PRIMER ON EMPLOYMENT LAW - PowerPoint Presentation

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PRIMER ON EMPLOYMENT LAW

Virginia Workers’ Compensation American Inn of Court

W. Barry Montgomery. Esq.

KPM Law

www.kpmlaw.com

barry.montgomery@kpmlaw.com

WHERE 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.

THE 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)

AMERICANS 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).

AMERICANS 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.

AMERICANS 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).

AMERICANS 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)

AMERICANS 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.

AMERICANS 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)

AMERICANS 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).

AMERICANS 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)

AMERICANS 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.

FAMILY 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)

FAMILY 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

FAMILY 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)

FAMILY 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

RETALIATION 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

RETALIATION 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)

REPORTING 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

RETALIATION 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.