August 2009

May 2009:

FMLA and Employer Attendance Procedures

Question:

If I am off on FMLA leave must I comply with employer time and attendance procedures?

Answer:

Yes.

The 8th Circuit Court of Appeals recently held that an employee who was terminated for failing to comply with her employer's call-in policy while she was out on intermittent FMLA leave failed to establish an FMLA interference claim. The plaintiff routinely called work on the days she was going to be out on intermittent leave, but on August 5, she stopped calling in. After the employee was absent three days without calling in to work, the employer deemed her to have voluntarily terminated her employment. The employer contended that it discharged the employee not for taking FMLA leave, but rather, for not adhering to its call-in policy regarding absences. Since the employer made explicit that its call-in policy applied when an employee is on FMLA leave, and the employee failed to adequately dispute why she discontinued calling in to work, she would have been terminated for doing so irrespective of whether these absences were related to FMLA leave.

Jan. 2009:

Workers' Compensation for injuries while traveling to or from work

Question:

Can I get workers’ compensation benefits for injuries that I incur while going or coming home from work?

Answer:

Normally, a person is not entitled to workers’ compensation injuries which are incurred while going or coming from work. However, there are several recognized exceptions to the going-and-coming rule. An employee traveling to and from work is considered within his or her course of employment if the employee is required, as part of the employment, to provide a vehicle for use during the workday. If an employee utilizes employer furnished transportation, injuries which occur while coming and going to the work site are compensable. Injuries which occur in the company parking lot or on public sidewalks between the company parking lot and place of employment are covered. Injuries which occur while on a special errand or mission on behalf of the employer are covered. For example, you stop to pick up supplies while en route to work, or drop off work orders while on the way home. Traveling employees are also covered; a person engaged in sales may begin work while still at home; i.e., making phone calls, etc.

In summary, injuries occurring while coming and going are not compensable. However, as demonstrated above, there are numerous exceptions which should be explored.

Question:

If I have to miss work for treatment for a work related injury do I get paid or do I use my own sick time?

Answer:

For an examination

After an injury, the employee, if requested by the employer, shall submit for examination at some reasonable time and place and as often as reasonably requested, to a physician or physicians authorized to practice under the laws of this state or another state, without cost to the employee; but if the employee requests, the employee, at the employee's own cost, is entitled to have a physician or physicians of the employee's own selection present to participate in the examination.

November 2008 - We are presenting an article by Mark Hedberg's partner Nathaniel Boulton, (published in the Des Moines Register, Sept. 16).

Problems with Iowa's Workers' Compensation Program
(a rebuttal to an article in the Des Moines Register).

The Register published a news story last month ("UPS Worker Loses Temper but Wins Compensation") that made a workers' compensation claim seem frivolous to most readers. The paper later printed a correction, though, because the decision actually held that the injury was separate from the outburst.

Nonetheless, the story is now legend and is being used by business groups to promote their agenda.

They contend, as a corporate lobbyist stated in the article, that workers' compensation in Iowa "favors" employees at the expense of our employers. Nothing could be further from the truth.

The real problem with the system is that it fails to adequately care for and compensate many workers who suffer severe and often career-ending job-related injuries. Employees who suffer work-related injuries have no voice in selecting doctors or surgeons. Instead, employers and their insurance companies control medical care, resulting in frequent problems, because these groups work to avoid treatment expenses.

At an April news conference in New York, Dr. Robert McLellan, president of the American College of Occupational and Environmental Medicine, explained that doctors can feel "methodically pressured" by the companies who retain them to "under-treat and mistreat (injured workers)." He added, "This is a grave ethical concern for our members. It's a grave medical concern."

The treatment problems alone are troubling, but there is more. An injured employee has the burden of proving that his or her injury is work-related as well as the extent of the injury. This is difficult when the employer controls the medical care from day one, while the employee is provided only a single second opinion. This burden alone shows the absurdity of claims that the system favors workers.

Iowa law also provides that an injured worker's benefits are based on an arbitrary schedule for injuries to certain body parts, including the arms and legs. That schedule limits a worker to predetermined weekly benefits without concern for the injury's impact on that worker's ability to earn a living. A meatpacker who loses a hand at work is paid the same number of weeks as an attorney with the same injury. While the attorney's employability is hardly affected, the meatpacker has likely been eliminated from an entire field of work. Yet this is the system that supposedly favors workers.

Finally, the financial difficulties faced by injured workers can be extreme. There are often long delays before benefits are paid. Many individuals who are unable to work after injury live without income until the case is resolved years down the road. Consider the troubles faced  by a worker who is permanently disabled after a work accident. This is someone who will never be able to work again, and any successful claim will provide only a fixed rate of around two-thirds of his or her pre-injury wages, with no cost-of-living adjustments. If injured at age 25, that person will be living on the same fixed rate at age 60, scraping by for basic necessities such as milk and gas after 35 years of price increases.

In making complaints, business groups fail to mention that Iowa's system is a bargain for employers. The Workers' Compensation Research Institute, a firm funded by employers and insurance companies, reported that the low cost to employers in Iowa puts our system at a competitive advantage. Iowa has some of the lowest workers' compensation insurance premiums in the country, better than the states we border. Organizations from the U.S. Chamber of Commerce to the National Council on Compensation Insurance recognize Iowa's system as one of the nation's best for employers. This shows that we can make the system fairer for workers and remain an attractive location for businesses.

Our workers' compensation system can and should do more, not less, to protect Iowans when work-related injuries threaten their livelihood. Workers need more control of their own medical care, deserve fair benefit rates that keep up with the cost of living, and ought to be compensated when their earning capacity is reduced after injury regardless of what body part is hurt. That is not "favorable"; that's fair.