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AMERICAN SOCIETY OF SAFETY ENGINEERS – GREATER CALUMET CHAPTER
WHAT BESIDES “SAFETY” SHOULD SAFETY PERSONNEL KNOW?
January 14, 2010
Tina M. Bengs, Partner
tbengs@hwelaw.com
Porter County Lake County
219.464.4961 219.769.6552
Chase Bank Building Twin Towers-South
103 East Lincolnway 1000 East 80th Place
Valparaiso, IN 46383 6th Floor
Merrillville, IN 46410
At Most Companies, Each Person/Department Handles Its Own Issues if it Receives NoticeExample: “I hurt my back and need time off to see a doctor.”
Safety - - Investigate,Corrective
Action
Management - - Discipline, Attendance
Work Comp
Benefits - - Vacation, STD, LTD
HR - - FLMA, ADA,
Title VII
Employeetells oneperson
The Laws Assume Notice to One Person Flows to All
Safety - - Investigate,Corrective
Action
Management - - Discipline, Attendance
Work Comp
Benefits - - Vacation, STD, LTD
HR - - FLMA, ADA,
Title VII
Company Rep thatReceived
notice
What does this mean for Safety Personnel?When an Employee Alleges an Injury, Several Possible Obligations
Created for the Employer
Safety - - Investigate,Corrective
Action
Management - - Discipline, Attendance
Work Comp
Benefits - - Vacation, STD, LTD
HR - - FLMA, ADA,
Title VII
EmployeeAlleges a
Work Injury
Indiana’s Worker’s Compensation Act
When the Act applies:
1. Injury by accident (employer did not intend the injury)2. Injury arose out of the employment (caused by a risk
of the employer or a neutral risk - - may need medical evidence to establish this)
3. Injury occurred in the course of the employment (during work and a reasonable time before and after work)
Indiana’s Worker’s Compensation Act
Benefits if the Injury is Covered Under the Act:1. Medical care for the work injury2. Disability Benefits until the employee reaches
maximum medical improvement3. Permanent Benefit - - permanent partial impairment
for loss of function OR permanent total disability if unable to perform any reasonable employment
Benefits Not Under the Act:1. No entitlement to a job2. No special protection that allows an employee to
violate company policies.
Indiana’s Worker’s Compensation Act
Action for Employer When Employee Alleges an Injury:
1. First Report of Injury / Notify Insurance Carrier2. Investigate whether injury covered by the Act3. Investigate whether an affirmative defense applies4. Can provide first aid/emergency medical care without
admitting liability5. At least 30 days to decide if injury is covered under
the Act
Indiana’s Worker’s Compensation Act
Affirmative Defenses: No benefits owed if injury is caused by - -
1. Employee’s knowing, self-inflicted injury2. Employee’s intoxication3. Employee’s commission of a criminal offense4. Employee’s knowing failure to use safety appliance5. Employee’s knowing failure to obey a reasonable
written rule posted in a conspicuous position in the work place
6. Employee’s knowing failure to perform a statutory duty
Civil Liability for Employer and/or Co-Employee:
1. If work injury, then Work Comp is the exclusive remedy - - employer and co-employees cannot be sued civilly
2. If a third party might be liable, then preserve evidence to avoid a Spoliation of Evidence Claim
Family and Medical Leave Act
The FMLA applies when:1. Birth or adoption of a child2. Serious health condition of parent, child spouse and
the employee is needed to provide care3. Employee has a serious health condition and the
employee cannot perform functions of the job
Benefits:1. “Entitled” to 12 weeks of leave per year and job is
protected during that time2. Health benefits are protected during the 12 weeks
Americans with Disabilities Act
The ADA applies when:1. Disability
a. Impairment that substantially limits a major life activity
b. Record of having such an impairment c. Regarded as having an impairment
2. With or without reasonable accommodation 3. Employee can perform essential functions of the job
ADA - - Effective 1/1/09 - - “Substantially Limits” and “Major Life Activity” Expanded
The ADA applies when:1. Disability
a. Impairment that substantially limitssubstantially limits a major life major life activityactivity
b. Record of having such an impairment c. Regarded as having an impairment
2. With or without reasonable accommodation 3. Employee can perform essential functions of
the job
Before 1/1/09 – “Major Life Activity” Not Defined but Focus on “Major”After 1/1/09 – “Major Life Activity” includes:
• In general but not limited to:– Caring for oneself– Performing manual tasks– Seeing– Hearing– Eating– Sleeping– Walking Standing Lifting– Bending– Speaking– Breathing– Learning– Reading– Concentrating– Thinking– Communicating– Working
Also includes operation of major bodily functions, such as:
– Normal cell growth– Digestion– Bowel– Bladder– Neurological– Brain– Respiratory– Circulatory– Endocrine– Reproductive
Before 1/1/09 – “Substantially Limiting” took into account length of time, severity, mitigating measures
After 1/1/09 – “Substantially Limiting” takes intoaccount length of time (maybe less than 6 months isnot enough but still not clear), severity, but nomitigating measures
Mitigating measures does not include ordinary eyeglasses/contactsMitigating measures does include:
– Medical supplies, equipment or appliances– Medications– Low-vision devices– Prosthetics (limbs, hearing aids, cochlear implants)– Mobility devices– Assistive technology– Reasonable accommodations– Auxiliary aids or services– Learned behavior or adaptive neurological modifications
Benefits Under the ADA:
1. No discrimination based on a disability
2. Reasonable accommodation – provide an accommodation that will allow the employee to perform the essential functions of the job or that will eventually allow the employee to perform the essential functions of the job
Examples: assistive device, change in work station or equipment, different work hours, leave of absence, alternative job, etc.
Title VII
An employer with 15 or more employees is prohibited from discriminating against an employee or a group of employees on the basis of the employee’s race, color, sex, national origin, or religion.
Title VII
From a practical standpoint, Title VII means:
An employer must be consistent with discipline, demotions, terminations, hiring, promotions, and any other benefit of employment to avoid the appearance that an employee within a protected class is being treated more harshly than an employee not in the protected class.
What do you do if you receive notice of the following? (Who should be notified?)
Tom had back problems for 2 years. He has now claimed that he sustained a low back injury while working (a ruptured disc) and his doctor has placed significant lifting restrictions on him which prevents him from doing several functions of his current job. The lifting restrictions will likely remain in place for at least 6 months. You have a light duty position available that meets his restrictions. You offer him the job which is at a lower wage rate. He says, “No way am I coming back to do that job and you can’t make me!”
How should each issue be addressed?
1) Can you force Tom to take the job?2) Can you fire Tom for insubordination?3) What work comp obligations, if any?4) What are the FMLA obligations, if any?5) What are the ADA obligations, if any?6) Can he use / be forced to use vacation pay, STD,
LTD?7) If Beth had a similar back problem and she was given a light duty job at her regular pay, are there any Title VII issues if Beth is a white female and Tom is a black male?
Any Questions?
Thank you.
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