Michigan Association of School Personnel Administrators

December 3, 2008

Michigan Association of School Personnel Administrators

December 3, 2008

Disabilities Management – Integrating FMLA, ADA

and Workers’ Compensation

Melvin J. MuskovitzDykema Gossett PLLC

2723 S. State Street, Suite 400Ann Arbor, Michigan 48104

734-214-7633mmuskovitz@dykema.com

www.dykema.com

Disabilities ManagementDisabilities Management

What is it?

What does it encompass?

Why is it important?

Disabilities Management — What Is It?Disabilities Management — What Is It?

Comprehensive, integrated, proactive approach

Requires coordination of many possible players• Supervisors• Human Resources• Workers’ Compensation Carrier• Workers’ Compensation Attorney• Short Term and Long Term Disability

Carriers

Disabilities Management — What Does It Encompass?Disabilities Management — What Does It Encompass?

Employee statutory rights/employer statutory obligations• ADA• FMLA• Workers’ Compensation

Employer policies/benefits

Collective bargaining agreement

Employee health and welfare

Employee Statutory Rights/ Employer ObligationsEmployee Statutory Rights/ Employer Obligations

Each statute has its own provisions regarding:• Definition of disability• An employee’s right to a leave of

absence• Accommodation or favored work• Entitlement to benefits while on leave• Medical certification requirements• Employer’s right to require a fitness for

duty report• Job protection during leave• Right to reinstatement following leave

Definition of DisabilityDefinition of Disability

FMLA ADA WDCA

Serious health condition that involves:

Inpatient care; or

Continuing treatment; or

Pregnancy or prenatal care; or

Chronic serious health condition; or

Multiple treatments; or

Permanent or long-term incapacity

1. Physical or mental impairment that substantially limits a major life activity; or

2. Has a record of such impairment; or

3. Is regarded as having such impairment

A limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a work-related injury or disease.

Is There a Right to a Leave of Absence?Is There a Right to a Leave of Absence?

FMLA ADA WDCA

Yes – up to 12 weeks per year (for specified reasons)

Leave may be taken intermittently or on a reduced schedule when a serious health condition is involved

Maybe, as a reasonable accommodation:

Obtaining medical treatment

Recuperation

Repairs on medical equip

Avoiding temporary adverse conditions at work

Receiving training

No

Not per se

But in fact, employees get paid leave (workers’ comp. benefits) if claim is not disputed

Is There an Accommodation / Favored Work Requirement?Is There an Accommodation / Favored Work Requirement?

FMLA ADA WDCA

If employee is entitled to FMLA leave, employee is not obligated to accept favored work

Employer is not obligated to offer favored work

Employer may be obligated to offer as a reasonable accommodation.

Examples: transfer, job restructuring, modified schedule, etc.

Employer not obligated to offer, but employee’s refusal of reasonable favored work may result in forfeiture of workers’ comp benefits during period of refusal.

Is an Employee Entitled to Benefits During the Leave?Is an Employee Entitled to Benefits During the Leave?

FMLA ADA WDCA

Employee is entitled to continuation of healthcare benefits during the 12 weeks of leave.

Employee continues to pay his/her share of premiums, if any

No, but treat benefit continuation for ADA leave as you would any other leave, pursuant to the employer’s policies

Employee is entitled to medical treatment, rehabilitation services and partial wage continuation

No right to continuation of health insurance

Can an Employer Require Medical Certification?Can an Employer Require Medical Certification?

FMLA ADA WDCA

Yes – certification of serious health condition and need for leave

Recertification permitted – timing/ frequency varies depending on circumstances

2nd and 3rd opinions permitted for original certification only

Only if medical inquiry is job related and consistent with business necessity

Employer is entitled to verification of the continued need for leave

Employer can require ongoing proof that the work-related disability continues

Can an Employer Require a Fitness for Duty Report?Can an Employer Require a Fitness for Duty Report?

FMLA ADA WDCAYes, before employee returns to work

Employer is permitted to require certification that employee can perform essential duties of job

Yes, before employee returns to work

Direct threat to safety of employees or others

Yes, before employee returns to work

Is There Job Protection During a Leave?Is There Job Protection During a Leave?

FMLA ADA WDCA

Employer may terminate employee for bona fide reasons unrelated to leave

Employee can be terminated at any time for reasons unrelated to ability to work

Leave of absence may become an undue hardship

No, but cannot terminate because filed a claim

What Rights Do Employees Have to Return to Work?What Rights Do Employees Have to Return to Work?

FMLA ADA WDCA1) Right to reinstatement to same or equivalent position

2) Right to reinstatement lost if not able to return after FMLA is exhausted

3) Exception: no greater right to continued work than if no leave was taken

Right to reinstatement at end of leave, if the leave was a reasonable accommodation

Job modification or transfer to vacant position may be required

Employee has no right to job reinstatement, but

Employer cannot deny reinstatement because the employee filed a workers’ comp claim

Employer Policies and Contract TermsEmployer Policies and Contract Terms

Leaves of Absence

Light Duty

Disability Benefits

Absenteeism

FMLA

Disability Accommodation Procedures

Anti-Retaliation

Complaint Procedures

Employee Health and WelfareEmployee Health and Welfare

Workplace Safety

Injury Prevention

Employee Wellness

Early Return to Work

Employee Assistance Program

Disabilities Management —Why is it Important?Disabilities Management —Why is it Important?

Absenteeism/lost productivity

High turnover

Low employee morale

Excessive administrative staff time

Statutory violations

Retaliation claims

Legal fees

Management Best PracticesManagement Best Practices

Get the facts

Be patient

Take emotions out of decision

Treat all employees equally

Comply with each statute

Look at big picture

Strive for “win-win”

Management Best PracticesManagement Best Practices

ADA-compliant job descriptions

Interactive (and meaningful) accommodation process

Effective evaluation procedures

Supervisor training

Coordinated approach – ADA, FMLA and Workers’ Compensation

Scenarios

Questions & Answers

Thank you for attending.Thank you for attending.

Melvin J. MuskovitzDykema Gossett PLLC2723 S. State Street, Suite 400Ann Arbor, Michigan 48104734-214-7633mmuskovitz@dykema.comwww.dykema.com