Memo from Heather Tiltmann, Whyte
Hirschboeck Dudek SC:
The October 1st, 2003 “Mapping
HR Management for Economic Rebuild” luncheon presentation was a huge
success! We continue to receive positive feedback regarding the
presentation and would like to thank HRS, Inc. for the opportunity to
participate.
The following provides some brief
additional material to consider when mapping HR management for economic
rebuild.
·
Disability Discrimination
and Accommodation: A Divergence of State and Federal Law. Earlier
this year, the Wisconsin Supreme Court held in Crystal Lake Cheese
Factory v. LIRC, 2000 WI 106 (July 11, 2003), that an employer
failed to reasonably accommodate a disabled employee when it refused to
restructure her job so as to eliminate heavy physical duties which were
essential functions of the position. The employee was severely and
permanently injured as a result of a non work-related automobile
accident which left her a quadriplegic restricted her to a wheel-chair
with limited use of her arms. After nearly a year of recovery, the
employee requested to return to her position but that she be exempted
from the heavy physical tasks of her position. The employer denied her
request because she could not perform all of the essential
functions of her job. The Supreme Court, however, sided with the
employee and held that a change in the job duties of the employee
(including the elimination of some of the job’s essential functions) was
a reasonable accommodation. As a result of this decision, Wisconsin
discrimination law now differs from the federal American with
Disabilities Act (“ADA”) which does not require employers as a
reasonable accommodation to restructure the job of a disabled employee
to eliminate essential functions. In light of this recent Supreme Court
decision, Wisconsin employers must now more than ever carefully consider
whether to and how to accommodate an employee’s disability, including
the elimination of essential functions of the job.
·
Equitable Relief in ERISA
Suits: Subrogation after Great West. In the recent
decision of Great West Life & Annuity Ins. Co., v. Knudson, 122
S.Ct. 708 (2002), the United States Supreme Court was faced with the
legal issue of whether federal law (ERISA) allows health care plans a
cause of action to sue to recover benefits from plan participants who
receive payments from another source. In this case, an ERISA plan
sought to have a federal court enforce a repayment agreement signed by
participant after the plan had paid medical expenses of the participant
in the amount of $411,000. The Supreme Court interpreted Section
503(a)(3) of ERISA to be limited only to equitable relief and dismissed
Great West’s claim. Pursuant to this decision, federal courts have been
severely limiting the ability of ERISA plans to recoup expenses which
have been paid to participants who have received settlements from or
been awarded judgments against third parties. Given these decisions,
health insurance plans should be redesigned to allow for equitable
remedies (e.g., equitable lien or constructive trust) to increase the
possibility that the plan can recover in third party liability cases.
·
Self-Insurance and Stop
Loss: Cost Saving Considerations. For some employers, a
self-insured health insurance plan is the most efficient way to manage
health insurance costs. With the ever-continuing rise in health care
costs, employers should regularly re-evaluate whether a self-insured
plan is appropriate or inappropriate given the employer’s size, number
of plan participants, costs associated with fully-insured plan, and the
administrative burden of maintaining a self-insured plan.
In addition, employers should carefully
evaluate their stop loss policies to insure coverage under the policy
matches benefit obligations of the employers under their health
insurance plans. If there are any discrepancies between the stop loss
policy and an employer’s benefit obligations under its plan, the
employer (not the stop loss carrier) will be fully responsible
for the obligation which, depending on the medical condition of the
participant, could be financially enormous.
If you have any questions regarding the
above materials, please do not hesitate to contact either
Mike
Taibleson or
Heather Tiltmann.
