Tag Archives: FMLA

Workers suffer when HR passes FMLA leave decision buck to disability insurers

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“So what exactly would you say you do here?”

Anyone who has seen Office Space is probably familiar with this quote. I think the quote applies to big corporate Human Resources (HR) departments that outsource Family Medical Leave Act (FMLA) eligibility determinations to private disability insurers.

One purpose Congress had in passing the Family Medical Leave Act in 1993 was that there was “inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.”

The way some big employers determine FMLA eligibility flies in the face of this purpose. If you wanted to design a system to fire workers with health conditions, I’m not sure the craftiest HR and legal minds representing management could come up with a better way to do so than outsourced leave administration.

Why outsourcing leave decisions to private disability insurers is a bad idea

FMLA is unpaid leave. Many employers use short-term disability as paid leave. But if you need to be off-work to get short-term disability then the decision about eligibility for FMLA and disability are one in the same. But if a short-term disability insurer is the decision maker, they have a reason to deny claims because paying claims costs money. So in essence, an employees right to unpaid leave is premised on an insurance companies decision about paying disability benefits.

That this is a terrible idea should be apparent to everyone to knows how insurance companies work.

And seeing exactly how this process harms workers is infuriating.

FMLA leave determinations should be simple

If you work at a big employer, you’ve been there for a year or more and have worked more than 1250 hours in that year and you can’t work because of a health condition or the health condition of a loved one, you’re eligible for Family Medical Leave Act. It’s basically that simple.

FMLA issues often arise when a worker gets hurt on the job. So if a worker brings in a doctors note with work restrictions that an employer can’t accommodate, you would think it would be as simple as HR looking at payroll records to see if an employee is eligible for FMLA.

Plaintiff’s lawyers like me make these determinations all the time in a few minutes when prospective clients call in about claims. I fail to understand how HR managers at large worksites for major companies can’t make the same decisions with the resources they have available.

But that’s not how things work with many major employers.

How outsourced leave works

So instead of the process I described in two paragraphs above. Outsourced leave decisions require the employer and an outside entity to communicate about an employee’s leave eligibility. It also requires an employee, who typically doesn’t have a lot of experience with paperwork, to send documents to their employer and to the leave administrator. Often times these documents are sent by medical offices. Sounds complicated, lots of room for error. Employers have lots of reasons to claim they didn’t get documents or blame employees for not properly communicating.

But it can get even more complicated when some company nurse is hassling an employee or their doctors about a return to work before they are ready.

It gets even more complicated when someone in HR or a company nurse engages in Dwight Schrute/Toby Flinderson-style amateur sleuthing to uncover alleged employee fraud or abuse of FMLA.

Ongoing complications due to remote work by insurers during the pandemic don’t help out either.

All of these complications need to viewed in the context of the disability insurer/leave decider being fundamentally adverse to the workers asking for disability insurance and leave.

Sure, an experienced lawyer would know how to navigate this web. But when it comes to leave applications, blue collar workers are often thrown into this hostile maze without assistance or even knowing where to turn for help.

Why outsourced leave?

Outsourced leave is usually administered in conjunction with short and long-term disability insurance. Employers like these policies, in part, because they are good ways to shift the cost of work injuries away from workers compensation. I think this particularly true for injured workers who may have aggravated an old injury, had an overuse injury or didn’t report injuries immediately. These workers are often mislead by HR and employee health types that workers compensation coverage isn’t available in those situations.

Of course, pushing employees who are hurt on the job to apply for short or long-term disability is just pouring glue on the already sticky situation described above. An application for short-term disability can muddy a claim for workers compensation and vice-versa. A private disability carrier may claim a right to repayment for workers compensation benefits. A private disability company may also have policies that in effect require their beneficiaries to apply for Social Security Disability Insurance. This can complicate a workers compensation claim as well.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Higher out of pocket costs in disputed comp. claims other COVID workers comp(lications)

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I had an awful realization summarizing medical bills in preparation for a workers’ compensation trial; injured workers who aren’t exposed to COVID-19 are in for a nasty surprise due to the resurgent pandemic: having to pay deductible in denied or disputes workers’ compensation.

Due to the COVID-19, many hospitals in Nebraska are delaying non-urgent surgeries because of lack of space in hospitals. Often times orthopedic injuries which are the most common workers’ compensation injuries are deemed to be non-urgent.

Of course, if workers’ compensation cases are accepted a worker doesn’t have to worry about medical expenses. However, many workers compensation case are disputed. In disputed case, many workers fortunate enough to still have health insurance pay for surgeries with private health insurance.

But private insurance requires you to burn through a deductible in order to have insurance start paying benefits. Your typical white-collar weekend warrior or Crossfit mom typically waits until the year to have surgeries as they don’t have to pay the deductible because it was spent down through out the year

But because of delays in non-urgent surgeries, more injured workers paying for surgeries in disputed workers compensation cases with private insurance will need to pay deductibles for procedures delayed into 2021.

So what options do workers have in this situation?

The first option is to get a lawyer and file a workers’ compensation lawsuit if you haven’t done so already. This may seem self-serving, but under Nebraska law, if a medical bill is related to a workers’ compensation claim a provider must delay collections efforts until the case resolves. (Of course, if you need a surgery and] your employer or their workers compensation insurer is denying medical care, you should get a lawyer even if you don’t have to pay a deductible)

Other problems with COVID delays

Higher out of pocket medical costs aren’t the only hitch for injured workers due to surgical delays to due to COVID-19. Workers who need to miss work due to a medical condition only have 12 weeks of job protected leave under the Family Medical Leave Act. (FMLA) Delays in surgery due to COVID may prolong treatment and return to work beyond 12 weeks.

Earlier in the pandemic, I thought the silver lining of medical delays could mean more temporary total disability (TTD) for injured workers waiting for medical treatment. I still think that could be true, but I can also see employers being more aggressive in return to work or voluntold community service light duty work to get around paying lost income benefits. Voluntold light duty assignments are full of pitfalls for injured workers

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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New decade, new recession, same old Equifax and TALX

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Mounting unemployment claims cause distress for newly unemployed workers and create logjams for state labor departments tasked with processing and deciding unemployment claims.

But record unemployment means good times for one of America’s most hated companies – Equifax.

Equifax, TALX and unemployment

Equifax, better known for a data breach effecting 143 million in 2018, works with employers to defend unemployment claims through its TALX division. Back in 2010, when TALX was an independent company, TALX drew media scrutiny for its role in delaying and denying unemployment claims during the so-called Great Recession. Equifax bought TALX in 2012. Equifax/TALX has continued working with employers to deny unemployment claims.

Don’t get me wrong, employers have a right to defend unemployment claims. But on the occasions when employees push back against Equifax they often win. Equifax often no shows hearings. But many people just give up after a claim defended by Equifax gets denied. Competent legal representation can often help an employee get a denial of benefits reversed, but many if not most people don’t seek representation in unemployment appeals.

Justice delayed is justice denied

Fortunately, many people appeal denial of unemployment benefits. Pre COVID, the time between an appeal and a hearing was roughly four weeks. The last time I wrote about unemployment on June 22, the wait time increased from four to eight weeks between appeal and hearing. Last Friday, I filed a request for reconsideration on a dismissal where there was 12 week lag time between appeal and hearing. Claims that are denied by Equifax/TALX contribute to the backlog.

Justice delayed is justice denied, Part 2

Of the course the growing delays in unemployment appeals mirror the delays in applying for benefits and receiving benefits when approved. I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals within the Nebraska Department of Labor, is doing a good job under the circumstances. The Tribunal normally operates under streamlined procedures where telephonic hearings have been the norm since at least when I started practicing in 2005. I believe the Tribunal is thinking outside the box to fairly manager its case load. If the Appeal Tribunal was less efficient, things would be much worse for unemployed workers.

But the state of Nebraska needs to invest in improving the infrastructure for unemployment claims. The Legislature also needs to look in to cracking down on TALX/Equifax next session.

TALX is another example of the problems created by companies outsourcing human resource decisions. FMLA leave is often tied to private disability policies. This link between leave and disability insurance which creates all sorts of hassles for employees when medical personnel, human resources departments and insurers fail to communicate. Maybe a new Secretary of Labor will scrutinize the problems caused by outsourced HR functions. I hope Congress will focus on theses issues as well.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Did the Supreme Court undercut ADA protections for employees of religious hospitals?

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Last week the Supreme Court decided that two teachers working at Catholic schools could not sue their employer for discrimination because of the “ministerial exception” to federal workplace discrimination laws.

The Supreme Court clarified (or broadened) what kind of religious school employees are excluded from anti-discrimination laws. The Supreme Court held that the First Amendment’s Religion clause precluded courts from second guessing the reasons for firing ministerial employees. The court held there was no formula for who was a ministerial employee. The court stated that depended on the extent an employee conveyed the message of the church and carried its mission.

Arguably, the Morrissey-Berru decision and the Hosanna-Tabor decision which it relied on only apply to religious school teachers. Before these decisions, lower courts held that most religious school teachers were covered under federal civil rights laws. (See the dissent from Justice Sotomayor starting at page 37 of the opinion.)

Who else will be excluded from civil rights laws?

So, if churches have broader latitude to discriminate against employees, how broad is that latitude. Would this apply to nurses and nurses aides at hospitals affiliated with a church? Nurses and nurse’s aides are often injured at work. Because of this fact, they often need to invoke the Americans with Disabilities Act (ADA) and Family Medical Leave Act. (FMLA) Would a religious hospital argue the ministerial exception to argue the ADA and FMLA did not apply to a nurse or nurse’s aide hurt at work?

So far, at least in Nebraska and the Eighth Circuit I haven’t seen any cases where that happened. But Catholic Health Initiatives (CHI), a major health care employer locally, has some expressly religious statements in its mission statement. Would that language be enough to argue ministerial exception? Maybe not, but religious freedom advocates have advised employers about steps they can take to invoke the ministerial exception defense.

Another commonality between Morrisey-Berru and Hosanna-Tabor

I believe that major church-affiliated health care employers will continue to follow the ADA and FMLA. Major employers and their HR departments tend to be risk-averse. But in litigated cases, I believe outside counsel would push ministerial exception arguments.

Both the Hosanna-Tabor and Morrisey-Berru cases involved ADA claims. This fact fails to surprise me and I doubt that it’s entirely coincidental. From a practical perspective, ADA claims tend to be better cases for employees than other civil rights cases. I believe this is so because employers are more likely to botch ADA/FMLA compliance than other forms anti-discrimination laws. Arguing the ministerial exception is one way to defeat an otherwise valid ADA case.

A return to the pre-ADAAA bad old days?

But when I started practicing in 2005, ADA cases were harder to win. What changed was the ADA Amendments Act of 2008 which broadened the definition of disability. That change made ADA cases easier to prove.

Those changes to the ADA also made it easier for workers to heal from work injuries and return to work after injury. Pre-2008, if an injured worker was not ready to return to work after their 12 weeks of FMLA leave they would likely be fired. This threat often forced injured workers to attempt to return to work before they were ready. In tandem with “100 percent healed” policies, injured workers would also work with their doctors to downplay or eliminate work restrictions. An employee who returned to work with “no restrictions” before ready risked injury and also compromised the value of their workers’ compensation case.

But if courts extend Hosanna-Tabor and Morrisey-Berru to health care workers, the past is prologue for those workers. If courts extend these cases to hold the FMLA does not apply to health care workers, the future may be worse than the pre-ADAAA past.

Common law employment law claims?

Left unaddressed by the Supreme Court is whether religious employers can claim exemption from common law employment law claims. For example, Nebraska law makes it unlawful to retaliate against a worker claiming workers compensation. The Nebraska Workers Compensation Act covers churches and church employees. Arguably it would defeat the purpose of that law to allow churches or religious employers to retaliate against those employees.

On the flip side, Supreme Court cases about employment law tend to persuade state court judges. In her dissent in Morrissey-Berru, Justice Sotomayor criticized the ministerial exception as judge-made law. But the law prohibiting employers from retaliating against employees who claim workers’ compensation is also judge-made. That fact may make judges in Nebraska more willing to create a ministerial exception in common law anti-retaliation claims.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Feds prosecuting COVID fraud by employees

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My jaw dropped last Tuesday when I read a blog post by Ohio-based management defense attorney Jon Hyman.

Hyman posted the Department of Justice criminally charging an employee for allegedly defrauding his employer by submitting a forged doctor’s note stating he had COVID-19. Human Resources and management-side defense social media share a near obsession with Family Medical Leave Act (FMLA) fraud by employees.

So why can HR now sic the FBI on employees who forge  off-work notes?

The CARES Act, interstate commerce and taxing power

The answer to this question is the CARES Act. Passed in response to the COVID-19 crisis, the CARES Act amended the FMLA to provide some employees with paid leave related to COVID-19. The CARES Act also used federal funds to expand unemployment benefits related to COVID-19.

Normally state law would govern the prosecution of small-time workplace fraud under crimes like forgery and unemployment fraud. But a federal bailout creates federal criminal jurisdiction. The United States Department of Justice is aggressively prosecuting COVID fraud. Some employer-advocates question the use of the federal power to regulate interstate commerce for the good of employees. But the interstate commerce clause also expands the ability to federalize crime. It seems like employer-advocates are welcoming the expansion of federal authority to prosecute fraud by employees.

Federal taxes partially fund unemployment benefits. This would give the federal government the power to federalize unemployment fraud through the taxing power granted to Congress by the Constitution.

The real COVID fraudsters

The Georgia case is the first known incident of an employee being prosecuted for forging a medical note. COVID-related fraud mirrors workers’ compensation fraud in that most fraud is not committed by employees.  Apparently organized crime is submitting false unemployment claims. Some individuals and businesses are falsely submitting claims under the Paycheck Protection Program. If an employee suspects their company is abusing the Paycheck Protection Program they could bring a claim under the False Claims Act.

But while low level employees are not committing the vast majority of COVID fraud, low-level employees are the easiest to prosecute. Prosecuting low-level employees for COVID fraud serves at least two purposes for employers.

Reopening and unionizing

As the perceived threat of COVID recedes, many businesses are reopening and employees are returning to work. Employers complain that some employees are reluctant to return to work because of enhanced unemployment benefits. However many employees are expressing safety concerns about COVID exposure. Publicizing the prosecution of COVID fraud by employees calls into question the legitimacy of employee safety concerns. Criminalizing COVID fraud by employees also allows employers and their mouthpieces in the media to portray workers worried about COVID as welfare cheats.

The use of state power on behalf of employers against employees serves another purpose. Mike Elk of Payday Report tracked walkouts and strikes related to the COVID 19 pandemic. Management-side pundits are also expressing concern about rising pro-union sentiments by employees.  Prosecuting employees is one way to intimidate employees who want to form unions or engage in collective action in the workplace.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Pandemic exposes problems with outsourced leave and disability

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The COVID-19 pandemic is exposing the deep flaws of unemployment insurance, workers compensation and the employment at-will doctrine. The pandemic also shows problems with how family and medical leave is administered.

Outsourced leave administration

Many large employers outsource FMLA leave eligibility decisions. Often times the leave administrator also decides whether an employee receives short-term and long-term disability. Even in normal times,  outsourced leave companies will miscalculate leave eligibility for employees. I believe this happens because the leave and disability companies aren’t communicating with HR departments. I’ve also heard from employees about faulty leave administration software.

Bad communication between leave administrators and HR departments leads to employees losing their jobs. Sure an employee can sue their former employer, but litigation is time consuming and uncertain.

But if even if leave companies and human resources departments are communicating, they may not be acting in good faith. Again, even in normal times human resources departments and leave administrators often hassle workers about insufficient documentation about the need for FMLA leave.

So, how does this pandemic make this bad situation worse.

Outsourcing leave during a pandemic

There are several reasons why leave administration falls short during a pandemic. First, more people will be taking leave either for themselves or take care of a family member. Congress has also expanded eligibility for family and medical leave benefits. As a result, like with unemployment, more people will be making demands for leave. This will slow down the process.

But, this heightened demand for leave could be met with a reduced response by leave administrators. The people employees rely on to process leave claims tend to be working at home.  Working from home has slowed down the processing of insurance and other claims.

Finally, family and medical leave requires medical documentation. Workers often stumble in completing required paperwork. But during a pandemic, doctors may lack the time to fill out paperwork. Despite this difficulty, the Department of Labor disagreed with the Centers for Disease Control and required employees to provide medical documentation of COVID-19 leave.

Why does leave administration stink so bad?

Family and medical leave administration sucks so badly for employees because it’s often tied to private disability insurance. Like workers’ compensation, private disability is a for-profit social insurance program. But unlike workers’ compensation , there is weak judicial accountability for denials of private disability.

Bluntly I believe the disability insurers use leave administration as a way to sell disability policies to employers. While disability policies can be useful for workers, insurers would rather collect premium than pay claims. Many employees would rather shift the cost of work injuries onto disability insurance.

When it comes to long-term disability policies, employers and insurers share goals when it comes to cost-shifting. Many long-term disability policies require covered employees to apply for social security disability insurance (SSDI). Policies often include language that lead the insurers recoup disability benefit payments if employees receive SSDI. This leads disability insurers file SSDI on behalf of employees even if they never decided to apply. I would expect to see this practice increase as unemployment increases to levels not seen since the Great Depression.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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How COVID-19 complicates workers’ compensation claims

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COVID-19 (coronavirus) is disrupting life for everyone. If you were hurt at work before the pandemic hit, your life has been disrupted doubly. Here are some ways how COVID-19 is complicating workers’ compensation cases for injured workers.

Delays in medical treatment

I’ve heard several reports that physical therapists and orthopedic doctors are limiting appointments and delaying procedures because of the virus. So even if an insurer or claims administrator has accepted your claim and approved treatment, you may have to wait for treatment.

Some of this delay may not be bad for workers if temporary disability benefits are being paid along with medical benefits. In 15 years of practice, I’ve seen employers and insurance companies force employees to return to work sooner and sooner. The delays in medical treatment created by COVID-19 may give some employees more time to heal from their injuries.

FMLA

But on the flip side, delays in medical care will likely force some employees to lose job protected under the Family Medical Leave Act. (FMLA) While FMLA protections were expanded under the CARES Act, those expanded protections don’t give any additional job protected leave to employees who were hurt on the job if it wasn’t related to COVID-19.

Undermining doctor choice

In Nebraska, employees have the right to pick their own doctor to treat their work injury. These doctors are often primary care doctors. Of course during a pandemic, it is harder for an injured worker to see a primary care doctor and have a primary care doctor fill out necessary paperwork for a workers’ compensation case.

Unscrupulous employers may use the unavailability of a family doctor to steer an injured worker to an employer-friendly occupational medicine clinic. This tactic pre-dates the coronavirus, but expect the pandemic to provide a new talking point for human resources and workers’ compensation bureaucrats to manipulate medical care in workers’ compensation cases.

The gears of the workers’ compensation bureaucratic complex have not stopped grinding during the pandemic. Genex, who contracts with insurance companies to micromanage medical care for injured workers, wrote a blog post last week heroically portraying one of their nurse case managers overcoming the resistance of a treating doctor and COVID-19 to return an employee back to work. (Assuming they had a job to return to in the first place.)

But if insurance companies and their minions can play the “corona card”, so can injured workers. Injured workers have the right to exclude nurse case managers from examination rooms. I would suggest injured workers’ ask nurse case managers to observe “social distancing” and stay out of cramped examination rooms.

Loss of health insurance in denied claims

Thanks to firms like Genex, many employers prematurely quit paying workers’ compensation benefits. This often forces employees to pay for medical treatment related to work injuries with their health insurance. But this plan could go awry if employees lose health insurance benefits due to a layoff.

Under the law, employers are supposed to continue health coverage under COBRA. Injured workers may also be able to sign up for health insurance under the Affordable Care Act. But COBRA coverage is too expensive for most employees and even ACA coverage can be too costly for many. Employees should see if they are eligible for unemployment under the CARES Act. Employees could help pay for health insurance with the additional $600 per week unemployment benefit on top of regular weekly benefits and extended weekly benefits available under the CARES Act. But even with increased unemployment benefits, injured workers may have to make difficult financial decision about pursuing medical care.

Previous posts about coronavirus/COVID-19

Navigating a workers’ compensation claim amid mass layoffs and economic uncertainty” – March 30, 2020

What workers should know about coronavirus and workers’ compensation” – March 23, 2020

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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What workers should know about coronavirus and workers’ compensation

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According to NBC News, at least 20 percent of healthcare workers in Italy have been exposed to coronavirus. Health care workers in Nebraska may be at a similar level of risk. Workers in essential retailing, warehousing and delivery are probably also at heightened risk of catching coronavirus.

So, what do employees need to know to about coronavirus and workers’ compensation?

Reporting possible coronavirus exposures on the job

Coronavirus cases could be difficult workers’ compensation cases for reasons I will explain below. But these difficult cases will be even more difficult in Nebraska if workers fail to notify employers in a timely fashion if they believe they were exposed to the coronavirus. Nebraska courts recently made it easier for employers to dismiss workers’ compensation claims if employees delay notifying employers about potential work injuries. I believe these notice requirements could be even stricter for healthcare workers.

Protections against retaliation for reporting coronavirus exposure and treating for coronavirus

Employees may delay exposure to coronavirus is fear of retaliation. Fears about retaliation will likely be heightened due to fear of job loss in the teeth of mass layoffs and skyrocketing unemployment.

But employees who report possible coronavirus exposure or coronavirus related safety concerns on the job are protected by a variety of anti-retaliation laws that protect workers who claim workers’ compensation and report safety concerns. I’ve written before about the relative weakness of these laws. I believe workers’ will be better served if they can report safety concerns as a group rather than individuals.

A request for time off due to coronavirus or suspected coronavirus may also be covered under the Family Medical Leave Act and the emergency amendments to the Family Medical Leave Act enacted to deal with coronavirus pandemic. These laws also have anti-retaliation provisions.

Why coronavirus exposure would be difficult workers’ compensation claims

The reason why Coronavirus infections may not be covered goes to the fundamentals of proving the basics of a workers’ compensation case: did the infection arise out of and in the course and scope of employment?

In the course and scope of employment

Course and scope of employment goes to having the injury occur within the time and place of employment. Usually in the course and scope of employment is not a disputed issue. But in a case involving a corona virus infection, it may be difficult to prove whether an individual was infected on the job or not. This could be a time and resource consuming investigation for an employee. Public health officials may do some of this legwork, but that information may not be easily accessible due to confidentiality concerns.

Workers infected during business travel are presumed to be acting in the course and scope of employment under the “commercial traveler rule.” But merely catching coronavirus in the course and scope of employment isn’t enough just to have workers’ compensation cover coronavirus related medical expenses and lost wages.

Arising out of

An employee also needs to show that the infection was connected to some risk involved with employment. In other words, employees would have to prove some link between their work duties and their infection. In some cases this could be challenging and would also involve time and expense and in investigation.

Employees may be able to argue in some circumstances that their work increased the chances of them contracting coronavirus. Health care, delivery, warehousing and essential retail employees could have an easier time proving exposure. Unfortunately, in Nebraska there is no presumption of compensability (workers’ compensation coverage) if an injury took place on the job.

Other hurdles of potential Coronavirus workers’ compensation claimants

Coronavirus cases would likely involve more investigation than a typical workers’ compensation case. But many lawyers may not want to take these cases out of economic concerns. In Nebraska, a lawyer can’t be awarded a fee for representing a claimant in a disputed medical bills case. Attorneys can take fees on disability, but temporary disability could be short in a Coronavirus case. In Nebraska, unless a disability lasts more than six weeks and an employer can avoid paying the first week of disability.

Long-term solutions

Last week the president of WILG, a group of lawyers who represent injured workers, called on the insurance industry to make it easier for workers exposed to coronavirus on the job to claim benefits. I think this is a good idea.  The difficulties in getting workers’ compensation for coronavirus indicate the need for stronger health insurance and paid leave benefits to cover employees who may not be able to rely on workers’ compensation.

Stay tuned to this blog about more information about coronavirus and his its impact on workers’ compensation and workplace law. You can also check out my podcast for more commentary.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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