4-16-2018; Not Just One--Two Federal Courts Rule Long-Term LOA Is Not Required Under ADA; Kevin Boyle JD on UR in Indiana WC and more

Synopsis: Not Just One But Two Federal Courts Rule A Long-Term LOA Is Not Required Under ADA. I consider this required reading for all HR, WC and Employment Law folks.

Editor’s comment: I was surprised to see the Eleventh Circuit is the next Federal Appellate Court to find a long-term leave of absence is not a reasonable accommodation under the ADA. This Court is the highest federal court before a legal issue goes to the U.S. Supreme Court. A short while ago, our Seventh Circuit ruled multi-month leaves of absence, even those defined in term and requested in advance, are not required by the Americans with Disabilities Act or ADA.

I do feel this legal concept may also lead to more terminations in work comp settings where the leave, even with TTD ongoing, drags on for months or years—if you need help in handling such situations on the WC side, send a reply.

Either way, the Eleventh Circuit Court of Appeals followed the concept outlined in the Seventh Circuit ruling and issued a similar opinion, allowing for termination of the worker. These two decisions portend a growing movement indicating to me the federal courts are attempting to curb the abuse of long-term leaves of absence under the ADA which has been baffling and challenging to U.S. employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities, Plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He did not have corrective surgery during this time, so under the employer’s medical leave policy, he was granted another three-month medical leave. At the end of this period, a total of six months of leave, the employee was still not medically cleared to return to work. He told the employer he had another doctor’s appointment in a month and would likely be released to work in six weeks, but it was unclear whether he would have any continuing or permanent work restrictions.

Once they learned of his uncertain state, the employer terminated Plaintiff. Claimant sued, alleging failure by the employer to provide additional leave as a requisite ADA “reasonable accommodation.”

The Federal District Court dismissed the claim. On appeal, the Eleventh Circuit Court of Appeals affirmed dismissal of Plaintiff’s claim on summary judgment. Plaintiff acknowledged ADA case precedent indicates U.S. employers are not required to provide indefinite leave. However, Claimant argued prior decisions involved situations where employees suffered from longstanding medical conditions that could continue indefinitely. In this case, Plaintiff contended an unspecified leave under ADA was reasonable because there was a projected end date and once concluded, his medical condition might be resolved without the need for additional leave.

The Eleventh Circuit rejected this argument finding even though Plaintiff would might recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted the employer did not violate the ADA because it already provided six months of leave and Plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual under ADA.  Thus, the Federal Appellate Court found regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

From this ruling, it is clear in my mind our local Seventh Circuit is not the only Federal Appellate Court seeking to invalidate the EEOC’s expected and well-settled position long-term leaves are required as “reasonable accommodations” under the ADA.  If other federal circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods. As my law partner, Brad Smith always says—“document, document, document.”

If an employee cannot medically substantiate your worker may return to work near the expiration of FMLA leave, you should have greater legal flexibility in determining whether or not to accommodate the request. While you should be aware of this apparently growing trend and choose to adjust your leave/accommodation approaches accordingly, you still have to approach long-term and indefinite leave requests carefully as there are conflicting decisions from other circuits and the EEOC’s position may remain unclear unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits and affirms these new rulings.

I appreciate your thoughts and comments. I am happy to help with FMLA or ADA issues, just send a reply. If you have thoughts on this topic, please post them on our award-winning blog.

Synopsis: Indiana’s Utilization Review Procedures Differ from Illinois—Don’t Be Confused. Comment by Kevin Boyle, J.D. of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Beware when using Utilization Reviews for Indiana Worker’s Compensation Claims.

Prohibitions on the use of “Utilization Review” (“URs”) are not necessarily mentioned in the Indiana WC statutes, and the judges may use URs if needed in their evidentiary analysis. In general, however, URs are not credible medical opinions, but rather insurance company efforts to investigate proposed treatment. Also, just using a UR can spark bad faith claims, too, as an attempt to thwart the treating physician’s recommendations to save money and not provide authorized medical care.

Adding to the analysis is the fact that Indiana UR rules, laws, and regulations are also generally covered in the separate statutory insurance laws and a specific statute for “Drug Utilization Review.” Also, as mentioned in the last few weeks, brand new 2018 legislation also will affect the UR process and drug prescriptions that we are still waiting to see how they will play out.

It can be complicated, so try to stick to the basics. The first basic Indiana rule is that Employer/insurer controls the medical care selection. There are some exceptions, for example emergencies, but let’s just stick with the standard situation. The second rule is that although Employer selects the medical provider, Employer can’t designate the medical treatment. The selected doctor tells us what needs to be done. 

Employers can ask for a second opinion, but Employer can’t tell the doctor to change the treatment. If you think the proposed treatment is not medically necessary, you need a medical opinion to dispute it, and don’t just UR it and rely on the UR. The second medical opinion should be quickly obtained, and it should be by a doctor who actually sees patients and has some experience in Indiana work comp cases. 

Remember also that here are “IWCB-ordered IMEs” that can be used more or less for second opinions. Technically speaking, some people call their “second opinions” “independent medical evaluations” or “IMEs.”  It can get confusing in Indiana, when Employer gets a second opinion, but calls it an IME. It gets more confusing later then if/when the IWCB orders an IME….  Who’s the IME now? So, I usually try to call second opinions in Indiana just that: “second opinions;” and save the “IME” title only for those instances with actual IWCB-ordered IMEs.

In summary, an internal UR/peer review isn’t usually considered to be a credible medical opinion by a qualified provider, and trying it can be problematic. As a result, URs aren’t worth much for evidence in Indiana, so please do more than merely use a UR to deny/dispute the proposed medical treatment.  For more info, email me at kboyle@keefe-law.com

Synopsis: Have you heard the news? There are brand new Indiana Section 15 Full and Final Settlement requirements. Email me for immediate info, kboyle@keefe-law.com, and we’ll have an update in next week’s newsletter, too.