Virginia Workers Compensation American Inn of Court W Barry Montgomery Esq KPM Law wwwkpmlawcom barrymontgomerykpmlawcom WHERE EMPLOYMENT LAW AND WORKERS COMP TYPICALLY COLLIDE DISABILITY CLAIMS MADE IN CONNECTION WITH WORK INJURY ID: 783493
Download The PPT/PDF document "PRIMER ON EMPLOYMENT LAW" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
PRIMER ON EMPLOYMENT LAW
Virginia Workers’ Compensation American Inn of Court
W. Barry Montgomery. Esq.
KPM Law
www.kpmlaw.com
barry.montgomery@kpmlaw.com
Slide2WHERE EMPLOYMENT LAW AND WORKERS COMP. TYPICALLY COLLIDE
DISABILITY CLAIMS MADE IN CONNECTION WITH WORK INJURY
FMLA LEAVE REQUESTS FOLLOWING A WORK INJURY
RETALIATION CLAIMS (BEING FIRED FOR FILING A W/C CLAIM)
RETALIATION CLAIMS FOR REPORTING AN UNSAFE CONDITION AT THE WORKPLACE TO THE VIRGINIA DEPARTMENT OF LABOR OR OSHA.
Slide3THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act (“ADA”) was passed in 1990;
APPLIES TO ORGANIZATIONS WITH 15 OR MORE EMPLOYEES (42 U.S. Code §12111(2);
The ADA applies to state and local governments employers and private sector employers. The federal government, native American tribes are generally excluded.
Jones v.
Sternheimer
, 387 F. Appx 366 (4
th
Cir. 2010)
Slide4AMERICANS WITH DISABILITIES ACT
What happens when an employee suffers a disabling injury on the job but want to keep his position?
The ADA prohibits discrimination against an employee who is a “
qualified individual
” on the basis of disability;
a
qualified individual
is an employee, who can
still perform the essential functions of the position
, with or without an accommodation.
In other words, the employee is protected if he is able to meet all of a program’s requirements in spite of his handicap”
Tyndall v. National Educ.
Ctrs
., 31 F.3d 209, 213 (4
th
Cir. 1994).
Slide5AMERICANS WITH DISABILITIES ACT
The ADA defines “Essential Job Functions” as tasks that are
fundamental to the employment position.
See 42 U.S.C. §12111(8);
The ADA specifies two sources to determine which job functions are “essential”:
The employer’s own judgment regarding which functions are essential as a matter of business necessity;
Written job descriptions or advertisements of the job;
See 29 C.F.R §1630.2(n)
AMERICANS WITH DISABILITIES ACT
Accordingly, all employers should maintain detailed job descriptions for each position. Since we know the EEOC and other government agencies will necessarily look to these descriptions to decide what the “essential job functions” are and whether an injured/disabled employee can still perform the job.
Job descriptions should be updated as the job functions change due to new equipment or technology available;
Be sure that advertisements and job postings are consistent with the official job descriptions—make sure that recruiting/human resources uses the correct job descriptions.
Slide7AMERICANS WITH DISABILITIES ACT
The term “
disability
” encompasses a broad range of physical and mental impairments.
“
disability
” is defined as a physical or mental impairment that substantially limits one or more major life activity; a record of such impairment or being regarded or perceived as having such an impairment. See 29 C.F.R. §1630.2(g);
The ADA has been amended such that the definition of disability should be “construed in factor of broad coverage of individuals.” See 42 U.S.C. §12102(4)(A)
Disability
includes such conditions as diabetes, epilepsy major depression and bipolar disorder. However, job related stress is NOT a disability under the ADA. See.
Weiler
v. Household Finance
, 101 F.3d 519 (7
th
Cir. 1996).
Slide8AMERICANS WITH DISABILITIES ACT
The Equal Employment Opportunity Commission (“EEOC”), has stated that the following conditions “virtually always” substantially limit a major life activity:
Deafness;
Blindness;
Missing limbs or wheelchair bound;
Autism, cancer, cerebral palsy, diabetes
HIV/AIDS;
Psychiatric disorders including major depressive disorder
See 29 C.F.R § 1630.2(j)(3)(iii)
Slide9AMERICANS WITH DISABILITIES ACT
Prohibited Conduct:
The ADA prohibits an employer from taking the following actions towards disabled employees: (See 42 U.S.C. §12112(b)
Limiting, segregating or classifying employees in a way that adversely affects employment opportunities or status;
Using standards or methods of operation that discriminate against disabled employees;
Failing to make a reasonable accommodation for a disabled employee
unless
the accommodation would impose an undue hardship on the employer.
Creating a hostile work environment for disabled employees.
Slide10AMERICANS WITH DISABILITIES ACT
Failure to accommodate
a disabled employee is a heavily litigated area;
Your employee, following a workers comp claim, might request a reasonable accommodation in order to perform his job duties upon return to work.
The ADA requires an employer to provide a reasonable accommodation that enables the disabled employee to perform the essential functions of her job or enjoy equal benefits of employment as those similarly situated employees without disabilities.
See 29 CFR §1630.2(o)(1)
Slide11AMERICANS WITH DISABILITIES ACT
The ADA requires the employer to make a “reasonable accommodation, not a perfect one.” See
Adams v. Anne Arundel County
chool
System
, 789 F.3d 422, 432 (4
th
Cir. 2015);
The employer is not required to provide the employee with the specific accommodation requested but only to reasonable accommodate so that the employee can perform the essential job functions.
EEOC v. Newport News Shipbuilding
, 949
F.Supp
. 403 (E.D. Va. 1996)
The employer is not required to create a new position for the employee or transfer another employee out of a job.
Carroza
v. Howard County
, 45 F.3d 425 (4
th
Cir. 1995).
Slide12AMERICANS WITH DISABILITIES ACT
UNDUE HARDSHIP TO THE EMPLOYER:
Remember the disabled employee can not require the employer to make an on the job accommodation that imposes an
undue hardship
on the employer.
The following factors are used to evaluate whether an accommodation imposes an “undue hardship”:
The nature and net cost of the accommodation;
The financial resources or facilities of the employer and the facility the number of employees at the facility and effect on the expenses of the facility;
The type of operations of the employer including the structure and functions of the workforce and geographic locations;
Whether the accommodation would be disruptive to the business or pose a danger to others.
See 42 USC §12111(10); 29 CFR §1630.2(p)
Slide13AMERICANS WITH DISABILITIES ACT
The ADA, like most federal acts, prohibits retaliation against the complaining employee for exercising her rights under the ADA. See 29 CFR §1630.12(a)l
Saffell
v. State Farm Mut. Ins. Co
., 202 F. Supp. 2d 475 (E.D. Va. 2002).
If an employer terminates or otherwise retaliates against an employee for claiming protection under the ADA, it may be liable for compensatory damages, and attorney’s fees.
Slide14FAMILY AND MEDICAL LEAVE ACT(FMLA)
The FMLA entitles eligible employee to up to 12 weeks of leave per year to care for themselves or family members. (26 weeks to care for a service member). The employee’s job and benefits are protected during the leave period.
FMLA applies to any employer that has 50 or more employees for each working days during 20 or more workweeks of the current or preceding year.
The be eligible, an employee must have been employed for at least 12 months and for at least 1250 hours for the past 12 months and be employed at a worksite with 50 or more employees. 29 CFR §2611(2)(A)
Slide15FAMILY AND MEDICAL LEAVE ACT(FMLA)
Events that Trigger entitlement to FMLA Leave
:
Birth of a child;
Placement of a foster child in an employees home;
The need to provide care for a an immediate family member who has a serious health condition;
A serious health condition that prohibits the employee from performing job functions. (this would include disabilities
fomr
job injuries).
The need to provide care for a family member in military service
See 29 USC §2612(a)(1); 29 CFR §825.112
Slide16FAMILY AND MEDICAL LEAVE ACT(FMLA)
Serious Health Condition
is defined as an illness, injury or impairment of physical or mental condition that involves (
i
) in patient care in a hospital or residential medical facility OR (ii) continued treatment by a health care provider.
SEE 29 USC §2611(11)
Department of Labor regulations give an expansive interpretation
ot
the FMLA’s requirement of “continued treatment” by a health care provider:
A period of incapacity of more than 3 consecutive days and then any subsequent treatment relating to that same condition that also involves treatment 2 or more times by that health care provider qualifies as “continued treatment. 29 CFR §821.115(a)
Slide17FAMILY AND MEDICAL LEAVE ACT(FMLA)
Intermittent Leave/ Reduced Workweek:
Intermittent leave is FMLA leave take in separate blocks of time due to a single qualifying reason. See 29 CFR §825.202(a);
A reduced workweek FMLA leave schedule is a regular schedule that reduces the employees hours per day or week to allow for medical treatment.
The employee needing intermittent FMLA leave must make efforts to scheduled their leave so as not to unduly disrupt the employer’s operations. See
Ranade v. BT
Ams
., Inc.
, 581 Fed. Appx. 182 (4
th
Cir. 2014); 29 CFR § 825.203
Slide18RETALIATION AGAINST AN EMPLOYEE FOR FILING W/C CLAIM
The Work Comp Act provides for a private cause of action (lawsuit) by an employee against an employer that discharges an employee solely because the employee intends to file or has filed a claim under this title (the
workders
comp. act) or has testified or is about to testify in any proceeding under this title. The discharge of a person who has filed a fraudulent claim is not a violation of this section. See §65.2-308,
Code of Virginia.
A successful plaintiff can recover actual damages including back pay as well as attorney’s fees. §65.2-308,
Code of Virginia
Slide19RETALIATION AGAINST AN EMPLOYEE FOR FILING W/C CLAIM
However, the be successful, an employee must present some evidence of the employer’s retaliatory intent. Mere close proximity in time of the termination to the date that the employer because aware of the employee’s intent to file a claim is insufficient for a successful case.
See
Mullins v. Virginia Lutheran Homes, Inc.
, 253 Va. 116 (1997)
The plaintiff may rely on circumstantial evidence, as long as that evidence tends contains something more than just temporal proximity.
Joran v. Clay’s Rest Home, Inc.
, 253 Va. 185 (1997)
Slide20REPORTING INDUSTRIAL SAFETY VIOLATIONS
In connection with a workers comp. injury, the injured employee might filed a complaint with the Virginia Department of Labor for violation of workplace safety rules.
By statute, it is illegal for any employee to terminate, retaliate or otherwise discriminate against an employee because the employee has filed a safety or health complaint or has testified about such a violation. See §40.1-51.2:1,
Code of Virginia
Slide21RETALIATION AGAINST AN EMPLOYEE FOR FILING W/C CLAIM
An employee, after reporting the violations to the Virginia Commission of Labor (Department of Labor), may bring a civil action to restrain the employer from such violations. See §40.1-51.2:2,
Code of Virginia
The employee may also seek reinstatement to his position, back pay plus other appropriate relief.