AMERICAN SOCIETY OF SAFETY ENGINEERS – GREATER CALUMET CHAPTER

AMERICAN SOCIETY OF SAFETY ENGINEERS – GREATER CALUMET CHAPTER

WHAT BESIDES “SAFETY” SHOULD SAFETY PERSONNEL KNOW?

January 14, 2010

Tina M. Bengs, Partner

[email protected]

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


Action


Work Comp


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


Action


Work Comp


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)


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.


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


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.

Documents

AMERICAN SOCIETY OF SAFETY ENGINEERS – GREATER CALUMET CHAPTER