Presented by: Ann Holden Kendell The Bermuda Triangle Intersection of the FMLA, ADAAA and Workers Compensation Law Presented by: Ann Holden Kendell BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 E-mail: kendell@brownwinick.com

Overview of Applicable Laws Americans with Disabilities Act (now ADAAA) and Iowa Civil Rights Act (ICRA) Family and Medical Leave Act (FMLA) Workers’ Compensation (WC)

How do you know you are in the Bermuda Triangle? Employee has his/her own serious health condition that arises out of a personal or work situation: - absence from work - restrictions Other issues: Genetic Information Nondiscrimination Act (GINA), retaliation, etc.

Bermuda Triangle – a New Twist The Bermuda Triangle is usually the difficulty in how the employer balances the different laws as to one employee, now it can affect employers in how different employees are treated.

Bermuda Triangle – a New Twist Young v. United Parcel Service, (March 25, 2015) Denial of pregnant employee’s request for reasonable accommodation found to be disparate treatment under the Pregnancy Discrimination Act (PDA) (added to Title VII in 1978) where employees with work comp injuries, ADA disabilities and those that lost DOT certification were given light duty and pregnant employee was not. [Case remanded.]

Bermuda Triangle – a New Twist PDA: Pregnancy bias is a form of discrimination based on sex; and Pregnant employees must be treated the same as other workers who are similarly situated.

Bermuda Triangle – a New Twist Employee was driver for UPS and the position required lifting of up to 70 lbs. While pregnant, employee’s Dr. restricted her to lifting up to 20 lbs. UPS said employee could not work while under restriction. Employer allowed light duty for these other employees, but not pregnant employees.

Bermuda Triangle – a New Twist Employee argued that “pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other non-pregnant workers do not receive accommodations.” The Court disagreed. The PDA uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” who are similar in inability to work.

Bermuda Triangle – a New Twist The Court noted that the PDA “requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work.” INTERESTING NOTE: USSC refused to follow the EEOC’s guidelines written soon before the case was decided.

Bermuda Triangle – a New Twist USSC held that a female worker claiming pregnancy bias must offer proof: She is in the protected group (those who can become pregnant), She asked to be accommodated when not able to fulfill her normal job, Employer refused, and Employer allowed other employees an accommodation when they were temporarily unable to do their work.

Bermuda Triangle – a New Twist BUT – WHAT ABOUT ONLY TREATING WORK INJURIES PREFERENTIALLY AND ALL OTHER NON-WORK RELATED INJURIES THE SAME? “YOU BROKE IT, YOU BOUGHT IT”

Roadmap for Analyzing Bermuda Triangle Issues: Address different laws individually Communicate with the Employee Begin with FMLA -Is the employee requesting leave? -Is it apparent to the employer that the employee has a situation suggesting a need for FMLA leave? -Administer leave process and compute time

Roadmap for Analyzing Bermuda Triangle Issues: Conduct ADAAA Analysis -Does the employee need leave beyond FMLA allotment? -Process restriction issues Conduct Workers’ Compensation Analysis -Does the employee require light or modified duty? -Address leave issues

Scenario Amy Aiken is a nurse for WeTestU, LLC, an Iowa limited liability company with 70 employees that performs on-site blood testing for insurance companies. She travels to potential insureds at their homes to conduct testing and also works at the office processing paperwork. She has been a full-time employee for 5 years. She has missed 9 days of work this year. Company policy only allows 10 missed days per year. Under the policy, if Amy misses 2 more days, she is subject to termination.

The Injury Amy is scheduled to work on Friday but calls in to work indicating that she has back and neck pain. She states that she plans to visit her doctor and will update us as to her condition. She calls following the appointment and tells us that her doctor has ordered bedrest for 2 weeks and that she will return to work the following Monday.

CAN WE TERMINATE HER? *Not for that…

Analysis under FMLA Determine Coverage - 50+ employees = covered employer - 12 months of service +1250 hours + works at a location with 50 employees within 75 miles = covered employee

Analysis under FMLA 1) Is Amy eligible for FMLA Leave? -How many doctor visits has she had? -How many days is she unable to work? 2) Are there policies you will need to administer? -Do you have a policy requiring substitution of PTO for FMLA leave? -Does FMLA leave run concurrently with workers’ compensation leave?

Analysis under ADAAA 15 employees or more = ADAAA 4 employees or more = ICRA Does Amy have a disability? - Physical impairment that substantially limits 1 or more MLA’s? [neck/back pain and bed rest = limits working, walking, standing, lifting, bending]

Analysis under ADAAA What about temporary disabilities? - impairment that is “transitory and minor,” (of “an actual or expected duration of six months or less”) is not considered as a disability under the “regarded as” definition of a disability.  42 U.S.C. § 12102(3)(B) But, a temporary disability can be an actual disability if it is sufficiently severe. Don’t gamble on temporary disabilities…

Analysis under Workers’ Compensation How do we determine coverage? -Investigate to determine if injury arises out of and in the course of her employment with the Company. -Obtain report of injury if she alleges that it is work-related. -Confirm compensability, if possible.

First Return to Work Amy provides documentation that designates her condition as serious. She has lifting restrictions, can only work half days and she informs you that she injured herself while drawing blood from a client. Her doctor indicates he will need to see her again in 2 weeks.

Can we fire her now? *Not for that…

Analysis under FMLA FMLA tally: Amy was off work for two weeks and one day. Now she needs to work half days and will have FMLA absences for those half days.

Analysis under ADAAA Is she covered under the ADAAA? Do we need to do anything?

Analysis under Workers’ Compensation Determine whether we have light duty work. If we deny her light duty work, what impact does that have on her FMLA leave and entitlement to workers’ compensation benefits? If no determination as to workers’ compensation compensability has been made, this step should prompt the employer to move quickly to determine whether the injury is compensable so that it can complete a full and accurate analysis.

Amy Requires Surgery Amy has been working on restricted duty (lifting restrictions and ½ days) for 4 weeks. Her doctor has prescribed surgery and is requiring her to be off of work entirely for 10 weeks post surgery. Amy has been compliant in her treatment regimen, regularly attending therapy and seeing her doctor. She remains in contact with the company and is eventually released to light duty. Amy wishes to return to her old job. Amy’s doctor indicates that she cannot lift more than 1lb on an infrequent basis.

Can we give her the ax?

Analysis under FMLA Is Amy eligible to return to work? What if Amy cannot perform the essential functions of her Job? What if she has exhausted all of her FMLA allotment and cannot perform the essential functions of her job?

Analysis under FMLA FMLA tally: Amy was off work for two weeks and one day. Amy worked ½ days for four weeks, resulting in two weeks of leave. Amy was off work post-surgery for ten weeks. Total weeks of leave = 14 weeks and 1 day [FMLA leave exhausted]

Analysis under ADA Does Amy qualify for ADAAA protection? Are you required to return Amy to her former position? If her job was filled while on leave, do you have to find her another job?

Analysis under Workers’ Compensation Are you obligated to return Amy to her former position under Iowa Workers’ Compensation law?

Unsuccessful Return Amy attempts to perform the duties associated with her former position (with her doctor’s permission) and fails. Her position requires lifting in excess of 1lb as well as driving, bending and twisting. We offer her light duty but Amy goes home and says she just needs a few more weeks off.

Can we give her the heave-ho?

Analysis under FMLA Do we have to continue to hold her position open? Can we terminate her at the end of her FMLA leave? - Yes under FMLA, but what about ADAAA?

Analysis under ADAAA Do we have to give Amy additional leave? -Probably Do we have to consider reasonable accommodations? - Yes.

Analysis under Workers’ Compensation Is Amy still entitled to work comp benefits after having turned down light duty? - Yes, but only if she was released to work with restrictions and the work offered fit within those restrictions.

Amy Returns to Work…Again Amy returns to work six weeks later with temporary bending and lifting restrictions.

Analysis under FMLA None. She has exhausted her FMLA leave.

Analysis under ADAAA Does Amy qualify for ADAAA coverage? -Yes. Is the Company required to engage in the interactive process?

ADAAA - Return to Work Analysis Is the Company required to return Amy to her old job? -Maybe, if there is a reasonable accommodation that would permit her to perform the essential functions of the job. What if Amy’s job was filled in her absence? -Try to avoid this. Use temporary measures if possible.

Analysis under Workers’ Compensation Because Amy has been off of work due to a work-related injury, must you return her to her original position? - No, but she must be offered suitable work.

Permanent Restrictions Amy returns to work with permanent restrictions.

Analysis under ADAAA What does Amy have to provide the Company to return to work? -Doctor’s Release -Fitness for Duty (if previously requested and related to condition necessitating the need for leave)

Analysis under ADAAA (cont.) Do we have to accommodate Amy’s permanent restrictions? - Maybe. The ADAAA requires that the Company engage in the interactive process to determine if a position is available that fits within her restrictions.

Analysis under Workers’ Compensation Do we need to accommodate her restrictions under workers’ compensation? - No, but the Company must engage in the interactive process (under ADAAA) before terminating.

Analysis under Workers’ Compensation (Cont.) If we cannot accommodate her restrictions, is she entitled to receive ongoing workers’ compensation benefits? -Not if she has been released from care and placed at MMI.

Easy Sailing, Right? Questions?

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