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The Employer E-Letter:
Labor and Employment Law News from the
Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Editor, Kathleen S. Bray, ksb@hanftlaw.com or 218.529.2427.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- LIMITATIONS ON PRE-EMPLOYMENT DISABILITY INQUIRIES
- EMPLOYERS AND INSURERS CANNOT CONDITION WORKERS' COMPENSATION BENEFITS ON APPLICATION FOR SSD BENEFITS
- UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) BASICS
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LIMITATIONS ON PRE-EMPLOYMENT DISABILITY INQUIRIES
Before a job offer is made to an applicant, employers may not request a medical examination, or ask questions implicating medical conditions or disabilities. Employers may condition a job offer on successfully passing a physical examination, so long as that physical examination is required for all applicants in similar positions.
The Equal Employment Opportunity Commission's (EEOC) website provides helpful information sheets for employers concerning the Americans with Disabilities Act (ADA). The information sheets include examples of what you can and can't ask a job applicant before a conditional job offer is made.
Examples of what employers can ask:
- Whether the applicant has the right education, training, and skills for the position.
- Whether the applicant can satisfy the job's requirements or essential functions, as described to the applicant, and consistently represented to other applicants.
- How much time off the applicant took in a previous job (but not why), the reason the applicant left a previous job, and any past discipline.
Examples of what employers can't ask:
- Questions concerning an applicant's physical or mental impairment or how the applicant became disabled;
- Questions about an applicant's use of medication;
- Questions about an applicant's prior workers' compensation or prior injury history.
When an applicant's disability is obvious and raises questions as to the ability to perform the essential functions of the job, an employer may make limited inquiry at the pre-offer stage regarding what accommodations may be required for the employee to perform the job duties.
More information concerning the Americans with Disabilities Act (ADA) can be found at the Equal Employment Opportunity Commission's (EEOC) website at www.eeoc.gov.
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EMPLOYERS AND INSURERS CANNOT CONDITION WORKERS' COMPENSATION BENEFITS ON APPLICATION FOR SSD BENEFITS
In a recent workers' compensation decision summarily affirmed by the Minnesota Supreme Court, the Workers' Compensation Court of Appeals declined to hold that an employee must apply for SSD benefits in order to mitigate the employee's damages in a permanent total disability claim. The Court noted that the purpose of the statute is not to "reduce the insurer's burden to pay benefits owed under the workers' compensation laws." Aho v. Duluth Transit Authority, slip op., No. WC05-258 (W.C.C.A. 3/1/06).
The Minnesota Workers' Compensation Act provides that employers and insurers may offset or reduce permanent total disability benefits by Social Security Disability (SSD) benefits, and certain other governmental benefits, under Minn. Stat. § 176.101, subd. 4. The purpose of the offset provision in the statute is to prevent any "double-dipping" by the employee, for benefits received for the same disabling condition.
The statute provides in relevant part:
- This compensation shall be paid during the permanent total disability of the injured employee but after a total of $25,000 of weekly compensation has been paid, the amount of weekly compensation benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability benefit program if the disability benefits are occasioned by the same injury or injuries which gave rise to payments under this subdivision. This reduction shall also apply to any old age and survivor insurance benefits.
Minn. Stat. § 176.101, subd. 4. Obviously, the offset provision contained in the Minnesota statute significantly reduces an employer and insurer's exposure for a permanent total disability claim, if the employee also received SSD benefits for that disability.
Hopefully, most employees will continue to recognize the other benefits related to governmental programs such as SSD, so that cases like this do not become a significant trend. This case reminds employers and insurers that permanent total disability claims do not automatically include an assumed offset in the future, if one is not established presently and no SSD application or claim for other governmental benefits is pending, even in cases of undisputed permanent total status.
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UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) BASICS
USERRA is an act designed to protect civilians' jobs and benefits when they are called to active duty, and also to provide protections for disabled veterans returning to the workforce. The U.S. Department of Labor (www.dol.gov) has extensive resources and helpful "elaw advisors" for employers wanting to know more about the act.
Generally, USERRA provides up to five years of cumulative absence from work due to military obligations, and allows the employee to retain job reemployment rights. Significant exceptions exist to the five year limitation, including certain guard and reserve training duties, involuntary active duty extensions and recalls. Employers should carefully review the exceptions before terminating an employee who has exhausted his or her cumulative 5-year USERRA-protected leave.
Employees are expected to give the employer notice of the need for leave as far in advance as possible, although the advance notice provided even to the employee may be very limited and in some circumstances providing advance notice to the employer may not be possible.
While an employee is absent on USERRA-protected leave, he or she has certain benefits available through the military, but the employer has obligations to protect health and pension plan coverage for limited periods, as well. If the employee is on leave for more than 30 days, the employment-related health insurance coverage may be selected, but an employer may require the employee to pay up to 102% of the full premium. If the military leave is less than 30 days or less, the employer is obligated to provide health insurance coverage as if the employee was actively employed during that time period.
Because many employers are facing the issues of personnel with military obligations, we will address more USERRA-related issues in upcoming newsletter issues.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E-letter.
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To subscribe or unsubscribe to Employment Express, e-mail your request to Kathleen S. Bray, ksb@hanftlaw.com or call 218-722-4766.
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Copyright 2006 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218-722-4766; fax 218-529-2401.
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