SEEING THROUGH THE MIST… workers’ comp, leave laws, disability

1. SEEING THROUGH THE MIST…workers’ comp, leave laws, disability Aaron Bass Rebecca Watkins

2. Critical Role Considerations • WC claims administrator focuses on processing the claim and paying benefits. • Employers remain responsible for employment – FMLA/OFLA, return to work, performance, internal policies, reasonable accommodations.

3. GEAR UP Workers’ Compensation

4. What does the employer get? • Limited liability – the worker cannot sue the employer or coworkers • Less expensive dispute resolution through the Workers’ Compensation Board • Defined benefits

5. What does the employee get? • Quick decision without burden to prove fault. • Benefits: • Medical Services • Wage Replacement Benefit • Disability Award • Vocational Services

6. Basic Flow of a Claim

7. Potential points of litigation: Initial compensability Additional conditions Medical services Closure Post-closure treatment Reopening

8. Litigation of Workers’ Compensation claims

9. Absences from Work

10. Absences for Workers’ Compensation • AP controls work restrictions and off work authorizations • 3 day waiting period, then entitled to wage replacement benefits • Temporary total disability benefits = 2/3 of average weekly wage • May receive partial benefits for restricted hours • Communicate modified/light duty opportunities

11. Reemployment RightsORS 659A.046 When worker is disabled from at-injury job, to other available and suitable positions. Limitations • AP says worker cannot perform any available job • Worker accepts other suitable employment • Worker refuses bona fide offer of modified work • Worker enters vocational assistance • Termination for cause • Three years from date of injury

12. What is Available? • Already in existence • Open • No requirement to create a job. If you do create a job, no requirement to continue that job. Suitable simply means the employee can physically perform the job and has the knowledge, skills, and abilities to do the job.

13. Modified Work & Workers Compensation • Offer modified jobs if available • “bona fide” job offer • Approved by AP • Offered in writing • Outlines job, time, date, and duration • If unable to work full hours, employee will receive temporary partial disability benefits

14. Reinstatement RightsORS 659A.043 To former position, even if filled by temporary replacement. Limitations • AP says worker cannot perform job • Worker accepts other suitable employment • Worker refuses bona fide offer of modified work • Worker enters vocational assistance • Termination for cause • Three years from date of injury

15. One more way to end rights… • Certified letter from insurer informing employee of release by doctor. • Employee must respond in 7 days.

16. When is pre-injury job available? • Reinstatement rights trump any person hired to fill that position while injured worker was out on leave….even if you like the new worker more. • If position is eliminated, then look to other available, suitable jobs.

17. What is available/suitable? • If not released to pre-injury job, look at other available, suitable positions. • In this context, “available” means open but the injured worker gets first right to the job if the worker meets minimum qualifications – not an application opportunity. • Suitable means similar in pay, shift, skills, hours, etc to the pre-injury position.

18. GEAR UP! FMLA/OFLA

19. MEDICAL LEAVE LAWS Family Medical Leave Act (FMLA) Oregon Family Leave Act (OFLA)

20. FMLA Summary • Employers • 50+ employees • Employees • 1250 hours in 12 months • Rights • 12 weeks of leave with a return to the same or similar position. • Calculating • Based on method (calendar year, rolling year) • As of date leave commences

21. OFLA Summary • Employers • 25+ employees • Employees • 180 days, 25 hours per week • Rights • 12 weeks of leave with a return to the same position. • Calculating • Based on method (calendar year, rolling year) • As of date leave commences

22. Serious Health Condition • “An illness, injury, impairment, or physical or mental condition that involves either: (1) in-patient care in a hospital, hospice, or residential care facility, or (2) continuing treatment by a health care provider.” - 29 CFR 825.114(a)(2) • Chronic conditions • Multiple treatments for conditions that, if not treated, would likely result in incapacity of more than three days

23. Any work-related injury requiring more than three days off work will likely meet the definition of a serious health condition…BUT

24. Under FMLA, absences for a work-related injury do count against FMLA entitlement. Under OFLA, absences for a work-related injury (almost) never count against OFLA entitlement.

25. ORS 659A.162(6): A covered employer may not reduce the amount of family leave available to an eligible employee under this section by any period the employee is unable to work because of a disabling compensable injury.

26. FMLA/OFLA NOTICE REQUIREMENTS Four types of Notice • General • Eligibility • Rights & Responsibilities • Designation

27. Designation • Notifies employee that leave is being counted as FMLA • Sets out substitution requirements • Sets out certification/fitness for duty requirements • Identify how much FMLA leave is being counted Tips: *If open-ended, inform employee upfront of when 12 week period ends. * As end approaches, inform employee of leave end period.

28. FMLA – Medical Certification • FMLA specifically allows reliance on workers’ compensation medical information to stand in as FMLA medical certification. • If you will require separate fitness for duty, make this clear up front.

29. What if a WC claim is Denied? • Denial issues* • 60 days to request a hearing • No RFH, then denial is final • Timely RFH, hearing schedule before administrative law judge within 90 days**

30. How does denial impact FMLA/OFLA? • Under FMLA, all absences still count. • Under OFLA, only “compensable” injuries cannot be counted against entitlement. Once the claim is determined to be not work-related, then the absences count as OFLA leave. This may require the employer to issue more than one “designation notice.”

31. How does WC acceptance impact FMLA/OFLA? • No change. • Keep counting FMLA. • Don’t count as OFLA.

32. FMLA and OFLA • FMLA time may still be counted on a reduced hours basis if employee is released to less-than-regular hours of work. • OFLA still not counted except if employee refuses a bona fide modified duty job.

33. OFLA – limited exception • Exception to general rule that absences for compensable injuries do not count against OFLA entitlement. • OAR 839-009-0210 (17) …"OFLA leave" does not include leave taken by an eligible employee who is unable to work because of a disabling compensable injury…unless the employee has refused a suitable offer of light duty or modified employment…

34. What happens if there is no FMLA leave? • Employer not subject to FMLA or • Employee off work for workers’ compensation absence has exhausted 12 weeks under FMLA but can’t return. • Under WC, no affirmative requirement to keep worker employed but have reinstatement/reemployment rights. • Consider disability protections

35. GEAR UP! Disability Laws

36. DISABILITY LAWS Americans with Disabilities Act (ADA) ORS 659A.112

37. Disability Protections • Protects otherwise qualified individuals with a disability who are able to perform the essential functions of the job with or without reasonable accommodations. • Disability = substantially limited in one or more major life activities.

38. DISABILITY CONSIDERATIONS • Physical impairment that substantially limits a major life activity. • Claim closed with permanent disability? • Not released to regular work? • Unable to perform essential functions? • Employer should engage in interactive process and provide reasonable accommodations.

39. Disability Definitions • Workers’ Comp: usually any loss time case • Temporary, total: means trying to get them back to their pre-injury job, usually restrictions are temporary. • Permanent restrictions: usually looking at placement within the organization in a different position to limit the company’s liability and exposure. • Providers for reinstatement/reemployment rights that are, in some ways, broader than other statutes

40. Injured workers who do not receive full work releases, or who receive any permanent impairment award, are much more likely to fit the definition of having a substantial limit in a major life activity.

41. Employer Obligations Under Disability Laws • Certification of disability • Interactive process • A discussion with the employee about possible accommodations • Reasonable accommodations • Modifications, special equipment, policy or schedule changes unless undue hardship

42. What is the Interactive Process Talking with and finding out from the employee the difficulties which may be preventing the employee from performing an essential job function within their job and causing the need for accommodation. Work with the employee to identify solutions that would allow the employee to be successful in performing the job.

43. Interactive Process • Who performs it may be different in each company based on where the case is managed (i.e., Risk Management, HR, Employee Health) • Intended to be a "process" or discussion that occurs between the employee and the employer.

44. DISCRIMINATION LAWS Title VII, ADA, FMLA ORS Chapter 659A

45. Statutes protect the exercise of a right, not only protected classifications. • ADA, FMLA, OFLA, ORS 659A.040, ORS 659A.112 all provide protections from discrimination and retaliation. • Claims may be filed with EEOC, BOLI, or in state or federal court.

46. Risk Mitigation Checklist • Workers’ compensation • Leaves of absence (FMLA, OFLA, Company) • Standards under the ADA • Return to work • Union contracts • Reinstatement rights (WC, ADA, FMLA/OFLA) • Other leave policies

47. Questions? Aaron Bass (503) 412-3119 abass@sbhlegal.com Rebecca A. Watkins (503) 595-2134 rwatkins@sbhlegal.com