The Bermuda Triangle of Worker's Compensation Claims - Presented by: Joe Murray How the FMLA, ADA (ADAAA), and REDA Affect Your Ability to Deal ...
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The Bermuda Triangle of Worker’s
Compensation Claims
Presented by:
Joe Murray
How the FMLA, ADA (ADAAA), and REDA Affect Your
Ability to Deal with a Workers’ Compensation Employee
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© 2018 Hedrick Gardner
The Bermuda Triangle
Every workers’ compensation claim brings the risk of
additional Federal and State employment claims.
At the beginning: Family and Medical Leave Act (FMLA)
Return to work: Americans with Disabilities Act (ADA)
Americans with Disabilities Act
Amendments Act (ADAAA)
After termination: Retaliatory Employment Discrimination
Act (REDA)
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© 2018 Hedrick Gardner
Basic Knowledge
Employer Employee Income Benefits Leave Return to Termination
Coverage Eligibility Replacement Protection Work
WC
ADAAA
FMLA
REDA
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© 2018 Hedrick GardnerWorkers’ Compensation
Who is covered: Every employee of a business employing three or
more people.
What does it do? Provides set benefits to workers who sustain an
injury by accident or an occupational disease in the course of and
arising out of their employment.
What doesn’t it do? Imposes no duty on an employer to:
• Accommodate any restrictions or limitations;
• Provide leave over and above what might be allowed to any other
employee; or
• Hold the injured worker’s job until he or she can return to work.
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© 2018 Hedrick GardnerFamily Medical Leave Act
The FMLA requires covered employers to provides covered
employees up to 12 weeks of unpaid leave in a given 12
month period for the following reasons:
A. Birth of a child;
B. Adoption or foster care;
C. Care for an family member; or
D. For the employee’s own serious health
condition.
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© 2018 Hedrick GardnerEmployers Employees
• Employ 50 or more employees • Worked for the employer for at
least twelve months;
• Each working day
• Worked at least 1,250 hours in the
• For 20 or more calendar
twelve months immediately
workweeks
preceding the date upon which
• In the current or preceding leave will commence; AND
calendar year.
• Work at a worksite at which there
are 50 or more employees within a
75 mile radius.
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© 2018 Hedrick GardnerWhat is a “serious health condition”
A physical or mental condition that involves inpatient
care at a medical facility or “continuing treatment” by a
healthcare provider.
“Continuing Treatment” is:
• Incapacity for three or more days with
continuing treatment by a medical provider;
• Chronic serious health conditions;
• Permanent or long-term conditions; or
• Absence for treatments.
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© 2018 Hedrick GardnerFMLA Protections
I. Reinstatement
a) Same or equivalent position
II. Benefits Protection
a) Health Insurance
b) Unconditional pay increases
c) Immediate reinstatement of benefits
III. Benefits Accrual
a) Prior accrued benefits
b) No accrual while on leave
Treat FMLA employees the same as a comparable non-FMLA
employees.
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© 2018 Hedrick GardnerFMLA Procedure
• Must post and provide notice of FMLA
rights
• Employee Notice
o 30 days or as soon as practicable
o Written v. Oral Notice
• Employer’s Designation
o 5 days
o Writing
• Medical Certification and Periodic
Reporting
• Fitness for Duty
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© 2018 Hedrick GardnerFMLA Damages and Remedies
• Equitable Relief
o Reinstatement
o Promotion $11.65 million
• Monetary Relief $8,000,000
o Wages and Benefits $1,053,999
o Interest
o Liquidated Damages
$579,338+
o Attorney’s Fees and Costs
o Civil Monetary Penalties (DOL only)
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© 2018 Hedrick GardnerScheming Sarah (or Sam)
Sarah has worked at BrakeWorks for the past two years as a parts
processor. On Tuesday, Sarah complains of a popping sensation and
immediate pain in her back when she bends down to pick up an 18 oz.
piece of metal that has fallen off her cart.
Sarah promptly reports the injury and goes to the company doctor. The
company doctor prescribes some painkillers, takes Sarah out of work for
one week, and refers her to an orthopedist. Unsurprisingly, the week off
and the painkillers don’t work so the orthopedists takes her out of work
for another month and refers her for physical therapy.
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© 2018 Hedrick GardnerScheming Sarah
Sarah works at BrakeWorks’ Wilmington, NC facility with 39 other employees. BrakeWorks
has another facility in Myrtle Beach, SC with 42 employees. Is Sarah eligible for FMLA
leave?
Sarah has two weeks of accrued vacation and 6.5 hours of PTO. Can BrakeWorks make
Sarah take that leave concurrent with the FMLA leave?
After 3 weeks Sarah stops paying her share of the health insurance premiums, what do
you do? (What if after 8 weeks Sarah quits to go work somewhere else?)
It has been 13 weeks and the orthopedist still has Sarah out. Dalton, I know that she is
lying about her injury and milking the system. I’m done with her and don’t want her back.
Can I terminate her?
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© 2084 Hedrick GardnerAmericans with Disabilities Act and
Americans with Disabilities Act Amendments Act
The ADA prohibits employers from discriminating
against disabled individuals regarding the terms or
conditions of employment if the individual is qualified to
perform the essential functions of the job with or
without a reasonable accommodation.
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© 2084 Hedrick GardnerWho is Covered by the ADA?
Employers
• Must employ 15 or more employees for each working
day in each of 20 or more calendar weeks in the current
or preceding calendar year.
Employees
• Has a physical or mental impairment that substantially
limits a major life activity;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.
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© 2018 Hedrick GardnerSubstantially Limits
An impairment is a disability if it substantially limits the ability
of an individual to perform a major life activity as compared to
most people in the general population.
An impairment need not prevent, or significantly or severely
restrict, the individual from performing a major life activity in
order to be considered substantially limiting.
‘‘Substantially limits’’ is not meant to be a demanding standard.
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© 2018 Hedrick GardnerWhat is a “Major Life Activity”?
(h) Physical or mental impairment (i) Caring for oneself, performing
means— manual tasks, seeing, hearing, eating,
walking, standing,disorder
(1) Any physiological sitting,
or reaching, sleeping, walking, standing, sitting,
condition, cosmetic disfigurement, or
lifting, bending
anatomical loss affecting one or more
reaching, lifting, bending, speaking,
breathing, learning, reading,
body systems, such as neurological, concentrating, thinking,
musculoskeletal, special sense organs, communicating, interacting with others,
respiratory (including speech organs), and working; and
working
cardiovascular, reproductive, digestive,
(ii) The operation of a major bodily
genitourinary, immune, circulatory,
function, including functions of the
hemic, lymphatic, skin, and endocrine;
immune system, special sense organs
or
and skin; normal cell growth; and
(2) Any mental or psychological
digestive, genitourinary, bowel, bladder,
disorder, such as an intellectual neurological, brain, respiratory,
disability (formerly termed ‘‘mental
circulatory, cardiovascular, endocrine,
retardation’’), organic brain syndrome, hemic, lymphatic, musculoskeletal, and
emotional or mental illness, and specific
reproductive functions. The operation of
learning disabilities.
a major bodily function includes the
(i) Major life activities—(1) In general.
operation of an individual organ within
Major life activities include, but are not
a body system.
limited to:
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© 2018 Hedrick GardnerReasonable Accommodations and the ADA
If a disabled individual cannot perform the essential functions of
a job, the employer must determine whether there exists any
reasonable accommodation that would allow the individual to
perform the essential functions of the job.
If so, then the employer must make that accommodation, unless
it imposes an undue hardship on the business or poses a direct
threat of harm to the employee or others.
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© 2018 Hedrick GardnerScheming Sarah II
It has been 13 weeks and the orthopedist still has Sarah out. I know that she is lying about her injury
and milking the system. I’m done with her and don’t want her back. Can I terminate her?
Sarah’s back injury has affected the nerves running to her hands that affects her ability to adjust the
small dials on her machine. Sarah wants to return to work. Do you have to make a reasonable
accommodation assessment? If so, is there a reasonable accommodation?
Sarah’s work restrictions prevent her from removing the break pads from the machines and placing
them on racks, an essential job function. You cannot come up with a reasonable accommodation.
Sarah suggests that another employee removes the break pads and racks them while Sarah runs the
machine. Is this a reasonable accommodation?
•
Where can I get free help in developing a reasonable accommodation?
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© 2018 Hedrick GardnerFMLA v. ADA Leave
FMLA ADAAA
Trigger Request for Leave Request for Leave
Eligibility Serious health condition Disability
Length of Leave 12 weeks 1 year (17 months)
Right to deny N/A Undue hardship
Return to Work “Equivalent” position Original position
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© 2018 Hedrick GardnerREDA
“No person shall discriminate or take any retaliatory action
against an employee because the employee in good faith” files
a workers’ compensation claim. N.C. Gen. Stat. § 95-241.
Also covers claims regarding:
Wage and Hour Act
Occupational Safety and Health Act of North Carolina
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© 2018 Hedrick GardnerWhat Constitutes Discrimination?
I. Discharge,
II. Suspension,
III. Demotion,
IV. Retaliatory relocation of an employee, or
V. Other adverse employment action taken against an employee in
the terms, conditions, privileges, and benefits of employment.
N.C. Gen. Stat. § 95-240
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© 2018 Hedrick GardnerSafe Harbor
“It shall not be a violation of [REDA] for a person to discharge or
take any other unfavorable action with respect to an employee who
has engaged in protected activity . . . if the person proves by the
greater weight of the evidence that it would have taken the same
unfavorable action in the absence of the protected activity of the
employee.”
N.C. Gen. Stat. § 95-241(b)
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© 2018 Hedrick GardnerThe Basics of REDA
Employee files a
Complaint with
NCDOL within NCDOL files suit.
180 days.
NCDOL
Investigates the Discrimination Conciliation
Complaint.
NO
Right-to-Sue Letter
Discrimination. Employee has
90 days to file
suit.
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© 2018 Hedrick GardnerREDA Litigation
What must the employee prove?
1. They exercised some right under the Workers’
Compensation Act;
2. An adverse employment action was taken; and,
3. Causation
• The employee’s protected activity was a substantial factor in
the employer taking adverse action against him.
• The adverse action would not have occurred in the absence of
the employer’s knowledge of employee’s protected activity.
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© 2018 Hedrick GardnerProving Causation
Prima facie
• Pattern of conduct
• Temporal proximity
Direct evidence – what NOT to do:
• Tell employee job performance was fine, but she “cost
the company a lot of money.”
• Instruct supervisor to “get rid of employee before he
costs the company a bunch of money.”
• Tell employee he hadn’t “done nothing but cost the
company money.”
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© 2018 Hedrick GardnerWhat’s the Worst that Can Happen?
Remedies available under REDA:
• Injunction
• Reinstatement
• Compensation
• Attorney’s fees
• Willful violation: Treble damages
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© 2018 Hedrick GardnerREDA Considerations
• Employers need to have policies regarding when an employee
can or will be terminated. These policies need to be enforced
in a consistent and uniform manner.
• Time between WC claim and termination matters.
• Employer’s needs and WC carrier’s needs not always the
same.
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© 2018 Hedrick GardnerScheming Sarah
While Sarah is out on leave, BrakeWorks initially fills Sarah’s position with a temp
employee and then hires that temp full time. When Sarah returns to work after being out
for 11 weeks, BrakWorks places her into an “equivalent position” of parts picker. Is there a
problem?
While Sarah is out on leave, BrakeWorks determines that Sarah and 12 other employees
have been falsifying their time cards. BrakeWorks counsels the 12 other employees but
takes no other action. After Sarah returns to work, BrakeWorks also counsels Sarah and
places her on probation. When Sarah fails to settle her case at mediation and seeks a
second opinion on her treatment options, BrakeWorks terminates Sarah for “theft and
lying.” Is there a problem?
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© 2018 Hedrick GardnerBasic Knowledge
Employer Employee Income Benefits Leave Return to Termination
Coverage Eligibility Replacement Protection Work
WC 3 or more All Yes No No No No
employees
ADAAA 15 or more Disabled No No Yes Yes Yes
employees
FMLA 50 or more Worked for No Yes Yes Yes No
employees 1 year & >
1250 hours
REDA All All No Maybe Maybe Maybe Yes
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© 2018 Hedrick GardnerQuestions?
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© 2018 Hedrick GardnerThank You!
Dalton Green
(P) 910.679.4810
(F) 910.509.9630
dgreen@hedrickgardner.com
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