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Intersection of workers comp and federal laws difficult to manage

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Following the presidential election workers compensation legal experts say they are in wait-and-see mode with regard to the recent uptick in U.S. Equal Employment Opportunity Commission complaints.

“Everything with the EEOC may be off because of the election results this week,” said Chicago-based Jeff Nowak, co-chair of the labor and employment practice group with Franczek Radelet P.C., in a webinar hosted Thursday by the Disability Management Employer Coalition on Thursday. 

The webinar focused specifically on how workers comp intersects with the Americans with Disabilities Act Amendments Act and the Family and Medical Leave Act, and provided tips on how to avoid penalties, fines and lawsuits.

Mr. Nowak, who said he is watching whether the EEOC will be the priority for Donald Trump’s administration that it has been for other administrations, said a number of pending complaints and rulings are highlighting the difficulty for employers who want to both comply with federal laws and get injured employees back to work.

Adopted in 2008, the ADAAA amended the ADA, which essentially bars employers from discriminating against people with disabilities in any aspect of employment-related activities. Under the FMLA, employers are required to give their employees up to 12 weeks of unpaid leave per year for specific reasons, including a serious health condition or to care for an immediate family member who has a serious health condition. According to experts, the two can intersect with workers comp and create EEOC complaints.

Panelists highlighted communication with employees as a better way to smooth the path to avoids costly litigation.

Dubbed the “interactive process” in worker comp, this communication requirement calls for each side of a claim to exchange of information in good faith. It is key to implementing ADAAA and FMLA requirements and state regulations that govern workers comp, experts say. 

Communication is “the most critical element,” said Adrienne Paler, director of total health and productivity management, integrated disability and absence management for Sutter Health, a Sacramento, California-based health system. “We need to tailor it … what is the employee asking for? That’s a question to ask the employee.”

“The risk of litigation increases when an employer is ignorant about their obligations under ADAAA to engage in the interactive process … they are unwilling to think creatively what they can do to that job, what changes can they make to help the employee perform the job,” said Mr. Nowak.