1. Title Goes Here Employment Law: Issues You Need to Know Presented By: Bill Duda Columbia, SC Office SCWCEA’s 1-Day Seminar “Reaching the End of the Road”

2. Objectives Address the basics of each law Identify employment law issues common to workers’ compensation claims Discuss how to address overlapping rights in common workers’ compensation scenarios

3. Common Employment Laws The Family and Medical Leave Act (FMLA) The Americans with Disabilities Act (ADA) The Fair Labor Standards Act (FLSA) Employee Retirement and Income Security Act (ERISA) STD/LTD Consolidated Omnibus Budget Reconciliation Act (COBRA) Health Insurance Portability and Accountability Act (HIPAA) Genetic Information Nondiscrimination Act (GINA) Workers’ Compensation Retaliation (Section 41-1-80)

4. FMLA Basics Covered Employers: All public employers; and Private employers w/50+ employees Covered Employees Employed for at least 12 months total; Worked at least 1250 hours for the employer during the 12 months immediately preceding the leave; Works at a site w/at least 50 employees within a 75-mile radius; and Who have a “serious health condition”

5. FMLA Basics “Serious Health Condition” A physical or mental condition involving Inpatient care in a hospital, hospice or other medical care facility or “continuing care” by a health care provider “ Continuing Care” A period of incapacity of more than three consecutive full calendar days and any subsequent period of related treatment Any period of incapacity due to pregnancy Any period of incapacity due to a chronic, serious health condition

6. FMLA Basics If covered, FMLA leave provides the employee: Pay and benefit protection Job protection – same or equivalent position Protection in w/c situations typically limited to 12 weeks during any 12-month period Additional protection for military-related situations

7. ADA Basics Covered Employers: Employers w/15+ employees Covered Employees Length of service irrelevant “Disabled” and Qualified “Regarded As” or “History of” Requires employers to Make reasonable accommodations Treat disabled employees equally Limits medical inquires job-related, consistent with business necessity Medical information confidentiality Locked up w/limited and controlled access Separate from personnel file

8. ADA Basics ADAAA (effective January 1, 2009) Assume Disability And Attempt to Accommodate Reasonable Accommodation Examples Job modification (how it is done) Reassigning non-essential job duties (who does it) Reasonable leave or extensions of defined leave limitations Modified work schedule

9. FLSA Basics Requires employers to Pay at least minimum wage for all hours worked Pay for overtime at a rate of 1.5 times the employee’s “regular rate” Provides exemptions from minimum wage and overtime requirements for certain employees paid in a certain way

10. ERISA Basics ERISA – governs how benefits are delivered STD/LTD – benefit plans to provide income during medical leave COBRA – allows continuation in benefit programs, at the employee’s cost, after a “qualifying event” HIPAA – prohibits disclosure of “protected health information” by “covered entities” such as health care providers, health plans and health care clearinghouses

11. GINA Basics Prohibits employers from requesting or making employment decisions on employee’s genetic information, including family history Exceptions exist, particularly for inadvertent receipt of such information, if “safe harbor” language is included in the request which results in genetic information being disclosed Not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws”

12. GINA – Safe Harbor Language “The Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

13. SC Retaliatory Discharge S.C. Code Ann. Section 41-1-80 No “discharge or demotion” for wc claims made in good faith No such action for testifying in any related proceeding “But for” standard. See Hinton v. Designer Ensembles, Inc. 540 S.E.2d 94 (S.C. 2000)

14. Application to Workers’ Comp Injury Occurs/Is Reported to Employer Otherwise impermissible medical inquiries, related to the accident/injury, are now permitted under the ADA and FMLA Accident reporting form Confidential medical record? Depends… Medical Release? How broad? Too broad can be problematic ADA, FMLA, GINA Employ same principles as medical inquiries Use GINA safe harbor unless genetic information intended for use as a defense to the injury claim

15. Application to Workers’ Comp Medical Documentation Received Keep in separate file, with limited access to those who need to know. (ADA? FMLA?) ADA requirements are typically the strictest here, so comply with them as a matter of course Ignorance can be bliss Employee Is Taken Out of Work (Leave) FMLA eligible? If so, get the paperwork going Ongoing - existing medical records may be enough FMLA coverage? If so: Cannot force light duty, but TTD/TPD may be lost if light duty is offered within restrictions Cannot count light duty time worked against FMLA leave allotment

16. Application to Workers’ Comp Employee Is Taken Out of Work (Leave) Other “light duty” considerations Permanent light duty is not typically a reasonable accommodation If the “light duty” position is created as a temporary position employer does not have to provide it as a permanent accommodation Accommodations all have to do with the employee performing the “essential functions” of an existing position No ADA obligation to create a position Accommodations before MMI? Pay can be reduced to meet lesser duties

17. Application to Workers’ Comp Communication with Medical Providers Workers’ Comp provides greater access to information than either the ADA or FMLA SC provides for direct communication without consent if appropriate notice given Consider limiting inquiries to those necessary to assess the nature and extent of the workers’ compensation injury No genetic information unless relevant Ignorance is bliss when it comes to the ADA

18. Application to Workers’ Comp Fringe Benefits While On Leave ADA Treat employees on ADA leave the same as other leave FMLA Employer must maintain group health benefits during FMLA leave (employee can be required to continue to pay his/her share) Workers’ Compensation No specific protection in South Carolina ERISA/COBRA (Group Health Plans)? Remember to check plan eligibility requirements

19. Application to Workers’ Comp Use of STD/LTD STD v. LTD – Statements of work-relatedness Not dispositive STD = not if work related LTD = partial benefits possible even if work related Reimbursement dictated by plan documents HIPAA can complicate accessibility of records

20. Application to Workers’ Comp Leave Duration FMLA: 12 Weeks Unpaid Leave during a 12- month period ADA: Case by case. Indefinite = unreasonable May require extension of defined leave limits Workers’ Comp: Some states prohibit terminations or adverse employment actions while an injured employee is recovering In SC, no specific leave provision; Employee is not entitled to a reasonable period of time for rehabilitation to demonstrate the ability to perform his former job duties - Horn v. Davis, 416 S.E.2d 634 (S.C. 1992)

21. Application to Workers’ Comp Job Protection FMLA Right to former or equivalent position if returning before exhaustion ADA Not technically entitled to former position However, if vacant and able to perform essential functions with/without reasonable accommodation employee should be reinstated Workers’ Comp No specific protection in SC

22. Application to Workers’ Comp Return to Work Consider if FMLA requires same/equivalent position Will an accommodation be needed? If return is not possible, is there a vacant position for which the employee is qualified? Consistency in employment decisions to avoid the appearance of retaliation

23. Application to Workers’ Comp Clincher/Resignation/Release Global Settlements Apportionment Issues – taxes and sufficient consideration Employment Releases Lots of quirks – be mindful of them. Examples: ADEA/OWBPA language – 21/7 day rule Participation in EEOC/SCHAC Tax issues (1099 v. W-2)

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