8-20-2019; In an IL WC Claim, Does An Adjuster Have To Turn Over All or Some of Your File?; Do U.S. Employers Have to Allow "Work-From-Home" As An Accommodation Request and more

Synopsis: Petitioner’s/Plaintiff Counsel in an IL WC Claim I Am Adjusting Wants My File—Do I Have To Give It To Them?

Editor’s comment: We had a great client who is a claims adjuster receive an opening “hello” email from the other side’s attorney. The attorney nicely asked for all sorts of stuff in the file, including incident/accident reports, witness statements and wage documents. The adjuster inquired as to whether to respond and provide all that documentation.

My response was simple—you can produce/share whatever you want. You don’t have to because there is limited “discovery” in IL workers comp. I am not saying there is no discovery but the rules make it limited.

I do feel an adjuster also might have an ethical issue to divulge information/documentation to the other side that you don’t have to disclose—you might be later criticized or worse if a claim dramatically increases in value when you truly don’t have to volunteer file information. I am not saying to lie or intentionally hide anything. I am saying you need to insure you and your account are on the same page about claims strategy. And in a claim where you don’t have defense counsel assigned, it is crucial to contact readily-available defense attorneys like the great team at KCB&A to get complimentary legal advice on any pre-hearing disclosure to protect your back, if you understand what I mean.

Please also remember whatever you voluntarily turn over to a solid Petitioner’s lawyer can and may be used “against you” or your account in any later hearing. It is also very hard to “rebut” or possibly even clarify anything that might be viewed as contrary to your defense position, particularly in a State as liberal as Illinois can be.

Please remember Illinois is a “trial-by-ambush” state for WC, as we don’t get to depose the other side’s witnesses and can sometimes be surprised at who shows up and what they say—you need veteran defense counsels who are nimble at cross-exam to make sense of such a system.

In the claim mentioned above, my recommendation/suggestion to the client was to contemplate the strengths and weaknesses of that claim and consider sharing/exchanging information with OC to try to get a rapid outcome/closure. I am sure she used great common sense and did what was best.

Happy to discuss such issues at any time—I don’t bill for such advice unless you assign the file.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Does a U.S. Employer Have to Provide “Work-From-Home” as an Accommodation Request?

Editor’s comment: In the federal ruling in Yochim v. Carson, the concept of leave and accommodation requests clearly create difficult issues for U.S. employers. A challenge that arises when it comes to accommodation requests is there is no easy or clear test to determine whether a requested accommodation is reasonable, because the essential functions of one job can be quite different from the essential functions of another. In my view, there is no panacea when it comes to a “reasonable accommodation.”

Please also remember such accommodation requests might bleed over to the work comp side—if this concept became popular, workers like Ms. Yochim with work-related carpal tunnel syndrome might be able to demand weeks and maybe months of “work-at-home” while recovering. U.S. employers don’t want to have thousands of workers staying at home and out of sight where it will be harder to manage your workforce and risk rises.

In this recent case, Claimant Yochim worked as a lawyer for the U.S. Department of Housing and Urban Development (HUD). At the Federal District Court level, she claimed the agency failed to reasonably accommodate her request to work from home full time after undergoing surgery for carpal tunnel syndrome. Please note CTS and a carpal tunnel repair is not a particularly unusual condition. What is unusual was Claimant Yochim asked to work from home so that she could engage in ongoing physical therapy as part of her recovery. After losing in the Federal District Court, she appealed her case to the 7th Circuit Court of Appeals.

It seemed clear Claimant Yochim worked at HUD since 1989, most recently serving as a senior lawyer at the agency. Prior to CTS surgery, she had already been working from home two days per week consistent with the agency’s telecommuting policy (which allowed up to three days per week).

You may note the HUD general counsel’s office where she worked was restructured before her surgery to encourage employees to be in the office more often, in order to cross-train with other employees and to become more knowledgeable in other areas of law the department needed to address.

After routine CTS surgery and what she claimed was a difficult recovery, Yochim asked to work from home full time and all the time for several months. That request was rejected by the agency, but she was offered other accommodations that would have required her to be in the office at least part of the work week.

For example, she was offered the opportunity to work four 10-hour days, which would have included working some of that time from home and the opportunity to commute to the office outside of the rush-hour period. Another agency proposal was for her to work from home for three days per week. There appears not to have been any allegation that the agency did not participate in the interactive process that is required once an employee requests an accommodation.

Each of the agency’s proposed accommodations was rejected by Claimant Yochim, who then used up her remaining sick leave and retired early.

The leading issue U.S. employers and the courts struggle with is whether working from home is a reasonable accommodation at all based on the employee’s duties and responsibilities. Here, though, the employee was already allowed to work from home two days per week (and the agency offered three days), with the employee asking for an accommodation to work from home five days per week for several months.

Therefore, the court had to determine whether working from home for more than the permitted three days per week is unreasonable. Another issue is the employee’s department had only recently restructured its work-from-home policy to expect employees to be in the office more frequently. It will be instructive to see how the court considers what amount of attendance is an essential function of the HUD attorney’s job, whether allowing an employee to work from home up to three days a week undercuts the argument that attendance is essential, and whether working from home for five days per week instead of three creates an undue hardship on the employer and others in the workplace.

I appreciate your thoughts and comments. Please post them on our award-winning blog.