condition” personally or with a family member. This can include most work-related injuries. Problems arise in the context of a workers’ compensation claim when:
- The employee qualifies for leave in disputed workers’ compensation claims and proper communication on their rights is not provided by the employer;
- The employee is off work due to disability and never receives official notice of hours remaining in their leave “bank.”
Americans With Disabilities Act (ADA)
The ADA has been in existence since the 1990s and impacts employers with more than 15 employees. The law prohibits an employer from discriminating against a prospective or actual employee based on their disability. Common areas where claims arise under this law are in the context of workers’ compensation claims that include:
- Return to work or written job offers that do not take into consideration the employees work restrictions or limitations; and
- Employment practices where questions are asked on an application or during an interview regarding an employee’s physical limitations or restrictions. Injured workers seeking post-injury employment fear this situation as they are walking a fine line between being honest and not being excluded from an applicant pool.
Employers seeking to comply this law must make “reasonable accommodations” to all persons, regardless of their ability. Questions remain as to the extent these accommodations are appropriate or place an “undue hardship” in the process.
Implementing Proactive Compliance to Avoid Problems
The workers’ compensation claim management team can be a resource for the employers they work with on these complex issues. Legal advice from an attorney practicing in these areas should be sought when doubt or questions arise.
Best practices for FMLA compliance:
- Create a FMLA checklist that outlines the various timelines and employee eligibility requirements;
- Designate one person in the human resources department who understands and is familiar with this law. This person should be a point of reference for all supervisors and managers who have employees potentially subject to this law; and
- Conspicuously display U.S. Department of Labor approved notices in office common spaces regarding an employee’s rights and responsibilities.
Guidance regarding ADA issues can be more difficult. Proactive stakeholders should consider the following:
- Understand that the ADA may allow an employee to take additional leave time, beyond FMLA;
- Have a designated HR representative engage employees on suggestions for workplace modifications. Remember that this is only one step in making “reasonable” accommodations; and
- Foster a culture that views all employees regardless of ability as a human being. Being courteous and respectful to all is something everyone deserves.
The workers’ compensation system impacts a number of federal laws that demands attention from all interested stakeholders. Claims management teams can be proactive on this issue by partnering with their employer-clients to foster a workplace that complies with these rigorous laws. It can also drive changes for the better in company culture that promote goodwill among the workforce, including those suffering from a work injury.
Author Michael Stack, CEO Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center.
Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.