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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments

Blank Rome LLP © 2017

Mark Blondman, Blank Rome LLPBrooke T. Iley, Blank Rome LLPAndrew B. Cohen, Comcast

Avoiding Headaches: Leave, Accommodation, and the New Economy

The Landscape

Laws Impacting Leave Policy Considerations Concerns in the Modern

Workplace Practical Advice and Key

Takeaways

6/13/2017 Annual Labor & Employment Law Briefing: Strategic Guidance for Legal Trends and Developments54

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The Leave Dilemma


LEAVES

ADA FMLAPOLICIES

Primer on Legal Basics

Laws Impacting Leave– Family Medical Leave Act (FMLA)– Americans with Disabilities Act (ADA)– State/Local Laws– Paid Sick Leave– Family Leave– Workers Compensation– Other LOA


6



Still Making News


Companies Embracing Leave


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FMLA Review

Applicability:– Public or Private employer with 50+ employees

Eligibility:– Employed at least 12 months/1250 hours– Facility has 50+ employees within 75-mile radius

Protection provided:– Up to 12 weeks/26 weeks for military caregiver leave– Same or equivalent position

Coverage for:– Serious Health Condition– Birth/Adoption of a Child– Military Exigencies


ADA Review

Applicability:– Employers with 15+ employees Eligibility:– Must be a “qualified individual” Protection against:– Discrimination– Harassment– Not providing “reasonable accommodation”– Illegal medical inquiries/requiring medical tests– Retaliation


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Key Terms under the ADA

Disability– Physical or mental impairment . . .– that substantially limits a major life activity Otherwise qualified person– Possesses necessary qualifications– Can perform essential job functions . . .– With or without reasonable accommodation Reasonable accommodation– Adjustments to work environment, or manner/circumstances

under which the job (or application) is customarily performed


Key Company Policies

Sick Leave Short & Long-Term

Disability PTO/Vacation Health Coverage Plan Parental LeaveWorker’s Compensation Alternative Work/Telecommuting Flex Days


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State Paid Sick Leave Laws


Local Paid Sick Leave Laws


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Paid Family Leave Benefits


What If…

1. Joe comes to HR and states that he needs time off.a) Assume Joe says it is because of a

medical condition.b) Joe brings note from HCP stating

that Joe needs time off, but the medical reason is not clear.


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Requesting Information from Healthcare Providers

Key Considerations:– Use the DOL’s Model Medical

Certification Form– Can the information be

obtained directly from employee?

– If information must be obtained from HCP, have employee sign a HIPAA release


What If…

c) Joe comes back with note from HCP stating Joe needs intermittent time off due to sleep apnea.

d) Joe requests time off to care for a family member who has a serious health condition.

e) Joe requests time off to care for his child who is going through a gender identity “crisis,” and will ultimately have an identity change surgery.

f) Joe is in a common law marriage. Is there any basis for denying his request for leave?


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Common Misunderstandings

Misunderstanding #1: You can always deny leave if you do not believe an employee has a serious health condition.Misunderstanding #2: You can always request a doctor’s note to verify the need for a medical leave of absence.Misunderstanding #3: A spouse in a same-sex relationship is not entitled to FMLA leave.Misunderstanding #4: Employers cannot run leave of absences concurrently or in increments of less than a day.Misunderstanding #5: In order to qualify for FMLA leave to care for a family member, the employee must be the primary caregiver.


What If…

1. Sarah requests leave for medical reasons.a) Sarah’s employer is not covered

by FMLA because it has less than 50 employees.

b) Sarah requests leave of 10 weeks.c) Sarah’s department goes through

a RIF.


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What If…

You have not been in communication with Sarah, but as leave is about to expire Sarah sends you a note from HCP stating that:

d) Sarah needs an additional week of leave.e) Sarah requests two more weeks and you grant her

request. You then receive another note from HCP at the end of the extension requesting another two weeks.

f) Sarah is not ready to return and HCP is not sure when she will be able to return.


Common Misunderstandings

Misunderstanding #1: If an employee has a medical condition and needs to be absent from work, the maximum amount of leave to which the employee is entitled is 12 weeks of FMLA leaveMisunderstanding #2: The best way to deal with an employee’s request for leave is to apply guarantees in federal and state lawsMisunderstanding #3: Employees working remotely from home are never entitled to FMLA leave.Misunderstanding #4: You can always deny a request for leave if you have less than 50 employees.


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It’s a Balancing Act

Minimizing Legal Risk Attracting & Obtaining Top Talent Fostering Positive Culture Promote Diversity

Costs Disruption to Business Decrease Productivity Employee Relations


What the Future Holds


Working Families Flexibility Act

Flexibility for Working Families Act

Strong Families Act

Federal Employees Paid Parental Leave Act

Family and Medical Insurance Leave

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