5/29/2015 The Interplay of ADA, FMLA, and Workers Compensation - - PDF document

5/29/2015 1

The Interplay of ADA, FMLA, and Workers’ Compensation

Presented by Geoffrey A Lindley James V. Thompson Rainey, Kizer, Reviere & Bell, PLC July 2015

• Federal and State Statutes =

The Foundation and Framework of your “House”

• Regulations, Court Opinions =

Your Roofing and Walls

• Your Policies and Procedures =

Your Flooring, Walls & Furnishings

• How your policies, procedures, and business actions line up with

the authority is similar to how your furnishings are lined up with your house.

• So … is your house in the right order?

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• Employee (African-American male) was a warehouse supervisor for
• Employer. In March 2010, Employee applied for FMLA leave for eye

problems; Employer approved the application. On July 6, 2010, Employee requested FMLA leave for irritable bowel syndrome. Employee’s Manager (either Caucasian or Portuguese) received the second FMLA notice, but the notice did not include the medical diagnosis or the reason for leave. On July 9, 2010, Employer placed Employee on a Performance Improvement Plan (PIP) because Employee was not meeting his performance expectations. Employee was told then of the areas he needed to improve and the consequences of not improving (including discharge). In October, Employee submitted a third FMLA request for sleep apnea, but withdrew it before Employer made a decision.

• At the 90-day PIP review, Employee’s Direct Supervisor (either African-

American or Asian) concluded he failed to meet expectations and recommended termination. Employee was not terminated, but his PIP was extended for an uncertain time.

• On December 9, 2010, Employee hit his head on a machine at work

and submitted a workers’ comp claim. On December 13, 2010, Employee emailed his Direct Supervisor and Manager to advise them

• f his injury and his safety concerns on the work premises. On

December 14, 2010, the Direct Supervisor conducted another PIP review and told Employee his PIP would continue until HR came to a

• decision. Employee returned to work with medical restrictions. In

February 2011, Employee and Direct Supervisor met for another PIP review but Employee had been unable to perform many of his duties due to the injury and the Direct Supervisor couldn’t conduct a comprehensive review on the original PIP criteria.

• Employee was fired on March 23, 2011. Employee’s superiors said

the termination was based solely upon poor work performance and failure to improve. Employee claimed a successful completion of his PIP was “unattainable” and he was fired for discriminatory reasons.

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Elements of a prima facie FMLA Interference claim: 1. Claimant was an eligible employee; 2. Defendant was an employer covered under FMLA; 3. Employee was entitled to FMLA leave; 4. Employee gave employer notice of intent to take FMLA leave; and 5. Employer denied FMLA benefits to which employee was entitled. Did the Employer interfere with Employee’s FMLA claims?

• Employer “discouraged” him from taking FMLA leave in October

2010.

• After the March 2010 FMLA request, Employee was denied an

annual raise.

• After the July 2010 FMLA request, Employee was placed on the PIP.
• Employee reconsidered and withdrew his October FMLA request.

Sixth Circuit: FMLA is not a strict-liability statute; the mere occurrence

• f interference with FMLA rights is not a per se FMLA violation.

If an employer shows a legitimate reason unrelated to Employee exercising FMLA rights, then the employee must rebut, showing the proffered reason:

• Had no basis in fact;
• Did not motivate the adverse employment action; or
• Was insufficient to warrant the adverse employment action.

In this case, the Middle Tennessee District Court found insufficient proof

• f Employer’s “discouragement”:
• Denial of an annual raise after the March 2010 FMLA request.
• Instigation of the PIP after the July 2010 FMLA request.

5/29/2015 4 Elements of a prima facie FMLA Retaliation claim:

• 1. Employee availed himself of a protected right under FMLA;
• 2. Employee was adversely affected by an employment decision;

and

• 3. A causal connection between the exercise of the right and the

adverse employment decision. Any causal connection between Employee’s FMLA leave and discharge?

• PIP initiated 3 days after the July FMLA request.
• Manager and Direct Supervisor knew Employee had taken

FMLA leave.

• Employee claims he had no disciplinary or improvement plans

before his 2010 FMLA requests.

• When Employee spoke to Direct Supervisor about his medical

issues, the Direct Supervisor allegedly said “you need to commit yourself more to your job.”

5/29/2015 5 BUT WAIT …

• Employee had a documented shaky performance record before

and during his PIP.

• Employee’s performance issues were confirmed by other

employees. Sixth Circuit:

• Close time periods between FMLA requests and adverse

employment actions cannot be the sole basis for finding the employer’s reason is pretext.

• However “suspicious timing, when accompanied by other

independent evidence, is a strong indicator of pretext.” Was Employee treated the same as other similarly situated employees? If a claimant can show he was not treated the same as similarly situated and similarly skilled employees engaged in identical performance, then claimant can raise a reasonable inference he was treated differently because he invoked FMLA rights. “Similarly situated”: all relevant aspects of claimant’s employment situation are “nearly identical” to those of a non-minority’s employment situation.

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Here, the Court found Employee’s examples of similarly situated non- minority employees did not show Employer’s reason to terminate was pretext:

• Worker #1: the same race as Employee.
• Workers #2 and 3: the record was too limited on how they were

treated.

• Workers #4 and 5: a different race but same work position as

Employee. BUT…

• Worker #4: disciplinary write-ups but improved and never on a PIP.
• Worker #5: only one time card error in a quarterly review.

The Middle District Court: Summary judgment for Employer granted.

• Insufficient proof Employee was treated differently because of his

FMLA request. Did Employer retaliate because Employee filed a workers’ comp claim? Elements of prima facie retaliatory discharge claim: 1. Claimant was an employee at the time of injury; 2. Claimant made a claim against employer for workers’ comp benefits; 3. Employer terminated claimant; and 4. The workers’ comp claim was a substantial factor in Employer’s termination decision. Employee must show direct or “compelling circumstantial evidence” of a causal connection between the claim and the termination, not just the injury and the termination.

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Temporal proximity between the claim and the termination is not sufficient by itself. But, temporal proximity may prove causation if the prior job performance was otherwise satisfactory. A variety of factors, plus temporal proximity, could be sufficient circumstantial proof:

• Expression of a negative attitude by employer toward employee’s

injury;

• Employer’s failure to adhere to established company policy;
• Discriminatory treatment when compared to similarly situated

employees; or

• Sudden and marked changes in an employee’s performance

evaluations after a workers’ comp claim.

The Middle District found no causal connection between the workers’ comp claim and the termination.

• Time between December 2010 workers’ comp filing and March

termination was not sufficient.

• Performance issues were already established 5 months before

the work injury.

• Statements from District Supervisor and Manager that the injury

was “a bump on the head” did not rise to a level of harassment.

• Extension of PIP after the injury suggested Employer attempted

to continue the employment and termination was a last resort when performance didn’t improve.

5/29/2015 8 An individual is considered disabled under the ADA if:

• He has a physical or mental impairment that substantially limits
• ne or more of the major life activities of such individual;
• He has a record of such impairment; or
• He is regarded by his employer as having such an impairment.

An employee may fall into the “regarded as disabled” status if:

• Employer mistakenly believes a person has a physical

impairment that substantially limits one or more major life activities; or

• Employer mistakenly believes that an actual non-limiting

impairment substantially limits one or more major life activities. Elements of a prima facie employment discrimination claim under ADA:

• 1. Employee was “disabled” within the meaning of the ADA;
• 2. Employee was qualified to perform the job requirements with
• r without reasonable accommodation; and
• 3. Employee was discriminated against because* of the

disability. *The Sixth Circuit revised this standard in 2012. An Employee no longer has to show that he was discriminated against solely because of the disability.

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Did Employer regard Employee as being disabled?

• Employer accommodated Employee’s medical restrictions following

the work injury but before the termination. BUT…

• Employer didn’t regard Employee as unable to perform his job when

Employee was truly able to perform.

• Employee actually was medically limited in performing his job.

The Middle District found Employee did not prove Employer “regarded” him as disabled.

• Employee was unable to do parts of his job.
• Employer let him reduce his job duties, according to temporary

medical restrictions after the work injury.

• Employee did not prove he was disabled under ADA for any

discriminatory discharge claim.

Did Employer fail to reasonably accommodate Employee under ADA?

Elements of a failure to accommodate claim under ADA: 1. Employee is disabled within the meaning of ADA; and 2. Employee is otherwise qualified for the position he holds or desires, despite his disability: a. Without accommodation from the employer; b. With an alleged “essential” job requirement eliminated; or c. With a proposed reasonable accommodation.

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If the employee proves these elements, the employer must prove:

• A challenged job criterion is essential and a business

necessity, or

• A proposed accommodation would impose an undue

hardship on the employer.

The Middle District found insufficient proof on any reasonable accommodation claim.

• Employee confused a request for ADA accommodation with

Employer’s recognition of temporary medical restrictions.

• Employee never submitted a request for ADA accommodation.

Employee made sales calls for Employer, a drug manufacturer. One of Employee’s core values was integrity, and grounds for termination included falsifying information on any company

• record. Employee took FMLA leave for her pregnancy and birth
• f her daughter, who has Mosaic Down Syndrome. Shortly after

returning, Employee was reassigned to a newly redrawn Jackson Territory, due to company restructuring, because Employee lived in that territory. A former employee in a similar position reported to Employer, via a third-party call-in system, that Employee had reported making sales calls to certain doctors on dates those doctors were unavailable.

5/29/2015 11 Before Employer’s HR director investigated the allegations, Employee requested a transfer to the Memphis Territory because another employee had resigned. Employer initially denied her transfer because she did not live in the Memphis Territory; upon a second request, Employer granted the transfer. Employee also received an “Exceeds Expectations” performance review. Thereafter, the HR director investigated the allegations, determined they were true and Employee had falsified her sales call records, and terminated Employee for the falsification. Employee filed an EEOC charge, then filed a lawsuit claiming discrimination and retaliation under ADA, FMLA, and Title VII. Did Employer discriminate against Employee in violation of ADA?

• Employee claimed that Employer retaliated against her

“because she was associated with a disabled person (her daughter) and advocated for the rights of a disabled person.” The alleged retaliation:

• Employer denied Employee’s initial request for a transfer;
• Employer investigated Employee’s sales-call activity; and
• Employer terminated Employee’s employment.

5/29/2015 12 BUT WAIT… Plaintiff did not show she engaged in protected activity (an essential claim element).

• Plaintiff’s requested transfer is not protected activity.
• Employers are not required to provide reasonable

accommodations to non-disabled workers due to their association with a disabled person. Plaintiff makes no other reference to her retaliation claims under the ADA. Elements for a prima facie claim of discrimination based on association:

• 1. Employee was qualified for the position;
• 2. Employee was subject to an adverse employment action;
• 3. Employee was known to be associated with a disabled

individual; and

• 4. The adverse employment action occurred under circumstances

that raise a reasonable inference that the disability of the relative was a determining factor in the decision.

5/29/2015 13 Employee’s claims:

• Employer terminated her because of her association with her

daughter, who was diagnosed with Mosaic Down Syndrome.

• Employer believed her association with her disabled daughter

would distract her and make her inattentive at work.

• Employee’s transfer request was refused after her territory was

expanded to require additional work travel and longer work hours.

• Employer had no reason to audit Employee, and she was

“arbitrarily audited” because of her daughter.

• Did Employee suffer an adverse employment action?

No, Employee did not suffer an adverse employment action.

• The additional work travel and longer work hours

were the result of her transfer to the Jackson Territory, not the initial refusal to transfer her out of the Jackson Territory.

• Employer’s investigation of Employee’s suspected

wrongdoing was not an adverse employment action.

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• Can Employee prove Employer’s investigation and termination

was pretext? No, Employee could not prove Employer’s investigation and termination was pretext.

• The call from the former employee was a legitimate

nondiscriminatory reason for Employer to investigate Employee’s sales-call activity.

• Any delay in starting the investigation into Employee was

legitimately due to the HR director’s heavy workload and absence.

• Undisputed evidence showed Employee falsified records.
• Employee was terminated because she falsified those

records. Did Employer retaliate against Employee in violation of FMLA?

• Employee also claims she was terminated because she

requested FMLA leave following the birth of her special needs daughter and the child’s diagnosis. Is temporal proximity enough to establish a causal connection between the FMLA leave and the termination?

• Taken by itself, temporal proximity is insufficient to establish

pretext.

• The more time between the protected activity and the adverse

employment action, the more the plaintiff must supplement his claim with other evidence of retaliatory conduct to establish a causal connection.

5/29/2015 15 BUT…

• In limited circumstances where the protected activity and the

adverse action are acutely near in time, close proximity is deemed indirect evidence to allow an inference of retaliation to arise. Here: temporal proximity did not equal pretext.

• Employee’s temporal proximity period was 5 months, which did

not strongly indicate pretext.

• Given this time period, plus the insufficiency of Employee’s other

evidence, Employer was entitled to summary judgment.

• Employee sustained a work injury to his back and was assigned

temporary lifting restrictions. Employer accommodated him with an assignment in its recycling facility. Employee understood this to be a temporary assignment, “until further notice.” Some of the jobs at the recycling facility involved lifting rolling trash cans. The trash cans, when full, exceeded Employee’s weight restrictions and Employee often had to get help lifting them or drag them himself. Employee noted that he was

• ften the only worker at the recycling facility on some days. Eventually

Employee’s doctor made the temporary lifting restrictions permanent. A second opinion doctor examined Employee, suggested weight loss could improve his condition but would not change the present damage, and agreed with the permanent restrictions. Employer then concluded Employee could not perform the essential functions of his former job and lacked the necessary qualifications for any available vacancy. Employer terminated Employee.

5/29/2015 16 Did Employer regard Employee as being disabled under ADA?

• Recall that in the Young case above, the claimant only had

temporary restrictions.

• Here, Employee’s restrictions had become permanent.
• Here, Employer conceded that Employee fit the ADA “disability”

definition.

• Did Employer reasonably accommodate Employee?
• In reasonably accommodating, did Employer have to create a

new position for Employee?

• No. The ADA doesn’t require employer to displace another

employee, waive essential job requirements, or create a new position for a disabled worker. The ADA defines “reasonable accommodation” to include, among

• ther things:
• job restructuring;
• part-time or modified work schedules;
• reassignment to a vacant position.

5/29/2015 17 Did Employer have to keep Employee “on hold” if a position might become vacant? It depends.

• The Sixth Circuit and Federal Regulations have suggested a

reasonable accommodation may require a transfer to a position that the employer knows will be vacant in a short time, perhaps

• ne week.
• However, the Sixth Circuit has also said employers are not

required to keep an employee on unpaid leave indefinitely, in the hope that a position may become available some time later. Here: Insufficient proof that Employer knew a vacant position would become available within a “short period of time.” Did Employer properly engage in the ADA interactive process? Employee claimed Employer failed to adequately engage in the interactive process by:

• Failing to make a reasonable inquiry on his ability to continue

his work at the recycling center;

• Failing to reasonably consider his loading ramp

accommodation.

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BUT…

• Employer provided light duty work for six months during Employee’s

rehabilitation.

• Employer continued the light duty work for several months after the

treating doctor made the physical restrictions permanent.

• Employer hired a second opinion doctor solely to evaluate Employee’s

restrictions.

• Employer sent the second opinion doctor a follow-up letter to

determine if weight loss could improve Employee’s condition.

• Employee incorrectly assumed the recycling center had a permanent

vacancy. Sixth Circuit: Affirmed summary judgment for Employer.

How would Employee’s termination affect Employer’s workers’ comp exposure? Under Tennessee’s old law:

• To cap PPD at 1.5x the PPI rating:
• Pre-injury employer must return the employee to work at

same or greater wage, or

• Employee must have stopped work for reasons unrelated to

the injury.

• If no “meaningful return to work,” then PPD exposure

was generally capped at a maximum of 6x the PPI rating.

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• Extraordinary PPD benefits (400 weeks maximum) if

at least 3 of the following are true:

• Employee has no high school diploma or GED, or Employee

can’t read or write on an 8th grade level;

• Employee is age 55 or older;
• Employee has no reasonably transferable job skills from prior

work and training; and

• Employee has no reasonable work opportunities available

locally. “Now and Later” PPD award system under new law.

• Initial Award of PPD (the “Now”)
• 450 weeks x PPI percentage x compensation rate
• No more scheduled member calculations.
• All injuries rated to the whole body (increased to 450 weeks).
• After “Now” period of weeks expires, an employee can get an

Additional Award of PPD (the “Later”) if:

• Employee has not returned to work with any employer; or
• Employee has returned to work at less than 100% of wages
• r salary on the injury date.

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• Additional Award automatically 1.35x Initial Award.
• May be further increased based on other factors:
• 1.45x, if Employee has no high school diploma or GED;
• 1.2x, if Employee is over age 40 when “Now” period ends;
• 1.3x, if the unemployment rate in the Employee’s county of

employment on the injury date is at least 2 percentage points greater than the State’s yearly average unemployment rate for the year immediately before the Initial Award period expired.

• Calculation of Additional Award (assuming all factors apply):

(Initial Award x 1.35 x 1.45 x 1.2 x 1.3) – Initial Award Note the change in determining a proper “return to work.” Before, to apply the lower PPD cap:

• Must return to the pre-injury employer
• Must return to the same or greater hourly wage
• Recent statutory exception for work hour reductions affecting at

least 50% of all hourly employees at a given location.

• Additional exceptions where the employee returned, then

stopped working because of the injury. Now, to be limited to only the Initial PPD Award:

• Must be back to work when Initial PPD Award period ends;
• Working for any employer;
• Receiving 100% of the wages or salary received on injury date

5/29/2015 21 Extraordinary PPD benefits available for injuries through 6/30/16.

• Court must determine the usual award would be inequitable.
• All 3 of the following are true on the award/settlement date:
• Authorized Doctor assigned at least 10% body PPI;
• Authorized Doctor certified that Employee can no longer return to prior

work due to permanent restrictions from the work injury; and

• Employee is earning less than 70% of his pre-injury average weekly

wage or salary.

Extraordinary PPD benefits max out at 275 weeks, including the Initial Award benefits.

Assuming 10% body PPI, $300 comp rate, no return to work, and all “Additional Award” factors apply. Old Law: PPD at 1.5x cap = $18,000 (15%, 60 weeks) PPD 6x maximum = $72,000 (60%, 240 weeks) Extraordinary PPD 400-week maximum = $120,000 New Law: Initial PPD Award = $13,500 [10% x 450 x 300] Additional PPD Award = $27,724.95 [(13,500 x 1.35 x 1.45 x 1.2 x 1.3) – 13,500] Total Ordinary PPD Award = $41,224.95 Extraordinary PPD Maximum Award = $82,500

• [275 x 300]

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Early investigation and documentation will be crucial.

• If parties do not settle at mediation (BRC), all disputed issues must be

identified.

• Only the disputed issues listed at mediation can be presented at trial.
• Very limited exceptions to “seek mercy” and add new disputed issues at

trial.

• Quick deadlines for filing responses with proof of claims and defenses.

Medical specialist panels must be prepared and presented quickly.

• Potential penalty if no initial panel given within 5 business days from notice
• f injury.
• Authorized doctor can refer employee to a specific specialist.
• The employer has 3 business days from when it receives notice of this

referral to provide a panel of specialists.

• If no panel is provided within the 3 business days, the employer is deemed to

have accepted the referred specialist.

Better to ask a question, before the question becomes a crisis. For any additional questions or concerns, contact us: 731.423.2414 Geoffrey A. Lindley glindley@raineykizer.com J.V. Thompson jthompson@raineykizer.com