3-12-2018; Can An IL Employer/WC Claims Handler Bring Claimant Back to Light Work At a Charity?; Matt Wrigley JD Reports on an Important Federal EPLI Ruling and more

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Synopsis: Can An IL Employer/WC Claims Handler Bring a Claimant Back to Transitional Light Work At a Charity? Can You Cut-off TTD If They Refuse?

 

Editor’s comment: I am asked this question all the time. We had a reader send us a brilliant article by an excellent IL defense attorney, Jessica Bell that was published in the Illinois Association of Defense Trial Counsel Quarterly. I salute her hard work and acumen in this growing area of U.S. workers’ compensation law.

 

This situation arises when an employee is injured at work and cannot immediately return to their former job due to medical restrictions resulting from the work injury. The employer or claims manager assumes the work restrictions are temporary and should be lifted as the worker’s medical condition improves, enabling the employee to return to his former job at the same employer or possibly another available position. In the interim, some employers, particularly in union settings, have many hurdles to accommodate restricted work.

 

Getting the injured worker back to any work is better than letting them sit home and watch the television. In my experience, many injured workers try to “disappear” and stay out of view. This “charity-volunteer-job” situation offers benefits to the employer and the employee, ranging from reduced workers’ compensation for the employer, to getting an injured work to take a shower, travel to work with others and remain somewhat off the dole. To me, the concept is a win-win for everyone.

 

The article mentioned above reviewed whether an Illinois employer may effectively offer transitional light duty work through another entity, say, such as a charity while also paying TTD. Many IL Claimant attorneys support the concept and want their clients to cooperate. Sadly, some Claimant attorneys are willing to fight over it to see what the Arbitrator and IWCC might do.

 

Other states have examined this scenario and several have adopted what is commonly referred to as temporary transitional employment (TTE) provisions, whereby the employer is permitted to return the employee to light-duty work with another business while the employee’s condition heals. Ms. Bell’s research documented at least eight states have already adopted specific TTE or similar programs via statute, while other states permit TTE programs based on their workers’ compensation statute’s current wording. We hope the secret-powers-that-control-the-IWCC consider enacting legislation to incorporate or delineate a rule about it and avoid confusion and unnecessary litigation.

 

One important aspect of this TTE concept is to consider obtaining the opinions of a certified vocational rehab counselor or CRC who is familiar with the idea and can provide an expert report backing up the concept. The CRC report doesn’t need to be 500 pages—short and to the point works best. Please remember the IL WC Act/Rules contemplate a “120-day” voc rehab rule, requiring both sides to agree on a voc plan to get a moderate to severely injured worker back to any work. The plan is supposed to be considered by both sides and approved via the Arbitrator. Anyone off 120 days on a continuous basis after an accident is, in my view, a moderate to seriously injured worker. If you have an expert report from a CRC or certified rehab consultant confirming the worker can and should be doing something, even in a charity setting, and get them off their couch, you have a much better shot at Arbitrator approval.

 

The article mentioned above carefully chronicles widely differing IL WC outcomes and this concept is going to remain a transitional idea in our nutty State for the time being. Under the current administration, I do feel a well-documented TTE offer could “work” and many Arbitrators might informally confirm their concerns or formally deny disputed TTD benefits if the worker remains adamant about staying home with their TV remote and won’t volunteer at a charity while getting TTD. I am somewhat sad to report if a Democrat moves into the Governor’s mansion in the fall, TTE may disappear for four years.

 

If you want defense legal guidance on implementing a TTE program including referral assistance or experts, reply or call me. I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: Document, Document, Document Employee Absences—It Takes 1 Minute. Employee Fails to Establish her Termination Violated the FMLA, ADA, and Rehabilitation Act. Research and analysis by Matthew Wrigley, J.D., licensed in IL and MI.

 

Editor’s Comments: In Guzman v. Brown County, No. 16-3599 (March 7, 2018) E.D. Wisc. Affirmed, a telecommunications operator previously diagnosed with sleep apnea was terminated by her employer after repeatedly failing to report for work when scheduled. The employer maintained a progressive disciplinary system which escalated from verbal warning to written warning, suspension, and termination. Under this policy between 2004 and 2013 the employee received nine verbal or written warnings regarding use of vacation or casual time, failing to complete proficiency tests, and failing to report for work. Due to two additional infractions which included tardiness and failure to report for work the employee was suspended and eventually terminated.

 

The employee sued the employer under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act alleging interference, retaliation, and discrimination. The trial court granted the employer’s request for summary judgment finding no genuine dispute as to any material fact. This resulted in judgement for the employer, and a dismissal of the suit. The employee appealed this decision to the Seventh Circuit Court of Appeals, which affirmed summary judgment in its entirety. 

 

The Seventh Circuit initially addressed the employee’s charge of FMLA interference and found she failed to introduce any evidence to show she suffered from a “serious health condition” at the time of her infractions. In addition, the Seventh Circuit found no evidence to establish the employee provided either actual or constructive notice of her asserted need for FMLA leave. Finally, the Seventh Circuit found it undisputed the decision to terminate the employment relationship was made before the employer had knowledge of any serious health condition or request for FMLA leave.  With regard to the charge of retaliation under the FMLA, the Seventh Circuit held the employee failed to present evidence her termination constituted an “adverse employment action” which occurred because she requested or took leave. In other words, the Seventh Circuit found that the employer had no prior knowledge of the employee’s health issue to link up the employee’s claim of retaliation for requesting FMLA leave. 

 

Addressing the discrimination charges under the ADA an Rehabilitation Act the Seventh Circuit held the employee failed to present evidence to show her termination was a result of an alleged disability rather than her violations of the progressive disciplinary system. With regard to the employee’s charge of failure to accommodate, the Seventh Circuit held no evidence was presented to show the employer was aware of an alleged disability prior to the termination. The Court specifically held “after the fact requests for accommodation do not excuse past misconduct.” Finally, with regard to the charge of disability retaliation under the ADA the Seventh Circuit held the employee presented no evidence to establish a causal connection between her engagement in a statutorily protected activity and an adverse employment action. 

 

The research and writing of this article was performed by Matthew Wrigley, JD. He can be reached regarding employment law or workers’ compensation issues that you face at mwrigley@keefe-law.com

 

EVENT

Dealing with Employees from Application to "Z" you Later | March 19 | 12-2pm | Johnson & Bekk, Ltd., Chicago

Who Should Attend?

HR professionals, employment lawyers, and anyone who manages personnel are invited to Dealing with Employees from Application to "Z" You Later on March 19 where our speakers will discuss how and where to advertise for positions, the do’s and don’ts for selecting and interviewing candidates, proper considerations for hiring decisions, how to properly document performance and other disciplinary issues, and when and how to terminate employment.

Schedule

11:30 a.m. - 12:00 p.m. Registration and Light Lunch

12:00 - 2:00 p.m. Dealing with Employees from Application to "Z" You Later

Presented by: Kimberly Ross, FordHarrison LLP and Bradley Smith, Keefe, Campbell, Biery & Associates, LLC

The program will review through the “life” of an employee from a management perspective. Many employers hire managers and supervisors of employees who know the business end of the job, but who have no training or experience in managing people. Many employers also think about the life of an employee in terms of hiring and firing only. This program will explore the infancy of the employment relationship, beginning with proper advertisement for the position, soliciting, collecting and reviewing applications, interviewing, hiring, performance reviews, disciplining, and termination. We will discuss state and federal laws that must be considered, as well as general best practices. We will also explore some of the pitfalls that may be encountered with social media and the Internet, including a discussion of the type of information employers can and cannot consider when making employment decisions. 

CLE Credit

The IDC has also been approved for 2.0 hours of CLE credit for this program in the state of Illinois. We will apply for the following CLE credit in other states:

  • Indiana 2.0 CLE; 0.0 Professionalism
  • Iowa 2.0 CLE; 0.0 Professionalism
  • Missouri 2.4. CLE; 0.0 Professionalism
  • Wisconsin 2.4 CLE; 0.0 Professionalism

Registration

This event will be held at the offices of ISBA Mutual Insurance Company, 20 N. Clark Street, Ste 800, Chicago and via TELECONFERENCE. Please indicate your attendance method (in-person or via teleconference) on your registration form. Registration for this event is $25 for IDC members (Non-member $50).