HOT TOPICS IN WC & EMPLOYMENT LAW

HOT TOPICS IN WC & EMPLOYMENT LAW • FERMA Summer Conference • 7-17-19 • W. Rogers Turner, Jr. • Rturner@hrmcw.com

Who We Are • Expert defenders of employers, carriers & TPAs • 13 Board Certified WC Specialists – largest number at any firm in the state • More than 300 appellate decisions • Six offices across Florida to efficiently serve our clients

OVERVIEW WC / ADA / FMLA –recognizing issues/pitfalls Offers of Light Duty Employment Recent School Board Appellate Cases Recent WC JCC Level Decisions

WC / ADA / FMLA –recognizing issues / pitfalls Basic Statutory Frameworks • Triggering Events • Documentation Requirements • Areas Of Overlap • When Light Duty Is Required • Leaves Of Absence, Intermittent Leave, Or Reduced Work Schedules • Maintenance Of Benefits • Reinstatement

Brief Comparison ADA • Enforcement by EEOC. • 15 or more employees for each of 20 or more calendar weeks in current or preceding year. • Coverage begins first day of employment. • Employee must be qualified individual with a disability and able to perform essential functions with or without reasonable accommodations. FMLA • Enforcement by DOL. • 50 or more employees w/in 75 mile radius at least 20 weeks in current or preceding year. • Employee (or family member) with a SHC, who has worked at least 12 months and 1250 hours and works at worksite where 50 or more employees within 75-mile radius. WC • Enforcement by the Florida Department of Financial Services / DOAH • Employers with 4 or more full or part-time employees. • Coverage begins first day of employment. • Employee who has an injury arising out of or in the course and scope of employment.

Triggering Events ADA: Per EEOC - employee must let employer know that s/he needs an adjustment or change concerning some aspect of his or her job duties for a reason related to a medical condition. • Request need not have “magic words” of “reasonable accommodation” or “disability.” • If initial communication is unclear, employer should ask if employee is requesting a reasonable accommodation. • Request can also be made “on behalf of” employee (doctor, family member, etc.) FMLA: Per DOL, employee must provide at least verbal notice sufficient to make employer aware of need for FMLA-qualifying leave and its anticipated timing / duration. • 1st time an employee seeks leave for an FMLA-qualifying reason, he/she need not expressly assert rights under FMLA or even mention FMLA. • When an employee seeks leave for an FMLA qualifying reason for which the employer has previously provided FMLA leave, employee must specifically reference the qualifying reason for leave or the need for FMLA leave. • “Constructive Notice” may also trigger employer’s obligations. WC - On the job injury or notification within 30 days by employee.

Constructive Notice – FMLA & ADA • Constructive notice generally means employer has “reason to believe” leave or accommodation may be warranted. • Employers must look for inconsistent behavior that could be attributable to a SHC, and when appropriate, have to inquire delicately if this inconsistent behavior is impacting performance. • Employers with constructive notice of potential need for leave have affirmative duty to notify employee of the right to leave or a job accommodation- even if the employee is unaware he or she suffers from a specific SHC or that he or she is entitled to an accommodation. • Constructive notice clues: − Changes in production − Changes in attitude − Requests for assistance − Requests for changes in responsibilities − Recurring leave requests.

Required Documentation ADA: Employer may request medical certification regarding the nature, severity and duration of the condition, and request an opinion on whether employee can perform the essential functions or his or her job, with or without an accommodation. • If an accommodation is needed, the employer can seek recommendations on the types of accommodations that would suffice. Additional correspondence with the physician is allowed for clarification purposes. FMLA: Employer provides employee with FMLA Certification Paperwork. Employee has 15 days to return paperwork. If further clarification is needed, employee has 7 days to provide requested follow-up documentation. • Employer may also request a 2nd medical opinion, or a 3rd medical opinion if the 1st and 2nd opinions differ. WC: Generally handled through worker’s compensation provider. Employer designates/authorizes medical providers. • Most Common Problem: employers fail to require physicians to provide clear information

Basic WC Leave Requirements WC Leave: No per se leave requirements under FL statute. ADDITIONAL WC Benefits: • Payment of authorized doctor’s bills, rehab, physical therapy, prescriptions and necessary travel expenses. • Additional compensation in the form of weekly benefits, depending on severity of the injury, and ability of the employee to work. • Often settlement of workers’ compensation case to foreclose ongoing liability

Basic FMLA Leave Requirements • FMLA Leave: An “eligible” employee of a covered employer may take up to 12 workweeks* of leave during any 12-month period for one or more of the following reasons: 1. "Serious Health Condition" or subsequent treatments; 2. Birth of a child, and to care for the newborn child; 3. Care for employee’s spouse, child, or parent with a "Serious Health Condition"; 4. Placement of a child with the employee through adoption or foster care, and to care for the child; or 5. Qualifying exigencies arising out of active duty status. *26 weeks of leave for injured or ill service member.

Recent FMLA Clarification Question: May an employee who is unable to work for an FMLA- qualifying reason choose to use paid time off without having it designated as FMLA leave? Answer: No. Per March 14, 2019 opinion letter from the DOL; • Employers cannot delay designating time off as FMLA leave if the reason for leave is FMLA-qualifying. • Employers may not provide additional FMLA leave beyond an employee’s maximum FMLA entitlement under the law.

Additional FMLA Rights 1) Employer must maintain employee’s existing level of coverage under a group health plan during the leave period. 2) At the end of FMLA leave, employer must allow employee to return to the same or an equivalent job (unless he/she is a key employee or other minor exceptions).

Basic ADA Leave Requirements • ADA Leave: Like worker’s compensation, there are no automatic leave rights under the ADA. However, leave may be one reasonable accommodation that an employer can provide unless the leave causes an undue hardship on the employer.* • No limit on amount of leave that may be taken; however, the leave usually cannot be for an “indefinite period.” *Undue hardship is any action that is too costly, substantial or disruptive, or that fundamentally alters the nature of the employer’s business

FMLA “serious health condition” vs. ADA “disability” Question: Is FMLA "Serious Health Condition" the same as an ADA “disability”? Answer: No. An ADA “disability” is an impairment that substantially limits one or more major life activities. An FMLA "Serious Health Condition" can be, but is not necessarily, an ADA“disability.” An FMLA "Serious Health Condition" is an illness, injury, impairment, or physical or mental condition that requires either: (i) Inpatient care in a hospital or other health care facility; or (ii) Continuing treatment by a health care provider, resulting in: (a) a period of incapacity of more than 3 consecutive days absence from work plus any subsequent treatments or periods of incapacity relating to the same condition...

When FMLA/ADA Coverage Overlaps Question: Are all employees who are protected by the ADA also entitled to leave under the FMLA? Answer: No. 1) Eligibility requirements under the two statutes are different, and employee must separately qualify for coverage under each statute. Employees protected by the ADA must be a “qualified individual with a disability.” Employees “eligible” for FMLA leave must have a "Serious Health Condition.” 2) Unlike FMLA, the ADA has no length of service requirements.

ADA Compliance when FMLA also applies Question: If an individual requests time off for medical treatment, should the employer treat this as a request for FMLA leave and ADAAA reasonable accommodation? Answer: Maybe. If an employee requests time off for a reason related or arguably related to a disability (e.g., “I need 10 weeks off to get treatment for a back problem”), the employer should consider this a request for ADA reasonable accommodation. If request is for a condition that could qualify as a SHC (construe this liberally!), then FMLA paperwork should also be given to the employee.

ADA Compliance when FMLA also applies Question: As an alternative to a leave of absence, may an employer offer an effective reasonable accommodation that will enable an employee to continue working? Answer: An employer may offer an employee a reasonable accommodation other than leave, as long as it is effective. However, if individual is “eligible” for leave under FMLA and has a SHC that prevents her from performing an essential job function, she has the right to take a leave of absence up to 12 workweeks (assuming the presence of an appropriate FMLA certification), even if she could continue working with an effective reasonable accommodation (although presumably there will be intermittent LOAs based on a SHC).

Workplace Injury creating WC or ADA “disability” Question: Does an occupational injury always result in an ADA “disability”? Answer: No. Again, look to the statutory guidance of the ADA: Does employee have an impairment that substantially limits a major life activity? If the injury results in a present condition that qualifies as a disability, employers are required to make reasonable accommodation?

Medical Certifications, Inquiries and Confidentiality Question: Is there a conflict between the FMLA provision allowing employers to ask for certification that an employee has a "Serious Health Condition“ and ADA restrictions on disability-related inquiries of employees? Answer: No. When an employee requests leave under the FMLA for a Serious Health Condition (“SHC”), employers do not violate the ADA by asking for the information specified in the FMLA certification form. FMLA form only requests information relating to the particular SHC, as defined in the FMLA, for which employee is seeking leave.

Light Duty Assignments Under Workers’ Comp, FMLA & ADAAA Question: What are an employer’s rights and obligations under the three statutes in situations involving light duty assignments? Answer: Assuming a particular work-related injury causes a condition that qualifies as a disability, under ADA, an employer may provide an accommodation that requires employee to remain on the job instead of or in addition to providing leave. But, if employee is FMLA-eligible, s/he can reject the light duty work, and his/her leave request must be granted. If employee is offered and rejects light duty work, he/she generally will not receive “temporary partial disabilitybenefits under workers’ comp.

Comparison of ADA and FMLA Limitations on Leave Question: Does FMLA’s limit of 12 workweeks of leave in a 12-month period mean that the ADA also limits employees to 12 weeks of leave per year? Answer: No. An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer’s business. The EEOC has said there can be no “bright line" cut off.

Comparison of ADAAA and FMLA Intermittent Leave Question: How do the ADA and the FMLA requirements compare regarding intermittent or reduced schedule leave? Answer: Under ADA, a qualified individual with a disability may work part-time in his current position, or occasionally take time off, as a reasonable accommodation, if it would not impose an undue hardship on the employer. If (or when) reduced hours create an unreasonable hardship in the current position, employer must see if there is a vacant, equivalent position for which the employee is qualified and to which employee can be reassigned without unreasonable hardship while working a reduced schedule. If no equivalent position, look for a vacant position at a lower level. Under FMLA, employers may require employees to transfer temporarily to an available position with equivalent pay and benefits if needed to better accommodate intermittent leave.

Comparison of Reinstatement Protocol Under ADA,FMLA and Workers’ Comp • ADA- employee entitled to return to same job unless employer demonstrates holding job open would impose undue hardship, or that employee can no longer perform the essential functions of that job, with or without a reasonable accommodation. • FMLA - (With a few minor exceptions), employee must be reinstated to the same position or to an equivalent position. • WC - No automatic right of return, but it is usually of benefit to get the employee working at his original job as quickly as possible and reduce lost wage exposure

ADAAA / FMLA / WORKER’S COMP RECAP ADA • No specific limit on the amount of leave (reasonable accommodation unless an undue hardship). • Cannot discriminate with respect to provision of benefits. • Required reinstatement to previous job unless an undue hardship due to additional accommodations needed. FMLA • 12 weeks of leave in defined 12 month period. • Health care coverage continued; other benefit continuation as determined by policy for provision of such when employee on other forms of leave. • Required reinstatement to the same or an equivalent job (unless limited exceptions apply). WC • No specific limit on amount of leave. • Not required to continue benefits (but watch for FMLA coverage). • No reinstatement requirements under most state laws (but watch for retaliatory discharge).

Recent School Board Appellate Cases

Hale v. Husfelt/Bay County School Board, ___F.3d ___(11th Cir. 5/10/19) • P.E Coach/Teacher at NB Charter School, let go, later sought to become teacher at Bay High. Not hired. • Alleged principal Husfelt retaliated against him based on his parent’s opposition to Husfelt. • Court granted SJ as to defendants/no evidence Husfelt had any involvement in any of the above decisions. • 11th Circuit affirmed – “..we are not a “super-personnel department assessing the prudence of routine employment decisions”

School Board of Hillsborough County Florida v. Woodford, 2D18-1462 (Fla.2d DCA 4/26/19) • Whistle Blower Case – alleged School Board fired her for refusing to participate and complaining about improper, unethical practices. • School Board sought to dismiss, alleged failure to exhaust administrative remedies. Judge Denied, said Board failed to provide notice to plaintiff of administrative requirement. • DCA – Judge should have dismissed, claimant required to exhaust administrative remedies

Lee County School Board v. State Farm/Safety National, 2D17-4595,4899, (Fla.2d DCA 5/24/19) • State Farm paid PIP benefits following school bus accidents, asked School Board and Insurer to reimburse • School Board refused, alleged Sovereign Immunity and Exemption from No-Fault Statute – Safety National -asserted Policy Exclusion. • Judge – found for State Farm • DCA – affirmed, State Farm paid PIP and has right under F.S.s. 627.7405(1) to be reimbursed from owner of bus and insurer of bus.

Paulot v. School Board of Palm Beach County, ___F.Supp.___(U.S.Dist.Ct.S.FL, 5/14/19) • Approved Class Action Settlement • Five named plaintiffs (623 out of 820 joined) – FLSA/Wage Case • Alleged underpayments from Collective Bargaining Agreement Pay Plan – 22 pay periods/Merit Payments; • Gross Amount - $361,103 • Attorney Fees - $115,00

Additional DCA Decisions of Note to Florida Educational Risk Managers • Sedgwick CMS/The Hartford/Sedgwick CMS v. Valcourt-Williams, ___ So.3d ___ (Fla. 1st DCA 4/5/2019) Compensability/”Arising out of” element/Personal Comfort Doctrine • Varricchio v. St. Lucie Cty. Clerk of Courts/Ascension Ins., ___ So.3d ___ (Fla. 1st DCA 4/29/2019) Indemnity Benefits/Retroactive MMI/Ex Parte Doctor Conferences • Prada USA/Travelers v. Young, ___ So.3d ___ (Fla. 1st DCA 5/2/2019) Res Judicata/120 Day Rule • Kneer v. Lincare/Travelers, ___ So.3d ___ (Fla.1st DCA 4/3/201) TPD/Psychiatric Work Restrictions and six month limitation from date of physical MMI • Izaguirre v. Beach Walk Resort/Travelers, ___ So.3d ___ (Fla. 1st DCA 5/16/19) Independent Medical Examiners/Mandatory Exclusion of IME findings • Lafluer v. The Arbor Holding Co./Barrington Terrace/Utd. Wisconsin Ins. Co., ___ So.3d ___ (Fla. 1st DCA 6/12/2019) One Time Change/Requirement of Same Specialty • De Jesus Abreu v. Riverland Elementary School/Broward County School Board, ___ So.3d___ (Fla. 1st DCA 6/18/19) Expert Medical Advisors/Constitutionality

Recent WC JCC Level Decisions

Zoeller vs. St. Lucie County School Board/Relation Ins.of FL • Injury: cafeteria worker injured shoulder blade and neck • Post-Injury Restrictions: Light duty work with restrictions for: lifting overhead and pulling or pushing overhead anything more than five pounds • School Board Offered: An alternative assignment at the school, however, St. Lucie Public Schools proceeded to terminate her employment • JCC Final Order: Granted PTD benefits from June 27, 2018 to the present

Hart vs. Gilchrist County School Board/Johns Eastern Company, Inc. • Injury: television fell on teacher’s head, injured his neck • Post-Injury Restrictions: Light duty work restriction of lifting no more than twenty pounds occasionally, no overhead work, and no commercial driving • School Board Offered: To transfer Claimant to Trenton High School as a Teacher’s aide • JCC Final Order: Denied PTD from April 17, 2017 to the present

Thompson vs. Alachua County Public Schools/Florida School Board Insurance Trust • Injury: School bus driver injured head and back, while breaking up a fight between two students on her bus • Post-Injury Restrictions: Avoiding pushing and pulling, no commercial driving, avoid lifting more than ten pounds, avoid frequent bending and twisting of the back, avoid strenuous pushing and pulling, and avoid movements of the affected shoulders overhead. • JCC Final Order: Denied both claims for TPD and TTD

Altner vs. Palm Beach County School District/York Risk Services Company • Injury: Student ran into elementary teacher • Post-Injury Restrictions: no overhead lifting, no overhead extension, no twisting, and no lifting greater than 20 pounds • School Board: Transitioned her to a special reading program, yet Claimant said she still managed to exceed her work restrictions in this new role • JCC Final Order: Granted TPD for 8/6/14-10/22/14, 11/19/14-4/3/15, 8/6/14-10/22/14 but denied TPD from 7/18/16-8/15/16

De Jesus Abreu vs. Riverland Elementary School/ Broward County School Board • Injury: Claimant, a custodian, injured her right shoulder while throwing a bag of trash into a bin • School Board: Let her return to her old position, yet she could not use her right arm to carry any trash or objects, so she used her left arm for work duty • Post-Injury: Claimant proceeded to feel pain in her left shoulder and received surgery on it, then proceeded to request the E/C cover this new surgery • JCC Final Order: Denied authorization of left shoulder MRI, Denied compensability for left shoulder surgery, and Denied treatment for left shoulder • Appeal – Affirmed 6/18/19 – EMA Constitutional

Wright vs. Hendry County School Board/Relation Insurance Services of Florida • Injury: school bus driver injured neck and shoulder when car rear-ended her school bus • Post-Injury Restrictions: None from an authorized doctor • School Board Offered: Claimant her old job back, but she could not drive on field trips for the students • Claimant then proceeded to request a $2,000 cash advance since she could no longer drive on field trips • JCC Final Order: Denied the claim for a $2,000 cash advance because Claimant did not qualify

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HOT TOPICS IN WC & EMPLOYMENT LAW