1. AMERICAN SOCIETY OF SAFETY ENGINEERS – GREATER CALUMET CHAPTER WHAT BESIDES “SAFETY” SHOULD SAFETY PERSONNEL KNOW? January 14, 2010

2. Tina M. Bengs, Partner tbengs@hwelaw.com Porter CountyLake County 219.464.4961219.769.6552 Chase Bank BuildingTwin Towers-South 103 East Lincolnway1000 East 80th Place Valparaiso, IN 463836 th Floor Merrillville, IN 46410

3. At Most Companies, Each Person/Department Handles Its Own Issues if it Receives Notice Example: “I hurt my back and need time off to see a doctor.” Employee tells one person HR - - FLMA, ADA, Title VII Benefits - - Vacation, STD, LTD Work Comp Management - - Discipline, Attendance Safety - - Investigate, Corrective Action

4. The Laws Assume Notice to One Person Flows to All Company Rep that Received notice HR - - FLMA, ADA, Title VII Benefits - - Vacation, STD, LTD Work Comp Management - - Discipline, Attendance Safety - - Investigate, Corrective Action

5. What does this mean for Safety Personnel? When an Employee Alleges an Injury, Several Possible Obligations Created for the Employer Employee Alleges a Work Injury HR - - FLMA, ADA, Title VII Benefits - - Vacation, STD, LTD Work Comp Management - - Discipline, Attendance Safety - - Investigate, Corrective Action

6. Indiana’s Worker’s Compensation Act When the Act applies: 1.Injury by accident (employer did not intend the injury) 2.Injury arose out of the employment (caused by a risk of the employer or a neutral risk - - may need medical evidence to establish this) 3.Injury occurred in the course of the employment (during work and a reasonable time before and after work)

7. Indiana’s Worker’s Compensation Act Benefits if the Injury is Covered Under the Act: 1.Medical care for the work injury 2.Disability Benefits until the employee reaches maximum medical improvement 3.Permanent Benefit - - permanent partial impairment for loss of function OR permanent total disability if unable to perform any reasonable employment Benefits Not Under the Act: 1.No entitlement to a job 2.No special protection that allows an employee to violate company policies.

8. Indiana’s Worker’s Compensation Act Action for Employer When Employee Alleges an Injury: 1.First Report of Injury / Notify Insurance Carrier 2.Investigate whether injury covered by the Act 3.Investigate whether an affirmative defense applies 4.Can provide first aid/emergency medical care without admitting liability 5.At least 30 days to decide if injury is covered under the Act

9. Indiana’s Worker’s Compensation Act Affirmative Defenses: No benefits owed if injury is caused by - - 1.Employee’s knowing, self-inflicted injury 2.Employee’s intoxication 3.Employee’s commission of a criminal offense 4.Employee’s knowing failure to use safety appliance 5.Employee’s knowing failure to obey a reasonable written rule posted in a conspicuous position in the work place 6.Employee’s knowing failure to perform a statutory duty

10. Civil Liability for Employer and/or Co- Employee: 1. If work injury, then Work Comp is the exclusive remedy - - employer and co- employees cannot be sued civilly 2.If a third party might be liable, then preserve evidence to avoid a Spoliation of Evidence Claim

11. Family and Medical Leave Act The FMLA applies when: 1.Birth or adoption of a child 2.Serious health condition of parent, child spouse and the employee is needed to provide care 3.Employee has a serious health condition and the employee cannot perform functions of the job Benefits: 1.“Entitled” to 12 weeks of leave per year and job is protected during that time 2.Health benefits are protected during the 12 weeks

12. Americans with Disabilities Act The ADA applies when: 1.Disability a.Impairment that substantially limits a major life activity b.Record of having such an impairment c.Regarded as having an impairment 2.With or without reasonable accommodation 3.Employee can perform essential functions of the job

13. ADA - - Effective 1/1/09 - - “Substantially Limits” and “Major Life Activity” Expanded The ADA applies when: 1.Disability substantially limitsmajor life activity a.Impairment that substantially limits a major life activity b.Record of having such an impairment c.Regarded as having an impairment 2.With or without reasonable accommodation 3.Employee can perform essential functions of the job

14. Before 1/1/09 – “Major Life Activity” Not Defined but Focus on “Major” After 1/1/09 – “Major Life Activity” includes: In general but not limited to: –Caring for oneself –Performing manual tasks –Seeing –Hearing –Eating –Sleeping –Walking Standing Lifting –Bending –Speaking –Breathing –Learning –Reading –Concentrating –Thinking –Communicating –Working Also includes operation of major bodily functions, such as: –Normal cell growth –Digestion –Bowel –Bladder –Neurological –Brain –Respiratory –Circulatory –Endocrine –Reproductive

15. Before 1/1/09 – “Substantially Limiting” took into account length of time, severity, mitigating measures After 1/1/09 – “Substantially Limiting” takes into account length of time (maybe less than 6 months is not enough but still not clear), severity, but no mitigating measures Mitigating measures does not include ordinary eyeglasses/contacts Mitigating measures does include: –Medical supplies, equipment or appliances –Medications –Low-vision devices –Prosthetics (limbs, hearing aids, cochlear implants) –Mobility devices –Assistive technology –Reasonable accommodations –Auxiliary aids or services –Learned behavior or adaptive neurological modifications

16. Benefits Under the ADA: 1.No discrimination based on a disability 2.Reasonable accommodation – provide an accommodation that will allow the employee to perform the essential functions of the job or that will eventually allow the employee to perform the essential functions of the job Examples: assistive device, change in work station or equipment, different work hours, leave of absence, alternative job, etc.

17. Title VII An employer with 15 or more employees is prohibited from discriminating against an employee or a group of employees on the basis of the employee’s race, color, sex, national origin, or religion.

18. Title VII From a practical standpoint, Title VII means: An employer must be consistent with discipline, demotions, terminations, hiring, promotions, and any other benefit of employment to avoid the appearance that an employee within a protected class is being treated more harshly than an employee not in the protected class.

19. What do you do if you receive notice of the following? (Who should be notified?) Tom had back problems for 2 years. He has now claimed that he sustained a low back injury while working (a ruptured disc) and his doctor has placed significant lifting restrictions on him which prevents him from doing several functions of his current job. The lifting restrictions will likely remain in place for at least 6 months. You have a light duty position available that meets his restrictions. You offer him the job which is at a lower wage rate. He says, “No way am I coming back to do that job and you can’t make me!”

20. How should each issue be addressed? 1) Can you force Tom to take the job? 2) Can you fire Tom for insubordination? 3) What work comp obligations, if any? 4) What are the FMLA obligations, if any? 5) What are the ADA obligations, if any? 6) Can he use / be forced to use vacation pay, STD, LTD? 7) If Beth had a similar back problem and she was given a light duty job at her regular pay, are there any Title VII issues if Beth is a white female and Tom is a black male?

21. Any Questions? Thank you.