Tag Archives: short term disability

Workers suffer when HR passes FMLA leave decision buck to disability insurers

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“So what exactly would you say you do here?”

Anyone who has seen Office Space is probably familiar with this quote. I think the quote applies to big corporate Human Resources (HR) departments that outsource Family Medical Leave Act (FMLA) eligibility determinations to private disability insurers.

One purpose Congress had in passing the Family Medical Leave Act in 1993 was that there was “inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.”

The way some big employers determine FMLA eligibility flies in the face of this purpose. If you wanted to design a system to fire workers with health conditions, I’m not sure the craftiest HR and legal minds representing management could come up with a better way to do so than outsourced leave administration.

Why outsourcing leave decisions to private disability insurers is a bad idea

FMLA is unpaid leave. Many employers use short-term disability as paid leave. But if you need to be off-work to get short-term disability then the decision about eligibility for FMLA and disability are one in the same. But if a short-term disability insurer is the decision maker, they have a reason to deny claims because paying claims costs money. So in essence, an employees right to unpaid leave is premised on an insurance companies decision about paying disability benefits.

That this is a terrible idea should be apparent to everyone to knows how insurance companies work.

And seeing exactly how this process harms workers is infuriating.

FMLA leave determinations should be simple

If you work at a big employer, you’ve been there for a year or more and have worked more than 1250 hours in that year and you can’t work because of a health condition or the health condition of a loved one, you’re eligible for Family Medical Leave Act. It’s basically that simple.

FMLA issues often arise when a worker gets hurt on the job. So if a worker brings in a doctors note with work restrictions that an employer can’t accommodate, you would think it would be as simple as HR looking at payroll records to see if an employee is eligible for FMLA.

Plaintiff’s lawyers like me make these determinations all the time in a few minutes when prospective clients call in about claims. I fail to understand how HR managers at large worksites for major companies can’t make the same decisions with the resources they have available.

But that’s not how things work with many major employers.

How outsourced leave works

So instead of the process I described in two paragraphs above. Outsourced leave decisions require the employer and an outside entity to communicate about an employee’s leave eligibility. It also requires an employee, who typically doesn’t have a lot of experience with paperwork, to send documents to their employer and to the leave administrator. Often times these documents are sent by medical offices. Sounds complicated, lots of room for error. Employers have lots of reasons to claim they didn’t get documents or blame employees for not properly communicating.

But it can get even more complicated when some company nurse is hassling an employee or their doctors about a return to work before they are ready.

It gets even more complicated when someone in HR or a company nurse engages in Dwight Schrute/Toby Flinderson-style amateur sleuthing to uncover alleged employee fraud or abuse of FMLA.

Ongoing complications due to remote work by insurers during the pandemic don’t help out either.

All of these complications need to viewed in the context of the disability insurer/leave decider being fundamentally adverse to the workers asking for disability insurance and leave.

Sure, an experienced lawyer would know how to navigate this web. But when it comes to leave applications, blue collar workers are often thrown into this hostile maze without assistance or even knowing where to turn for help.

Why outsourced leave?

Outsourced leave is usually administered in conjunction with short and long-term disability insurance. Employers like these policies, in part, because they are good ways to shift the cost of work injuries away from workers compensation. I think this particularly true for injured workers who may have aggravated an old injury, had an overuse injury or didn’t report injuries immediately. These workers are often mislead by HR and employee health types that workers compensation coverage isn’t available in those situations.

Of course, pushing employees who are hurt on the job to apply for short or long-term disability is just pouring glue on the already sticky situation described above. An application for short-term disability can muddy a claim for workers compensation and vice-versa. A private disability carrier may claim a right to repayment for workers compensation benefits. A private disability company may also have policies that in effect require their beneficiaries to apply for Social Security Disability Insurance. This can complicate a workers compensation claim as well.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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New decade, new recession, same old Equifax and TALX

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Mounting unemployment claims cause distress for newly unemployed workers and create logjams for state labor departments tasked with processing and deciding unemployment claims.

But record unemployment means good times for one of America’s most hated companies – Equifax.

Equifax, TALX and unemployment

Equifax, better known for a data breach effecting 143 million in 2018, works with employers to defend unemployment claims through its TALX division. Back in 2010, when TALX was an independent company, TALX drew media scrutiny for its role in delaying and denying unemployment claims during the so-called Great Recession. Equifax bought TALX in 2012. Equifax/TALX has continued working with employers to deny unemployment claims.

Don’t get me wrong, employers have a right to defend unemployment claims. But on the occasions when employees push back against Equifax they often win. Equifax often no shows hearings. But many people just give up after a claim defended by Equifax gets denied. Competent legal representation can often help an employee get a denial of benefits reversed, but many if not most people don’t seek representation in unemployment appeals.

Justice delayed is justice denied

Fortunately, many people appeal denial of unemployment benefits. Pre COVID, the time between an appeal and a hearing was roughly four weeks. The last time I wrote about unemployment on June 22, the wait time increased from four to eight weeks between appeal and hearing. Last Friday, I filed a request for reconsideration on a dismissal where there was 12 week lag time between appeal and hearing. Claims that are denied by Equifax/TALX contribute to the backlog.

Justice delayed is justice denied, Part 2

Of the course the growing delays in unemployment appeals mirror the delays in applying for benefits and receiving benefits when approved. I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals within the Nebraska Department of Labor, is doing a good job under the circumstances. The Tribunal normally operates under streamlined procedures where telephonic hearings have been the norm since at least when I started practicing in 2005. I believe the Tribunal is thinking outside the box to fairly manager its case load. If the Appeal Tribunal was less efficient, things would be much worse for unemployed workers.

But the state of Nebraska needs to invest in improving the infrastructure for unemployment claims. The Legislature also needs to look in to cracking down on TALX/Equifax next session.

TALX is another example of the problems created by companies outsourcing human resource decisions. FMLA leave is often tied to private disability policies. This link between leave and disability insurance which creates all sorts of hassles for employees when medical personnel, human resources departments and insurers fail to communicate. Maybe a new Secretary of Labor will scrutinize the problems caused by outsourced HR functions. I hope Congress will focus on theses issues as well.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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No, you don’t need to burn your PTO to get workers’ compensation benefits.

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Employees do not need to exhaust paid time off (PTO) to receive workers’ compensation benefits in Nebraska. Employers in Nebraska must carry workers’ compensation insurance. But in Nebraska, employers aren’t required to pay PTO. Workers compensation pays out benefits whether you have paid leave or whether you have health insurance.

If you injure yourself at work and someone in management or HR tells you that you need to exhaust your paid leave before you collect workers’ compensation benefits, one of three things might be happening.

1. Someone at your company is misinformed about workers’ compensation.

2. Your employer is misleading you about how workers’ compensation works.

3. Maybe you misunderstood what you were told.

So why do some people think you need to exhaust paid leave before you receive workers’ compensation?

Short-term disability and exhaustion of leave

Many short-term disability policies require that employees exhaust paid leave before claiming short-term disability. My wife was required to burn her paid time off in order claim short-term disability during her maternity leave. White collar employers tend to have more short-term disability claims than workers compensation claims. (They tend to shift work injuries on to short and long-term disability, but that’s another story.) So a white collar HR department that lacks knowledge of workers compensation may, wrongly, assume that injured workers need to exhaust paid leave before receiving workers’ compensation.

The stigma of workers’ compensation

Employers who believe that employees need to burn paid time off before workers’ compensation benefits, may also believe this is necessary because they believe it should be necessary. Burning your paid time off before receiving workers’ compensation would be the same as paying a deductible before health insurance pays. Employers who think PTO should serve as a workers’ compensation deductible may believe that workers’ compensation and workers’ compensation claimants are illegitimate. Forcing employees to burn PTO before receiving workers’ compensation is one way to “hold employees accountable.”

Paying a quasi-deductible to receive workers’ compensation benefits is the cornerstone of a portable benefits scheme dreamed up by Obamacare architect Jonathan Gruber. (Portable benefits are touted as a replacement for workers’ compensation —- particularly for gig economy workers. Bad portable plans shift the cost of work injuries onto injured workers.)

Misinformed or mislead: A distinction without a difference

I know some high-injury employers actively misinform employees about workers’ compensation. These employers may tell injured workers they need to use paid time off before they can collect workers’ compensation to discourage injured employees from taking time away from work. Employees may work through pain to avoid missing work and losing out on paid family leave and or paid vacation time.

Employee misunderstanding

Nebraska law requires a one-week delay period before an injured worker who is off work can collect temporary disability. If disability lasts longer than six weeks, the employer must pay that first week. . Some employees may take this statement to mean that they need to exhaust their paid leave or PTO to receive workers’ compensation. Many employees don’t want to take the chance of missing out on a week of pay Bluntly many employees may need to draw paid leave or PTO while they are waiting for workers’ compensation benefits to start.

Can you collect workers’ compensation for times you took PTO in Nebraska? Yes you can.

The Nebraska Court of Appeals ruled in Godsey v. Casey’s General Stores that an employee can collect temporary total disability for periods when they took PTO. The court reasoned that since paid leave was a benefit ready earned by the injured worker that an injured worker could collect workers compensation and PTO.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Five reasons why office workers don’t file workers’ comp. for hand and wrist injuries

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Office work isn’t thought of as physically difficult, but office workers can be vulnerable to hand and wrist  injuries from overuse at work. While these injuries usually aren’t permanently and substantially disabling, these injuries can lead employees to lose wages and rack up thousands of dollars in medical bills.

Yet many clerical workers are reluctant to bring workers’ compensation claims. I think there are at least five reasons why office workers don’t claim workers’ compensation for hand injuries and wrist injuries.

Hand injuries aren’t thought of as serious injuries – According to some Wasington DC think tank, carpal tunnel syndrome doesn’t count as a serious work injury. This conclusion reflects common attitudes that carpal tunnel isn’t a serious injury. If you don’t think an injury is serious, then you won’t seek treatment for the injury or seek to put it under workers’ compensation.

Workers don’t understand causation standards – In Nebraska, occupational factors merely need to contribute to the development of an injury or medical condition for it to be considered by workers’ compensation. Work duties can also aggravate an old injury. There is a misconception that an injury or condition has to be new or mostly caused by work to covered by workers’ compensation.

Workers don’t understand that repetitive use injuries are work injuries – When many people think of an injury they think of a fall or collision that happens at a distinct point in time. But in Nebraska injuries that develop over a period of time can be covered by workers’ compensation.

The stigma of filing for workers’ compensation claims – I’ve written about a lot over concerns about retaliation for bringing claims and the perception that workers’ compensation claims are fraudulent. Colorado attorney Mack Babcock wrote a thoughtful post about how the stigma of filing a workers’ compensation claim discourages employees from claiming workers’ compensation. Employees feel guilty about making claims and are often criticized by co-workers for making claims as well. Employees may customarily pay the costs of a work injury through a short-term disability policy and private health insurance, so an employee who claims workers’ compensation may be rocking the boat.

The first four factors aren’t exclusive to office workers. But I think this next factor explains why many clerical employees don’t bring claims for hand injuries due to overuse.

Cost of work injuries shifted onto private disability and health insurance – I drive past major claims processing centers for Allstate and State Farm when I drive up 84th Street on the way to Omaha. My experience is that the clerical workers who develop hand injuries doing data entry jobs in large companies will often claim short-term disability for time lost after surgery and put medical costs on private health insurance instead of claiming workers’ compensation. I think the four other factors I discussed above lead employees to use short-term disability and health insurance instead of workers’ compensation.

In my next post, I will  discuss the why and how of employees losing money by not claiming injuries as workers’ compensation injuries and what they can do if they have paid the costs of their work injury through health insurance and disability insurance.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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