michigan association of school personnel administrators december 3, 2008 disabilities management –...
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Michigan Association of School Personnel Administrators
December 3, 2008
Michigan Association of School Personnel Administrators
December 3, 2008
Disabilities Management – Integrating FMLA, ADA
and Workers’ Compensation
Melvin J. MuskovitzDykema Gossett PLLC
2723 S. State Street, Suite 400Ann Arbor, Michigan 48104
www.dykema.com
Disabilities ManagementDisabilities Management
What is it?
What does it encompass?
Why is it important?
Disabilities Management — What Is It?Disabilities Management — What Is It?
Comprehensive, integrated, proactive approach
Requires coordination of many possible players• Supervisors• Human Resources• Workers’ Compensation Carrier• Workers’ Compensation Attorney• Short Term and Long Term Disability
Carriers
Disabilities Management — What Does It Encompass?Disabilities Management — What Does It Encompass?
Employee statutory rights/employer statutory obligations• ADA• FMLA• Workers’ Compensation
Employer policies/benefits
Collective bargaining agreement
Employee health and welfare
Employee Statutory Rights/ Employer ObligationsEmployee Statutory Rights/ Employer Obligations
Each statute has its own provisions regarding:• Definition of disability• An employee’s right to a leave of
absence• Accommodation or favored work• Entitlement to benefits while on leave• Medical certification requirements• Employer’s right to require a fitness for
duty report• Job protection during leave• Right to reinstatement following leave
Definition of DisabilityDefinition of Disability
FMLA ADA WDCA
Serious health condition that involves:
Inpatient care; or
Continuing treatment; or
Pregnancy or prenatal care; or
Chronic serious health condition; or
Multiple treatments; or
Permanent or long-term incapacity
1. Physical or mental impairment that substantially limits a major life activity; or
2. Has a record of such impairment; or
3. Is regarded as having such impairment
A limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a work-related injury or disease.
Is There a Right to a Leave of Absence?Is There a Right to a Leave of Absence?
FMLA ADA WDCA
Yes – up to 12 weeks per year (for specified reasons)
Leave may be taken intermittently or on a reduced schedule when a serious health condition is involved
Maybe, as a reasonable accommodation:
Obtaining medical treatment
Recuperation
Repairs on medical equip
Avoiding temporary adverse conditions at work
Receiving training
No
Not per se
But in fact, employees get paid leave (workers’ comp. benefits) if claim is not disputed
Is There an Accommodation / Favored Work Requirement?Is There an Accommodation / Favored Work Requirement?
FMLA ADA WDCA
If employee is entitled to FMLA leave, employee is not obligated to accept favored work
Employer is not obligated to offer favored work
Employer may be obligated to offer as a reasonable accommodation.
Examples: transfer, job restructuring, modified schedule, etc.
Employer not obligated to offer, but employee’s refusal of reasonable favored work may result in forfeiture of workers’ comp benefits during period of refusal.
Is an Employee Entitled to Benefits During the Leave?Is an Employee Entitled to Benefits During the Leave?
FMLA ADA WDCA
Employee is entitled to continuation of healthcare benefits during the 12 weeks of leave.
Employee continues to pay his/her share of premiums, if any
No, but treat benefit continuation for ADA leave as you would any other leave, pursuant to the employer’s policies
Employee is entitled to medical treatment, rehabilitation services and partial wage continuation
No right to continuation of health insurance
Can an Employer Require Medical Certification?Can an Employer Require Medical Certification?
FMLA ADA WDCA
Yes – certification of serious health condition and need for leave
Recertification permitted – timing/ frequency varies depending on circumstances
2nd and 3rd opinions permitted for original certification only
Only if medical inquiry is job related and consistent with business necessity
Employer is entitled to verification of the continued need for leave
Employer can require ongoing proof that the work-related disability continues
Can an Employer Require a Fitness for Duty Report?Can an Employer Require a Fitness for Duty Report?
FMLA ADA WDCAYes, before employee returns to work
Employer is permitted to require certification that employee can perform essential duties of job
Yes, before employee returns to work
Direct threat to safety of employees or others
Yes, before employee returns to work
Is There Job Protection During a Leave?Is There Job Protection During a Leave?
FMLA ADA WDCA
Employer may terminate employee for bona fide reasons unrelated to leave
Employee can be terminated at any time for reasons unrelated to ability to work
Leave of absence may become an undue hardship
No, but cannot terminate because filed a claim
What Rights Do Employees Have to Return to Work?What Rights Do Employees Have to Return to Work?
FMLA ADA WDCA1) Right to reinstatement to same or equivalent position
2) Right to reinstatement lost if not able to return after FMLA is exhausted
3) Exception: no greater right to continued work than if no leave was taken
Right to reinstatement at end of leave, if the leave was a reasonable accommodation
Job modification or transfer to vacant position may be required
Employee has no right to job reinstatement, but
Employer cannot deny reinstatement because the employee filed a workers’ comp claim
Employer Policies and Contract TermsEmployer Policies and Contract Terms
Leaves of Absence
Light Duty
Disability Benefits
Absenteeism
FMLA
Disability Accommodation Procedures
Anti-Retaliation
Complaint Procedures
Employee Health and WelfareEmployee Health and Welfare
Workplace Safety
Injury Prevention
Employee Wellness
Early Return to Work
Employee Assistance Program
Disabilities Management —Why is it Important?Disabilities Management —Why is it Important?
Absenteeism/lost productivity
High turnover
Low employee morale
Excessive administrative staff time
Statutory violations
Retaliation claims
Legal fees
Management Best PracticesManagement Best Practices
Get the facts
Be patient
Take emotions out of decision
Treat all employees equally
Comply with each statute
Look at big picture
Strive for “win-win”
Management Best PracticesManagement Best Practices
ADA-compliant job descriptions
Interactive (and meaningful) accommodation process
Effective evaluation procedures
Supervisor training
Coordinated approach – ADA, FMLA and Workers’ Compensation
Scenarios
Questions & Answers
Thank you for attending.Thank you for attending.
Melvin J. MuskovitzDykema Gossett PLLC2723 S. State Street, Suite 400Ann Arbor, Michigan [email protected]