2009 REGIONAL CONFERENCE

1. 2009 REGIONAL CONFERENCE GENERAL LIABILITY CLAIMS AMERICANS WITH DISABILITIES ACT FAMILY MEDICAL LEAVE ACT NEW LEGISLATION

2. GENERAL LIABILITY CLAIMS Kathleen Gasser, Claims Manager Kathleen.gasser@la.gov 225-342-8433

3. GENERAL LIABILITY TEAMS • FRANK FORET, SUPERVISOR • TOM BLUFF • PENNY BUCHANAN • BARBARA BURNS • JIMMY MARTIN • BYNIE WELLS • DIANE WILLIAMS

4. GENERAL LIABILITY TEAMS • PATRICIA BARRON, SUPERVISOR • GENEVA BLAKE • BERTHA MEISNER

5. WHAT DO WE COVER? • THE STATE OF LOUISIANA PROVIDES INSURANCE COVERAGE FOR THIRD PARTY BODILY INJURY AND PROPERTY DAMAGE CLAIMS FOR WHICH THE AGENCY COULD BE HELD LEGALLY LIABLE.

6. GENERAL LIABILITY CLAIMS • CLAIMS ALLEGING DAMAGES IN TORT DUE TO NEGLIGENCE BY THE STATE OF LOUISIANA, STATE EMPLOYEES AND/OR STATE AGENCIES.

7. GENERAL LIABILITY NEW CLAIMS • GENERAL LIABILITY CLAIMS INCREASED IN 2007 DUE TO THE INFLUX OF HURRICANE KATRINA CLAIMS FILED PRIOR TO THE SPECIAL 2 YEAR DEADLINE.

8. CIVIL RIGHTS NEW CLAIMS • CIVIL RIGHTS CLAIM COUNT INCREASED IN 2006 AND 2007 DUE THE NUMBER OF CLAIMS FILED AGAINST DEPARTMENT OF CORRECTIONS AFTER HURRICANE KATRINA.

9. GENERAL LIABILITY CLOSED CLAIMS • CLOSED CLAIMS INCLUDE BOTH LITIGATED AND NON-LITIGATED CLAIMS. • THE INCREASE OF CLOSED CLAIMS SEEN IN 2007 IS GREATEST AT THE UNIVERSITIES FOR NON-LITIGATED CLAIMS.

10. CIVIL RIGHTS CLOSED CLAIMS • IN 2006 WE CLOSED ALMOST 100 MORE LITIGATED CLAIMS AGAINST DEPARTMENT OF CORRECTIONS THAN IN 2007 AND 2008. • SEVERAL OF THE LAWSUITS HAD MULTIPLE PLAINTIFFS

11. PENDING CLAIMS • GENERAL LIABILITY 1,239 • CIVIL RIGHTS 764 • TOTAL 2033

12. PERFORMANCE OVERVIEW GL • NEW CLAIMS: 797 • CLOSED: 775 • PENDING: 1,239 • PAID: $4,949,866.05 • SETTLEMENTS: 94

13. PERFORMANCE OVERVIEW CR • NEW CLAIMS: 210 • CLOSED: 311 • PENDING: 764 • PAID: $1,902,228.46 • SETTLEMENTS 28

14. CUSTOMER SERVICE • ONE ADJUSTER WILL HANDLE CGL CLAIMS FOR THE ENTIRE AGENCY IN ORDER TO PROVIDE MORE EFFECTIVE CUSTOMER SERVICE.

15. REPORTING CGL CLAIMS • IN WRITING TO: • FRANK FORET, SUPERVISOR • PAT BARRON, SUPERVISOR • KATHLEEN GASSER, MANAGER • OFFICE OF RISK MANAGEMENT • P. O. BOX 91106 • BATON ROUGE, LA LA 70821-9106 • IF LOSS IS SERIOUS IN NATURE, PLEASE TELEPHONE IT IN TO (225) 219-0168.

16. PRESERVE EVIDENCE • TAG AND LABEL DAMAGED ITEMS WITH CLAIMANT’S NAME AND DATE OF LOSS. • DO NOT DISCARD ITEM. • PHOTOGRAPHS SHOULD LIST DATE OF LOSS, CLAIMANT NAME AND PHOTOGRAPHER’S NAME. • DIAGRAMS, MEASUREMENTS, AND MAPS ARE USEFUL. • WITNESS NAMES AND CONTACT INFORMATION SHOULD BE PROVIDED TO ORM.

17. WHAT TO SAY TO THE CLAIMANT • YOU WILL REPORT THE INCIDENT TO YOUR INSURER, ORM. • DO NOT PROMISE THAT THE CLAIM WILL BE PAID. • DO NOT SEND ANYONE TO A DOCTOR OR PROMISE TO COVER MEDICAL BILLS. • COVERAGE OF THE CLAIM AND LIABILITY ISSUES ARE DETERMINED BY ORM.

18. ADA AMENDMENTS OF 2008 • BASIC FACTS TO HELP YOU THROUGH THE MAZE

19. ADA AMENDMENTS ACT OF 2008 • EFFECTIVE JANUARY 1, 2009 • EXPANDS THE DEFINITION OF MAJOR LIFE ACTIVITIES

20. ADA AMENDMENTS ACT OF 2008 • REJECTS A STRICT INTERPRETATION OF THE DEFINITION OF DISABILITY • ADA TO PROVIDE BROAD COVERAGE

21. ADA AMENDMENTS ACT OF 2008 • MITIGATING MEASURES OTHER THAN ORDINARY EYEGLASSES OR CONTACT LENSES SHALL NOT BE CONSIDERED IN DETERMINING WHETHER AN INDIVIDUAL HAS A DISABILITY.

22. ADA AMENDMENTS ACT OF 2008 • STRIKES A BALANCE BETWEEN EMPLOYER AND EMPLOYEE INTERESTS

23. ADA AMENDMENTS ACT OF 2008 • PROHIBITS THE CONSIDERATION OF MITIGATING MEASURES SUCH AS MEDICATION, PROSTHETICS, AND ASSISTIVE TECHNOLOGY IN DETERMINING WHETHER AN INDIVIDUAL HAS A DISABILITY.

24. ADA AMENDMENTS ACT OF 2008 • COVERS PEOPLE WHO EXPERIENCE DISCRIMINATION • BASED ON A PERCEPTION OF IMPAIRMENT • REGARDLESS OF WHETHER THE INDIVIDUAL EXPERIENCES DISABILITY

25. ADA FURTHER INFORMATION • NOTICE CONCERNING ADA AMENDMENTS ACT OF 2008 • www.eeoc.gov/ada/amendments

26. FAMILY MEDICAL LEAVE ACT • EFFECTIVE JANUARY 16, 2009 • IMPLEMENTS MILITARY FAMILY LEAVE • GUIDANCE ON QUALIFYING EXIGENCIES • EMPLOYER NOTICE REQUIREMENTS • FINAL RULES EFFECT ON ATTENDANCE • INTERMITTENT LEAVE • GUIDANCE ON CERTAIN SERIOUS HEALTH CONDITIONS

27. FAMILY MEDICAL LEAVE ACT • MILITARY FAMILY LEAVE PERMITS A SPOUSE, SON, DAUGHTER, PARENT, OR NEXT OF KIN. • 26 WORKWEEKS OF LEAVE TO CARE FOR MEMBER OF ARMED FORCES. • INCLUDES NATIONAL GUARD OR RESERVES.

28. FAMILY MEDICAL LEAVE ACT • MILITARY CAREGIVER LEAVE PROVIDES 26 WEEKS WHEREAS FMLA ONLY ALLOWS 12 WEEKS FOR OTHER FMLA ENTITLEMENT. • NEXT OF KIN FOR MILITARY MEMBERS IS IN ADDITION TO THE FAMILY MEMBERS ALLOWED IN FMLA.

29. FAMILY MEDICAL LEAVE ACT • MILITARY QUALIFYING EXIGENCY LEAVE: • A NEW ENTITLEMENT FOR MILITARY ONLY • FOR FAMILIES OF NATIONAL GUARD OR RESERVES FOR EXIGENCIES

30. FAMILY MEDICAL LEAVE ACT • MILITARY EXIGENCIES ARE: • SHORT-NOTICE DEPLOYMENT • MILITARY EVENTS • CHILDCARE AND SCHOOL ACTIVITIES • FINANCIAL AND LEGAL ARRANGEMENTS • COUNSELING • REST AND RECUPERATION • POST-DEPLOYMENT ACTIVITIES • ADDITIONAL ACTIVITES NOT ENCOMPASSED ABOVE

31. FAMILY MEDICAL LEAVE ACT • LIGHT DUTY WORK DOES NOT COUNT AGAINST FMLA LEAVE ENTITLEMENT. • VOLUNTARY LIGHT DUTY ASSIGNMENT IS NOT FMLA LEAVE.

32. FAMILY MEDICAL LEAVE ACT • SERIOUS HEALTH CONDITION: • RETAINS THE 6 DEFINITIONS OF SERIOUS HEALTH CONDITION. • ADDS: 2 VISITS TO DOCTOR MUST OCCUR WITHIN 30 DAYS OF INCAPACITY AND FIRST VISIT SHOULD BE WITHIN 7 DAYS.

33. FAMILY MEDICAL LEAVE ACT • MORE THAN 3 CONSECUTIVE DAYS OF INCAPACITY WITH FIRST VISIT TO HEALTH CARE PROVIDER WITHIN FIRST 7 DAYS. • PERIODIC VISITS FOR CHRONIC SERIOUS HEALTH CONDITION ARE 2 VISITS PER YEAR.

34. FAMILY MEDICAL LEAVE ACT • FMLA LEAVE IS UNPAID. • ACCRUED SICK LEAVE IS TAKEN CONCURRENTLY WITH FMLA ACCORDING TO STATE POLICY. • FINAL RULE SAYS THAT ALL FORMS OF PAID LEAVE WILL BE TREATED THE SAME.

35. FAMILY MEDICAL LEAVE ACT • PERFECT ATTENDANCE AWARDS FINAL RULE SAYS THAT THE EMPLOYER MAY DENY A PERFECT ATTENDANCE AWARD TO EMPLOYEE BECAUSE OF TAKING FMLA AS LONG AS IT TREATS NON-FMLA LEAVE THE SAME WAY.

36. FAMILY MEDICAL LEAVE ACT • EMPLOYER NOTICE OBLIGATIONS: • POST A GENERAL NOTICE SUCH AS A POSTER, OR EMPLOYEE HANDBOOK INFORMATION • AN ELIGIBILITY NOTICE • A RIGHTS AND RESPONSIBILITY NOTICE • A DESIGNATION NOTICE • 5 BUSINESS DAY TIMEFRAME

37. FAMILY MEDICAL LEAVE ACT • EMPLOYEE NOTICE: • FINAL RULE REQUIRES EMPLOYEE TO FOLLOW EMPLOYER’S USUAL AND CUSTOMARY CALL-IN PROCEDURES. • IT REMOVES ABILITY TO PROVIDE NOTICE AFTER THE FACT.

38. FAMILY MEDICAL LEAVE ACT • MEDICAL CERTIFICATION PROCESS • DIRECT SUPERVISOR MAY NOT CONTACT MEDICAL PROVIDER. • HUMAN RESOURCES, LEAVE ADMINISTRATOR, OR MANAGEMENT OFFICIAL MAY CONTACT MEDICAL PROVIDER REGARDING FMLA. • EMPLOYER MAY REQUEST NEW MEDICAL CERTIFICATION EACH LEAVE YEAR FOR MEDICAL CONDITIONS THAT LAST LONGER THAN ONE YEAR. • EMPLOYER MAY REQUEST RECERTIFICATION OF ONGOING CONDITION EVERY SIX MONTHS.

39. FAMILY MEDICAL LEAVE ACT • FITNESS FOR DUTY CERTIFICATION • CERTIFICATION MAY ADDRESS EMPLOYEE’S ABILITY TO PERFORM ESSENTIAL FUNCTIONS OF THE JOB. • FOR REASONABLE JOB SAFETY CONCERNS, A CERTIFICATION MAY BE REQUESTED TO RETURN TO WORK FOR INTERMITTENT LEAVE.

40. FAMILY MEDICAL LEAVE ACT • FOR FURTHER INFORMATION: • www.dol.gov/esa/whd/fmla

41. 2008 LEGISLATION • ACT 214: IN A STATE OF EMERGENCY, NO PERSON WHO REFUSES TO EVACUATE DURING A FORCED EVACUATION SHALL HAVE A CAUSE OF ACTION FOR DAMAGES, DEATH, OR INJURY AGAINST THE STATE. • ACT 793: IN EMPLOYMENT DISCRIMINATIN ACTIONS THERE SHALL BE NO INTERRUPTION OF PRESCRIPTION RESULTING FROM A PLAINTIFF’S GIVING OR FAILING TO GIVE NOTICE AS REQUIRED IN R.S.23:303C.

42. 2008 LEGISLATION • ACT 591: PROVIDES A LIMIT OF LIABILITY FOR AGRITOURISM ACTIVITIES. • ACT 219: PROVIDES FOR BESE TO DEVELOP GUIDELINGES FOR TRAINING OF PUBLIC SCHOOL TEACHERS IN SUICIDE TRAINING. LIABILITY IS LIMITED FOR LOSS OR DAMAGE UNLESS WILLFUL OR WANTON MISCONDUCT. • ACT 376: PROVIDES GUIDELINES FOR EDUCATION OF STUDENTS WITH EXCEPTIONALITIES.