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An Employment Law Nightmare – Intersection of the ADA & the FMLA

ADARIPFMLA Temp. Caregiver

Ins.

Presented at the RIBA 2014 Annual Meeting

by Roger W. Hood

and Rachelle R. Green

FMLA

2

Family Medical Leave Act (“FMLA”)¹

FMLA

• Basic Rule: Covered employers

must allow eligible employees to

take up to 12 weeks of job-protected

leave in a 12-month period to be

used for certain qualifying events.²

• Special rules apply to families of

military service members or veterans,

as well as airline flight crew

employees.

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FMLA: “Covered Employers” & “Eligible Employees”³

Covered Employers Eligible Employees

Company has 50 or more employees

Must have worked at company for 12 months

Includes part-time workers, temporary workers, and workers on paid and unpaid leave

Short breaks in service do not interrupt employee eligibility

Employee must work at U.S. location where the company employs at least 50 workers within a 75-mile radius

Must have actually worked 1,250 hours during the prior 12-month period

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Methods of Calculating 12-month Period⁴

FMLA

Employers may select one of four methods to

calculate the 12-month period to be uniformly

applied to all employees taking FMLA leave:

1. Calendar year: January 1 to December 31

2. Any fixed 12-months: fiscal year, year

starting on employee’s anniversary of

hire; or any other 12 month period

3. 12-months measured forward: measured

from the first date an employee takes

FMLA leave

4. “rolling” 12-months measured backward:

each time an employee takes leave, the

remaining leave would be the balance of

the 12 weeks not used during the

preceding 12 months

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FMLA: “Qualifying Events”⁵

FMLA

Birth of newborn child Placement with employee of adopted or foster

child Leave to “care for” a serious health condition of

employee’s spouse, child, or parent Employee’s serious health condition Event related to covered military service of

employee’s family “qualifying exigency” (12 weeks of leave) military caregiver leave for service

member or veteran’s serious illness or

injury (26 weeks of leave)

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FMLA: “Serious Health Condition”

FMLA

Means: Illness, injury or physical or mental

condition that involves either: inpatient care; or continuing treatment by a health care

provider

Inpatient care includes an overnight stay at a

hospital, hospice, or residential treatment facility.

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FMLA: Qualifying Family Relationships

FMLA

Spouse: husband or wife, as determined by state

law

Parent: biological, adoptive, or any person who

assumed parental duties while employee was a

child

Child: biological, adopted, foster, step, or legal

ward if under 18 years old; also includes child

under age 18 for whom employee has assumed

parental duties, including financial support. If

disabled, includes children over age 18.

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FMLA: Duration of Leave

FMLA

General Rule: Eligible employees may take up to

12 weeks of job-protected, unpaid leave during

any 12-month period.

Intermittent leave may be taken for serious health

condition if medically necessary (e.g. several days

or hours per month for chemo or dialysis), but not

for birth or adoption.⁶

FMLA leave is unpaid leave. Employer may

require employee to substitute available paid

leave for unpaid leave

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FMLA: Prohibits Retaliation for Taking Leave¹³

FMLA

Employer may not “interfere” with employee’s right

to FMLA leave or terminate employee for taking

FMLA leave.

Consider: Timing of discipline Treating employees who have taken FMLA

leave differently Failing to document discipline

Employees who cannot perform essential

functions of their jobs at the end of FMLA are not

entitled to job restoration. However, they may be

entitled to additional leave as a reasonable

accommodation under the ADA.

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Rhode Island Parental & Family Medical Leave Act¹⁴

RIPFMLA

Basic Rule: Covered employers must allow

employees to take 13 consecutive work weeks of

parental leave or family leave in any two

calendar years.

If leave is covered by both FMLA and RIPFMLA,

the leaves run concurrently unless otherwise

provided in the employee handbook.

In the event of inconsistencies, the employer must

apply the provision that is more beneficial to the

employee.

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Federal vs. RIPFMLA

FMLA¹⁵ RIPFMLA¹⁶

Amount of Leave 12 weeks unpaid leave in a 12-month period

13 consecutive weeks unpaid leave in any 2 years

Leave Year Calculations

Can use: Calendar Fixed Year Rolling Forward Rolling Backward

Calendar year

“Covered Employer”

Employers with 50 or more employees during the leave year or prior year

Employers with 50 or more employees

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Federal vs. RIPFMLAFMLA RIPFMLA

Eligible Employees

12 months of service 1,250 hours of service during the

12 months preceding the leave at worksite with 50 or more

employees within 75 miles of the worksite

12 consecutive months of service

works an average of 30 or more hours per week

Covered Relationships

Child (biological, adopted, step, foster, legal ward, or in loco parentis) under age 18 or incapable of self-care due to disability

Spouse (husband or wife, but not domestic partner/civil union)*

Parent (biological, adoptive, foster, step, or in loco parentis)

Child (undefined) Spouse (husband or

wife, as defined by RI law)**

Parent (undefined) Parent-in-law (mother-

or father-in-law)

*But see: Windsor v. United States**Rhode Island recognizes same sex spouses. See R.I. Gen. Law § 15-1-1.

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Federal vs. RIPFMLAFMLA RIPFMLA

Mode of Leave Usage

Continuous Intermittent Reduced schedule

Continuous

Health Insurance Benefits

Employer must continue coverage and pay employer’s share of premium. Employee still responsible for share of premium (if any).

Same, except that RIPFMLA requires employee to pay in advance the amount of premiums required to maintain benefits during the leave

Reinstatement Following leave, employee must be restored to the same or equivalent position.

Exception for “key employees”

Same, except that RIPFMLA does not have an exception for “key employees”

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Federal vs. RIPFMLAFMLA RIPFMLA

Pre-Leave Notice Required

30 days prior notice for foreseeable leave, and if leave is unforeseeable, as much notice as practicable

30 days prior notice “unless prevented by medical emergency to provide said notice”

Request for leave must verify the truthfulness of the factual representations made by employee and include a detailed description of employee’s entitlement to leave

Medical Certification

Employer may require certification of the patient’s medical condition by healthcare provider

Employer may require certification of healthcare provider of the “probable duration” of the leave

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Rhode Island Temporary Caregiver Insurance (“TCI”)17

TCI

Effective January 1, 2014, Rhode Island employers

must allow their employees four (4) weeks of time

off per year to care for a family member with a

serious medical illness or to bond with a child

within the first 12 months of parenting.

Applies to all employers regardless of size.

Covers all employees regardless of how long they

have worked for the employer.

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Rhode Island Temporary Caregiver Insurance (“TCI”)

TCI

During TCI leave, the employer does not pay

salary, but employees receive temporary disability

insurance payments from the state.

During TCI leave, the employer must continue to

provide health insurance to enrolled employees,

but the employee is responsible for its share of

health insurance premiums (if any).

Employer has no right to request certification of the

employee’s relationship to the ill family member or

of the family member’s serious health condition.

Employee provides documentation to the state.

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Americans with Disabilities Act (“ADA”)18

• Basic Rule: an employer with 15 or more employees shall not discriminate against a

qualified individual with a disability.

• The ADA makes it unlawful to discriminate in all employment practices such as:

Recruitment

Hiring

Training

Job assignments and promotions

Pay and benefits

Leave

Termination

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ADA: What is A Disability?

• A person has “disability” if he or she has (1) a physical or mental

impairment that substantially limits one or more major life

activities; (2) a record of this impairment; or (3) is regarded as

having such an impairment.¹⁹

• Examples of major life activities include: standing, sitting, lifting,

seeing, hearing, eating, caring for oneself, working, walking, reading,

concentrating, performing manual tasks, or communicating.²⁰

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ADA: Substantially Limiting²¹

A person has “disability” if he or she has (1) a physical or mental impairment that substantially

limits one or more major life activities; (2) a record of this impairment; or (3) is regarded as

having such an impairment.

• Ability to perform a major life activity is measured against the average person’s ability.

• Corrective measures must not be considered, except for ordinary eye glasses and contact

lenses.

• Requires an individualized assessment:

nature and severity of the impairment

impairment’s permanent or long-term impact

transitory impairments are not covered, but episodic or in remission are covered

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ADA: “Record of” or “Regarded” as Disabled22

A person has “disability” if he or she has (1) a physical or mental impairment that

substantially limits one or more major life activities; (2) a record of this impairment; or

(3) is regarded as having such an impairment.¹

• Record of impairment:

Document indicates an impairment that would substantially limit one or more

major life activities.

Covers those with a history of having such an impairment.

• “Regarded” as disabled is based on the perceptions of others.

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ADA: Who is qualified?

Basic Rule: an employer with 15 or more employees shall not discriminate against a

qualified individual with a disability.

• An individual with a disability is considered qualified if the individual, with or without

reasonable accommodation, can perform the essential functions of the job held or

desired.23

• Reasonable accommodations to the known physical or mental limitations of a qualified

employee or applicant with a disability must be made unless to do so would cause

undue hardship on the operation of the employer’s business.24

• Undue hardship includes employer’s cost, onsite resources, overall resources, and

nature of operations.25

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ADA: Reasonable Accommodations

• Contemplates an Iterative Process

• Types of Accommodations:

required in the employment process for qualified applicants

make it possible for employees with disabilities to perform the essential functions of the

position held or desired

enable employees with disabilities to enjoy the benefits and privileges of employment

that are equal to (rather than the same as) the benefits and privileges that are enjoyed

by other employees

Time off from work (either a modified schedule or flexible leave policy) may be required

as a reasonable accommodation.

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ADA: Prohibits Discrimination/Retaliation

• Discrimination may include: denying employment opportunities to qualified

individuals; failing to make reasonable accommodations for the individual’s known

physical or mental limitations; and/or terminating an employee for requesting a

reasonable accommodation.

• Employees with disabilities may be disciplined like any other employee.

• Employees with disabilities may not be disciplined if the employer has refused to

provide a reasonable accommodation and the reason for unsatisfactory

performance was the lack of accommodation.

• Employees with disabilities may not be terminated for requesting a reasonable

accommodation.

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End Notes1. 29 U.S.C. § 2601 et seq.2. 29 U.S.C. § 2612.3. 29 U.S.C. § 2611.4. 29 C.F.R. § 825.200; see also U.S. Dep’t of Labor Fact Sheet No. 28H (available at http://

www.dol.gov/whd/regs/compliance/whdfs28h.pdf).5. 29 U.S.C. § 2612.6. 29 C.F.R. § 825.202.7. 29 C.F.R. § 825.300.8. 29 C.F.R. § 825.305.9. 29 C.F.R. § 825.305.10. 29 C.F.R. § 825.311.11. 29 U.S.C. § 2614(a).12. 29 U.S.C. § 2614(b).13. 29 U.S.C. § 2615.14. R.I. Gen. Laws § 28-48-1 et seq.15. 29 U.S.C. § 2601 et seq.16. R.I. Gen. Laws § 28-48-1 et seq.17. R.I. Gen. Laws § 28-41-34.18. 42 U.S.C. § 12101 et seq.19. 42 U.S.C. § 12111(5)(A).20. 42 U.S.C. § 12102(1).21. 29 U.S.C. § 1630.2(i).22. 29 C.F.R. § 1630.2(k)-(l).23. 29 C.F.R. § 1630.2(m).24. 29 C.F.R. § 1630.2(o).25. 29 C.F.R. § 1630.2(p).

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An Employment Law Nightmare – Intersection of the ADA & the FMLA

ADARIPFMLA Temp. Caregiver

Ins.

Presented at the RIBA 2014 Annual Meeting

by Roger W. Hood

and Rachelle R. Green

FMLA

26

THANK YOU FOR YOUR ATTENTION!