3-30-15; Transitional-Light Work Still is Alive in IL WC; Brad Smith, JD Analyzes an Important Pregnancy Discrim Ruling by SCOTUS; Kleptocracy Abounds in IL and more

Synopsis: Transitional/Light Work Programs are Alive and Well in Illinois Workers’ Comp.


Editor’s comment: We received an email from a reader at an IL WC insurance brokerage who had been advised by a solid insurance adjuster that an IL employer can’t take any action if an injured worker refused light work a doctor certified was within his/her medical restrictions. With respect to the adjuster, we wholly disagree with the advice being provided. It is our assumption they are misreading the Interstate Scaffolding or Matuszcsak rulings. We encourage all of our readers and anyone you know to send such inquiries/legal requests via email to the defense team at KCB&A and we are happy to provide free legal advice and research as we are doing in this article.


In both of the rulings above, injured workers on light duty committed acts that were considered to be criminal in nature. For example, Petitioner Matuszcsak admittedly stole cigarettes from his employer. Neither claimant was convicted of a crime but there was no dispute they did the inappropriate acts. In the contentious and oft-criticized rulings, the employers fired the workers and our courts required them to be paid TTD until they reached maximum medical improvement. This remains a very controversial concept in IL WC because it is felt to reward criminal behavior.


However, neither worker “refused light work” and we maintain the legal position any worker who has light work available has to perform the light work or they are subject to normal discipline leading to termination consistent with your normal personnel policies. The workers in the rulings mentioned above were arguably “blocked” from participating in light work due to termination for their criminal actions wholly unrelated to their injuries. In both rulings, the courts consistently maintained the workers would have had to participate in light work if such work were continuously available.


Interstate Scaffolding states, in pertinent part:


Benefits may also be suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor. See 820 ILCS 305/8(d) (West 2004); Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 166 (1992); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749 (1991) (TTD justifiably terminated by the employer, under the Act, when the injured employee was unwilling to cooperate with vocational placement efforts).


If this wasn’t a rule, transitional/light work programs in Illinois workers’ comp would have ended. Basically, no IL employer would be able to have an enforceable RTW program. In contrast, thousands of IL employers have them and they are effective in getting folks back to light and then full work. What remains confusing about the legal rule outlined by our highest court is the concept the worker is entitled to TTD until they reach maximum medical improvement or MMI—what if the worker has returned to work prior to MMI? What if the doctors have recommended transitional/light work programs to insure the worker attains MMI as part of the medical protocols? If that happened, it sets up the confusing situation in which TTD might be due until MMI but the employer would be entitled to credit for salary or wages paid.


Either way, in any situation where a worker is refusing light work or is blocked from light work due to termination for any reason, as a backup claims position to insure the employer doesn’t have to pay TTD at some later time, it is not a bad idea to informally confirm by doing a weekly web search to document there is other light work at other companies in the labor market around the lead employer—we are happy to discuss that approach further.


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Synopsis:  U.P.S. Worker’s Pregnancy Discrimination Suit Reinstated by SCOTUS. Analysis by Bradley J. Smith, J.D.

Editor's Comment: In Young v. U.P.S., a pregnant U.P.S. worker’s doctor recommended she avoid lifting anything heavy due to her multiple miscarriages in the past. When she requested light duties to accommodate those restrictions, U.P.S. was not amenable to those restrictions and placed her on an unpaid leave. 

Thereafter, Peggy Young, sued under the Pregnancy Discrimination Act (“PDA”), which specifies Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA’s second clause says employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” SCOTUS looked at the latter provision to determine whether it applies in the context of an employer’s policy that accommodates many (including, on-the-job injuries), but not all, workers with non-pregnancy related disabilities. 

UPS was granted summary judgment by the Federal District Court holding, inter alia, Young could not make out a prima facie case of discrimination under the landmark ruling in McDonnell Douglas. Particularly, the District Court found Young’s purported comparators (employees with on-the-job injuries, losing licenses under DOT, or ADA accommodations) were too different to qualify as “similarly situated.” Subsequently, the United States Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling. Judge Allyson Duncan of the Fourth Circuit wrote, “One may characterize the U.P.S. policy as insufficiently charitable, but a lack of charity does not amount to discriminatory animus directed at a protected class of employees.”

On a writ of certiorari, SCOTUS vacated the decision granting new life to Young’s case. The ruling by SCOTUS reasoned a plaintiff may reach a jury on this issue by providing sufficient evidence an employer’s policies impose a significant burden on pregnant workers, and the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather give rise to an inference of intentional discrimination. SCOTUS indicated Plaintiff might use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons for its adverse action. Ultimately, SCOTUS reasoned the record demonstrated Young created a genuine issue of a material fact as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. SCOTUS left the Fourth Circuit to determine on remand whether Young also created a genuine issue of a material fact as to whether UPS’ reasons for having treated Young less favorably than other non-pregnant employees were pretextual.  SCOTUS reinstated the claim with a 6-3 majority and Justice Scalia and Justice Kennedy filed dissenting opinions. Justice Scalia’s dissent cautioned the Court’s opinion blurred the lines between a claim brought as disparate impact versus a disparate treatment. Additionally, he warned the Court’s opinion caused unnecessary confusion with the McDonnell Douglas standard.

Regardless, the Illinois legislature has “spoken” on this topic with its recent amendments to the Illinois Human Right Act. Specifically, Illinois passed the Pregnancy Accommodation Act (a.k.a. the “Pregnancy Fairness Law”). This Act is more inclusive than the federal PDA as it applies to employers employing one or more employees and further applies to full-time, part-time, and probationary employees. Notably, inter alia, the Act provides an employer providing light duty to other types of non-pregnant employees, creates a rebuttable presumption the accommodation does not impose an undue hardship on the employer. In other words, if your employee is injured on the job, and you provide light duty to accommodate that employee, it is presumed that you will do the same for a pregnant employee, and failure to do so will create a presumption of discrimination.  

In order to stay out of the Federal and State Courts under the federal PDA or state PAA, employers need to implement and engage in an ongoing interactive process and also accommodate pregnancy-related conditions if they are accommodating similar restrictions through light duty positions with their on-the-job injured employees. The Young opinion allows an employee arguing she was discriminated under the PDA to look to other employees with on-the-job injuries as comparators to demonstrate a prima facie case under the McDonnell Douglas burden shifting test.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the Illinois Pregnancy Accommodation Law, Title VIII, employment law, and general liability defense at bsmith@keefe-law.com.



Synopsis: Illinois May Be a Land of Kleptocracy Which is Quietly and Surely Bankrupting Our Governments.


Editor’s comment: We keep seeing this concept play out over and over. We define ‘kleptocracy’ to occur when government workers legally find methods to use or “game” the system to feather their beds in a fashion that can be shocking to taxpayers. The ‘klepto’ part in the term isn’t truly accurate, as it implies the workers are stealing—we emphasize our position, the workers aren’t stealing, they are just getting very expensive benefits we don’t feel taxpayers should have to pay. We just saw legislation being considered to allow Illinois municipalities to file for bankruptcy—rulings like this are one reason such extreme measures are being considered.


In Vaughn v. The City of Carbondale, our IL Appellate Court, Fifth District found a Carbondale police officer bumped his noggin getting into his patrol car to answer the radio. We have no idea how a bump on the head could lead to a lifetime line-of-duty disability pension and the decision doesn’t fully address that issue. However, the patrol officer wanted lifetime family medical coverage asserting his injury occurred responding to an emergency. There is no indication in the record the radio call was due to an actual emergency—the patrol officer was simply answering his radio.


The unanimous Appellate Court majority ruled as any typical radio call from police dispatch was one means to notify officers of emergency, it then became the officers' duty to respond to dispatch calls in timely manner in case it is an emergency. Thus, they ruled the officer's injury was incurred as a result of his response to what he reasonably believed was an emergency. With respect to the members of this court, we cannot disagree more. We also point out this ruling provides an enormously expensive lifetime benefit. In our view, this Appellate Court is now ruling basically everything a police officer or firefighter does is in “response to an emergency.” The “emergency” in this one was reaching into his car to answer a dispatch call that clearly wasn’t an emergency. By the theory used in this ruling, a police officer tying their shoes, putting on their hat or buttoning their shirt is acting “in response to an emergency.”


Please start with the fact a police officer or firefighter don’t have to be fully disabled to be entitled to lifetime line-of-duty disability benefits. Our IL Supreme Court ruled “catastrophically injured” means the officer simply has to be disabled from working as a police officer or firefighter. They can have post-employment jobs that make more money than they made while working. We consider that whole approach to be kleptocratic. On top of that, we are now seeing the courts further “bend” the rules to provide not only lifetime benefits for officers who can work but also guarantee lifetime family medical coverage to be paid 100% by taxpayers. The annual added cost of rulings like this is about $30K a year for one officer for this year—that cost continues to climb as health care premium costs rise. The cost of rulings like this to Illinois municipalities is well into the tens of millions and could eventually be into the billions if enough Illinois law-enforcement officials and firefighters claim it.


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