Apologists for Thought leaders in the workers compensation insurance industry like to tout how they want injured employees to “return to work.” But insurance industry rhetoric about the importance of return to work is belied by at least three common scenarios involving employees with serious work injuries.
Employer requires an employee to resign in order to receive a lump sum settlement for their workers compensation claim: Early on in my career a defense lawyer told me that his client “Didn’t want their employees driving to the plant in an Escalade (this was the mid-2000s) after they settled their workers compensation case.” Putting aside the absurdity of someone who earns wages that would make their kids eligible for free or reduced lunch buying a luxury SUV after they had been off of work for an extended length of time, this practice indicates that some employers really don’t want injured workers to return to work after an injury.A recent discussion over the WILG listserv indicated that resignation as a condition of a workers compensation case settlement was a common practice across the United States. An agreement to resign normally comes as a separate severance agreement. Those settlement agreements may not be binding if an employer doesn’t include the right language in the release which is why an injured worker would want to consult with an employment lawyer or have a lawyer familiar with employment law and workers compensation represent them in their work injury.
Certain states, like Massachusetts, outlaw the practice of conditioning a settlement on resignation. Even in states where the practice is considered lawful lawyers may consider challenging such practices on the basis of anti-retaliation laws, unfair claims practice laws or causes of action that prevent interference with contractual relationships.
Employer requires employee to return to work with “no restrictions”. 100 percent healed policies are considered to violate the Americans with Disabilities Act by the Equal Employment Opportunity Commission (EEOC) and by some intermediate level federal appellate courts. Regardless of whether the Supreme Court or Congress ultimately decide such policies are illegal, oftentimes a person with an injury that requires surgery and time off from work is going to have some permanent restrictions.Many times requests that an employee return to work without restrictions are sent after an employee exhausts their 12 weeks of FMLA. Oftentimes employers will extend a short amount of unpaid leave in addition to FMLA. When injured employees receive these letters many of them feel like their company is trying to push them out. This feeling can sometimes be correct. That’s why it is helpful to have an attorney who knows how workers compensation and employment laws intersect.
Employer suggests that employee apply for private disability for a work injury: Private short-term (STD) and long-term disability (LTD) policies can be helpful to employees. Some policies even allow employees to collect both LTD and STD with workers compensation benefits.But some employers will push employee onto disability because it is cheaper than paying workers compensation benefits. Even more insidiously if an employee stays off work long enough that they are eligible for long term disability, some long-term disability policies require that employees apply for social security disability or SSDI in order to continue receiving LTD. Many of these policies hold if an employee receives SSDI they need to payback the LTD insurance company for the time that SSDI and LTD benefits overlapped.
I ran into a policy like this representing a client in a disability discrimination case. Courts have questioned the legality of these policies as well. If you are stuck in a situation where you are applying for long term disability because of a work injury and being forced to apply for SSDI, you should consult with a lawyer who is familiar with workers compensation and SSDI.
Another consequence of the decision legalizing same-sex marriage is that same-sex spouses are eligible for FMLA leave to take care of a spouse with a serious health condition. This raises some difficult practical questions, such as how FMLA leave works for same-sex couples that include:
Can an employer ask for a marriage certificate when an employee asks for leave to take care of a same-sex spouse?
The answer to this question is probably yes. The U.S. Department of Labor states that an employer can ask for a verification of marriage so long as they don’t discriminate in the requirement. An employee with a newly legally recognized same-sex marriage may feel inconvenienced that they have to prove their marital status to get FMLA leave. They might also feel they are being discriminated against because heterosexual individuals aren’t asked to provide a marriage certificate when they take FMLA leave to take care of their spouse. However, if an employer requires heterosexual couples to verify marriage through a producing a marriage certificate for insurance purposes, it could make sense that a heterosexual person is not asked to produce a marriage certificate to take family leave, if they have already done so for insurance purposes.
Taking family leave can be stressful, and I am sure there are some human-resources officials who hold anti-LGBT attitudes. But even if an employer doesn’t request a marriage certificate for heterosexual couples to verify FMLA leave, employees should assume that the request is made in good faith. Courts favor individuals who comply with the requests of their employers, even if those requests aren’t made within the letter of the law.
In states where marriage was same sex marriage was legalized by Obergefell, when do FMLA protections start?
In states like Nebraska, where the Obergefell decision legalized same-sex marriage, an interesting question is whether an employer is required to retroactively count family leave as FMLA if the leave started before the marriage was formally legalized in that state but the individual’s same-sex marriage was recognized in another state. This is a pertinent issue in Nebraska, since many same sex-couples were married in nearby Iowa, which has recognized same-sex marriage since 2009. The U.S. Department of Labor would likely argue that if you married your same-sex partner in Iowa that you would have had FMLA protections in Nebraska to take care of your spouse even if Nebraska didn’t recognized same marriage until June 26, 2015. But courts may not give much weight to the opinion of the U.S. Department of Labor. This issue is a legal toss-up. The best thing that same-sex couples can do to protect their rights to FMLA leave is to not give their employer any valid excuses for terminating them for taking FMLA leave.
Please click here to read part one of this series. Feel free to contact our office if you have questions about the issues raised in these two posts.
As shown by a recent post from LexisNexis Legal Newsroom, workers’ compensation insurers and employers are finally starting to understand the Americans with Disabilities Act (ADA). Hopefully the days of employers firing employees after their 12-week FMLA leave when the employee can’t come back to work “full duty” and/or “with no restrictions” are behind us. But just because most employers and workers’ compensation insurers are now complying with basic requirements, doesn’t mean that injured workers will be able to successfully defend their rights under the ADA and their ability to maintain employment.
Employers and insurers understand the importance of the “interactive process” and how it should involve the employee and the employer. But this is too simple. The process involves a doctor who may or may not know the employer’s true job restrictions. The insurer/employer can also be represented by a nurse case manager who is familiar with medical terminology, practice and might even have a pre-existing relationship with the doctor. That nurse case manager could also be in communication with an employer and have an idea of a job that the employee can be placed into.
In this situation, the employee is at a disadvantage. The employee usually doesn’t understand medical terminology or know the doctor. In addition, an employee probably won’t have a job description to present to the doctor so they will be at a disadvantage in return to work. This situation can be made worse if an employee appears to a doctor as if they don’t want to go back to work.
So what can an employee do?
1. Ask for actual copies of job descriptions. This way an employee is armed with the facts about the job. Furthermore, they can tell the doctor if the job description is accurate. Assuming the employee is credible in what they tell the doctor, they will have more basis than a nurse case manager in being able to describe the job.
Next, an employer has an obligation to engage in a “good faith interactive process.” If management decides that they won’t give out written job descriptions to injured workers who request them for the purpose of determining work restrictions, then that would be evidence of bad faith on the part of the employer.
2. If you can, pick your own doctor or surgeon. Unfortunately, some doctors are generally unwilling to give injured workers a fair break and can be way too cooperative with insurers or major employers. In Nebraska, employees can pick their own treating doctor and can pick their surgeon even if they give up their initial right to pick their doctor. Exercising doctor choice at least gives employees some control over their medical care and it makes it more likely that they will find a doctor who will be cooperative in regards to the ADA.
Our colleague, Tom Domer in Milwaukee, recently criticized the media for their misleading coverage of “FMLA abuse” among public employees in Milwaukee. This criticism parallels our criticism about misleading coverage of an unemployment decision in Iowa. Domer pointed out correctly that FMLA leave is unpaid. The fact that FMLA leave is unpaid leave makes it possible for employers to abuse FMLA.
I represented a client with a personal health condition that temporarily prevented that person from doing heavy lifting. My client told human resources about this health condition, and that person was forced to take unpaid FMLA leave. Of course, under the Americans with Disabilities Act, there is an obligation to engage in an interactive process to determine what reasonable accommodations could be made so the disabled employee can perform the essential functions of the job. In the case of my client, there was evidence that that person’s employer did not engage in that process. Though my client’s case ultimately resolved, I doubt that my client is the only person who has had a similar experience with forced FMLA.
I suspect some employers use unpaid FMLA leave as a way to reduce payroll expenses even if an employee could perform the essential functions of their job with a few simple accommodations. So the next time you hear about employees abusing FMLA, remember that employers can abuse unpaid leave as well.
Assuming you do not have an employment contract, you can only claim wrongful termination if the firing was motivated by certain unlawful reasons. Unlawful reasons include discrimination based on sex or gender – this includes sexual harassment and pregnancy – as well as race, religion, nationality and disability. In certain places and in certain situations, sexual orientation discrimination can also be unlawful. Disability in this context will often mean any serious or chronic health condition you have. Disability discrimination can also mean that you are taking care of someone with a disability.
You also cannot be discriminated against by your employer for certain activities on the job. This is commonly referred to as retaliation. One of these activities is taking extended leave under the Family and Medical Leave Act (FMLA) for your own or for a loved one’s medical condition. Other common protected activities include opposing unlawful discrimination; filing a safety complaint; filing a workers’ compensation complaint; complaining of pay practices; or complaining about other illegal activities. If you are a government employee, you might also have some claims based on constitutional law.
This time of year, many people get holiday jobs to earn extra money. That means some people will get injured at work and run into other difficulties working holiday jobs. Here are six tips on how to deal with the workplace challenges arising from holiday jobs. These tips for safe and fair employment apply just as well to any second job, not just a holiday job.
Just because you have a “holiday job” doesn’t necessarily make you a seasonal employee: In some states, including my home state of Nebraska, employees can have their benefits reduced if they are a “seasonal employee.” However, even if you have a holiday job, your job may not be seasonal. In Nebraska, “seasonal employment” is defined as a job that is dependent on weather or can only be done during certain times of the year. For example, if you hurt your back working at an electronics store at your holiday job, that employment is not seasonal because you can work at an electronics or really most any retail store at any time of the year.
You can’t be paid workers’ compensation for how your holiday or second job affects your regular job: If you are off work at your regular job because of an injury at your second job or holiday job, you are only paid income-replacement benefits for the income you lost at your holiday job or second job. For example in Nebraska, if you were hurt at your holiday/second job that pays $120 per week and you are unable to do your regular job that pays $600 per week, your only income benefit would be two-thirds of your second/holiday job, which would be $80. Employees should be extra cautious in second jobs or holiday jobs for just that reason. Employees should also consider applying for private disability plans if they plan on having a second job in order to account for the possibility of losing income due to an injury at their second job. In short, employees should do a thorough cost-benefit analysis before taking a holiday job or second job.
Your permanent disability benefits could be better than your temporary benefits: In full-time employment, permanent and temporary disability benefits are generally fairly close. But with part-time employment, permanent disability benefits may be much higher than temporary benefits. In my state of Nebraska, temporary benefits are paid based on a typical work week. For example, if you are a part-timer working 12 hours a week at $10 per hour, your temporary disability pay would be $80 a week. However, in Nebraska and some other states, permanent disability is based on no less than a 40-hour week. So if you are a part-timer getting paid $10 per hour, your permanent disability rate would be $266.67 per month. This is good for employees, because serious injuries will usually have permanent effects that can permanently affect an employee’s ability to earn a living.
If you are an injured part-time worker and your insurance company is trying to force you to take a settlement based on your part-time wage rate, you should consult with an attorney in your state.
Your employer/insurer may be low-balling your wage rate: Say you get paid $8 an hour as a barista but you have an agreement to share tips, or you work in retail but you get store credit, or you teach exercise classes at a health club but you have an agreement that you get a free membership. In any of those scenarios, you could possibly use those benefits to increase your loss-of-income benefits.
You are still protected by most fair-employment laws: Part-timers are still covered by most fair-employment laws. The most glaring exception is likely the Family and Medical Leave Act (FMLA), which provides 12 weeks of unpaid leave and job protection for employees with a serious health condition, to care for a close family member with a serious health condition, or take care of a close family member who is affected by a military deployment. FMLA requires 1,250 hours worked in the last calendar year and 1 year of employment. That 1,250 hours a year translates to roughly 24 hours a week. Many people working second jobs don’t meet the eligibility standards for FMLA.
Independent contractor, independent conschmacktor: Many holiday employees do fairly low-wage work that doesn’t require any specialized training or education. If this describes your holiday job or second job, then you are an employee, despite the fact that your company may have classified you as an independent contractor. Since you are an employee, you should be covered by workers’ compensation law. If you are misclassified as an independent contractor, you should look for other employment and consider reporting your unscrupulous employer to the United States Department of Labor or to your state’s department of labor.
Getting hurt at work and getting fired are two of the most stressful occurrences for an employee. Oftentimes, these stressors are combined when an injured worker receives a severance agreement. This article provides five questions an injured worker who gets a severance agreement should ask:
Does signing a severance agreement settle your workers’ compensation claim? Connecticut courts recently ruled that a severance agreement does not release a workers compensation claim. However, Florida courts have held the opposite. My state of Nebraska generally does not allow workers’ comp claims to be released in severance agreements. Consult with a lawyer in your state to get a good answer. Most lawyers who do workers’ compensation work on a contingent fee basis are generally happy to spend a reasonable amount of time answering questions from injured workers faced with a severance agreement. Don’t let fear of cost deter you from contacting a lawyer.
What does your state’s workers’ compensation act cover? Some workers’ compensation statutes, like Ohio and Texas, also cover retaliatory discharge cases. My state of Nebraska makes wrongful discharge a separate civil claim. The consequence of that for injured workers in Nebraska and other states with so-called “common law” retaliatory discharge causes of action: a severance agreement would close out that case along with most other claims under fair employment statutes like the ADA, FMLA and Title VII. If you are in a state where retaliatory discharge is covered under your workers’ comp statute, then that case may not be released in a severance agreement in a comp claim if your state doesn’t allow comp claims to be settled in severance agreements.
What are your chances for receiving unemployment benefits? Finding out your chances of receiving unemployment is critical – again, especially if you are forced to choose between severance and workers’ compensation. The key questions to ask for eligibility for unemployment are 1) whether you earned enough wages to be covered 2) whether you quit without good cause or were fired for misconduct and 3) whether you are able and available for work. Of course, if you have an ongoing workers’ compensation claim, the fourth question is how receiving unemployment would affect your workers’ compensation claim. If you chose to negotiate your severance agreement, either by yourself or with a lawyer, try to include a provision where the employer chooses not to oppose your application for unemployment benefits.
Do you get benefits like vacation pay, even if you don’t sign a severance agreement? In some states, including my state of Nebraska, an employee should receive vacation pay or paid time off regardless of whether they sign a severance agreement or not. Again, if you live in a state where an employer can release a workers’ compensation claim through a severance agreement, your eligibility for vacation pay along with unemployment benefits should help you decide whether it make sense for you economically to pursue your workers’ compensation claim if you have to pick between severance and workers’ compensation. This also holds true for severance agreements in general if you an employer is asking to you to release a strong fair-employment claim for a low-ball severance amount.
Did you contact a lawyer who is knowledgeable about workers’ compensation? This is a critical period and critical especially if you live in a state where comp claims can be released by severance agreements. An experienced workers’ comp lawyer can value your comp claim. Some ways to evaluate whether a workers’ compensation lawyer is knowledge is to check whether they are a member of the Workers’ Injury Law & Advocacy Group (WILG). Another is to see if you can search them on your state’s workers’ compensation court website or through free legal research services like FindLaw and Google Scholar. A knowledgeable workers’ compensation lawyer in your state should also be able questions 1-4.