Managing Workers' Compensation Leave

Posted by Adrienne Stemen on October 31, 2011

As a follow-up to our earlier post regarding FMLA abuse, I wanted to provide a quick reminder regarding workers’ compensation leave.  If an employee’s workplace injury or illness also qualifies as a serious health condition under the FMLA (and it usually will), consider counting any time away from work as a result of that condition as FMLA leave.  Doing this will help to avoid situations where an employee is off work for a workers’ comp issue only to return to work with the full 12 weeks of leave available under the FMLA that can be used for non-workers’ comp conditions.

For example, an employee suffers a broken arm in the course of and arising out of his employment and is off work for eight weeks.  After the employee returns to work, he submits FMLA certification for migraine headaches.  If you treated the eight weeks of leave for the broken arm as FMLA leave, the employee has, at most, four weeks of protected FMLA leave remaining for leave related to the migraine headaches.  If you did not treat the eight weeks of leave for the broken arm as FMLA leave, the employee may have 12 full weeks of protected FMLA leave remaining to devote to absences related to the migraine headaches.  Running FMLA and workers’ comp leave concurrently can help you better manage productivity concerns and absences that can negatively impact your business.

Of course, it’s important to follow all FMLA requirements.  In addition, if your employees are represented by a union, double check to be sure the collective bargaining agreement does not require some other treatment of workers’ comp leave.  Finally, review your employee handbook to ensure that there are no provisions that are in conflict with such leave treatment.

EEOC to Employers Via $20M Verizon ADA Settlement: Can you hear me now?

Posted by George Asimou on July 12, 2011

The EEOC announced on Wednesday July 6, 2011 that it had settled a nationwide class disability discrimination suit with Verizon for $20 Million – the largest ADA settlement in EEOC history.  The EEOC filed suit in federal court earlier this month alleging that Verizon’s “no fault” attendance policies mandated “that when an employee accumulates a designated number of ‘chargeable absences’ an employee is placed on a disciplinary ‘step’ and additional ‘chargeable absences’ during such step period result in the placement of the employee in the next step, which has more serious consequences, up to termination.”

The EEOC noted that such policies made no exceptions for disability-related leaves, which is contrary to the EEOC’s enforcement position that one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) are violative of the Americans with Disabilities Act.  The policy did exempt FMLA leave.

The Verizon settlement, which also includes a consent order in which the EEOC will supervise Verizon’s revision of its attendance policies and its training of management, is just the latest step in an ADA enforcement campaign that we have reported on previously.

Employers are well-advised to review their leave policies to ensure compliance with ADA requirements.

EEOC on ADA: One rule -- no boundaries

Posted by George Asimou on June 21, 2011

The United States Equal Employment Opportunity Commission (EEOC) held an open meeting on June 8, 2011 on the appropriate use of disability leave as a reasonable accommodation at its headquarters in Washington, D.C.  The open meeting is just the latest step in the EEOC’s on-going effort to move the marketplace towards its enforcement position that employers may not implement one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) – a lesson that Sears Roebuck learned in 2009 at the decidedly burdensome price of $6.2 Million.

A few notes:  Vandalism_clock_Wikimedia.jpg   

  1. Employers are well advised to review the leave sections of their handbooks to ensure that disability leave policies are generally open-ended, providing that leave requests be evaluated on a case-by-case basis, with a disclaimer that such leaves cannot pose an undue hardship to the business.  Fixed period disability leave policies should be used with caution and in consultation with legal counsel. Employment handbook provisions are intended to be your Exhibit A in litigation, not the plaintiff’s direct evidence of discrimination. 
  2. The EEOC’s enforcement position re-affirms some longstanding first principles of ADA compliance.  The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.  What’s reasonable and what’s an undue hardship is a case-by-case analysis – and certainly not subjectively at the employer’s discretion.  Think less of a sprained ankle or headache for your business and more a broken ankle or a stay-in-bed migraine. 
  3. The EEOC’s enforcement position further complicates decision-making as to leave requests involving the so-called Bermuda Triangle (i.e., the intersection of the Family and Medical Leave Act [FMLA], the Americans with Disabilities Act [ADA], and workers’ compensation laws).  The FMLA’s (limited) sex appeal lies in providing some certainty as to the duration of medical leave.  In most circumstances, its 12 weeks, tops.   The EEOC’s enforcement position requires employers to determine if an employee’s “Serious Health Condition” under the FMLA presents a “Disability” under the ADA, then to act accordingly in making a determination as to whether leave might extend beyond 12 weeks.   “Welcome to Bermuda!” the EEOC seemingly tells employees with disabilities “Stay a while – the weather’s great!”

The EEOC’s enforcement statistics forecast decidedly stormier weather for employers.   The most recent data for Fiscal Year 2010 show a marked increase in disability claims, topping 25,000 for the first time since records were kept, an increase of 15% from Fiscal Year 2009.  Regardless of whether you’re an FMLA employer or not (while the FMLA generally applies to employers with 50 of more employees, the ADA generally applies to employers with 15 or more employees), take care to act with judicious flexibility in determining how reasonable to be in extending leave as an accommodation under the ADA. 

(h/t)   Workplace Prof’s Blog.

"Negative" certification insufficient to defeat employee's FMLA claim

Posted by Lori A. Clary on February 25, 2011

Consider this situation:  You receive an FMLA medical certification from an employee’s health care provider and that certification fails to support the employee’s need for time off.  Does this so-called “negative” certification give you a basis for terminating the employee when the absences otherwise violate your attendance policy?

According to the Sixth Circuit, not necessarily.  In Branham v. Gannet Satellite Information Network.pdf, the Court reversed summary judgment in favor of the employer and held that the employee who received the negative certification was entitled to go forward with her FMLA claim.

The crux of the Court’s decision was the fact that the employer did not provide the employee with the required written notice of the need to provide a medical certification and the consequences for failing to do so.  As a result, the employee’s obligation to provide a medical certification was never triggered – notwithstanding the fact that the employee did, in fact, provide a medical certification, albeit one that failed to support her entitlement to leave.  Therefore, the employer was not entitled to deny FMLA leave based on the medical certification requirement when it never properly requested certification in the first place.

As this case shows, there is no such thing as a harmless error under the FMLA.  As a result, it is critical to comply with all notification requirements under the FMLA.  These requirements include:

  • A general notice explaining the Act’s provisions that is posted prominently and, if the employer has any FMLA-eligible employees, in the employee handbook or a free-standing written document distributed to each new employee upon hiring.
  • Eligibility notices that are provided within five days of whenever an employee requests leave or the employer receives notice that an employee’s leave may be FMLA-qualified.  Such notices may be oral or written.
  • Rights and responsibilities notices that detail in writing the specific expectations and obligations of the employee, including, among other things, any requirements for the employee to provide medical certifications.  This notice must be provided each time an eligibility notice is provided.
  • Designation notices that notify the employee that his or her leave has been designated as FMLA leave.  This notice must be given within five business days of the employer having enough information to determine whether the leave is being taken for a FMLA-qualifying reason.  It must also include information regarding substitution of paid leave and the need for any fitness-for-duty certification that may be required to return to work.