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September 2008

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

THIS MONTH'S TOPICS:

The ADA Amendments Act of 2008

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008, which is effective January 1, 2009. While not exhaustive, a few of the significant changes resulting from this new law are:

  1. Redefines "disability" under the Act, by rolling back the recent case law that more narrowly defined disability and limited eligibility for protection under the Act. Congress found that the courts had improperly narrowed the scope of the Act and incorrectly found in many cases that individuals were not qualified individuals with a disability despite having a wide range of substantially limiting impairments. Congress found that the Equal Employment Opportunity Commission's (EEOC) regulations created too high of a standard of proof for an individual to establish that they were "substantially impaired" by requiring the person to show that he or she was "significantly restricted" as to the manner or duration under which the person could perform a particular major life activity. Therefore, an employee will have an easier time establishing that he or she is "substantially limited" by an impairment under these amendments.

  2. The definition of "major life activities" has been expanded, but not exhaustively identified through the following lists of "general" and "major bodily functions" major life activities:

    1. General categories of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working;
    2. Major bodily functions that qualify as major life activities: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

  3. Determining whether a major life activity is substantially limited shall not be determined by taking into account the improvement or assistance obtained through mitigating measures, such as medication, prosthetics, mobility devices, assistive technology, or other reasonable accommodations.

  4. Even if an impairment would not otherwise qualify as a disability under the Act, because it was relatively minor or was temporary in nature, if the employee was "regarded as" disabled because of the perceived impairment, the employee is protected by the Act. This amendment broadens the concept of "regarded as" having a disability under the Act.

  5. If a disability or impairment is in remission or only episodic in nature, but if and when the impairment was active it would substantially limit a major life activity, the Act will consider the person as a qualified individual with a disability.

The Equal Employment Opportunity Commission (EEOC) is charged with issuing regulations to implement these amendments, and we will advise you of their impact as they are developed.

Maintaining employment benefits other than health insurance while on workers' comp

In an earlier issue of "Up North" we addressed the scope and extent of any obligations to maintain group health insurance while an employee is on leave due to a work injury.  But what about the obligation to maintain other benefits provided by the employer? 

In terms of the Minnesota Workers' Compensation Act, Minnesota Statutes Chapter 176 does not govern the employment relationship per se, and does not address an employer's obligation to provide or maintain employment-based benefits.  But, other contracts, policies or regulations might create an obligation for an employer to maintain certain benefits while an employee is receiving workers' compensation benefits or while on leave due to a work injury. For example, if the employee is covered by a collective bargaining agreement, the contract may address how and to what extent employee's benefits are maintained or seniority and other benefit credits are accrued during leave. If the employer has a policy or procedure that it customarily follows in cases of an employee receiving workers' compensation benefits, those policies may create obligations over and above the obligations created by law. 

If the Family and Medical Leave Act (FMLA) applies to the employee, it specifically provides that benefits other than group health insurance coverage need not be maintained by the employer while the employee is on unpaid FMLA leave. Most employers will make arrangements with an employee to continue coverage of certain benefits, for example optional life insurance benefits, that otherwise may lapse during leave. The employer may require the employee to continue paying their premium directly while on leave or make other payment arrangements upon the employee's return to work, but such arrangements are as a courtesy rather than a legal obligation.

Before terminating any employment benefit or the employment relationship itself for an employee on workers' compensation leave, carefully review the different protections an employee may have from these various sources. While the Workers' Compensation Act  does not govern the employment relationship, it can provide the basis for a retaliatory discharge claim, and other statutes may provide the basis for a discrimination claim under these circumstances. 

Importance of communication with the employee after an injury

Show concern: An employer should have the claims coordinator, risk manager or supervisor promptly follow-up with the employee upon learning of a work injury. If the employee is off work, call the employee at home to see how he or she is doing. Better yet, have someone from the employer meet with the employee in person to check-in and review the employee's status.  Depending on the circumstances of the injury or anticipated disablement, the employee may be feeling very vulnerable and insecure about his or her employment status. An employer's expression of concern and support, with positive reinforcement of the idea that that the employee will be continuing or returning to work, often goes a long way. If an employer can keep positive lines of communication open, the employee may feel less of a need to consult an attorney early in the claims process. An employer should have a policy or expectation that contact with the employee is maintained--ask the employee to contact his or her supervisor periodically (e.g. weekly) to update regarding status, if disablement from work is expected for a period of time, and/or have the supervisor proactively follow-up with the employee on a regular basis. 

If a representative of the employer attends a hearing or other proceeding related to a disputed benefit, remain civil and respectful to the employee even if relations are strained. If the employee remains actively employed, walking over to the employee and his or her spouse at hearing to greet them is a nice gesture, and lets them know the dispute is a separate matter, "just business" rather than something the employer is taking personally. Educate your supervisors and help them separate personal feelings from any disputes that arise along the way.

Anticipate questions: An employer should promptly review the company's policies regarding workers' compensation benefits with the employee (or remind the employee of the claims representative's name and contact information to answer questions regarding the available medical and other benefits depending on the scope and extent of the injury). If the injury is denied, or there is some dispute related to the availability of workers' compensation benefits, review the availability of other programs for which the employee may be eligible: e.g. short-term disability, long-term disability, paid or unpaid leave benefits.

The employer should explain to the employee if any FMLA (Family and Medical Leave Act) benefits will run concurrently with the employee's workers' compensation leave, or separate from it, if the injury is denied. Policies regarding continuation of health insurance benefits should be reviewed.  The employer should reassure the employee that the employer is there to answer any questions the employee has regarding his or her employment or benefits, again minimizing the need for the employee to unnecessarily or prematurely consult outside sources. 

Return-to-work concerns: An employer should take seriously and listen to the employee and/or co-workers when concerns are raised with the claim, return to work issues, or related matters. A supervisor or manager should address any performance problems with the employee as they arise, while keeping them separate from the workers' compensation injury. An injured employee is still expected to maintain behavioral and performance expectations; the injury does not act as a shield in that regard. On the other hand, an employer should be on alert if an employee claims retaliation or claims that he or she is treated differently (or such is perceived to be occurring). Employers should inquire further, and conduct a prompt inquiry into the concerns, rather than ignoring them.   

If concerns about working outside of restrictions are raised by the employee, co-workers or the supervisor, visit with the employee to explore those concerns. Emphasize the need to work safely and within restrictions. If the employee disregards that instruction and continues to work beyond restrictions (e.g. not asking for assistance with moving or lifting heavy objects despite the employer instructing him or her to do so), the employer may want to consider treating the disregard for restrictions as a performance issue or safety violation, and write up the employee or discipline the employee, accordingly. While an employer cannot punish or retaliate against an employee for having a work injury, an employer can enforce reasonable performance and safety expectations such as working safely within restrictions.

If the employee complains that the supervisors or co-workers require the employee to work outside of restrictions, or reportedly retaliate against the employee when he or she declines to perform duties outside of restrictions, the employer similarly should investigate those concerns. If the investigation suggests this is occurring, the supervisor or co-worker should be disciplined or written up, as well, if disregard of the employee's restrictions continues. 

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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