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March 2008

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

PREVENTING NEEDLESS WORK DISABILITY: ADDRESS THE BEHAVIORAL COMPLICATIONS THAT PROLONG WORK DISABILITY

As we discussed in last month's newsletter, the American College of Occupational and Environmental Medicine (ACOEM) published a guideline in 2006 entitled "Preventing Needless Work Disability by Helping People Stay Employed." The full text of the guideline is published on the ACOEM's website.

The guideline emphasizes preventing needless disability. Studies have shown that the longer an employee is out of work, the less likely that employee will ultimately experience a successful return to work. The loss of social relationships and their identity related to the job itself can further complicate and prolong the recovery process. Ideally, if an employer can prevent that employee from going off work from the beginning, the likelihood of a positive outcome from the potentially disabling event or condition is much higher. If employers can proactively plan a process that results in prompt attention to situations that potentially disable an employee from work, time is not lost when those situations occur, and that first day of disability may be avoided completely in many cases.

After a disability prevention process is created, the employer must then acknowledge the realities of an employee's reaction to the stress of the disabling or potentially disabling situation. Every employee handles stress differently, and every employee has different emotional components that may or may not come into play when a disabling event occurs. The guideline suggests coordination between an employer's EAP (Employee Assistance Program) and disability benefit programs (short-term, long-term, workers' compensation, etc. ) as a "best practice." It is not necessarily mental health treatment or psychological counseling that many of the employees need, but rather they need accurate information and education regarding what to expect from their disability or potential disabling condition. For those that are susceptible to mental health issues, though, it is important to recognize the vulnerability of these employees when the additional stress of disability is layered on top of their underlying condition. Coordinating with the EAP program or similar supportive services may minimize the complications that can result otherwise.

Finally, workplace relationships and family relationships also can affect work-related disability. If an employee is dissatisfied with his job, the guideline discusses the increased likelihood of disability. Similarly, if the employee faces personal stressors in his social and family relationships, disability may be used as a tool to address those problems. The employer and medical system have to acknowledge these complicating factors, and the guideline suggests that employers focus on the "de-medicalization" of the return-to-work/stay-at-work process by asking what the employee CAN do, rather than focusing on what the employee CAN'T do.

An employer also should examine its disability benefit programs and policies, with an eye toward removing or minimizing policies and benefit systems that encourage an employee to stay off work, due to financial incentives. By doing so, the policies and benefit incentives will not cause as many distortions in the medical treatment process, where medical providers are sometimes hesitant to openly address certain aspects of the employee's condition because of the adverse impact on the employee's eligibility for leave or benefits. The ACOEM guideline suggests that employers in particular have some control in the return-to-work/stay-at-work process to remove hidden agenda opportunities by the manner in which they craft their disability policies and programs.

WHEN IS A CIVIL BATTERY CLAIM BARRED BY THE EXCLUSIVITY OF THE WORKERS' COMPENSATION ACT?

In the case of Fjelsta v. Zogg Dermatology, PLC, 488 F.3d 804 (8th Cir. 2007), a registered nurse sued her former employer for a variety of discrimination and retaliation claims, as well as a claim for civil battery. When the employee was asked by her employer to leave for the day, due to alleged insubordination, she refused. The employer then led her out of the building "forcibly though not painfully." Due to a variety of other alleged facts and circumstances she subsequently filed suit against her employer, including a claim for battery based on the incident when she was forcibly removed from the employer's premises. The district court dismissed her battery claim, as affirmed on appeal, based on the exclusivity of the Minnesota Workers' Compensation Act.

A "personal injury" under the Minnesota Workers' Compensation Act does not include "an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment." Minn. Stat. 176.011, subd. 16. The courts in the Fjelsta case did not find that the employer's actions were motivated by personal reasons unrelated to the employment. Therefore, the employee could not pursue the battery claim in a civil suit against the employer, because the alleged incident occurred during the course of employment.

VETERANS WITH SERVICE-CONNECTED DISABILITIES AND THE AMERICANS WITH DISABILITIES ACT (ADA)

The Equal Employment Opportunity Commission (EEOC) recently updated its guide and information sheets concerning Americans With Disabilities Act (ADA) issues presented by veterans returning to the workplace with service-connected disabilities. The EEOC reminds employers that when veterans return to work with service-connected disabilities, the ADA may apply in addition to the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA addresses job security for and discrimination against returning veterans regardless of disablement, while the ADA may come into play if the veteran returns to the workplace with a disability resulting from his or her service activities.

One area where the USERRA regulations provide more protection for employees is in its provisions concerning the assistance an employer must provide to an employee returning to work. An employer may be required to provide training or retraining to a returning veteran, even without a service-connected disability. For disabled veterans, USERRA may provide job protection for the employee even though the veteran's disability does not qualify as a disability under the ADA. As explained by the U.S. Department of Labor, USERRA generally outlines a three-step process to returning a disabled veteran to work:

  1. The employer must make a reasonable effort to accommodate the person's disability so that the person can perform the position that the person would have held if the person had remained continuously employed.
  2. If, despite reasonable accommodation efforts, the person is not qualified for the position in (1) due to his or her disability, the person must be reemployed in a position of equivalent seniority, status, and pay, so long as the employee is qualified to perform the duties of the position, or could become qualified to perform them with reasonable efforts by the employer.
  3. If the person does not become qualified for the position in either (1) or (2) the person must be employed in a position that, consistent with the circumstances of that person's case, most nearly approximates the position in (2) in terms of seniority, status and pay.

The updated information and resources concerning these issues can be found on the EEOC's website. Employers should consult their corporate counsel before making any decisions concerning accommodations for or alternate placement of a disabled veteran, to ensure compliance with both USERRA and the ADA.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.

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