Tag Archives: Disability

Nebraska bill aims to expand vaccine exemptions

Posted on January 9, 2022 by Jon Rehm

Last week, the United State Supreme Court heard arguments over federal COVID-19 vaccine mandates in the workplace. Meanwhile, 11 state legislators in Nebraska introduced legislation that would expand the rights of employees in Nebraska to opt out of employer-mandated vaccinations.

LB 906 would allow employees with a “strong moral, ethical or philosophical belief or conviction” to opt out of required vaccines in the workplace in employers with more than 20 employees.

The bill, if passed into law, would require the Nebraska Department of Health and Services to create an exemption form.

Employees can already claim religious and disability/medical exemptions from vaccine requirements under state and federal law. The ““strong moral, ethical or philosophical belief or conviction” would appear to broaden the exemption and likely simplify the process of a vaccine exemption.

But the bill allows employers to require exempt to test for infection at their employers’ expense or wear personal protective gear provided by their employer at their employer’s expense.

Traditionally protective gear is an expense born by employers. But the new federal mandates, put forward by a Democratic administration, requires employees who refuse vaccines to pick up the cost of their tests and protective gear. This practice has been criticized by employee-advocates. Ironically, the 11 co-sponsors of LB 906 are more-or-less uniformly right-wing. Yet they support legislation that doesn’t shift the cost of testing and protective gear onto employees.

Masks as PPE: OSHA vs. CDC

The one potential complication to this bill is the wording “personal protective equipment” or PPE. Lay people could believe that cloth masks and surgical masks would count as “personal protective equipment”. But the Occupational Health and Safety Administration (OSHA) doesn’t count some masks as PPE while the Centers for Disease Control (CDC) defines masks as PPE.

Perhaps I’m overthinking the issue, but I could see an employer mandating masks and some employee arguing masks don’t count as PPE so they don’t have to wear a mask at work. But without anti-retaliation language in the bill or a penalty against employers who violate the act, I don’t see employees having legal recourse for refusing to wear a mask if they file for a vaccine exemption under LB 906.

Pandemic exposes problems with outsourced leave and disability

Posted on May 18, 2020 by Jon Rehm

The COVID-19 pandemic is exposing the deep flaws of unemployment insurance, workers compensation and the employment at-will doctrine. The pandemic also shows problems with how family and medical leave is administered.

Outsourced leave administration

Many large employers outsource FMLA leave eligibility decisions. Often times the leave administrator also decides whether an employee receives short-term and long-term disability. Even in normal times, outsourced leave companies will miscalculate leave eligibility for employees. I believe this happens because the leave and disability companies aren’t communicating with HR departments. I’ve also heard from employees about faulty leave administration software.

Bad communication between leave administrators and HR departments leads to employees losing their jobs. Sure an employee can sue their former employer, but litigation is time consuming and uncertain.

But if even if leave companies and human resources departments are communicating, they may not be acting in good faith. Again, even in normal times human resources departments and leave administrators often hassle workers about insufficient documentation about the need for FMLA leave.

So, how does this pandemic make this bad situation worse.

Outsourcing leave during a pandemic

There are several reasons why leave administration falls short during a pandemic. First, more people will be taking leave either for themselves or take care of a family member. Congress has also expanded eligibility for family and medical leave benefits. As a result, like with unemployment, more people will be making demands for leave. This will slow down the process.

But, this heightened demand for leave could be met with a reduced response by leave administrators. The people employees rely on to process leave claims tend to be working at home. Working from home has slowed down the processing of insurance and other claims.

Finally, family and medical leave requires medical documentation. Workers often stumble in completing required paperwork. But during a pandemic, doctors may lack the time to fill out paperwork. Despite this difficulty, the Department of Labor disagreed with the Centers for Disease Control and required employees to provide medical documentation of COVID-19 leave.

Why does leave administration stink so bad?

Family and medical leave administration sucks so badly for employees because it’s often tied to private disability insurance. Like workers’ compensation, private disability is a for-profit social insurance program. But unlike workers’ compensation , there is weak judicial accountability for denials of private disability.

Bluntly I believe the disability insurers use leave administration as a way to sell disability policies to employers. While disability policies can be useful for workers, insurers would rather collect premium than pay claims. Many employees would rather shift the cost of work injuries onto disability insurance.

When it comes to long-term disability policies, employers and insurers share goals when it comes to cost-shifting. Many long-term disability policies require covered employees to apply for social security disability insurance (SSDI). Policies often include language that lead the insurers recoup disability benefit payments if employees receive SSDI. This leads disability insurers file SSDI on behalf of employees even if they never decided to apply. I would expect to see this practice increase as unemployment increases to levels not seen since the Great Depression.

Who is going to hire me with restrictions?

Posted on April 11, 2019 by Jon Rehm

Injured workers who are looking to return to work with work restrictions after an extended time of healing from an injury face some problems in returning to work. In many cases the injured worker has been off work well beyond any time covered by the Family Medical Leave Act, the Americans with Disabilities Act and or any leave of absence policy, so they are unable to return to their old job assuming they could do their old job.

Workers in this situation often ask “Who is going to hire me with restrictions?” It’s a legitimate question. Here a few do’s and don’ts from my experience as a lawyer representing injured workers.

Do: Work with vocational rehabilitation

Nebraska offers vocational rehabilitation, VR for short, as part of our workers’ compensation act. Sometimes vocational rehabilitation can mean an injured worker gets paid their so-called temporary total disability rate while they go to school. More often this means a vocational counselor helps an injured worker look for work while they are receiving those benefits. VR is the Rodney Dangerfield of workers’ compensation benefits – it often gets no respect – but it can be very helpful for injured workers. It’s also not a benefit that an insurance company will often voluntarily offer to an injured worker like medical benefits or temporary disability pay.

Nebraska also offers vocational rehabilitation through our state department of education. That fact confuses a lot of my clients when I talk about VR through workers’ compensation. But if an injured worker has settled their workers’ compensation case or is fighting their workers’ compensation case, they can use VR through the state department of education to help return to work

Don’t: Assume no one will hire you

Disability discrimination is real. That’s why there is the Americans with Disabilities Act and parallel state laws. Under the ADA, it is illegal for an employer to discriminate against a qualified employee with a disability who can do a job with or without reasonable accommodations.

What that does that last sentence mean?. In plain terms, this means that so long as you meet most of the qualifications of the job, an employer or perspective employer should work with you to make minor tweaks to a job. Sometimes this means using a stool to avoid standing. Sometimes this means using a cart to avoid heavy carrying or lifting.

In practical terms, Nebraska employers claim there is a shortage of workers. I think business interests overstate this concern for political reasons, but as the job market has improved employers seems more willing to take chances on employees.

Don’t: Fail to disclose your restrictions or injury if asked by a new employer post-hire

In order for an employee to accommodate restrictions from an old injury, they need to know about the restrictions. While an employer can’t ask you about a disability pre-hire, they can ask about a disability post-hire so long if it is job related. The “Who is going to hire me with restrictions” line can get a worker into trouble if they don’t disclose they have some restrictions to certain body parts. Again, an employer needs to work with you to some extent on accommodating an old injury,

Failing to disclose an old injury can also make it more difficult to make a workers’ compensation claim if an injury with a new employer worsens an old injury. It can also be grounds to deny a workers’ compensation claim entirely. Failing to disclose an old injury can potentially be grounds for termination for dishonesty on employment application.

Don’t: Tell anyone who isn’t your lawyer or a family member that “No one is going to hire me with restrictions.”

Going back to the “Who’s going to hire me with restrictions?” It’s a legitimate question. But if an injured worker is still fighting a workers’ compensation claim, that statement said to the wrong person can hurt a claim.

Who is the wrong person? Anyone who isn’t a family member or your lawyer.

When a vocational rehabilitation counselor, doctor, insurance company lawyer, insurance adjuster or mediator hears “Who is going to hire me with restrictions?” they tend to think. “This person doesn’t want to work” and or “This person isn’t hurt as bad as they think they are.”

Why do they think that way? If you work on the insurance-side of workers’ compensation for an extended length of time, I think you tend to perceive cases from that perspective. Lawyers and doctors and other professionals look at work differently. Many professionals tend to live to work rather than work to live. I believe that professional class people glamorize blue collar labor and tend to get nostalgic about blue collar or service jobs they did when they were younger. Professional class people also tend to consume media geared towards professional class people that tends to cover the workplace from the perspective of business.

But regardless of why professionals involved in workers’ compensation case think this way, those professionals have a lot of influence over the value of an injured workers’ compensation claim. Injured workers need to be careful about how they communicate with these professionals.

The NEOC Is Slow To Investigate Claims, Here Are Some Alternatives For Employees Dealing With Discrimination On The Job

Posted on May 21, 2018 by Jon Rehm

The Nebraska Equal Opportunity Commission (NEOC) is taking at least upwards of 7 ½ months to assign investigators in employment discrimination cases. In practical terms, this means that discrimination charges wait months before they are investigated, and claimants can wait for over a year for those investigations to conclude from the time they file a charge.

So what is going on and why does it matter? What can employees who believe they were discriminated against on the job do to prosecute cases in the meantime?

Delays at the NEOC

Currently the NEOC is experiencing staffing shortages. Nebraska Governor Pete Ricketts has instituted a state employee hiring freeze and that freeze appears to have impacted the NEOC. A renewed attention to sexual harassment from the #MeToo movement may also be increasing discrimination claims.

What’s the advantage of filing a charge with the NEOC?

In 13 years of representing employees, I believe the primary benefit to filing a charge with the NEOC is to have investigator build a case file. I may quibble with methods or conclusions of the investigations, but the investigations often uncover solid evidence that can be used in later in litigation.

The NEOC is also somewhat helpful in conciliating or settling charges short of trial. There is nothing wrong a prompt resolution of claim that provides closure, certainty and compensation for a wronged employee.

When employees have to wait at least 7-8 months to even have an investigator assigned, wronged employees have to wait for those benefits and, in my opinion, that delay diminishes those benefits that come from filing a charge with the NEOC.

Alternatives to NEOC: OHHR and the LCHR

Employees who work in Omaha or Lincoln, can file charges with Omaha Human Rights and Relations Commission and Lincoln Commission on Human Rights (I have been an LCHR Commissioner since 2014) OHHR and LCHR investigate charges much faster than the NEOC.

At the February meeting of the LCHR three employment discrimination claims were voted on by the Commission. Those claims were filed roughly 60-90 days before the hearing. OHHR aims to process charges within 100-120 days of filing.

OHHR and LCHR investigators are as good as NEOC investigators and are effective at settling or conciliating claims. OHHR and LCHR also investigate smaller employees that the NEOC can’t. The OHHR also expressly investigates sexual orientation claims while the NEOC would have to shoehorn such an investigation into a “sex-plus” framework.

Why you might not need to file a discrimination charge at all

Nebraska allows employees to file discrimination and retaliation cases directly in state court under Neb. Rev. Stat. 20-148 if they are filed within 300 days of the last act of discrimination. Employees don’t need to file an administrative charge of discrimination with the NEOC, EEOC or any other agency.

There are lots of fair employment laws that don’t require filing a charge with a government agency to file suit. This includes all wage and hour laws, including the Equal Pay Act. Employees also do not need to file a discrimination charge in order to bring a common law retaliation case. Finally, African-Americans do not need to file a discrimination charge to bring an action under 42 USC 1981.

What to do if your claim is stuck at the NEOC

Nebraska law allows an employee to request a “right to sue” letter at any point during the NEOC process. If you jointly file a charge with the EEOC, you can request a right to sue letter on a federal charge after 180 days from filing.

Watch out in disability discrimination cases

Due to recent court decisions in Nebraska about the definition of disability, it is probably prudent for employees in Nebraska to bring charges of disability discrimination under both state and federal law which often times means filing a charge with NEOC and EEOC. The NEOC usually jointly files discrimination charges under state and federal law.

Conclusion

I don’t like writing “pitchy” posts, but because of the backlog at the NEOC, if you feel you have been discriminated or retaliated against on the job in Nebraska, call an experienced employment attorney before you call the NEOC. Bluntly, you may not have a case and you may be making the NEOCs backlog worse by filing a weak claim. But even if you don’t have a strong discrimination claim you can still get advice about a severance agreement, help on an unemployment claim or find out that maybe you have a workers’ compensation or wage and hour claim.

If you do have a strong claim, you may not need to file a charge with the NEOC or file a discrimination charge at all in order to pursue your rights in court.

Discount Rate And Life Expectancy: What Most People Forget When Valuing A Workers’ Compensation Case

Posted on January 15, 2018 by Jon Rehm

What’s my case worth?

I hear that question a lot when I meet a new client. In a workers’ compensation case I tell them it depends on many factors; How much were you earning when you were hurt, what part of your body was injured, how severely you hurt, where you live, how much education you have, whether you can return back to your old job, etc.

There are a lot of variables. But in cases where an employee has some reasonable chance of being found to be permanently and totally disabled, in other words unable to find work from their work injury, there are two constants effect the value of any settlement: discount rate and life expectancy.

Discount rate is synonymous with the time value of money. In short, a dollar today is worth more than a dollar in the future. This is important in workers compensation because if a worker is found to be permanently and totally disabled then they will be paid weekly benefit checks for the rest of their life. Under Nebraska law, that benefit check will not increase over time. The question then becomes how much will the value of that money decrease overtime. The discount rate is the expected return on investment on the money. The higher the expected return on investment, the higher the discount rate. But the higher the discount rate, the less a lump sum settlement is worth in present dollars.

An award of permanent and total disability is a form of a pension. Abnormally low interest rates in the aftermath of the financial crises have raised concerns about investment returns for pensions. The Nebraska Workers Compensation Court has used a 5 percent discount rate to value awarded permanent and total disability benefits for at least the last 12 years. But the expected rate of return on investments, as measured by interest rates of declined over the last 12 years. Lump sum payments, like workers compensation settlements, based on a 5 percent long term interest rate undervalue those payments.

For example, a 30 year US Treasury bond yields roughly 2 ¾ percent. If a 50 year-old worker earning $600 per week is found to be permanently and totally disabled, the present value of an award of permanent and total disability would be $334,000 using the 5 percent discount rate and using the court’s life expectancy tables showing a 31.4 year life expectancy. But if the court used the 30 year bond yield as the discount rate, that same award of permanent and total disability would be worth $439,000.

The issue of discount rate and case valuations isn’t widely discussed in Nebraska, but it was a contentious issue in the United Kingdom when the government cut their discount rate in personal injury claims, called the Ogden rate, by 3.25% in February 2017. The Ogden rate was increased by .75-1.75 percent in September 2017 under pressure from insurance companies.

The other variable in valuing an award of permanent and total disability is life expectancy. The Nebraska Workers Compensation Court uses a general life expectancy table to value awards of permanent and total disability that doesn’t vary by gender or nationality/race. The CDC breaks down life expectancy along those lines. Men and African-Americans have shorter life expectancies so they would actually benefit from the use of the Nebraska Workers Compensation Court life expectancy tables. Women and Hispanics tend to live longer so they would not benefit by the use of the court tables. For example, a 50 year-old Hispanic woman is expected to live 35.9 years whereas the Nebraska Workers Compensation Court just assumes a 50 year old has a 31.4 year life expectancy. Use of the court’s life expectancy tables for a 50 year-old Hispanic woman earning $600 per week at the time of her injury could undervalue an award of permanent and total disability by about $18,000.

But workers who have a reasonable chance of being found to be permanently and totally disabled have other factors to think about when it comes to valuing any settlement of their claim. First, an insurer/employer only has to pay weekly benefits rather than a lump sum of money if a court finds a worker is permanently and totally disabled. They are free to use whatever discount rates and life expectancies they chose in valuing a claim for a settlement. Court rules about discount rates and life expectancy only come into play when an injured worker wants to take a lump sum settlement on an awarded finding of permanent and total disability.

Secondly many employees who could potentially be awarded permanent and total disability benefits are also awarded social security disability benefits. Social security disability benefits payments can be reduced or offset by any workers compensation benefits received. An offset can have the practical effect of capping the value of any settlement based on the probability of a worker being awarded permanent and total disability benefits.

Workers Compensation for the Work Camper

Posted on October 19, 2017 by Jon Rehm

The Washington Post ran a feature story about “Work Campers” – senior citizens who live in campers and travel around for temporary jobs. The story noted that many, if not most, work campers were forced into the lifestyle by inadequate retirement savings and Social Security retirement benefits that have lost 30 percent of their purchasing power since 2000. The story also noted that the number of senior citizens working has increased from 4 million to 9 million during that same time period.

The idea of a growing number of senior citizens essentially acting as migrant laborers strikes many as odd and even dystopian. But work campers will present interesting challenges to the workers compensation system. Though some studies show that older workers are less likely to get hurt on the job, this finding is attributed to older workers having more experience on the job. Since work campers tend to hop from temporary job to temporary job, their chances of injury could increase as temporary workers are more likely to get hurt.

This growing development in the workforce raises many issues for work campers who are hurt on the job because workers compensation laws are state specific so benefits and eligibility for benefits vary from state to state.

Here are some questions that will face work campers when they are injured on the job.

Which states and jurisdictions can you collect benefits?

Employees may be eligible to claim benefits in the state where they are injured, their state of permanent residence, the state their employer is based or the state they were hired. Employees may also be able to claim benefits in multiple states. Employees may also be able to bring claims under the Jones Act or Longshore Act if they were hurt on a ship or a navigable body of water. It helps to get advice from a qualified workers’ compensation lawyer as the decision as to where an employee should claim benefits should be driven by where they have the best chances of recovery.

Which states limit permanent benefits for older workers?

Iowa recently limited workers over the age of 67 from receiving permanent disability benefits for more than 150 weeks. A work camper who was covered under Iowa law and seriously injured could only receive 2 ½ years of benefits.

What is the law on pre-existing conditions?

Many elderly workers have preexisting conditions. In some states those preexisting conditions may impair the ability of an injured work camper to collect benefits. In Missouri employees need to show an injury is a “prevailing factor” in the disability whereas in Nebraska employees merely show the work injury was a “contributing factor” to the disability. In other words, it would be more difficult for a work camper to collect benefits in Missouri for the aggravation of an old injury than it would be in Nebraska.

How do you determine earnings?

Disability benefits are based on earnings or what is called average weekly wage. The work campers profiled in the Washington Post were fairly low wage employees. However some work camping contracts include provisions for benefits like lodging that have a real monetary value. In some states, like Nebraska, those non-cash benefits can be included in the average weekly wage. Short term work assignments also present difficulties in determining average weekly wage because they might not accurately reflect an employee’s actual earning capacity. There could also be questions as to whether employment is seasonal or weather dependent which could also alter the average weekly wage.

Again, calculations of earnings can vary state by state, so work campers injured on the job should contact a member of WILG who specialize in workers compensation and regularly communicate with workers compensation specialists in other states.

Three Clues Your Employer Doesn’t Want You To Return To Work After An Injury

Posted on March 2, 2017 by Jon Rehm

~~Apologists for~~ Thought leaders in the workers compensation insurance industry like to tout how they want injured employees to “return to work.” But insurance industry rhetoric about the importance of return to work is belied by at least three common scenarios involving employees with serious work injuries.

Employer requires an employee to resign in order to receive a lump sum settlement for their workers compensation claim: Early on in my career a defense lawyer told me that his client “Didn’t want their employees driving to the plant in an Escalade (this was the mid-2000s) after they settled their workers compensation case.” Putting aside the absurdity of someone who earns wages that would make their kids eligible for free or reduced lunch buying a luxury SUV after they had been off of work for an extended length of time, this practice indicates that some employers really don’t want injured workers to return to work after an injury.A recent discussion over the WILG listserv indicated that resignation as a condition of a workers compensation case settlement was a common practice across the United States. An agreement to resign normally comes as a separate severance agreement. Those settlement agreements may not be binding if an employer doesn’t include the right language in the release which is why an injured worker would want to consult with an employment lawyer or have a lawyer familiar with employment law and workers compensation represent them in their work injury.
Certain states, like Massachusetts, outlaw the practice of conditioning a settlement on resignation. Even in states where the practice is considered lawful lawyers may consider challenging such practices on the basis of anti-retaliation laws, unfair claims practice laws or causes of action that prevent interference with contractual relationships.
Employer requires employee to return to work with “no restrictions”. 100 percent healed policies are considered to violate the Americans with Disabilities Act by the Equal Employment Opportunity Commission (EEOC) and by some intermediate level federal appellate courts. Regardless of whether the Supreme Court or Congress ultimately decide such policies are illegal, oftentimes a person with an injury that requires surgery and time off from work is going to have some permanent restrictions.Many times requests that an employee return to work without restrictions are sent after an employee exhausts their 12 weeks of FMLA. Oftentimes employers will extend a short amount of unpaid leave in addition to FMLA. When injured employees receive these letters many of them feel like their company is trying to push them out. This feeling can sometimes be correct. That’s why it is helpful to have an attorney who knows how workers compensation and employment laws intersect.
Employer suggests that employee apply for private disability for a work injury: Private short-term (STD) and long-term disability (LTD) policies can be helpful to employees. Some policies even allow employees to collect both LTD and STD with workers compensation benefits.But some employers will push employee onto disability because it is cheaper than paying workers compensation benefits. Even more insidiously if an employee stays off work long enough that they are eligible for long term disability, some long-term disability policies require that employees apply for social security disability or SSDI in order to continue receiving LTD. Many of these policies hold if an employee receives SSDI they need to payback the LTD insurance company for the time that SSDI and LTD benefits overlapped.
I ran into a policy like this representing a client in a disability discrimination case. Courts have questioned the legality of these policies as well. If you are stuck in a situation where you are applying for long term disability because of a work injury and being forced to apply for SSDI, you should consult with a lawyer who is familiar with workers compensation and SSDI.

Why an Obscure Securities Law Case Could Affect SSDI

Posted on January 23, 2017 by Jon Rehm

Social Security Disability Insurance (SSDI) cases are largely decided by administrative law judges (ALJs). A decision questioning the role of ALJs in another area of the law could cause some major complications for SSDI applicants and SSDI beneficiaries.

The 10^th U.S. Circuit Court of Appeals recently set aside a conviction for securities fraud by the Securities and Exchange Commission (SEC) because the ALJ who decided the case should have been appointed under the Appointments Clause rather than hired by the SEC. The 10^th Circuit’s decision directly conflicts with a recent decision made by the District of Columbia Circuit Court of Appeals, which means the U.S. Supreme Court could take up the issue.

This matters to SSDI applicants, their attorneys and even present SSDI beneficiaries because the vast majority of administrative law judges, roughly 1,200 of 1,400, have been hired by the Social Security Administration to hear Social Security Disability appeals. Similar to ALJs from the SEC, ALJs who hear SSDI appeals are hired on merit and are federal employees.

If the U.S. Supreme Court followed the recent 10^th Circuit decision and applied it to ALJs who heard Social Security Disability appeals, at least 1,200 ALJs would have to be appointed by the president and confirmed by the Senate. This could lead to further delays and uncertainty related to SSDI appeals. If the 10^th Circuit decision were applied to SSDI judges, it is uncertain as to whether awards of disability would still be valid if they were made by unconstitutionally chosen ALJs. In 2014, in National Labor Relations Board v. Noel Canning, the Supreme Court held that the NLRB’s decision made by commissioners who were appointed by constitutionally invalid recess appointments was invalid.

The Social Security Administration has recently moved to abolish the treating physician rule in an effort to decrease claim payments. Uncertainty over whether the awards of SSDI benefits are constitutional would add additional hurdles to those needing SSDI benefits. If you are applying for Social Security Disability or thinking about it, contact an experienced attorney. Also, contact your lawmakers to express your concerns about the SSDI system to them.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: Disability

Nebraska bill aims to expand vaccine exemptions

Pandemic exposes problems with outsourced leave and disability

Outsourced leave administration

Outsourcing leave during a pandemic

Why does leave administration stink so bad?

Who is going to hire me with restrictions?

The NEOC Is Slow To Investigate Claims, Here Are Some Alternatives For Employees Dealing With Discrimination On The Job

Workers Compensation for the Work Camper

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Outsourced leave administration

Outsourcing leave during a pandemic

Why does leave administration stink so bad?

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