Unraveling the differences and similarities regarding leave, light duty, reassignment and return to work issues: Implications for Employers

Operator

Good day, ladies and gentlemen. And welcome to “Unrevealing the Differences and Similarities Regarding Leave, Light Duty, Return to Work, Reassignment: Implications for Employer’s” conference call. At this time all participants are in the listen-only mode. Later we will conduct a question and answer session and the instructions will follow at that time. If anyone should require assistance during the conference call, please press star then 0 on your touch tone phone and as a reminder this conference call is being recorded At this time, I would like to introduce your host for today’s conference, Miss Robin Jones, you may begin.

Robin Jones

Thank you and good morning to some of you and good afternoon to others depending on where you might be in the country. Welcome to our February 2009 session. This is the second of a 4-part series of programs where we are addressing employment related issues in this 12 month series, the ADA Audio Conference program. The program is brought to you by the regional ADA centers, otherwise known as the Disability and Business Technical Assistance Centers. We are 10 Centers located across the country that provide technical assistance and training and material dissemination on issues related to the American''s with Disabilities Act. And we welcome you again to this particular program. Please keep in mind that we have individuals joining us today using a variety of different technology. Some of you are on the telephone, some individuals are using real-time captioning via the internet and others are listening to the program through streaming audio on the internet. This session is being recorded, and a written transcript is being created as part of this program. Both the recording and written transcript will be posted to the www.ada-audio website within ten business days following the conclusion of this program if you wish to refer back to the system. The speaker has provided us with an outline of his presentation today and you also will have additional reference materials that were provided you as well. Hopefully everyone was able to download those materials and access them prior to the program so that you are able to follow along We are excited to have our speaker join us today and I am going to go ahead and introduce him. He got a lot to say, a lot of information to cover and we will be able to get going here as soon as I do his introduction and he will be taking and entertaining questions as we go through the session today as well. So our presenter today is Oyvind Winstrom, he is a shareholder with the law firm of Lindner and Marsack a practice focused primarily on the litigation of employment matters. They are located in Milwaukee, Wisconsin. He has successfully defended both private and public sector employer on variety of employment related matters involving discrimination, harassment, unlawful discharge, violations of non competing agreements, wage and hour matters, retaliation in both state and federal courts, as well as before various administrative agencies. He has extensive experience defending Worker''s Compensation claims on behalf of the insurance industry and large self-insured employers, both at the hearing tribunal level as well as labor and industrial review commissions and appellate court levels. Mr. Winstrom devotes a significant proportion of his practice to assisting and counseling clients in various employment matters including discharge and discipline issues, non-compliant and other employment contract matters, wage and hour disputes, family medical leave issues and, individual rights and responsibilities in the workplace. He was named 2006, 2007, and 2008 Rising Star by the Wisconsin Super Lawyers published by Law and Politics Attorneys and chosen as Rising Star undergo an extensive peer review process and only 2.5 percent of attorneys in Wisconsin are selected for that so we are honored today to have him with us today and to have somebody whose been recognized in that particular area. He has an undergraduate degree in political sciences and behavioral science and law from the University of Wisconsin-Madison and his law degree from Marquette University in1995. He is a member of the American Bar Association including the employment law section of the Wisconsin Bar Association. He serves as a chairperson of the board and director of Volunteers of America in Wisconsin, so he has got a varied background and I think that you will enjoy hearing what he has to say today and comes from the perspective of looking at what do employers need to do to make sure that they address these particular issues and don’t end up in front of a court of law in Wisconsin or anywhere in the country. So I am going to go ahead and turn the microphone over to Oyvind. Go ahead, Oyvind.

Oyvind Winstom

Thank you very much Robin for that introduction. You probably know a lot more about me than you ever wanted to but you know these teleconferences are always difficult in that we don’t have or I as the speaker don’t have the ability to kind a get feedback and to see you as I am speaking so if you could help me out by nodding your head if I say things that makes sense so that I know you understand I would appreciate that. My topic today is going to be leaves of absences and other accommodations, light duty work, and return to work issues in the context of the Americans with Disabilities Act (ADA), the Family Medical Leave Act and Worker’s Compensation laws of various individual States. In that I reside and work primarily in Wisconsin, my discussions going to focus on Wisconsin''s Worker’s Compensation laws, but the laws of most other states are regular similar rather similar to Wisconsin. Now the three laws that we will be discussing today create a lot of confusion, they are often referred to as the Bermuda Triangle of employment laws in that the obligations and responsibilities of employers under the three Acts are often overlapping, not necessarily contradictory but over lapping and I think the overlap between the three laws creates quite a bit of confusion for employers, but hopefully we will be able to do today is to take the three laws, unravel them, look at them individually, and I think when you look at the obligations and responsibilities under each of the three laws independently after determining which of the three laws applies to each specific situation there generally isn’t any contradictory obligations it is just a matter of understanding what your obligations by looking at all three laws. So we will to do that today. I am going to begin the discussion with an overview of the Americans with Disabilities Act. I guess before I do that I want to make one kind of key point, as you are looking at a particular situation, the first thing I think that always needs to be done is you need to determine which of the three laws will apply to your particular situation. The coverage of the three laws are different. The Americans with Disabilities Act covers all employers both private and public sector employers that have at least 15 employees. The Family Medical Leave Act on the other hand, only covers those employers that have 50 or more employees for each working day during a 20 or more calendar work weeks of the current or preceding calendar year. So companies between the size of 15 and 50 will be covered by the ADA but will not be covered by the Family Medical Leave Act. Finally the Worker’s Compensation Act generally covers and applies to any employer that has at least one employee, so virtually everybody is covered by the Work Comp Act. Real small employers may only be covered by the Worker’s Comp Act, once you reach 15 the ADA kicks in, once you reach 50 the Family Medical Leave Act kicks in. Under the ADA, page 2 of my outline, the ADA requires employers to provide reasonable accommodations to the known physical and mental limitations of otherwise qualified individuals with disabilities. A couple of key phrases there, reasonable accommodation which we will talk about. That the trigger the obligation to provide the reasonable accommodations, the individual needs to have a physical or mental limitation and the individual has to be a qualified individual with a disability. The term qualified individual with a disability is a person who either with or without reasonable accommodation can perform the essential functions of a job. So not everybody is a qualified individual. If the individual cannot do all the essential functions of a job either with or without an accommodation, the person is not qualified and would not be protected by the ADA. So, if the individuals qualified you than have to determine whether or not the person has a disability. A disability is defined as a physical or mental impairment that substantially limits one more major life activities of that individual, or a record of such an impairment or, being regarded as having such an impairment by the employer. We are not going to spend any time on the latter two, the record of, or as being regarded as, but suffice to say there are circumstances in which an individual may not qualified as having a disability, but is still covered by the Act, because the employer regards or treats that person as having a disability. So a physical or mental impairment that substantially limits one ore more major life activities. There has been some significant changes to the ADA recently as adopted by the amendments to the Americans with Disabilities Act 2008 which came into effect now about a month ago January 1 of 2009. And couple of things the new law did one it redefined of what is meant substantial limitation. In the past, the term substantial limitation was synonymous with severely restricting or substantially restricting. What the law did was to say, no that is not the proper definition. So the EEOC has now been asked to implement some regulations that help define what the term substantial limits and what that means, which we are still waiting for. But it is going to be relatively clear from the Act that the purpose of the amendment is to broaden the scope of those physical or mental limitations that would be considered substantially limiting as to create a broader group of employees that would be covered by the Act. Another significant change in the 2008 amendments is that mitigating measures are no longer considered. Mitigating measures are such things as medications, artificial aids, hearing aids, eye glasses, anything that is given to the individual to help ameliorate the effects of the disability. In the past, in order to determine whether or not the persons was disabled, if there is mitigating circumstances or mitigating measures, those were taken into consideration. Under the new amendment to the Act those can no longer be considered. So for instance, you have an individual who is has a seizure disorder, is on medication for that condition, which are fully controlled. The person has no seizures while they are on medication, under the old interpretation that person would not likely be considered disabled under the Act. Now, you consider the condition in its unmitigated stage, so you would consider it without the effects of the medication, meaning that that person probably now would be considered disabled. The only exception to that are eye glasses and corrective lenses, those can be considered if the employer can show a business necessity why they are applying an uncorrected vision standard. The new amendments also changed the fact that a condition that is in remission or episodic is still considered a disability as long as it would be a substantial limitation when it is active. The last major change I want to touch on briefly is on the bottom of page 3, major life activity. In the past major life activity had not been defined by the statute. There was some EEOC guidance that provided a small list of things that would be considered a major life activity. This has been significantly broaden to include such things as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, bending, twisting, speaking, breathing, learning, reading, a whole slew of other things. It is also included major bodily functions which in the past had not been included, including functions of the immune system, cell growth, digestive, bowl, bladder functions, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. So the universe of major life activity is significantly broader now under the new Act now than it was under the previous one. So turning to page 4, reasonable accommodation, so if you have an individual who is a qualified individual with a disability that would then potentially trigger the obligations on behalf of an employer to provide a reasonable accommodation for that individual. There has been a number or kind of a list of potential accommodations that have been created through the EEOC and through case law which includes such things as making existing facilities used by the employees more readily accessible and usable by the individual, job restructuring can be a reasonable accommodation in some circumstances, generally not required or an employer is not required to modify or eliminate essential functions, but if it is a job restructuring involving some marginal tasks that can be an accommodation that is reasonable. Part-time or modified work schedules can be reasonable, reassignment to a vacant position assuming the individual is qualified to perform that job can be reasonable. Acquiring or modifying tools or equipment or work stations again can be reasonable. Adjusting modifying examinations, training programs, materials, providing readers, and interpreters, especially in the context of an interview, or the hiring process where there might be testing procedures that the employee has to go through. Those types of accommodations are certainly reasonable. Leave of absence can also be a reasonable accommodation, we will talk about a little bit further about the scope of what is reasonable accommodation in the leave of absence context and what is not. Work at home can be a reasonable accommodation although courts generally don’t look at that with any significant favor. There are certain things that are considered not to be a reasonable accommodation and these are pretty firm, eliminating an essential job function has never been required as a reasonable accommodation, permanent light duty work is also has not been required to be a reasonable accommodation. The rational is that a permanent light duty position by its definition would generally modify or change the essential functions of the job. An employers is also not required to excuse a violation of a uniformly applied work rule, if an individual violates a rule by the virtue of a disability the fact that there is a violation would still justify some discipline against that individual. The law has also never required the promotions of an employee nor has it required the lowering of a uniformly applied production standards. If an employer has certain expectations as far as performance it has the right to expect those expectations with respect to both disabled and non-disabled employees. Finally the employer is not required to provide what are referred to as personal use items, such things as prosthetic limbs, wheel chairs, eye glasses, hearing aids things that are used exclusively by the individual, not by employees as a whole. Now once there is a triggering obligation to provide a reasonable accommodation generally it is done through what is called the interactive process. The interactive process is a method by which the employee and the employer sit down, they discuss the persons disability the need for the accommodation and come up jointly with a solution or an accommodation that would meet the needs of the employee. Generally it is the employee’s obligation to come forward with some information to say I have a disability and here is what I believe I need as far as an accommodation. The employer does not have an obligation to do something that with the absence of the employee coming forward with that information. Once the interactive process has been engaged in and some potential accommodation are identified, the employer than has the ultimate say in determining which of two or more possible accommodations to actually implement. So the ultimate say goes to the employer although the preferences of the employee should be given consideration in that process. The flip side of the reasonable accommodation is the undue hardship defense. So if a reasonable accommodation can be identified that the employer would be required to provided the employer would need do that unless he can that establish to provide the accommodation would constitute an undue hardship under the law. An undue hardship aren’t any real specific or black and white rules of what is a hardship and what is not, its done on a case by case basis, kind of a cost benefit analysis, looking at the cost of the accommodation, the benefit it provides to the employee and it looks at the nature and cost of the accommodation, the financial resources of the company or the facility where the accommodation is being requested, the effect on the company the effect on the operations, the potential impact on the company and its employees including the morale of employees. Now with respect to the morale defense those are very difficult arguments to make for the employers, to say that well we don’t believe that this accommodation should be required because it would create a hardship in that employees would become upset the and the morale of the workplace would be hurt through this accommodation. Those are very very difficult defenses to make. As I indicated the cost, the interactive process contemplates a cost benefit analysis in which each case has to be kind of analyzed on a case by case and individualized basis. Page 7, federal case law, a couple of key points I want to make before we move on to the Family Medical Leave Act, first off I think I indicated previously the ultimate determination - I am sorry, the obligation to provide a reasonable accommodation is generally triggered by the employee by making a request for an accommodation or providing information to the employer that some form of accommodation is required. The ADA generally does not protect those employees that have extremely erratic or unexplained absences, certainly some absences needs to be tolerated but once it gets to the point that it becomes so frequent and so pervasive that the employee isn’t there enough to be able to perform their job there is an argument that can be made that those individuals are no longer protected by the Act because the absences are such that it prevents them from doing the essential functions of the job. A number of court cases have held that regular attendance in the workplace is an essential function of most every job. So if the employee is absent so much that they are can’t perform the essential functions or meet the needs of the employer through regular attendance, there is an argument that could be made that those individuals would not be considered qualified individuals under the ADA. On the bottom of page 8, a medical leave of absence is generally considered a reasonable accommodation, especially if it’s for a relatively short or definite period of time. There aren’t any black and white rules on the duration of the leave that must be given to an employee. Certainly, a few weeks is generally very reasonable up to a few months. Where there is an overlap between the ADA and the FMLA if an employee is off work for a period of time, if the employee is covered by the Family Medical Leave Act, the employer needs to provide at least 12 weeks of leave for a serious health condition. In certain circumstances the employer may be obligated to provide even additional leave under the ADA above and beyond the 12 weeks as a reasonable accommodation. Intermittent and indefinite leave, intermittent leave is certainly a reasonable accommodation there is many cases that have held that an employer is required to provide intermittent leave really needs to be based upon the medical condition in question and the provision of intermittent leave is consistent with the requirements of the FMLA which also contemplate and provide for intermittent leave. Top of page 10, under the ADA the fact that an employer provides an accommodation to an employee for a period of time does not necessarily mean that the accommodation is reasonable and would be required under the law. Simply because an employer does something for on a temporary basis generally is not going to be used against them to say that well you did it for this short period of time you have to do it on a permanent basis. Although I think its going to be harder for an employer in that circumstance to come back and say we did it for six months or for four months and now we can’t any more and to do so would be an undue hardship especially since its been done in the past that defense is going to be harder to maintain. Under subparagraph D on page 10, indefinite leaves, indefinite leaves are generally not required. Now what is indefinite and what is not often times is a tough answer certainly when some one goes off work and the doctor says this person needs to be off work for indefinitely and we will follow up with me in two weeks or four weeks that is not considered an indefinite leave but at some point in time when the person has been off a significant period of time, has exhausted their 12 weeks of leave under the Family Medical Leave Act and there is no anticipation or expectation that that employee is going to come back to work and the doctor isn’t able to provide any guidance on when the employee might or might not be able to get back to work, in those situations then you are looking at kind of an indefinite leave where an employer I believe can look at what do we do moving forward. Final point or couple of more here work at home as I think I indicated earlier work at home is generally not required as a reasonable accommodation. It can be required in certain circumstances where there isn’t any need for interaction between the employee and a supervisor with the company, for instance in a medical transcription kind of work is a great example of where work at home may be required and work at home may be reasonable for a shorter period of time kind of on a temporary basis rather than on a permanent basis, the courts have generally not require it be made an a permanent basis. Light duty work on page 12, light duty is generally not required as an accommodation because it modifies or changes the essential function of a job. An employer may be required to restructure a job to reallocate non-essential functions, but not the essential ones. Light duty programs are very common and popular for employers. Many have them in the context of occupational injuries, so if an individual has a work related injury, is off work the company will accommodate that injury by providing light duty work to the employee. And there is a significant benefit in doing that, in that if a light duty work or offer is made to an individual under Worker’s Compensation benefits and the employee accepts it than that is going to cut off their entitlement to benefits plus the employee comes back to work. If the employee refuses the light-duty work then the benefits will still be cut-off. So by making a light duty work offer to an employee on Worker’s Compensation benefits, regardless of what the employee does it is going to cut off the obligation to provide work comp out benefits. And I think an employer is safe to do that and can so and not offer those light duty jobs to individuals who are off work for a non-work related condition that might even be covered by the Americans with Disabilities Act. This will be the final point on the ADA. One of the issues under the new amendments of the Act is whether or not the law applies retroactively. Meaning that there is a situation that occurred prior to January 1, 2009, what law should apply? Should that law that applied as of that date be used or the new law that took effect as of January 1. And virtually all of the courts that have looked at this with the exception of a few have held that the Act is not retroactive and that the new law should only apply to those cases and situations that arise after January 1, 2009. So with that before I move on to the Family Medical Leave Act, if there is any specific questions on the ADA? I will be happy to take those now.

Robin Jones

Operator, do you want to give instructions?

Operator

Sure, ladies and gentlemen, if you have a question at this time, please press the 1 key.

Robin Jones

And they should be questions specifically related to the ADA here and the issues associated with the topic.

Operator

Okay, one moment for our first question. Okay, our first question. Please un-mute your line.

Caller

You mean us?

Operator

Okay, I am sorry.

Robin Jones

Go ahead.

Caller

Yeah, I am with the ADA. Earlier in your conversation you said that a person with a disability, it can be in their file that they bring a note from their doctor for a specific space who determines who is disabled, the company or the doctor?

Oyvind Winstom

Well, ultimately, it would be a judge or a hearing examiner if the case ever gets to that point. But ultimately, it is I guess initially, at least, it is going to be the employer that is going to make that determination. The doctor will provide restrictions to the individual or provide information to the employer regarding the nature and extent of the condition and the disability and restrictions. The employer will then look at that and determine whether or not you know if there is an obligation to provide an accommodation. So there isn’t a fact finder in that process that says yes it is a disability or no it isn’t, as an employer I think it is often times you make the assumption that we will treat this as a disability because there is a possibility that a judge down the line would find that it is in fact a disability so you kind of err on the side of caution you say okay we are going to treat this as a disability, and we are going to move on an look at the obligation of providing an accommodation. Now, ultimately if that case goes to court, the employer could argue this is not a disability and then it is going to be up to the judge to make that ruling.

Robin Jones

Thank you. Are there any additional questions?

Operator

Yes.

Robin Jones

Go ahead.

Operator

Our next question. You may ask your question.

Robin Jones

Go ahead Caller.

Caller

The question is how long is permanent light duty?

Robin Jones

How long is permanent light duty?

Oyvind Winstom

Well, generally a light duty program is temporary light duty. So it is provided to an employee who sustains a work related injury during the period in which the employee is in the healing period or what is called MMI in some states so it is the period of time when the employee is recovering from the work related injury. He is convalescing and improving, once they reach what is MMI or called end of healing then generally the light-duty program is no longer available to that employee The company at that point will look at the restrictions, at this point permanent restrictions and determine whether or not there’s an obligation to bring that person back. And that analysis should be done both by looking at the obligations under the ADA, potentially under the Family Medical Leave Act, and certainly under the Worker’s Compensation Act.

Robin Jones

They wouldn’t particularly use the terminology of permanent light duty, because light duty itself implies that it is a position or a different job than what the person had previously held or previously done. So, it is a... you wouldn’t look at it and use that terminology of permanent when you use light duty, right?

Oyvind Winstom

I would agree with that Robin, yes.

Robin Jones

Okay.

Oyvind Winstom

And if I said permanent light duty in my presentation I apologize, I miss spoke.

Robin Jones

Any other question at this time?

Operator

Our next question. Caller, you may ask your question.

Caller

Hi, I just had a question regarding the statement that reasonable accommodation is a cost benefit analysis, because my understanding is quite different in that you look at the cost against the resources of the parent corporation but you don’t in terms of benefits, you basically look to see if the accommodation is effective and an employer can choose a lower costing but effective accommodation, but I don’t know where it says you really look at the benefit to the employee because that almost implies that higher priced employees would get more than lower priced or lower salaried employees. I don’t think the ADA does that.

Oyvind Winstom

No and when I said it is a cost benefits, it is the cost to the employer and the benefit or effectiveness of the accommodation to the individual. But I agree if there is a number of potential effective accommodations that have been identified through the interactive process, ultimately, the employer can determine which is the most or which one to implement, even if one potentially is slightly more effective than another one? Ultimately the question is it effective or isn’t it and if it is effective then the employer has the right to determine which of those effective accommodation to implement.

Caller

Alright thanks for clarifying that.

Oyvind Winstom

You are welcome

Robin Jones

Next question, please.

Operator

Okay. The next question.

Robin Jones

Go ahead Caller.

Caller

Yes. If you have an employee that according to her doctor she can perform all the essential job functions of her classification but however, working in the environment that she is working it can be detrimental for her mental health, and they are requesting a transfer to another department, would that be considered a reasonable accommodation or not?

Oyvind Winstom

Probably it would be if the transfer is to a position that is vacant and the individual employee is qualified to perform. Generally a transfer would be considered a reasonable accommodation.

Caller

Okay, thank you

Robin Jones

And again that would be in the context of the transfer and so for example. You know say you take your state employer and you have got offices in you know five different counties across the state, that, you know, transferring me up to from lets say we will use Wisconsin because that is you are from the Milwaukee area up to, you know, Superior, because that might be where the vacant position is, that would probably come into the mix of the review and the decision, correct?

Oyvind Winstom

Yeah, I think those are maybe more or less common than the transfers within the office or within the location.

Robin Jones

Right.

Oyvind Winstom

If you have a state employee who works in the Parks Department and they want a position in the Office of the Governor or something, so it is a new position with a new environment, perhaps somebody has a relationship issue with a co-worker or supervisor and they need to be away from that person, That is often a reason why a transfer is requested, so if it is a transfer that will take that person out of the environment that is creating the problem, yeah, generally, that would be reasonable whether it is in the same building or across town or even across the state.

Robin Jones

Okay. Next question, please.

Operator

Our next question. Caller, you may ask your question.

Caller

Good morning or good afternoon, my question has to do with the concept of undue hardship particularly in government operations with the current economic situation as it is, and not looking any better a lot of government operations are continuing tight belting, which means we are perhaps going to have fewer resources for accommodations especially when it requires assistance from other staff, our staffing levels go down we lose people but we are not able to rehire. The basic question becomes, will there be some fluidity in defining what is an undue hardship for a particular employer especially since lots of these cases take months to play out in court?

Oyvind Winstom

I think absolutely, they will be. And simply because reasonable accommodation was required in one case, one circumstance, at one economic time. Things do change. And ultimately the courts will look at each case individually, will look at the resources of the employer and will look at how burdensome is this upon this employer. I think in tough economic times, the amount or the cost of a potential accommodation to constitute an undue hardship I think it is going to go down and I think there has been some evidence of that already happening within some of the decisions we are seeing.

Robin Jones

I think that we also have to caution that when you look at the state government and such, you really are looking at the resources of the entire state and so just exactly how much that fluidity might apply to a state government versus a private entity you know it is still going to probably be different in how it is viewed by the courts. The states are still held to a different no I don''t want to say different standard, but they still have a deeper pocket than a private corporation or private business might have when you look at the overall resources.

Oyvind Winstom

I think that is true. A budget of a state you look at the overall budget, and I think you know some courts may say well we are looking at a $400 million budget, or whatever the number is, that is a significant amount of money that potentially could be used as compared to a smaller employer that has maybe much much smaller resources than that but ultimately it is the size of the employer and how detrimental that potential accommodation would be on the business and the operations of that company or that municipality.

Robin Jones

I think you also have to point out that some of the research that has been done looking at the case law and the complaints that are filed and things of that nature, don''t find that costs are really the dominant part of any of the decision makings in the courts or otherwise. That the issues of reasonable accommodations and providing reasonable accommodation, that the cost of accommodation has not been a focal point its been much more issues of modifying a policy and procedure not being reasonable or something before its been cost. At least what we have seen up to this point in the charges.

Oyvind Winstom

I think that is true, it is a good point. Most of the cases are won or lost on the question is the person disabled, is this person a qualified individual, is this a reasonable accommodation? If you are an employer and you are sole defense is this constitutes an undue hardship for us, you know that might be a very tough case to try and to win.

Robin Jones

And we do anticipate with the ADA Amendments Act that the number of, you know, cases won on the basis, is that person a person with a disability or not are probably going to decrease giving the broadening of the definition.

Oyvind Winstom

Absolutely, very, very true.

Robin Jones

Other questions please.

Operator

Next question. Caller, you may ask your question.

Caller

How do the unions and/or seniority play into a situation where a person has acquired a disability and is requesting a transfer?

Oyvind Winstom

Generally speaking you don’t have to violate a collective bargaining agreement. So if there is someone in a position with seniority, and for example the employee wants to go into a position they don''t have the seniority to get over another employee, the ADA is not going to trump your collective bargaining agreement so you can still hold tight say well because you don’t have the seniority and because you contractually don’t have the right to that position, that we can’t transfer you there.

Caller

Thank you.

Robin Jones

Well the National Labor Relations Act issue that obviously do come into play here. You know one law against the other, but of course you still have to remember that collective bargaining agreements are part of this process and that they must look at their own and how they engage in the collective bargaining process in regards to the agreements that are written and such, so that they are not discriminatory as well. So that they don’t absolutely preclude any discussion of reasonable accommodation as part of that agreement that there should still be a conversation that takes place between the employer and the collective bargaining unit.

Oyvind Winstom

Yeah the interactive process should still happen ultimately in deciding what is a reasonable accommodation, what is you know what does the law require. If it violates a collective bargaining agreement there was a supreme court case called Barnett I believe it was a couple of years ago, that said you do not have to violate a collective bargaining agreement in order to accommodate an individual.

Robin Jones

Right and that was an employer policy actually that the Barnett versus US Airways had that was an employer policy about transferring into different positions. Alright why don''t we go and move on just so we have enough time for the other topics.

Oyvind Winstom

Thank you Robin. Moving on to the Family Medical Leave Act, the purpose of the Family Medical Leave Act is to provide time off to a worker or employee who suffers from a serious health condition, it also covers time off for leave associated with an employee who needs time off to care for a family member with a serious health condition, and also for the birth or placement or adoption of a child. For purposes of our discussion today I am going to focus on Family Medical Leave or medical leave for an individual employee rather than for a family member. In cases where you have family member type issues the issues of the ADA and the Work Act obviously aren’t going to be applicable. As I indicated there is a number of requirements, one that the employer has to be large enough, you have to have 50 employees in order to be considered an eligible or to be a qualified employer under the Family Medical Leave Act. Additionally, the individual worker or employee has to be employed by the company for at least 12 months and has to have worked at least 1250 hours in the preceding year. We will look briefly at each of those two requirements. The 12-month requirement is a 12-month of service to the employer. It does not have to be consecutive. So if there is an employee who worked for the company for a couple of years maybe takes a year off, and then comes back to work and has only worked there six months, you look back seven years so if in that past seven years that employee has worked 12 months for that company they will satisfy and meet the 12 months of service requirement. The 1250 hour requirement has to be in the 12-month period immediately preceding the commencement of the leave. And the 1250 hours will exclude certain part-time workers and certain new employees that just haven’t worked enough hours to meet that threshold. The new regulations to the Family Medical Leave Act do make it clear however that if you have an employee who meets the 1250 hour requirement but hasn''t met the 12-month requirement at the time of the leave begins, potentially that employee can grow into their leave. So they may not be FMLA qualified when they start taking their leave of absence, but at some point once they have met their 12-month of service, they then would be considered to be Family Medical Leave qualified, something to keep in mind. As far as the employer size the employer has to have at least 50 employees within 75 miles of the employees work site. So if you work with a company that has multiple locations within 75 miles of each other, those various facilities or locations will be aggregated in order to determine whether or not they meet the 50 employee threshold. Home offices are generally not considered work sites. Work site is defined as the location in which the employee reports or from which is assignments are made. So assuming the employer is large enough, the employee has met the service requirements of the employer, the federal law then requires a eligible employee to take up to 12 weeks of leave because of a serious health condition that makes the employee unable to perform the functions of the job. Serious health condition is defined as a illness, injury or impairment, physical or mental condition that involves one of two things, either inpatient care in a hospital, hospice, or residential care facility or two continuing treatment by a health care provider. The first of these the inpatient care is relatively straight forward, it is basically an overnight stay in a hospital, residential medical care facility and than any period of incapacity so you don''t need an ongoing period of incapacity as you do with the other one. The continuing treatment by health care provider, requires one a three day of incapacity from the medical condition and on top of the three days of incapacity you need medical treatments either two treatments by a health care provider within the first 30 days of incapacity, or one treatment and a follow-up course of treatment or continuing treatment under the supervision of the health care provider. So for instance if you have a medical appointment and the individual employee is put on a course of prescription medication, that is going to be considered one treatment plus a continuing course of treatment which would then as long as the incapacity is for 3 days, that is going to be considered a serious health condition under Family Medical Leave Act. Generally, treatment included, only includes in-person visits, has to be within 7 days of the first day of incapacity and include such things as examinations and tests to determine whether or not the individual has in fact a condition that qualifies as a serious health condition. It does not include routine physical examinations, eye exams, dental examinations and those types of things. Now with respect to what is a serious health condition and what is not? Under the old regulations, certain kind of minor ailments, the common cold, flu, ear aches, upset stomachs, ulcers, headaches, and those types of things were generally excluded kind of automatically from the scope of the Family Medical Leave Act. Under the new regulations they make it clear that those types of conditions can be considered a serious health condition, if they meet the other requirements, so simply by saying well this person has the flu, therefore that is not a Family Medical Leave qualifying event that can create some problems. In addition to the three days of incapacity plus the two days or two visits to a health care provider or the one plus the ongoing course of treatment any period of incapacity due to pregnancy, prenatal care, or applying, would be considered a serious health condition. As well as any period of incapacity or treatment due to chronic serious health conditions any period of incapacity for long term conditions such as Alzheimer, stroke, cancer those types of things it doesn’t need to be three days and it doesn’t have to be you don’t need those two doctor visits. Now assuming an employee is entitled to leave, it is up to 12 weeks of leave during a 12-month period. We are on the top of page 18. The 12-month period can be determined by the employer either on a calendar year basis, or if the employer elects, it can be on a rolling 12-month period coinciding either with the date of the leave, or corresponding with the employee’s anniversary date. So whatever the 12-month period the employer elects to count the Family Medical Leave, that is what should be use for all cases. If a holiday follows within a certain week, that entire week is counted as family medical leave so the employee simply because they are off on a holiday doesn’t mean that that is one less day of FMLA that they would burn. When an employee takes intermittent leave under the Family Medical Leave Act, it is only the amount of time the employee actually takes that should be counted toward the employee’s entitlement. If an employees off work for two hours, that person uses then two hours of Family Medical Leave that would go against their 12 week entitlement. An employer also has the right to substitute or require substitution of accrued paid leave, so if a company has a paid time off policy or sick leave policy and the employee requests Family Medical Leave time, the employer can then mandate that the employee use their paid sick leave or paid time off before using the family medical leave. They would still use the Family Medical Leave but it would run concurrently. If an employer doesn’t do that then what can happen is the employee will take 12 weeks of family medical leave, at the conclusion of the 12 weeks, but then say well, now, I have two weeks of vacation and 5 sick days I want to use. So by using it up at the beginning there wouldn’t be anything left at the end of the 12 weeks. Generally speaking an employee is entitled to reinstatement to his or her position upon return from the leave. However an employee is not entitled to any right, benefit, position of employment other than any right, benefit or position to which the employee would have been entitled had the employee not taken the leave. So essentially any employee who takes leave is entitled to the same rights and benefits as if the employee had never taken the leave in the same, in the first instance. Now one thing that becomes problematic is no-fault attendance policies. Companies have commonly used what is called no-fault attendance policies where the company doesn''t care why the employee is off work. If you miss time from work you get an occurrence under the policy. You accumulate a certain number of accumulations or occurrences during the year and when you get to a certain point it results in discipline and then up to and including termination. If a company has a no-fault attendance policy the company needs to be careful not to count any time taken off that is for the Family Medical Leave qualifying under the no-fault attendance policy. To count days that are Family Medical Leave against that type of a policy directly violates the Family Medical Leave Act and can get an employer into significant trouble. An employee is not entitled to the restoration or work to the same position if he or she cannot perform the essential functions of the position or the equivalent position. So if the employee comes back from leave after the 12 weeks and is unable to perform the job that he or she was doing you should then look to see whether or not there is an equivalent position that the person can do. If he or she can’t do an equivalent position or the original position, then the obligation under the Family Medical Leave lapses. Once the 12 weeks are up and the employee is unable to come back to work there is no further obligation under the Family Medical Leave Act. The only potential additional obligations would be under the Americans with Disabilities Act, again to look at whether or not there is a reasonable accommodation, perhaps a continuing leave or some other accommodation that would be required under the ADA. On page 19 under paren D, the termination of an employee on Family Medical Leave may be permitted under certain circumstances. If the employer can show that the employee would have been discharged even had he or she not been on Family Medical Leave, that employee can in fact be reduced. So if there is a reduction in force, which many companies are experiencing these days if the company is looking at reducing certain employees and some of those individuals selected for the reduction are currently on Family Medical Leave as long as they can demonstrate that that person would have been selected had they not been on the Family Medical Leave, they have the right to select that person for the reduction. An employer also has the potential of terminating an employee on Family Medical Leave if it is learned for example that the individual has engaged in fraudulent activity somehow violating, abusing the Family Medical Leave. And that is the case in the Crouch case cited on page 19. An employee has the right to reject light duty work so if an employer has a light duty program and the employer makes an offer to the individual of light duty work which are within the restriction, the temporary restrictions of the employee the employee has the right to say, no I am going to continue on my Family Medical Leave, I am not going to accept the light duty or part time assignment and there is nothing the employer can do about that. Since with the Family Medical Leave Act gives the employee the right to take up to the 12 weeks of leave for the serious health condition, and the employer cannot mandate or require the employee to come back to work. Couple of other quick points, one problematic area is with bonuses and other kinds of benefit payments that are available to the employees. Under the new regulation an employer needs to treat employees on Family Medical Leave the same as they would any other employee that would not have been on the leave, or on other types of leaves. So if there is a bonus or some kind of incentive program that is available to other employees who are on different type of leaves, not FMLA qualifying, employees on FMLA leave should be treated the same way as those other employees. I am going to skip the military leave section on page 20 and 21. I want to touch briefly on some of the medical certifications and leave entitlements. Essentially under the Family Medical Leave Act, an employer has the right to require a medical certification from the health care provider of the employee certifying that the person does have a serious health condition. Certification is generally sufficient if it provides, the date of the serious health condition, when it commenced, the probable duration of the condition, some relevant medical facts and a statement that the employee is unable to work. That is essentially all an employer is entitled to request under the Family Medical Leave Act. And if the certification provided by the employee contains those four elements it is considered complete and the employer should not, cannot deny it based on the insufficiency or incompleteness of the certification. On the other hand if the certification is not complete, the employee should be given 7 days in which to cure any deficiency in the certification. Page 23, there is a couple of significant changes under the new regulations to the FMLA. In the past if there is a problem with the certification form, that the employer did not have the right to contact the health care provider directly. The only way it could be done is through a, another physician hired by the company to then contact the health care provider. Under the new regulations, an employer does have the ability to call and contact the health care provider directly to authenticate a medical certification. The employer can do it directly without any prior notice to the employee. If it needs to clarify information on the certification, then the employee has to be given first the opportunity to cure any defects in the certification and then you also need a HIPPA release from the employee. But, simply to authenticate that the certification is in fact signed by the doctor, and was issued by the doctor that can be done now directly without going through any further steps. Any questions on the Family Medical Leave Act before we touch on the Worker’s Compensation Act?

Robin Jones

Operator, can you instruct our participant on how to ask any questions?

Operator

Ladies and gentlemen if you have a question at this time please press the one key. Okay, one moment for our first question. Caller, you may ask your question.

Caller

Okay, we have a question on the medical certification, you stated that the employer can contact the physician directly, how does HIPPA come into play with that?

Oyvind Winstom

HIPPA does not come into play when it is simply to authenticate the certification. So if the call is simply to say Doctor X did this employee come in and did you in fact fill out the certification that can be done directly now, HIPPA is not involved. If you want some clarification or if an employer wants clarification on what is included asking questions about the duration of the condition or those types of things then you first need to get, give the employee the opportunity to cure the defect and you have to have a signed HIPPA release from the individual.

Caller

Okay, so when we ask the employee to go ahead and turn in we basically have a questionnaire that we ask the employee what is the medical condition. We don’t ask any particulars to it but we ask them to list okay what is the reason for you asking for FMLA under a medical so if they put whatever cancer or whatever. You know, are we entitled to get any more information or if they just say, bad back or whatever it is, can we require further information from them if we have them sign off on a HIPPA statement?

Oyvind Winstom

Not under the Family Medical Leave Act. If there is an overlap, if this is work related injury, obviously your example, cancer, it wouldn''t be. But if it constitutes a work related injury to, then you are likely entitled to get more information. But if it is purely a family medical leave purely covered by Family Medical Leave Act, once you have pertinent or relevant medical facts, now that hasn’t been real clearly defined, but once you have information regarding to the nature of the condition, and the person and the statement of the person can’t work, you are not entitled to then get additional information about other elements of that condition.

Caller

Go ahead go ahead. Okay. A follow-up, in your opinion what is pertinent?

Oyvind Winstom

I think it is really a case by case basis. I think if for your example is this person has cancer, you know if you have the date it commenced, you have the diagnosis of cancer, you have some information regarding its probable duration, and a statement that the person is unable to work. I think that is all the information that an employer is entitled to at that point under that act.

Robin Jones

Okay. Next question. While we are waiting for the next question to dial in, I have a question that was submitted electronically. Someone who has a company who says that they track, asking you, can they track their FMLA leave through their time system, there currently would be no health information associated and only pass codes and the only people who would have the access would be a controller and management, they would only use it to record days on, days off, and vacation, et cetera. So they are just asking that question.

Oyvind Winstom

And I think the question, is in the context of medical information, should be kept separate from personnel files.

Robin Jones

Right so that they have no medical information only the pass code.

Oyvind Winstom

I think if there is no medical information in the payroll records or the payroll documents showing when employees are working, I think you can do that. Just simply code it as family medical leave or jury duty or whatever other kind of absence the employee might have as long as there is no information regarding the nature of the condition or why the person is off other than Family Medical Leave I think that is okay. I haven''t seen employers getting into trouble doing that.

Robin Jones

Okay, do we have any questions Operator?

Operator

Our next question. Caller, you can ask your questions. Please un-mute your line.

Caller

You mean us?

Operator

Yes.

Robin Jones

Go ahead.

Caller

You mean us?

Robin Jones

Whoever it is at that line go ahead and ask your question.

Caller

Okay. An individual with paraplegic and they had to go to the doctor, maybe twice or three times a year, how would you classify that individual for the FAA frame for leave of absence?

Oyvind Winstom

For the FMLA? Well, the person going to be the persons going to be covered would probably be a under a either a chronic condition or one of these long-term conditions, so you don''t need a specific period of incapacity to qualify as a serious health condition. If a person a paraplegic, it is pretty clear that that’s going to be a covered time, even it is not associated with a period incapacity.

Caller

Okay and also I would now would an employee have to define the vacation time from the sick days for he knows what kind of days he has got up there?

Oyvind Winstom

I am sorry, repeat your question.

Caller

Would the employer have to make it in plain writing about the vacation days and your sick days in order for you to use them properly?

Oyvind Winstom

You mean on the substitution?

Caller

Yes.

Oyvind Winstom

Yeah, if an employee provides certain paid leave to the employee and the employee comes and says I want to take some Family Medical Leave for this serious condition or whatever it is, the employer can then say okay, you employee have X number of vacation days or X number of sick days and, we are going require you to use those initially. So for the first you the employer should say the 10 days or 15 days of the this leave, you are going to continue to be paid, the first two weeks are vacation pay and after that you will use your sick days however you want to do it but yeah you should advise the employee, let them know how may days they have and how that is going to be used. There is an obligation to notify the employee that they are using their Family Medical Leave so as soon as the person goes off on leave or within five days as an employer you should provide notice to the employee, okay we accept this you are off on Family Medical Leave and you are accruing and using up your Family Medical Leave time.

Caller

Okay, thank you.

Robin Jones

Next question if there are any.

Operator

The next question, Caller, you may ask your question.

Caller

I actually have two easy questions. On page you talked a little about holidays, and you mentioned that as well. I was wondering if someone is on an intermittent leave, they are not exempt, but they are on a salary basis so normally in the work week they would get an overtime, I am just throw that out because that adds just a little bit of a the answer is clear to me that they would be paid for the full week. But if it is intermittent leave where they have a let’s say they have a baby and they come back after the six weeks and they want to continue to stay at home part time, or whatever, and we say, okay, you can come in two or three days a week, but a couple of those weeks are holidays weeks, how does that work? What is our obligation as the employer? Do they have do they get docked for that day?

Oyvind Winstom

So holiday pay, if I understand your question is days you are shut down but all other employees are getting paid?

Caller

Yes.

Oyvind Winstom

Okay, if it is a partial week, then generally they would be entitled to get paid for that holiday as long as they, your policy should probably say, in order to get paid for holidays you need to work the day before and the day after, that is very, very common. But if your policy doesn’t define what their obligations are to work before and after to get paid for that day, I think you should treat them as you would treat everyone else, so they should get paid for that day. Because the law says on holidays for a full week absence that is still considered time off so you would count that as a full week of Family Medical Leave. But, if it is a partial week, then you wouldn''t count that day as a holiday. So for instance, if it is a holiday where employees aren’t required to work and the employee is off Mondays and Tuesday and Thursday and Friday are holidays you wouldn’t count the Thursday and Friday against that individual, you would only count the Monday and Tuesday as FMLA days. Does that make sense?

Caller

Yes. So they would get paid even though, they were only supposed to work, let’s say three days that week and they ended up working two days and the other two were holidays they would be paid for four days?

Oyvind Winstom

Correct. Unless your policy or that you have a policy that says in order for you to get paid for those two days you have to work the day before and the day after.

Caller

Oh yeah.

Oyvind Winstom

But in the absence of that kind of policy, then you have to pay them for those days.

Caller

Okay, thanks for the clarification. And the other quick question that I had is on page 19, it states that if somebody took the full 12 weeks, and like I am wondering if they take the full 12 weeks and it doesn''t go to the end of the full 12-month FMLA year, right? I mean they have taken the full 12 weeks that is all they are entitled to.

Oyvind Winstom

Yeah, once you have taken once an employee has taken the 12 weeks of FMLA in the 12-month period. Like I said whatever what ever the 12 month period the employer selects, if an employer selects a calendar year and a person uses their 12 weeks at the end in September, October or October, November , December, then they would have a new allotment of the 12 weeks at the beginning of the next year. But assuming you have used up an employee used up its 12 weeks of Family Medical Leave, there is nothing else that is required under the Family Medical Leave. Any obligations under the FMLA at that point evaporate. So there is nothing more the employer needs to do if the employee is unable to come back after the 12 weeks.

Caller

Which is why most employers use the rolling methods, right?

Oyvind Winstom

The rolling method yeah prevents employees from essentially stacking some leave at the end of one year and then another pair of the leave at the beginning of the next. Because you look backwards from 12 months to the next so there isn’t that. It is a little from an administrative stand point it is a little more difficult. In certain state Family Medical Leave Acts, including the one here in Wisconsin, it requires employers to track the state family medical leaves on a calendar year basis. So in certain states it may not be as feasible to do the 12 month rolling period. But if there is no obligation under your state or if there is no Family Medical Leave Act in your state then the 12 months rolling period I think is the best way to go.

Caller

Thank you.

Robin Jones

Oyvind, I think I would just make it clear that you could have an employee who is covered under FMLA or using their FMLA leave who is also may be eligible under the ADA so while they may have exhausted their 12 weeks of FMLA leave, they may still be as an employer in the position of considering whether or not additional leave would be a reasonable accommodation.

Oyvind Winstom

Absolutely. Absolutely, very good point. And potentially the Worker’s Compensation Act could apply too if the individual is off work due to a work related injury. Once the 12 weeks are up the Family Medical Leave the obligations are gone, but there may be ADA or Work Comp applications at that point.

Robin Jones

And they would have to look at that again from the ADA perspective would be whether or not the leave was reasonable.

Oyvind Winstom

Correct.

Robin Jones

Or additional leave, so okay. Any additional questions at this time?

Operator

Okay, our next question. Caller, you may ask your question.

Caller

I was -- I think I am oh on mute?

Robin Jones

You are ok. We can hear you.

Caller

Okay. I was wondering about the essential functions of the job with the FMLA and the ADA. On the state FMLA form there is a section that talks about essential functions and it might be kind of contrary to what the ADA requires that you have to be able to do the essential functions. Could somebody address that?

Oyvind Winstom

You said the FMLA essential functions on the state FMLA form?

Caller

Correct.

Oyvind Winstom

What state are you located in?

Caller

Ohio.

Oyvind Winstom

Okay, I am not familiar with that form, so it may be somewhat difficult for me to respond but...

Caller

Basically it asks the doctor whether or not the person can do the essential functions of their job and it is on that request for Family Medical Leave form.

Oyvind Winstom

Yeah, there are many state forms that are permissible under state Family Medical Leave that would violate the federal FMLA leave. In the state here in Wisconsin implemented or had a state form that would violate the federal law, so I think as a general rule the best form to use is the federal one. Because often times under state laws you can as an employer, you have the right to request more information than you can under the federal law. There is a new federal form that just came out in the past couple of months here with these new regulations that came out so I would suggest that you look at that an probably use that moving forward.

Caller

Thank you

Robin Jones

Next question, please.

Operator

Okay, our next question. Caller, you can ask your question.

Caller

Would overtime be taking into consideration when we are calculating of the 1250 hours?

Oyvind Winstom

What do you count for the 1250 hours? I didn''t hear the first part?

Robin Jones

They are asking if over time would be taken into consideration when counting the number of hours. Is that correct?

Oyvind Winstom

Yes.

Caller

Yes, that is what she is asking.

Oyvind Winstom

Okay, I am sorry, I just didn''t hear the beginning. Yeah, overtime would be counted. It is actually the hours that the employee is actually performing services for the employer. So overtime time would be counted, but such things as vacation time, or sick time, or holidays, or vacation time, those kinds of things where the employee is not actually present and working would not be counted toward the 1250 hours.

Robin Jones

Thank you very much. Next question, please.

Operator

Okay, ladies and gentlemen, if you have a question at this time, please press the one key.

Robin Jones

Okay, why don’t we go ahead and have you cover the Worker’s Comp and then we can take questions at the end. Does that work?

Operator

Miss Jones, I have a follow-up question.

Robin Jones

Okay, we will take one more and then we will need to move on.

Operator

The follow-up question.

Robin Jones

Go ahead.

Caller

If we are going to go ahead into the Worker’s Comp, because this question is kind of based on both FMLA and Worker’s Compensation and how we would go ahead and treat someone on Worker’s Compensation in lieu of FMLA as far as use of time on the books whether it be sick time or vacation time or whatever so?

Robin Jones

Okay, why don''t we hold that and then and we will have Oyvind give his comments on Worker’s Comp and then bring that question back into play?

Oyvind Winstom

Thank you. That would be great. That is exactly what I was planning on doing.

Robin Jones

Okay.

Oyvind Winstom

So briefly the Worker’s Compensation Act, and again these are all state specific laws, so the laws of your specific state may be some what different than here in Wisconsin. Wisconsin was actually one of the first states to adopt the work comp system, and quite a few of the states are mirrored after Wisconsin but some of the terms and things I am using although it applies to most states it is not completely across the board, so you should as kind of a disclaimer here you should look at your individual state law before kind of making any final decisions on these kinds of issues. Worker’s Compensation is generally a kind of system kind of a no-fault system where if an employee is injured in the workplace, he or she is entitled to certain compensations, both while the employee is off work recovering from the effects of that injury as well as medical treatment is generally covered and if there is a permanent permanency associated with the injury there is certain of compensation or benefits that the employee’s going to be entitled to get from the Worker’s Compensation system. So, it is a no-fault system. It doesn’t matter who is responsible or who is at fault, there is no negligence that is looked at, it is simply if the employee is working and they sustain an injury based on the scope and nature of that injury there are certain benefits that would flow to that individual. Generally there are four requirements for an employee to be able to bring a Worker’s Compensation claim or to receive benefits under the Worker’s Compensation system. First of all this is toward the bottom of page 25 of my outline, at the time of the injury the employee and the employer there has to be an relationship an employee and employer relationship under the Worker’s Compensation Act. So for instance certain independent contractors for example or may not or would not be covered generally by the Worker’s Compensation Act. It is got to be an employee and employer relationship. Secondly the employee has to sustain an injury. An injury generally can be a traumatic injury, slip and fall, some kind of a breakage, some type of traumatic event. It can also be an occupational type of on illness where it occurs over an extended period of time, conditions such as carpal tunnel, or somebody who has a job doing heavy repetitive lifting and all of a sudden develops back pain even though there isn’t a specific triggering or traumatic event that is still generally going to be considered a Worker’s Compensation type of an injury. Thirdly at the time of the time of the injury the employee has to be in the course of his or her employment, meaning that they have to be performing services growing out of or incidental to their employment. So it means they have to be physically present and working and doing work for the employer at the time the injury happens. So somebody in a car accident commuting to work for example is generally not covered. Somebody on a personal errand or some kind of a deviation during the day or engaged in horse play or what ever the case may be, there is a lot of nuances in the laws as far as who is covered and whether or not they are actually performing the services growing out of their employment. Fourthly, the injury has to arise out of their employment. Meaning that the injury has to be causally related to the work that the employee was performing. Generally this means there has to be some hazard or some kind of triggering event that is attributable to the employer that caused the injury. If an employee meets those four requirements and they sustain a work-related injury, the employee is entitled to take time off from work to recover and convalesce from the condition. While the employee is off work getting treatment and recovering, they are generally getting what is called temporary total disability benefits. So it is a percentage of their average weekly wage of their general compensation. Generally it is capped as some statutory amount that is usually about two-thirds or so of their average weekly wage. And the employee gets that kind of tax free during the period of from the date of injury and from the date they go off work sometimes there is a waiting period but they continue to receive that until they reach what is called end of healing or MMI, maximum medical improvement. During that period from the injury until end of healing or maximum medical improvement, the employee is generally under restrictions. If the employee comes back to work during that period of time, then their entitlement to temporary total disability benefits ends. If they come back to work making less, then they were before the injury then they might be entitled to something called temporary partial disability which is a smaller percentage of their wage loss between their old job and their new job. So because of this built in system there is a significant incentive, which I mentioned earlier, about having a temporary light-duty program where employees that are in their healing period that are recovering with temporary restrictions, you make an offer of light-duty work and if the employee refuses or doesn’t accept work within their restrictions then their entitlement to the Worker’s Compensation benefits expires. Now simply because you make an offer of light duty work and the employee says no, does not necessarily give the employer the right to terminate that individual, because they are still recovering, they are still healing they are still in the healing period and they are likely still going to be protected by the Family Medical Leave Act. So at least 12 weeks is protected and during that period of time you can’t do anything with respect to their job. Even after the end of the 12 weeks there is an obligation under the Worker’s Compensation Act to return an employee to work. An employer, who refuses to bring somebody back to work because of a work-related injury, can be liable for penalty claims and certain benefits that were generally brought directly against the employer. As an employer, the employer can’t decide well we are not to bring the person back to work because they have a work-related injury. Now if the person has an injury, goes through the healing period, reaches the end of healing or maximum medical improvement and then are assigned permanent restrictions and the company then looks at those permanent restrictions and says, we cannot accommodate these either in this position or any other position that is vacant, then generally there will not be an obligation to bring the person back to work. But that analysis should be done at the end when the permanent restrictions are imposed by the doctor and when either end of healing or MMI has been reached. To make any decision regarding the employment of that person during that period of healing, it can be very detrimental. And the healing period can last, depending on an injury, it may be a couple of weeks, it may be couple of months, you know in some cases where somebody has a traumatic back injury, and they may have multi level surgical fusion, maybe a re-fusion sometimes you can see somebody being in a healing period for year and a half to two years, so when you are dealing with a work-related injury, the advice I always give to employers is you have to wait until the employee reaches an end of healing or MMI and then look at the what obligations or what any you have at that point in your ability to accommodate and bring that person back to work based upon the permanent restrictions from that injury. Now, while somebody is off of work and in the healing period, just like under the Family Medical Leave Act, there are certain circumstances in most cases or most states where the employee can still potentially be let go, again, if you have reduction in work force or there is evidence of fraud or something else and an employer makes a decision to terminate somebody or reduce somebody during their healing period, the employer can show we would have done this even if the employee had been actively working then again that provides a defense to the employer. Generally if somebody is off on a Worker’s Compensation leave of absence, the employment is protected during that leave and really nothing should be done with respect to the position until end of healing is reached and at that point the employer should look at whether or not they can accommodate the permanent restrictions. One point I want to make is often times, the Family Medical Leave Act, and the Worker’s Compensation Act overlap, generally an employee who goes off on a work related injury and is off work for a period of time those are going to be considered serious health conditions under the Family Medical Leave Act. So simply because something is covered by the Work Comp Act, it is still going to be covered by the Family Medical Leave Act as well. An employer should be careful to provide notice to the employee when they go off on leave that this is an FMLA qualifying event so as soon as they go off FMLA and Work Comp, that should also be counted towards their 12 weeks entitlement under the Family Medical Leave Act and notice should be given to the employee of that fact. I believe that is all of the points I had on the Worker''s Compensation Act. So if there is questions now kind of between the interplay of the three acts, I will be happy to accept those.

Robin Jones

Great, Operator can you cue our group for questions and this time we will take questions on any of the three. Did you want to go ahead I think they were asking did you understand the question that was asked before the end there at the intersect between the two or do you want them to re-ask?

Oyvind Winstom

If they could re-ask it please, I would appreciate it.

Robin Jones

Okay. Operator.

Operator

Ladies and gentlemen if you have a question at this time please press the 1 key. Okay, one moment for our first question. Caller, you may ask your question.

Caller

Okay. I was just wondering about an incident, I know you said that its in the scope of the job or that it is the Worker’s Comp injury that needs to be work related were those kind of words you used, what if it really had nothing to do with their job they just got dizzy and just fell down a few stairs because of their vertigo or whatever their ailment or situation was, and they were injured at work because of that.

Oyvind Winstom

Yeah, generally it has to arise out of the employment and generally in the context of arising out of it, it has to be some hazard of employment that caused the injury. And again every state is a little bit different but I know at least here in Wisconsin there is case law that says if an employee lets say is walking on a flat surface and simply trips over his or her own feet and falls down and cracks their head open, that not going to be considered a work related injury because it didn’t arise out of a hazard of employment. You know this injury could have happened anywhere and the fact that they were just simply walking and tripped on their own feet that is not enough of a hazard of employment to create liability on the employer. On the other hand falling down a flight of stairs, would generally be considered a hazard of employment because the stairs has some inherent danger to it as compared to the flat floor. But there is another case involving a gentleman, this is going way back because in involved a Motorola typewriter and the gentleman was reaching over to put a piece of paper in his typewriter and he herniated a disk and because leaning over was not considered a hazard of employment the court here in Wisconsin held that that is not a compensable injury it didn’t arise out of his employment the fact that he was simply bending that is not enough to create obligation or responsibility on the employers behalf. Does that answer your question?

Caller

Yes thanks.

Oyvind Winstom

But, you should really look at the cases and how that has been interpreted in your particular state but most states have that kind of a system where if it doesn’t have some relation to the job then the employer may not be responsible.

Robin Jones

And Oyvind I have a question that was sent to us electronically asking about the percentage of cases that have been litigated under FMLA type scenarios have been successful for the employer versus the person with the disability. Do you have any sense of that?

Oyvind Winstom

I haven’t seen any statistics on Family Medical Leave. I believe there is some statistics released by the EEOC with respect to the ADA and the percentage was remarkable smaller, I can’t quote you directly.

Robin Jones

Small for the person with the disability versus the employer.

Oyvind Winstom

Yeah right. The vast majority of the cases were won by the employers.

Robin Jones

Right, right but that is, FMLA you are not aware of any specific?

Oyvind Winstom

I am not aware of any.

Robin Jones

And even in your own work do you find that in most situations that the employer ends up prevailing or the person with the disability even with FMLA?

Oyvind Winstom

I would say most cases the employer prevails. Now some of that may be employers are doing things right in the first place or if they make a mistake, those cases are being settled on an early or rather than being litigated.

Robin Jones

Right. Which then you never really see what happened.

Oyvind Winstom

Yeah, so typically it is the ones where the employer through counsel say okay, we did things right here, we are fine under the law; we did what we were supposed to, and then those cases that will be taken to trial and that fully defended. So I think a lot of the bad cases kind of get sorted out earlier and there are even some small settlements that occur in those kinds of cases.

Robin Jones

Okay, great thanks. Any additional questions that we have?

Operator

Okay. Next question. Caller, you may ask your question.

Caller

I don''t know how to un-mute.

Robin Jones

We can hear you, go ahead.

Caller

Okay. Excellent. We have adopted, and this is an FMLA documentation question, we have adopted the four federal forms for documenting types of leave. For you know, one for employees with the serious health conditions, one for family members of employee with serious health conditions and then the two for military leaves.

Oyvind Winstom

Okay.

Caller

What about for someone who is requesting FMLA leave strictly for labor and delivery or for paternity leave?

Oyvind Winstom

Excellent question. I have not seen any forms.

Caller

But they don''t really address those two types.

Oyvind Winstom

No.

Caller

I mean if it is the employee that is pregnant, obviously, we can see that, but should we be using, you know, because it is really not a serious health condition, its labor and delivery, or a paternity leave.

Oyvind Winstom

Sure, so you don’t need the other information, the duration of it and those types of things, all you need is some verification that there was a birth or adoption, something to that effect.

Caller

Exactly.

Oyvind Winstom

So I think you can maybe ask for that information in the form of letter or something from

Caller

Just a general doctor’s note.

Oyvind Winstom

Yeah just a general doctor’s note rather than going through the full certification because I haven’t seen any forms that would address that situation.

Caller

Okay, got you.

Oyvind Winstom

Good question.

Caller

Oh, thank you.

Robin Jones

Our next question please.

Operator

Next question. Caller, you may ask your question.

Caller

Okay, thank you. Okay the question that we had started to ask you earlier referenced the FMLA and the Worker''s Compensation. You said under FMLA we are okay to go ahead and ask for the medical confirmation only we can’t ask any pertinent information because of HIPPA guidelines. What about under Worker’s Compensation? We are not the employer, we are the Occupational Safety and Health Bureau that oversees all of the restricted duty. Now we have a nurse on staff that oversees all these injuries. Do we have any standing in questioning these doctors on peoples claims and their injuries because consequently what happens is that we feel this employee is ready to go back to work, the doctor that is treating them says, oh no this person is okay to stay out of work for whatever it is, whether its four months, five months, or whatever. Are we allowed to, as not being the employer, able to go ahead and contact this doctor and getting medical information from these individuals care and what their prognosis is for return to work?

Oyvind Winstom

You would have to look at your individual states, but generally once an employee either files for Worker’s Compensation benefits or alleges that an injury is work relate, they wave the physician-patient privilege. So I think in most cases in most scenarios if it’s both family medical leave and Worker’s Compensation there is a right to additional medical information and that wouldn’t be available otherwise. Now the information should be used purely for the Worker’s Compensation aspect of the case, the information shouldn’t be shared necessarily with the employer for purposes of tracking FMLA or any of those types of things. It should be used exclusively for responding or handling the Worker’s Compensation claims. Yeah, most states do permit those kinds of inquiries.

Caller

Correct and at any time they can go ahead and use their FMLA as part of that Worker''s Comp, is that correct?

Oyvind Winstom

Well generally what the employer should do is to notify the employee when they go off on Worker''s Compensation, that their time on Worker’s Comp is also being counted towards their 12 weeks entitlement of Family Medical Leave. So once the employees been off work for three months they have used up their 12 weeks of Family Medical Leave, there isn’t then the right to additional leave above and beyond that. If the employer doesn’t do that the employee may go off work on a work comp injuries for four months, come back to work, and then maybe now want they want to take 6 to 12 weeks off for the birth or placement of a child, if you hadn’t run the Family Medical Leave concurrently with the Worker’s Comp then the employer would then have an obligation to give additional Family Medical Leave to that employee.

Robin Jones

Does that answer you question? Okay, we will go on to the next question please.

Operator

Okay, our next question, Caller you may ask your question.

Caller

Under the ADA, does it require a state agency who hires providers for a claimant to provide services to pay them more money if that provider is disabled because of their mode of transportation?

Oyvind Winstom

If I understand your question, you are asking whether an employer has an obligation to pay a disabled employee more because they.

Caller

A provider that we have hired to serve as a claimant on a Worker''s Comp case and that provider is disabled not the claimant.

Robin Jones

So the provider is charging the provider of the transportation services?

Caller

They are charging possibly higher transportation cost because of the mode of transportation they have to take because of their disability.

Oyvind Winstom

And they are turning those charges and charging you additional -- I am not sure I am following your question.

Caller

Correct.

Oyvind Winstom

So do you have an obligation to pay those higher rates because they are using disabled workers?

Caller

Yes.

Oyvind Winstom

Well I assume that you have the right to contract and use whoever you want, right, or are you limited to using that provider?

Caller

Well we are limited to using certified providers.

Oyvind Winstom

Okay.

Caller

And that is obviously what is this person is certified.

Oyvind Winstom

But are there other certified providers that would charge you a lower rate because they are not using disabled workers?

Caller

Yes. Thirty five minutes versus three and a half hours.

Oyvind Winstom

Okay.

Caller

As that an example.

Oyvind Winstom

Yeah, I don''t think there is anything that would prevent you from using -- you know, as long as you are complying with whatever laws that are applicable to this, as far as using providers, I don''t think there is anything that requires you to use a certain provider because they are using disabled workers. And if their cost is greater then, if you don’t want to bare that cost there is nothing that requires you to do that.

Caller

Not even as a state agency?

Oyvind Winstom

You are going to have to look at the contract, probably, between your state agency.

Caller

Okay. Thank you.

Oyvind Winstom

I don''t know. I don''t know.

Robin Jones

That is a complicated one because it would depend on whether the state agency had any provisions that they had a contractual or agreement to you know to provide the services or some kind of a or something that was governing them internally through policy.

Oyvind Winstom

A little too difficult for this purposes of this summary to look at.

Robin Jones

Right. We are at the end of the hour. Unfortunately I know there are additional questions out there and unfortunately, we apologize that we were not able to get to before the end of this program. We do want to thank all of you for joining us. We want to thank Oyvind for spending his time with us today and asking and responding to your questions as well as imparting information to us. We invite you to join us for our next session which is next month in March, again this is a monthly program offered on the third Tuesday of every month. And that particular session is going to be focusing on the issues of electronic communication, and implications for employers in the hiring in the workplace arena. The title of that program is “Virtual Communication: Implications for Employers”. Our speaker for that session is Anthony Tusler and he is with an organization called About Disability and working with employers and businesses on issues of electronic communication and information. We will be exploring various issues related to employer’s obligations to ensure their virtual communication websites, email and other kinds of intra websites and other things are accessible for their potential applicants and employees with disabilities. So join us for that particular session. For more information about the overall program go to our website at www.ada-audio.org And if you have further follow-up questions, related to this session that did not get asked we do encourage you to contact your regional ADA Centers and you can contact them at 800-949-4232. If you don''t know what center serves your particular geographic area, you can go also go to our national website at www.adata.org and identify the center that serves geographic area. Just to clarify that 800 number is both a voice and a TTY number. So again thank you everybody for joining us today, thank you to Oyvind for his time and everyone have a great day.

Operator

Ladies and gentlemen, thank you for your participation in today’s conference. This does end your conference call for today. You may now all disconnect and have a wonderful day.