School law issues – workers’ compensation Andy Fugitt, The Center for Education Law, P.C. Oklahoma School Assurance Group 2018 Workers’ Compensation Loss Control & Safety Seminar

When Does workers’ compensation Coverage Arise? When an employee suffers a compensable injury, which is; Accident, cumulative trauma or occupational disease; Arising out of the course and scope of employment.

Course and scope of employment Essentially means when the employee is doing the job they were hired to do The term includes activities conducted on the premises of an employer or at other locations designated by an employer and travel by an employee in furtherance of the affairs of an employer that is specifically directed by the employer. This term does not include: an employee's transportation to and from his or her place of employment, travel by an employee in furtherance of the affairs of an employer if the travel is also in furtherance of personal or private affairs of the employee, any injury occurring in a parking lot or other common area adjacent to an employer's place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer, or any injury occurring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer's facility and the work break is authorized by the employee's supervisor;

Good news It is NOT your responsibility to determine if an injury/claim is compensable; It IS your responsibility to promptly provide medical care to an injured employee and may do so with a medical provider of your choosing; If you fail to provide medical care within five (5) days notice of the injury, the employee may obtain medical care from a provider of his/her choosing at the District’s expense; Your obligation is to provide medical care to an injured employee (and to report injuries to CBR).

USE OF LEAVE/TTD Employee is TTD if temporarily unable to perform his or her job or any alternative work offered by the employer (85A O.S. Sec. 45). Per WCC Rule, no TTD for first three days (except in cases of injury occurring the course of duties from assault or breaking up fight). So first three days are unpaid, or employee charged leave at employee’s choice.

USE OF LEAVE/TTD Injured school employees; have the right to supplement TTD with unused sick leave – up to full amount of wages; School cannot make the employee use sick leave; Victim of assault at school has right to full contract salary for the remainder of contract (or for such time as teacher is unable to teach because of injury) (70 O.S. Sec. 35f).

Return to Work Issues Employee is TTD; Has made improvement but not MMI; Capable of performing “alternative work” (light duty); Employee can refuse light duty…but will lose TTD; Can employee be terminated for refusing light duty?

Return to Work Issues - (cont.) Administrators – yes. (reasons); Support – yes. (cause); Teacher - it depends; For probationary teacher, it may be cause; Career teacher would have to be admonished; Best to admonish any teacher to return on light duty.

Employees who Cannot Return to Work at All District not required to rehire/retain employee who after TTD ends is physically unable to perform assigned duties. 85A O.S. Sec. 7; So what do you do with this employee?

Questions about Employees who cannot Return to Work Employee has completed medical treatment and has reached MMI; Confirm that employee is not TTD; All leave exhausted and employee cannot return? Is employee physically unable to return to former position/duties (job description should be compared to MMI report)? Given any restrictions, can employee be accommodated in former position or reassigned? If the employee has exhausted all paid sick leave, is the employee eligible for Family Medical Leave (FMLA)?

Americans with disabilities Act - accommodation As defined by the ADA, a “disability” is “a physical or physical impairment that substantially limits one or more major life activities of [an] individual.; A “major life activity” includes “lifting” and “the operation of a major bodily function.” The Code of Federal Regulations defines a “physical or mental impairment” as “[a]ny ... condition ... affecting one or more body systems, such as ... musculoskeletal ....; An individual is “qualified” within the meaning of the ADA if: (1) the individual can perform the essential functions of his job; or (2) if the individual is unable to perform the essential functions of his job, a reasonable accommodation by the employer would enable him/her to perform those functions A reasonable accommodation is any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability;

Family medical leave act The Family and Medical Leave Act (FMLA) applies to all schools: District must employ 50 employees at worksite; Covers employees who have been employed for 12 months by the employer; And who have worked 1,250 hours in 12 months.

fmla Employers covered by the FMLA must grant up to twelve weeks of unpaid leave per year to covered employees who take off work for one of the following reasons: Birth or placement of a son or daughter; To care for a spouse, parent, or child who has a serious health condition; Employee’s own serious health condition. More leave for military reasons

FMLA & TTD & SICK LEAVE FMLA leave and TTD leave can be run concurrently if your Board policy states and notice give to employee; (29 CFR 825.702) FMLA leave and paid sick leave can be run concurrently if your Board policy states and notice given to employee; (this applies to all situations, not just workers’ comp. situations.) Employer cannot charge paid sick leave for time off on TTD; Employee may supplement TTD with paid sick leave up to amount of full salary, at employee’s option; Employer has five business days to give employee notice that FMLA has been granted. Employee who exhausts paid leave and FMLA and who is physically unable to return may be dismissed/non-renewed.

Employees who Cannot Return after TTD, Sick Leave or FMLA Teacher should be admonished to return to work; due process Support employee may be recommended for dismissal; inability to performed duties; follow Board policy; due process.

Workers’ Comp: TTD An employer may not discharge an employee during a period of temporary total disability solely on the basis of absence from work. (85A O.S. Sec. 7)

Workers’ compensation retaliation Retaliating against an employee who is asserting their rights or who is acting in accordance with the Oklahoma Workers’ Compensation Act is illegal.

Thanks for listening! Andy Fugitt (405) 528-2800 afugitt@cfel.com