Monday, September 2, 2013

Do you know your rights?

Photo by http://www.shannoncooperphotography.com/

I asked a question on FB about derby injuries and work.  The responses were varied, but a derby legal brain spoke up and wrote this amazing blog to help the rest of us figure out what we can do when we are injured and may have to miss work.  Everyone needs to know her rights.  Please read.





 Derby Injuries and Employment Law
By Sensa Doom, a/k/a Kris Finlon (attorney at James McElroy & Diehl, P.A.)

I’ve been a Charlotte Roller Girl for close to a year now, but my alter ego still practices law, including a lot of employment law.  So I read with interest the questions of how work and derby intersect.  What happens if you get hurt on the track, and it affects your job?  What can you do?  Obviously, I can’t provide you with legal advice here – employment cases are very fact-specific, and if an issue arises you should definitely contact an attorney who can analyze your specific situation.  Also, you may be a member of a union, subject to a collective bargaining agreement, or living in a state with specific laws that might govern some of these issues.  And if your employer has a specific policy prohibiting you from engaging in dangerous activities outside of work, that’s going to affect your rights.  But hopefully this general overview will help you understand how to advocate for yourself, or when to find help if necessary.

So let’s say you got hurt.  Maybe you broke a bone, or got a concussion.  You might need surgery, or physical therapy, or just a battery of tests and doctors’ appointments to find out what’s wrong.  Maybe you can’t stand all day, or pick up heavy things, or sit for long hours, or type, or otherwise perform the duties that you usually do.  What do you need to know?

Medical leave. 
If you have sufficient sick leave or other paid time off to cover any absence or medical appointments you need for your injury, leave may not be a problem for you.  However, the Family Medical Leave Act (FMLA) may, depending upon the size of the employer and some other factors, provide additional protections to eligible employees, including up to 12 weeks of unpaid leave, the requirement that employment benefits be continued during the leave, and the guarantee that the employee will be permitted to return to her job (or its equivalent) at the end of the leave.  You should consult with your employer’s human resources department, or an outside attorney if necessary, to determine whether you are eligible for FMLA leave, and whether it fits your situation.

Disability.  The Americans with Disabilities Act (ADA) prohibits discrimination against an employee who has a condition which substantially limits a major life activity.  Recent changes to the ADA say that even a temporary impairment may be a substantial limitation, and may therefore qualify as a disability.  If you qualify as “disabled” under the ADA, you may be protected from discrimination, retaliation, and harassment because of your disability.  You may also be entitled to ask your employer for a reasonable accommodation of your disability, so long as the accommodation doesn’t impose an undue burden on your employer and will enable you to perform the essential functions of your job.  If you need an accommodation, you should obtain the necessary documentation from your health care provider, then talk to your employer’s human resources department, or an outside attorney if necessary, to see what measures can be taken.

Workers' compensation.  Workers' compensation laws can provide for medical coverage and some partial salary payments in the event an employee is injured on the job.  Assuming none of us are paid to play derby, how does this help you?  Well, it may not help if you get injured playing derby.  But if you have a pre-existing derby injury that is exacerbated by your job, then you may be eligible for benefits for the re-injury you suffered while working.  If you think you may be eligible for workers’ compensation, you should talk with a workers’ compensation attorney, to see whether you can pursue a claim.

Discrimination claims.
  There were some comments in response to Q’s Facebook post about discrimination.  Let me talk about that for a moment.  As a woman who’s been engaged in full-contact sports for most of my professional career, I've noticed that my injuries tend to get treated a little differently from the similar injuries of my (usually male) counterparts, and even from the injuries incurred by female counterparts who acquired them in more conventional ways.  You may have noticed the same thing.  However, that differential treatment may not rise to the level of actionable discrimination.  For example, Title VII of the Civil Rights Act prohibits employment discrimination “because of” gender.  If my employer is more accommodating to a male attorney who broke his arm playing rugby than it is to me after I broke my arm playing roller derby, then yes, that might make me think there is some discrimination going on.  However, if my employer was very accommodating to a female coworker who broke her wrist falling down the stairs, then maybe I’m not being discriminated against because I’m female – maybe it’s just because I play derby.  That’s different.  The inquiry will be very fact-specific, and a claim for gender-based discrimination may be an uphill battle.  That's not to say that your situation might not actually rise to the level of actionable discrimination, but it's definitely something you should discuss with a lawyer.

Should I tell my employer the truth about how I got hurt?
  If you’re not applying for worker’s compensation, your employer does not have specific policies against dangerous activities, and there are no other reasons in play requiring you to provide information, you probably don’t need to volunteer how you got hurt.  If you are volunteering information, however, as a general rule, you should tell the truth about how you were injured.  There are a couple of reasons for this.  First, while it may not be legal for your boss to fire you just because you got hurt, that doesn’t mean he or she can’t fire you for lying.  So if you’re dishonest, you might just be giving your employer an excuse to fire you.  Also, if you do wind up pursuing a claim relating to your injury, lying to your employer means that there are conflicting stories out there, which will hurt your credibility, and probably also will give your attorney migraines (I speak from personal experience on this one).  Additionally, if you are applying for some kind of benefit, you may well be certifying to the truth of the information on your application.  In any case, you should be very leery about fabricating the cause of your injuries.

Absenteeism.  A word of warning: the odds are good that, assuming you’re in the United States, you live in an at-will employment state.  That means that you can be fired for any reason, or no reason at all, so long as you aren’t actually fired for an illegal reason.  And for our purposes here, this means that, if you miss excessive amounts of work due to injuries – particularly if you aren’t eligible for (or haven’t invoked your rights to) the legal protections discussed above – your employer may be within its rights to decide that you are just too much trouble to keep.  Assuming you want to keep your job, you need to make sure that you understand exactly what your employer’s expectations are, and figure out what you can do to meet them.  It also means that, if you’re injured, for heaven’s sake take care of yourself.  Don’t start pushing your injured body too early (whether on the track or off of it) and risk another injury and yet more time out of work.  It’s bad for you, it’s bad for your team, and it’s probably bad for your employment. 

Your specific situation may have variables at play that can’t be predicted in a general overview.  The bottom line is that issues relating to your particular employment are very case-specific, and your options are going to depend on a lot of different variables, ranging from the state you live in and your employer’s personnel policies to the nature of your duties and your record as an employee.  Hopefully, you won’t get injured – but if you do, and if it affects your job in some way, you should consult with an employment attorney who can advise you based on the specifics of your personal situation.

4 comments:

  1. impeccable timing as always. I just had surgery on my ankle to get a plate and seven screws from a derby injury. :( The very first thing I did when the doctor said "surgery" is contact my job's HR dept to see what I had to do. They were very helpful in getting to fill out the proper forms for short term disability/FMLA leave. ALSO, please remember to go ahead and do an incident report with USARS/WFTDA if the injury occurred at practice/bout/training. Just in case the expenses pile up, without an incident report, WFTDA won't let you file a claim and an incident report has to be sent to them within two weeks of the incident.

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  2. The bit about "at-will employment state" means Right-to-Work states. If you're in a southern state, or one that's been "red" forever, that's the kind of state you're in. Because the Right-to-Work employment law (where states were allowed to opt in or out) was a federal law (AFAIK) it is basically a candy-coated name that really means "Your employer has the rights, not you."

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