2015 Williams FMLA/ADA Legal Update

Presenter:Kevin M. Kinne, Cohen Kinne Valicenti & Cook LLP

Williams College – FMLA/ADAOctober 14, 2015

View From Above

Disability, Injuries & LeaveThe Big Three

Americans with Disabilities Act (ADA)Family and Medical Leave Act (FMLA)Workers’ Compensation (WC)

The Laws InteractThe majority of unscheduled and scheduled

absences are related to the illness of employees or their family members. One, both, or all three of these laws may be involved.

Violations of these laws may result in lost wages, back pay, reinstatement, retroactive benefits, compensatory damages, and punitive damages.

Employers have a duty to ensure that employees receive the benefits and protections these laws provide.

Brief OverviewADA – protects applicants and employees

who are “qualified individuals with a disability.”

FMLA – sets minimum leave standards for employees for the birth and newborn care of a child, placement of a child for adoption or foster care, to care for an immediate family member with a serious health condition, and for the employee’s serious health condition. New Military component.

Workers’ Compensation - provides for payment of compensation and rehabilitation for workplace injuries and minimizes employer liability.

Interplay – Employee Eligibility

Employee Eligibility ADA – Employee (or applicant) who is disabled as

defined by the ADA; qualified for the position; can perform the essential functions of the position, with or without a reasonable accommodation.

FMLA – Employee who has worked at least 12 months and 1250 hours prior to the start of the leave; works at a worksite where there are 50 or more employees within a 75-mile radius.

Workers Compensation – Employee who has an injury arising out of or in the course of employment - state law exceptions possible for willful misconduct or intentional self-inflected injuries, willful disregard of safety rules, or intoxication from alcohol or illegal drugs.

Interplay – Length of LeaveLength of Leave

ADA – No specific limit for the amount of leave that would be provided as a reasonable accommodation that does not create an undue hardship on the employer.

FMLA – 12 weeks in the 12 month period as defined by the employer

Workers’ Compensation – No specific limit for the amount of leave an injured worker may have.

Interplay – Medical Documentation

Medical DocumentationADA – Only medical examinations or inquiries

regarding an employee’s disability that are job-related and limited to determining ability to perform the job and whether an accommodation is needed and would be effective.

FMLA – Medical certification of the need for the leave not to exceed what is requested in the Department of Labor (DOL) Medical Certification Form.

Workers’ Compensation – Medical information that pertains to the employee’s on-the-job injury.

Interplay – Light DutyRestricted or Light DutyADA – Required to be offered, if it is a reasonable

accommodation that does not create an undue hardship on the employer.

FMLA – Cannot be “required”. Workers’ Compensation – Ought to be offered if

available as it may eliminate the employee’s entitlement to the wage replacement benefit.

Interplay – Fitness for DutyFitness-to-Return-to-Work CertificationADA –Permitted as long as the medical

examination and inquiry is job-related and necessary to determine whether the employee can perform the essential functions of the job.

FMLA – Can only be required under a policy or practice that requires employees who have been on a similar type of leave of absence

Workers’ Compensation – May be and is typically required.

Interplay – Benefits While on Leave

Benefits While on Leave ADA –No specific requirements but cannot

discriminate and must provide same benefits as those provided to employees on non-ADA leave of absence.

FMLA – Health coverage must be continued at same level as prior to the leave.

Workers’ Compensation – Not required to continue unless run concurrently with FMLA leave.

Interplay – ReinstatementReinstatementADA –Required reinstatement to previous job

unless doing so would create an undue hardship on the employer.

FMLA – Required reinstatement to the same or an equivalent job. NO undue hardship exception.

Workers’ Compensation – No reinstatement rights , except for retaliatory discharges.

Topics of Discussion:Employer Coverage and Employee

EligibilityQualifying Reasons for LeaveAmount of LeaveEmployer Rights and ResponsibilitiesEmployee Rights and ResponsibilitiesMilitary Family Leave Provisions

Introduction to the FMLA

Private sector employers with 50 or more

employees

Williams College qualifies

Employer Coverage

Employed by covered employer

Worked at least 12 months

Have at least 1,250 hours of service during the 12 months before leave begins – Does vacation time count towards 1,250 hour requirement? - NO

Employed at a work site with 50 employees within 75 miles

Employee Eligibility

• Because of a qualifying reason arising out of the covered active duty status of a military member who is the employee’s spouse, son, daughter, or parent (qualifying exigency leave)

• To care for a covered servicemember with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (military caregiver leave)

Military

FamilyLeave

Eligible employees may take FMLA leave:• For the birth or placement of a child for adoption or foster

care • To care for a spouse, son, daughter, or parent with a

serious health condition• For their own serious health condition

Qualifying Leave Reasons

Parent - A biological, adoptive, step or foster father or mother, or someone who stood in loco parentis to the employee when the employee was a son or daughter. Parent for FMLA purposes does not include in-laws.

Spouse - A husband or wife as defined under state law, including common law marriage where recognized.

Son or Daughter - For leave other than military family leave, a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age, or 18 or older and incapable of self-care because of a mental or physical disability.

Qualifying Family Members

Both the mother and father are entitled to FMLA leave for the birth or placement of the child and/or to be with the healthy child after the birth or placement (bonding time)

Employees may take FMLA leave before the actual birth, placement or adoption – incapacitation.

Leave must be completed by the end of the 12-month period beginning on the date of the birth or placement

Qualifying Leave Reasons – For the Birth or Placement of a Child

Illness, injury, impairment or physical or mental condition involving:• Inpatient Care, or• Continuing Treatment by a Health

Care Provider

Qualifying Leave Reasons – Serious Health Condition

An overnight stay in a hospital, hospice, or residential medical facility

Includes any related incapacity or subsequent treatment

Serious Health Condition – Inpatient Care

Continuing Treatment by a Health Care Provider

• Incapacity Plus Treatment

• Pregnancy

• Chronic Conditions

• Permanent/Long-term Conditions

• Absence to Receive Multiple Treatments

Serious Health Condition – Continuing Treatment

Incapacity Plus Treatment

Incapacity of more than three consecutive, full calendar days that involves either:

Treatment two times by HCP (first in-person visit within seven days, both visits within 30 days of first day of incapacity)

Treatment one time by HCP (in-person visit within seven days of first day of incapacity), followed by a regimen of continuing treatment (e.g., prescription medication)


PregnancyIncapacity due to pregnancy or prenatal

care


Chronic Conditions

Any period of incapacity or treatment due to a chronic serious health condition, which is defined as a condition that:requires periodic visits (twice per year) to a health

care provider for treatment

continues over an extended period of time

may cause episodic rather than continuing periods of incapacity – migraines, asthma, epilepsy, diabetes


Permanent/Long-Term Conditions A period of incapacity which is permanent

or long-term due to a condition for which treatment may not be effective – stroke, terminal disease, alzheimer’s


Absence to Receive Multiple Treatments

For restorative surgery after an accident or other injury, or

For conditions that, if left untreated, would likely result in incapacity of more than three consecutive, full calendar days


Employee is entitled to take intermittent or reduced schedule leave for: Employee’s or qualifying family member’s serious

health condition when the leave is medically necessary Covered service member’s serious injury or illness

when the leave is medically necessary A qualifying exigency arising out of a military

member’s covered active duty statusLeave to bond with a child after the birth or

placement must be taken as a continuous block of leave unless the employer agrees to allow intermittent or reduced schedule leave

Amount of Leave – Intermittent Leave

When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt operations.

In such cases, the employee temporarily can be transferred to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee’s regular job.

Intermittent Leave

“Substitution” means paid leave provided by the employer runs concurrently with unpaid FMLA leave and normal terms and conditions of paid leave policy apply

Employees may choose, or employers may require, the substitution of accrued paid leave for unpaid FMLA leave

Employee remains entitled to unpaid FMLA if procedural requirements for employer’s paid leave are not met

Substitution of Paid Leave

Provide notice

Maintain group health insurance

Restore the employee to same or equivalent job and benefits

Employer Responsibilities

Within five business days of leave request (or knowledge that leave may be FMLA-qualifying)

Eligibility determined on first instance of leave for qualifying reason in applicable 12-month leave year

New notice for subsequent qualifying reason if eligibility status changes

Provide a reason if employee is not eligibleMay be oral or in writing

Employer Responsibilities – Provide Notice of Eligibility

Provided when eligibility notice requiredMust be in writing Notice must include:

Statement that leave may be counted as FMLA Applicable 12-month period for entitlement Certification requirements Substitution requirements Arrangements for premium payments (and potential employee

liability) Status as “key” employee Job restoration and maintenance of benefits rights

Provide Notice of Rights and Responsibilities

Group health plan benefits must be maintained throughout the leave period

Same terms and conditions as if employee were continuously employed

Employer Responsibilities – Maintain Group Health Plan Benefits

Employee must pay his/her share of the premium

Even if employee chooses not to retain coverage during leave, employer obligated to restore same coverage upon reinstatement

In some circumstances, employee may be required to repay the employer’s share of the premium if the employee does not return to work after leave

Employer Responsibilities – Maintain Group Health Plan Benefits

Same or equivalent job equivalent pay equivalent benefits equivalent terms and conditions

Employee has no greater right to reinstatement than had the employee continued to work

Bonuses predicated on specified goal may be denied if goal not met

Key employee exception

Employer Responsibilities – Job Restoration

Employers cannot:

• interfere with, restrain or deny employees’ FMLA rights

• discriminate or retaliate against an employee for having exercised FMLA rights

• discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA

• use the taking of FMLA leave as a negative factor in employment actions

Prohibited Employment Actions

Provide sufficient and timely notice of the need for leave

If requested by the employer:Provide certification to support the need for

leave Provide periodic status reports Provide fitness-for-duty certification

Employee Responsibilities

Provide sufficient information to make employer aware of need for FMLA-qualifying leave

Specifically reference the qualifying reason or the need for FMLA leave for subsequent requests for same reason

Consult with employer regarding scheduling of planned medical treatment

Comply with employer’s usual and customary procedural requirements for requesting leave absent unusual circumstances

Employee Responsibilities – Notice Requirements

Timing of Employee notice of need for leave:

Foreseeable Leave - 30 days notice, or as soon as practicable

Unforeseeable Leave - as soon as practicable

Employee Responsibilities – Notice Requirements

Medical Certification for serious health condition

Submit within fifteen calendar daysEmployer must identify any deficiency in

writing and provide seven days to cureAnnual certification may be requiredEmployee responsible for any cost

Employee Responsibilities – Provide Certification

Employer (not employee’s direct supervisor) may contact health care provider to: Authenticate: Verify that the information was completed

and/or authorized by the health care provider; no additional information may be requested

Clarify: Understand handwriting or meaning of a response; no additional information may be requested beyond what is required by the certification form

Second and third opinions (at employer’s cost)If employer questions the validity of the complete

certification, the employer may require a second opinionIf the first and second opinions differ, employer may

require a third opinion that is final and binding

Employee Responsibilities – Provide Certification

Employee must respond to employer’s request for information about status and intent to return to work

Employee Responsibilities – Provide Periodic Status

Reports

For an employee’s own serious health condition, employers may require certification that the employee is able to resume workEmployer must have a uniformly-applied

policy or practice of requiring fitness-for-duty certification for all similarly-situated employees

Employee Responsibilities – Fitness-for-Duty Certification

FMLA MILITARY FAMILY LEAVE

The FMLA military family leave provisions include:

Qualifying exigency leave, which provides up to 12 workweeks of FMLA leave to help families manage their affairs when a military member has been deployed to a foreign country; and

Military caregiver leave, which provides up to 26 workweeks of FMLA leave to help families care for covered service members with a serious injury or illness

Generally, FMLA rules and requirements continue to apply

FMLA MILITARY FAMILY LEAVE

• Entitled to a combined total of 26 workweeks of military caregiver leave and leave for any other FMLA-qualifying reason in single 12-month period;

• May not take more than 12 workweeks of leave for any other FMLA-qualifying reason during this period;

• Military caregiver leave is a “per-servicemember, per-injury” entitlement – could be 52 weeks of leave . . .

What is ADA?The Americans with Disabilities Act,

effective July 26, 1992, established a clear and comprehensive prohibition of discrimination on the basis of disability in employment

Who is Disabled?

People who currently have a disability

People who have a history of disability

People who are perceived as disabled by others

ADA EmploymentProhibitions

Requires employers to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to non-disabled persons . It prohibits discrimination in: job application procedures hiring advancement employee compensation Job assignment/classification job training other terms, conditions, or privileges of employment

Qualified Individual With a Disability“Qualified individual with a disability”

means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and who with or without reasonable accommodation, can perform the essential functions of such position

Types of Reasonable Accommodations Reasonable accommodations may include but

are not limited to: Modifying the job application process Making facilities accessible Job restructuring part-time or modified work

schedules Acquiring or modifying of equipment/devices Modifying policies Providing

readers/interpreters/notetakers/CART Educating co-workers Other similar accommodations

EmploymentUndue HardshipReasonable accommodation may not be

provided if such accommodation results in undue hardship on the employer.

“Undue hardship” means: an action requiring significant difficulty or

expense one that is costly, extensive, substantial or

disruptive One that will fundamentally alter the nature of

employment

WHAT IS NOT A DISABILITY?

Conditions Excluded By Statute

ESSENTIAL JOB FUNCTIONS

Fundamental Job Duties of the Position


Employers Can Establish Job-Related Qualification Standards (e.g., education, skills, experience, physical/mental standards)


Need Clear Job Descriptions

REASONABLEACCOMMODATION

May Enforce Rules of Conduct Grounded In Business Necessity (e.g.,

Non-Violence Work Rules)


Only Known Disabilities Need Accommodation


Accommodation Must Be Effective for Employee

Consult With Employee


Procedure for Requesting1. Notice to Human

Resources2. Meeting to Identify

Limitations3. Discuss Potential

Accommodations4. Determine

Reasonableness

ADA In Practice

May select the most qualified applicant available and make decisions based on reasons unrelated to a disability.

Two people apply for a job where typing is an essential function.

Can hire the faster typist even if the slower typist needs an accommodation if speed is important.

ADA In Practice

Can establish qualification standards that will exclude individuals who pose a direct threat -- i.e., a significant risk of substantial harm -- to the health or safety of the individual or of others;

Cannot simply assume that a threat exists;Must establish through objective, medically

supportable methods that there is significant risk that substantial harm could occur in the workplace.

Final Questions

Presenter:Kevin M. Kinne, Cohen Kinne Valicenti & Cook LLP

Williams College – FMLA/ADAOctober 14, 2015

2015 Williams FMLA/ADA Legal Update

Law

Transcript of 2015 Williams FMLA/ADA Legal Update