ADA and FMLA in the Staffing Industry

Preview

1. What is ADA and FMLA?

2. Which employers are covered under these acts?

3. Which employees are covered under these acts?

4. What do I have to do as an employer to comply with these acts?

5. How can I get more information if I have a specific question concerning these acts?

What is ADA?

ADA The Americans with Disabilities

Act ensures equal opportunities for persons with disabilities.

Title I of the ADA prohibits discrimination against persons with disabilities in employment.

Title I of the ADA is enforced by the Equal Employment Opportunity Commission (EEOC).

ADA Eligible Employers

All employers must comply with Title III. (Susan – what is Title 3? Its not stated in here prior to this. Please distinguish between Titles 1 and 3 on a previous slide.)

Businesses with 15 or more employees must comply with Title I.

You must count all employees on your payroll, even if they perform their primary duties at a different worksite.

ADA Eligible Employees

All persons with disabilities are covered under the ADA.

You must also comply with ADA regulations during the application phase – BEFORE a person is considered an employee.

ADA – Steps for compliance

Hang EEOC (including ADA) poster in an area visible to all applicants – all-in-one federal posters already include this.

Take steps necessary to reasonably accommodate any telephone and walk-in applicants.

Avoid asking any medical or disability related questions during an interview – you may only ask if the applicant can perform specific job functions before a conditional job offer is made.

Placing an individual on a roster for possible consideration DOES NOT constitute a conditional job offer – you must offer an assignment with a particular client.

ADA – Steps for compliance

After you’ve made a conditional job offer, you may address medical issues if the questions are job-related and consistent with business necessity.

A covered employer is obligated to provide a reasonable accommodation, absent undue hardship, if it has notice of the need for the accommodation.

Both the staffing firm and the client are responsible for making reasonable accommodations for a disabled employee once the employee begins working on a specific assignment.

Clients who ask a staffing firm to screen out individuals solely on the basis of a disability are in direct violation of the ADA.

What is FMLA?

FMLA

The Family and Medical Leave Act grants family and temporary medical leave under certain circumstances.

FMLA is enforced by the Wage and Hour Division of the Department of Labor.

FMLA Eligible Employers

An eligible employer employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

You must count all employees on your payroll, even if they perform their primary duties at a different worksite.

FMLA Eligible Employees

An eligible employee is an employee for a covered employer who:

– has been employed by the employer for at least 12 months

– has been employed for at least 1250 hours within the year prior to FMLA leave

– is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite

FMLA – Reasons for Qualified Leave

Limited to a total of 12 workweeks (continuously or intermittently) during any 12-month period for any one or more of the following reasons:

– The birth of an employee’s child and time to care for that newborn child

– The adoption of a child and time to care for the newly placed child

– To care for the employee’s spouse, child, or parent with a serious health condition

– Because of a serious health condition that makes the employee unable to perform the essential functions of his or her job

FMLA – Steps for compliance

Hang FMLA poster in an area visible to all applicants – all-in-one federal posters already include this

Choose a method for determining your 12 month period in which the 12 weeks of leave occurs and document the method to be used (stay consistent for every employee)

– Calendar

– A “fixed” year (such as fiscal, for example)

– A 12 month period measured forward from the date any employee’s first FMLA leave begins

– A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave

FMLA – Steps for compliance

Determine if FMLA will be paid or unpaid time and what benefits will be maintained (you MUST continue all group benefits that were paid in part or in full by the employer before the FMLA was taken).

When an employee requests leave under FMLA, you may ask him or her to provide the request in writing along with any medical documentation necessary for determining eligibility (standard forms are available).

Keep ANY medical information in a separate “need to know” file – do not keep these records in the personnel file.

FMLA – Steps for compliance

You must keep standard records for 3 years for FMLA purposes, including general employee information and payroll records, as well as all records pertaining to any specific FMLA cases including the dates FMLA was taken by each employee – you may want to set up an FMLA log to help you to keep track.

When an employee returns from FMLA, you must place him or her in the same position or an equivalent job in terms of pay, benefits and other terms and conditions.

Helpful resources

ADA:

- www.ada.gov

- www.eeoc.gov (specific to Title I)

- Job Accommodation Network: 800-526-7234

- www.eeoc.gov/policy/docs/guidance-contingent.html (this page will answer questions specific to staffing services)

FMLA:- www.dol.gov/esa/whd/fmla/ (this website provides standard request and response forms)

- 1-866-487-9243 (you will be referred to a Wage and Hour Division office in your area)