8-7-12; Refilling prescriptions on a Work Day? Better think twice. Ellen Keefe-Garner explains why the FMLA DOES NOT protect employees from leaving work to run errands

An employer may terminate an employee who attempts to use the Family Medical Leave Act (FMLA) to take a day off work without obtaining medical treatment. In Robert Jones v. C&D Technologies, Robert Jones appealed from a finding in favor of his employer after he was terminated for excessive absenteeism.  

Jones, a machine operator at C&D technologies, had some medical problems, including anxiety and back pain. In October of 2009, Jones took off a full day of work to go to a doctor’s appointment in the afternoon. On the same day and before seeing the doctor in the afternoon, Jones went to the offices of another doctor without first making an appointment to ask that doctor to give him a note to refill some prescriptions. 

He and his employer subsequently got into a dispute about the time he had taken off in the morning to pick up the written prescriptions. The dispute centered on whether Jones should have taken off the whole day of work or just the afternoon. The employer had a policy of assessing points against employees who took unexcused absences of more than 30 minutes. The company ultimately assessed points against Jones for taking off the morning to get the prescription. Since Jones had already accrued other points for unrelated absences, the additional points he accrued for his unexcused morning absence brought his total points above the maximum allowable points, and the employer fired him. 

Following his termination, Jones sued his employer, arguing his time off to pick up the prescriptions in the morning was an FMLA-excused absence.  The employer argued the morning absence was unexcused and required the assessment of points since Jones had not received any medical treatment when he picked up the prescriptions.  

In upholding a ruling in favor of the employer, the Seventh Circuit Court of Appeals noted in order to be entitled to FMLA leave, the employee must have a serious medical condition that makes them unable to perform his job duties. The Court noted a serious medical condition is one in which the employee must be absent from work in order to obtain medical treatment. Alternatively, the court reasoned an absence for unnecessary treatment or for no medical treatment at all means the employee is not sufficiently incapacitated to be unable to perform his job duties.  

The court ultimately held despite Jones's visit to his doctor's office to pick up some written prescriptions, the visit, without more, did not constitute treatment under the FMLA as a matter of law. In arriving at its conclusion, the court emphasized there had been no scheduled appointment with the doctor and the doctor had not actually examined Jones. Since Jones had not received any real treatment from the doctor, the court found his employer had been justified in assessing points and in firing him because of his unexcused absences. 

For a copy of the case noted above or any related questions cases, please email Ellen Keefe-Garner JD, RN, BSN at EMKeefe@keefe-law.com or call her directly at 312-756-3734.

8-7-12; What Will the WC Commissions/Boards Do If/When In Vitro Fertilization Creates a Child after the Worker has Passed from a Compensable Event?

Earlier this year, our U.S. Supreme Court ruled on the legal status of children conceived via in vitro fertilization after the passing of the parent. In Astrue v. Capato, there were twins born 18 months after their father, Robert Capato, died of cancer. Capato’s widow, Karen, unquestionably and successfully used frozen fluid of Decedent for the in vitro process. DNA testing would have confirmed the twins were children of Decedent. Following the twins’ birth, the mother asked for Social Security survivor benefits for the new children, asserting the twins were “children” and therefore should be “survivors” of the deceased worker.

According to the Social Security Administration, children are only entitled to benefits from a wage earner who dies if they qualify for inheritance under state law. In Florida, a child may not inherit through intestate succession unless conceived while the deceased parent was still alive. Basically a child conceived after the passing of the deceased parent is barred from collecting “death benefits.”

When the claim was decided by our highest court, the unanimous opinion by Justice Ruth Bader Ginsburg supported the Social Security Administration’s interpretation of the governing statute. Our highest court ruled the Florida twins conceived through in vitro fertilization which occurred after their father’s death were not entitled to Social Security “survivor” benefits,

“Tragic circumstances—Robert Capato’s death before he and his wife could raise a family—gave rise to this case,” Ginsburg wrote. “But the law Congress enacted calls for resolution of Karen Capato’s application for child’s insurance benefits by reference to state intestacy law. We cannot replace that reference by creating a uniform federal rule the statute’s text scarcely supports.”

We ask our readers of your thoughts about this concept for the workers’ compensation arena. In the past, we have advised our students there are three types of “children” under IL WC law:

·         DNA kids who have DNA that matches that of a parent;

·         Adopted children who have legal papers to prove the fact of adoption;

·         In loco parentis children who can demonstrate they lived with decedent and were listed as dependents on decedent’s tax returns or otherwise can show dependency.

The Astrue v. Capato ruling sort of confuses the first common sense concept. Please note the DNA guideline we refer to isn’t taken from language in our WC Act—it was a simplification used to assist students in understanding how WC death benefits typically work. There is no question a child born long after the passing of a parent would be a “DNA child” but there is also no chance that child could ever assert they were in any way dependent on the person who froze part of themselves to allow children to be born after their passing.

What do you think the proper outcome should be? Could someone pass and their spouse later have a child or children, requiring the employer to then owe and be required to pay death benefits? Should statutory language be considered to make this outcome more certain? Please feel free to reply on or off the record or post your thoughts on our blog.

8-7-12; When is an Injured Worker an “Employee” for Workers’ Compensation Purposes and Coverage?

Here are our thoughts:

A.   Employee vs. Independent Contractor

In situations where elements of both an employee-employer relationship and an independent contractor relationship are present, the Illinois Workers’ Compensation Commission (and Illinois courts reviewing the decision of the IL WC Commission on appeal) ostensibly look to the following factors in determining whether Petitioner is considered an employee:

1. The relationship of the work performed to the overall business of both the individual performing the work and the regular work of the alleged employer;

            2. The party most likely to have insurance coverage for the loss;

            3. The right to control the manner in which the work is performed;

            4. The method of payment for the work performed;

            5. The right to discharge and the means of discharge;

            6. The party furnishing tools, materials and equipment.

In our view, Illinois and most states’ WC case law is generally unpredictable. The WC Commission/Boards and reviewing courts ostensibly utilize the above-outlined formal legal standards as their published decisions are presented to the larger public—they may uniformly indicate the ‘right to control the work’ is a paramount standard. We don’t feel that standard tells the bigger story.

In contrast, more veteran observers point to the ‘deep pocket’ theory of who has available workers’ compensation insurance (or ‘self-insurance’) coverage when an individual suffers a serious work-related injury or death and their family is left without any source to pay for time lost and medical bills. Always remember, the workers’ comp system in Illinois arose out of the ashes of the Cherry Mine disaster where numerous families were left to fend for themselves without breadwinners.

Also remember if the injured party had their own workers’ compensation insurance policy, they probably wouldn’t be bringing the claim. In analyzing whether a worker is an employee or an independent contractor, the party most likely to have insurance coverage faces a very strong burden of establishing the injured worker claiming to be an employee wasn’t actually an “employee” but was an employer in their own right and therefore had an equal responsibility to obtain and pay for insurance to cover their own injuries.

The above concept is critically important in ongoing work relationships, particularly where the injured individual now claiming to be an employee worked alone and continuously performed most or all of their work for the individual or organization claimed to be the employer. In our view, it is crucially important to continuously audit your vendors to insure everyone on your worksite has their own binding WC insurance coverage.

A good example of this is a truck driver who only delivers loads for one organization, even if the driver owns their own truck and pays all of their own expenses but possibly doesn’t have workers’ compensation coverage and is going “bare” to save money. Where this is occurring, we strongly urge that you require such an individual present a “CI” or certificate of insurance demonstrating proof of workers’ compensation coverage for their own injuries. Please note in Illinois, it is workers’ comp fraud to present a faked or phony certificate of insurance. Where the injured individual is left without WC coverage, the WC Commission or Board may go to great lengths to find such an individual is an employee.

            B. ‘Independent Contractor Agreements’

Risk managers can be confident Workers’ Compensation Commissions/Boards and courts generally are extremely suspicious of ‘independent contractor agreements’ or other documents designed to clearly state an uninsured individual is an independent contractor in advance of the injury. When all the facts and circumstances of the work being performed lead to the conclusion the individual performing the work is an employee, the hearing officers may completely reject the terms of the ‘independent contractor agreement’ as a subterfuge designed to mislead both the administrator and the injured employee.

Our favorite example of this is the trucking company that had each driver execute an ‘independent contractor agreement’ when further investigation also disclosed that the driver also had to fill out a typical ‘employment application’ which was contained in the same file. Don’t be misled into thinking that an ‘independent contractor agreement’ will be legally enforceable—in many instances, the applicable Commission/Board may provide an even higher level of scrutiny when presented such documents.

In a serious injury, it is likely the employee may seek out legal assistance and a veteran workers’ compensation attorney will readily bring such a claim and ignore the agreement. You may get caught if you don’t report or otherwise reserve for such losses. To the extent that the injured individual views such a document as legally enforceable and doesn’t seek benefits, it may have its intended informal effect.

We are repeatedly asked—can I hire an independent contractor who is a “sole proprietor” and can “opt out” of WC coverage? In our view, the answer is technically yes, it is legally possible to do so. Our strongest legal advice is to never, ever do so. The problem you are going to have when you allow such a legal relationship to occur is you are hanging yourself out to dry—if that uninsured independent contractor is seriously injured or killed, it is possible they or their family will come after you for WC benefits. Defending such claims is always expensive and dicey. Our strongest vote is to insure all of your independent contractors have their own WC coverage—don’t let anyone “opt out” and expose you to a tough WC claim.

            C. Special employment relationships

            1. Volunteers

Volunteers are not generally considered employees under most states’ Workers’ Compensation Acts. Purely volunteer workers who are not paid and have no expectation of payment are excluded from WC coverage, even if they suffer severe injuries.

Again, remember that this concept may give you a legal ‘option.’ It is possible the volunteer may have a viable common law liability claim and it is conceivable workers’ compensation benefits can be paid which may serve to cut off the third party exposure. If you have such a claim, give us a call or reply for further advice.

            2. Casual or part-time employees

Casual or part-time employees are covered by the Illinois Workers’ Compensation Act and the Acts of many states. Such workers may be entitled to benefits despite their part-time status. In these situations, the IL employees’ average weekly wage may be the same as the rates for TTD and PPD. What we mean by this is the part-time employee’s average weekly wage may actually become the maximum amount they can be paid for TTD and PPD (see the last two sentences in Section 8(b)(2) and 8(b)(2.1)). This low rate leads to a generally minimal exposure in claims involving part-time employees unless the individual was working more than one job and the employer was aware of dual employment.

Also, this limitation on rates in IL does not apply in amputations, death cases or total/permanent disability claims where the minimum amount is one-half of the then-applicable statewide average weekly wage. In these claims, benefits may be paid at levels which greatly exceed the amount the employee was making and can be what some observers consider a windfall for the employee. It can also lead to enormous problems in getting a seriously injured part-time employee back to work as they may want the much higher total and permanent minimum rate.

            3. Loaned and borrowed employees

From time to time, an employee of one staffing or logistics company may perform job duties for another company either under a contractual relationship or in a relationship implied by the nature of the employment. Under IL WC law, both parties have liability for injuries to staffing employees.

In these situations, where the employee is working at the time of the accident may lead to that employer being primarily responsible unless there is a contractual agreement to the contrary.

However, if the employer that is primarily responsible does not pay or fails to timely pay benefits, the other employer must pay. Liability is joint and several in such situations. Again, remember the unstated “rule” is to insure the injured employee has insurance coverage for the loss.

We appreciate your thoughts and comments. Please feel free to post them on our award-winning blog.