Michigan Association of School Personnel Administrators December 3, 2008 Disabilities Management – Integrating FMLA, ADA and Workers’ Compensation Melvin J. Muskovitz Dykema Gossett PLLC 2723 S. State Street, Suite 400 Ann Arbor, Michigan

Disabilities Management  What is it?  What does it encompass?  Why is it important?

Disabilities Management — What Is It?  Comprehensive, integrated, proactive approach  Requires coordination of many possible players Supervisors Human Resources Workers’ Compensation Carrier Workers’ Compensation Attorney Short Term and Long Term Disability Carriers

Disabilities Management — What Does It Encompass?  Employee statutory rights/employer statutory obligations ADA FMLA Workers’ Compensation  Employer policies/benefits  Collective bargaining agreement  Employee health and welfare

Employee Statutory Rights/ Employer Obligations  Each statute has its own provisions regarding: Definition of disability An employee’s right to a leave of absence Accommodation or favored work Entitlement to benefits while on leave Medical certification requirements Employer’s right to require a fitness for duty report Job protection during leave Right to reinstatement following leave

Definition of Disability FMLAADAWDCA Serious health condition that involves: Inpatient care; or Continuing treatment; or Pregnancy or prenatal care; or Chronic serious health condition; or Multiple treatments; or Permanent or long-term incapacity 1. Physical or mental impairment that substantially limits a major life activity; or 2. Has a record of such impairment; or 3. Is regarded as having such impairment A limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a work- related injury or disease.

Is There a Right to a Leave of Absence? FMLAADAWDCA Yes – up to 12 weeks per year (for specified reasons) Leave may be taken intermittently or on a reduced schedule when a serious health condition is involved Maybe, as a reasonable accommodation:  Obtaining medical treatment  Recuperation  Repairs on medical equip  Avoiding temporary adverse conditions at work  Receiving training No  Not per se  But in fact, employees get paid leave (workers’ comp. benefits) if claim is not disputed

Is There an Accommodation / Favored Work Requirement? FMLAADAWDCA If employee is entitled to FMLA leave, employee is not obligated to accept favored work Employer is not obligated to offer favored work Employer may be obligated to offer as a reasonable accommodation. Examples: transfer, job restructuring, modified schedule, etc. Employer not obligated to offer, but employee’s refusal of reasonable favored work may result in forfeiture of workers’ comp benefits during period of refusal.

Is an Employee Entitled to Benefits During the Leave? FMLAADAWDCA Employee is entitled to continuation of healthcare benefits during the 12 weeks of leave. Employee continues to pay his/her share of premiums, if any No, but treat benefit continuation for ADA leave as you would any other leave, pursuant to the employer’s policies Employee is entitled to medical treatment, rehabilitation services and partial wage continuation No right to continuation of health insurance

Can an Employer Require Medical Certification? FMLAADAWDCA Yes – certification of serious health condition and need for leave Recertification permitted – timing/ frequency varies depending on circumstances 2 nd and 3 rd opinions permitted for original certification only Only if medical inquiry is job related and consistent with business necessity Employer is entitled to verification of the continued need for leave Employer can require ongoing proof that the work-related disability continues

Can an Employer Require a Fitness for Duty Report? FMLAADAWDCA Yes, before employee returns to work Employer is permitted to require certification that employee can perform essential duties of job Yes, before employee returns to work Direct threat to safety of employees or others Yes, before employee returns to work

Is There Job Protection During a Leave? FMLAADAWDCA Employer may terminate employee for bona fide reasons unrelated to leave Employee can be terminated at any time for reasons unrelated to ability to work Leave of absence may become an undue hardship No, but cannot terminate because filed a claim

What Rights Do Employees Have to Return to Work? FMLAADAWDCA 1) Right to reinstatement to same or equivalent position 2) Right to reinstatement lost if not able to return after FMLA is exhausted 3) Exception: no greater right to continued work than if no leave was taken Right to reinstatement at end of leave, if the leave was a reasonable accommodation Job modification or transfer to vacant position may be required Employee has no right to job reinstatement, but Employer cannot deny reinstatement because the employee filed a workers’ comp claim

Employer Policies and Contract Terms  Leaves of Absence  Light Duty  Disability Benefits  Absenteeism  FMLA  Disability Accommodation Procedures  Anti-Retaliation  Complaint Procedures

Employee Health and Welfare  Workplace Safety  Injury Prevention  Employee Wellness  Early Return to Work  Employee Assistance Program

Disabilities Management — Why is it Important?  Absenteeism/lost productivity  High turnover  Low employee morale  Excessive administrative staff time  Statutory violations  Retaliation claims  Legal fees

Management Best Practices  Get the facts  Be patient  Take emotions out of decision  Treat all employees equally  Comply with each statute  Look at big picture  Strive for “win-win”

Management Best Practices  ADA-compliant job descriptions  Interactive (and meaningful) accommodation process  Effective evaluation procedures  Supervisor training  Coordinated approach – ADA, FMLA and Workers’ Compensation

 Scenarios

 Questions & Answers

Thank you for attending. Melvin J. Muskovitz Dykema Gossett PLLC 2723 S. State Street, Suite 400 Ann Arbor, Michigan