CLEVELAND-#417123-v1-SHRM_-_FMLA_Update_Seminar.PPT

LEGAL UPDATELEGAL UPDATE March 11, 2009March 11, 2009

Understanding the Understanding the New FMLA New FMLA

Regulations/Military Regulations/Military Leave Provisions Leave Provisions

and How to and How to Administer Them Administer Them

AKRON SOCIETY FOR HUMAN RESOURCE MANAGEMENT

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Gina A. Kuhlman

1375 E. Ninth Street 222 South Main StreetOne Cleveland Center Akron, OH 44308 Ninth Floor 330.849.6768Cleveland, OH 44114 330.376.4577 fax 216.820-4202 216.623.0134 fax

Email: [email protected]

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The Intent Behind the FMLAThe Intent Behind the FMLA

The FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons

Amendments provide for new military leave entitlements to care for a covered servicemember and to take protected leave due to a qualifying exigency

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The BasicsThe Basics

Circumstances under which each law is applicable

– ADA: An impairment that substantially limits a major life function

– Workers’ Compensation: Cannot perform job due to work-related illness or injury

– FMLA: Serious health condition of employee or family member; birth or adoption of child

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Inconsistencies Between FMLA, Inconsistencies Between FMLA, ADA & Workers’ CompensationADA & Workers’ Compensation

Medical information that employee can obtain– ADA: None – until after a conditional offer of

employment is extended (and then it must be required of all who apply for that position) • Employee may select physician

– Workers’ Compensation: Entitled to medical information and employee is permitted to schedule claimant for an independent medical examination

– FMLA: Employer can request certification of serious medical condition and information such as diagnosis, probable duration and prescribed regimen of treatment• Employer cannot require certification by employer’s

choice of physician

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Duration of the statutory right / obligation– ADA: Obligation to provide a reasonable

accommodation has no limit as far as duration. However, once a reasonable accommodation is made, employer is not obligated to continue such an accommodation indefinitely, if the accommodation becomes unreasonable

– Workers’ Compensation: Payment of compensation and benefits continues, provided claim is open, medical certification is provided to support such payments and there exists no statutory / judicial prohibitions against such payments

– FMLA: Unpaid leave up to 12 weeks every 12 months; the leave can be intermittent or on a reduced schedule

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Obligations to rehire / return to former position

– ADA: If employee is qualified to perform essential functions, with or without reasonable accommodations, then employer is required to return the employee to work, provided employee has complied with the employer’s work rules (such as attendance)

– Workers’ Compensation: No express requirements that employee must be returned to the same job

– FMLA: Must be returned to same or equivalent position

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A “serious health condition” qualifying an employee for FMLA leave is not always an “impairment” within the meaning of ADA.

FMLA leave is available for serious health conditions afflicting the employee or his or her spouse, children or parents. ADA only applies to impairments of the individual employee.

Under FMLA, an employee need not demonstrate that leave will enable him or her to perform the essential functions to be entitled to leave. Before an employee is entitled to leave under ADA, there must be some indication that it will enable the employee to perform the job’s essential functions.

Key Distinctions Between Leave Key Distinctions Between Leave Under ADA and FMLAUnder ADA and FMLA

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Employer-provided benefits and seniority credit continue at previous levels during FMLA leave, but may be reduced during leave under ADA unless the employer has maintained benefits for others on non-ADA leave.

Under FMLA, an employee may be returned to an “equivalent” position. However, ADA requires the employer to return the ADA-disabled employee to his or her original position unless employer can show that holding that position open causes an undue hardship.

Key Distinctions Between Leave Key Distinctions Between Leave Under ADA and FMLAUnder ADA and FMLA

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Common PitfallsCommon Pitfalls

Limitations on medical inquiries and use of information

Rigid application of “no fault” attendance policies Availability of leave as an ADA accommodation

upon exhaustion of FMLA leave Necessity of individual determinations Employee notification Workers’ compensation as an FMLA-qualifying

event

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FMLA Leave for Armed ForcesFMLA Leave for Armed Forces

FMLA was recently amended by the National Defense Authorization Act

Two changes– Certain family members of active members of the armed

forces are entitled to unpaid leaves during a 12 month period of: 1. Up to 26 work weeks to care for the service member who

has a serious service-connected illness or injury (effective 1/28/07); and

2. Up to 12 weeks for “qualifying exigencies” – to be defined by regulations – relating to the service member being called to active duty (effective when final regulations are issued defining a “qualifying exigency”)

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Return-to-work IssuesReturn-to-work Issues

Intermittent Work– FMLA requires employers to permit intermittent

leave when it is “medically necessary”

• Employer may grant an employee who needs intermittent leave to transfer to a position of equivalent pay and benefits if that position is more suitable to recurring periods of leave

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ADA vs. FMLA– Once an employee has exhausted his or her 12

weeks of FMLA leave, an employer may still be required to provide additional leave, a modified work schedule or other accommodations if doing so would enable the employee to perform the essential functions of the position and would not cause the employer to suffer an undue hardship.

– This same issue can arise after a worker’s compensation leave

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Is full-time work required? – Not necessarily – There is some authority for the idea

that a full-time employee returning from a leave might not be required to keep regular attendance (might not be an essential function)

Increased workload for other employees – A proposed accommodation that would make a

significantly heavy workload for other employees may be considered an undue hardship • However, if employer has already endured several weeks

of such an arrangement under FMLA, it should consider carefully whether to refuse to continue to do so if requested under ADA

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Impact of Impact of Collective Bargaining AgreementsCollective Bargaining Agreements

FMLA: While such leave is statutorily required, there are certain issues which can be negotiated– Concurrent vs. consecutive paid leave

– Duration of leave (more than 12 weeks) ADA

– Issue: If a claim (grievance) must be first arbitrated prior to filing federal claim

– May determine what is an essential function of the job

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Differing RequirementsDiffering Requirements

Medical Certification– ADA: May require details and an explanation of a

medical condition, including follow up with the employee’s treating physician. An employer can require a “job-related medical exam” by its medical examiner

– FMLA: Employer is limited to information on the return to work form and may not follow up with the treating physician. Information may be obtained via a second and even third opinion if there are differing conclusions

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Differing RequirementsDiffering Requirements

Light Duty / Transitional Return to Work– ADA: Is favored within the concept of

reasonable accommodation

– FMLA: An employee may not be required to work in a light duty capacity but instead is “entitled” to 12 weeks of leave

– Workers’ Compensation: A refusal to work in a light duty capacity will lead to a loss of temporary total and wage loss compensation

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Top Ten Practical TipsTop Ten Practical Tips

1. Assure compliance with the 1250 hour within a 12 month period standard.

2. Make sure employees injured on the job are issued notices that they are on FMLA leave as soon as they leave work. This will avoid leave-stacking.

3. Process the workers’ compensation claim while charging the time against FMLA allotment. Make sure that a workers’ compensation claimant on light duty knows that the light duty is temporary and will not be considered under ADA until either maximum level of improvement has been reached (by medical care or hearing time), or until some other fixed time period has elapsed.

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4. The injured employee has the right to reject light duty and stay off the job for 12 weeks of FMLA leave, but if this happens, the employer should immediately stop workers’ compensation payments.

5. Require medical certification and second opinions. Recertification may not generally be required more than once every 30 days. Monitor potential fraudulent claims.

6. After 12 weeks of FMLA entitlement, any continuation of leave and right to reinstatement has become an ADA issue and must be analyzed under ADA. An individual who is totally disabled does not fall under ADA.

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7. Don’t assume a medical condition qualifies as a serious health condition or a disability under ADA.

8. Ratchet down attendance standards.

9. Consider transfers to alternative positions.

10. Denial of Reinstatement to Key Employees (within highest paid 10%) where this is necessary to prevent substantial and grievous economic injury and prior notice is given.

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Analytical CourseAnalytical Course

Covered Employer↓

Covered Employer↓

Covered Employer↓

Applicant or employee with a disability

↓

Covered employee – serious health condition, etc.

↓

Employee↓

Otherwise qualified to performessential functions of job

↓

Qualifications↓

Compensable Event↓

Reasonable Accommodation↓

Notice-Employee↓

Entitlement to Disability Compensation

↓

UNLESS↓

Notice-Employer↓

Rehabilitation↓

Undue Hardship Leave/Intermittent Leave↓

Return to Work

Return to Work

ADAADA FMLAFMLA WCWC

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Doug focuses his practice on wrongful discharge, employee benefits, regulatory compliance, discrimination and negligence issues. His clients include a broad spectrum of employers ranging from closely held corporations to Fortune 500 companies, all of whom face daily issues involving employees and hiring and firing, discipline, workers' compensation and potential litigation.

Doug KennedyDoug KennedyPartnerPartner

155155 East Broad StreetEast Broad StreetNational City Plaza, 12th FloorNational City Plaza, 12th FloorColumbus OH 43215Columbus OH 43215Phone: (614) 723-2004Phone: (614) 723-2004Fax: (614) 463-9792Fax: (614) [email protected]

INTRODUCING OUR FIRM INTRODUCING OUR FIRM AND AND

CAPABILITIESCAPABILITIES

AKRON AKRON ●● CINCINNATI CINCINNATI ● CLEVELAND ● COLUMBUS● CLEVELAND ● COLUMBUS FORT LAUDERDALE ●FORT LAUDERDALE ● FORT MYERSFORT MYERS ●● NAPLES ● ORLANDONAPLES ● ORLANDO

TALLAHASSEE ● TOLEDO ● WASHINGTON, D.C.TALLAHASSEE ● TOLEDO ● WASHINGTON, D.C.

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More than 230 attorneys 43 paralegals and nurse consultants 225 staff members More than 40 areas of practice 11 offices

FIRM OVERVIEWFIRM OVERVIEW

Roetzel & Andress has the resources Roetzel & Andress has the resources necessary to meet our clients’ needs.necessary to meet our clients’ needs.

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FIRM OVERVIEWFIRM OVERVIEW Akron Cincinnati Columbus Cleveland Fort Lauderdale Fort Myers Naples Orlando Tallahassee Toledo Washington, D.C.

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FIRM OVERVIEWFIRM OVERVIEW

• Intellectual Property & Information Technology

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More than 40 areas of practice including:

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EMPLOYMENT SERVICES GROUPEMPLOYMENT SERVICES GROUP

The Labor and Employment attorneys at Roetzel & Andress work cooperatively with in-house counsel, risk management professionals and human resource departments to handle routine and complex regulatory compliance issues that affect the workplace.

We represent both union and non-union public and private companies, not-for-profit organizations, public sector entities, entrepreneurial ventures, and professional associations across the entire spectrum of labor and employment issues.

Many of our attorneys are Ohio State Bar Association board certified specialists in the areas of Workers' Compensation and Labor and Employment Law.

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REPRESENTATIVE SERVICESREPRESENTATIVE SERVICES

Employee compensation and leave policies Employee handbooks & employment agreements Employee screening and testing Government contractor requirements Layoffs and reductions in workforce Occupational safety and health issues

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AFFILIATED PRACTICE AREASAFFILIATED PRACTICE AREAS

EMPLOYEE BENEFITS LABOR & EMPLOYMENT LITIGATION WORKERS’ COMPENSATION

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EMPLOYEE BENEFITSEMPLOYEE BENEFITS

REPRESENTATIVE SERVICES– 401(k)s, Employee Stock Ownership Plans (ESOPs)

and pension plans – Claims administration issues – Employee Retirement Income Security Act (ERISA) – Executive compensation – Family and Medical Leave Act (FMLA) – Fiduciary responsibility counseling – Fringe benefit plans – Litigation – Regulatory compliance – Welfare benefit plans

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LABOR & EMPLOYMENT LITIGATIONLABOR & EMPLOYMENT LITIGATION

REPRESENTATIVE SERVICES– Alternative dispute resolution – Civil Rights law – Wrongful termination – Employment tort litigation – Employment discrimination – All types of harassment – Non-compete and confidentiality agreements – Trade secrets

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WORKERS’ COMPENSATIONWORKERS’ COMPENSATION

REPRESENTATIVE SERVICES– Adjudication Committee hearings – Appeal and mandamus actions – Audits, classifications and premium disputes – Bureau of Workers' Compensation (BWC) audits and protests – District, Staff and Industrial Commission hearings – Industrial injuries – Intentional tort and retaliation claims – OSHA standards, complaints, responses and inspections – Self-insured applications, complaints and carrier issues – Subrogation and third-party claims – Unemployment compensation rate and claim disputes – Violation of Specific Safety Requirements (VSSR)

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230 attorneys. 230 attorneys.

40 areas of practice. 40 areas of practice.

11 offices.11 offices.

One address – One address – www.ralaw.comwww.ralaw.com

AKRON AKRON ●● CINCINNATI CINCINNATI ● CLEVELAND ● COLUMBUS● CLEVELAND ● COLUMBUS FORT LAUDERDALE ●FORT LAUDERDALE ● FORT MYERSFORT MYERS ●● NAPLES ● ORLANDONAPLES ● ORLANDO

TALLAHASSEE ● TOLEDO ● WASHINGTON, D.C.TALLAHASSEE ● TOLEDO ● WASHINGTON, D.C.

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CLEVELAND-#417123-v1-SHRM_-_FMLA_Update_Seminar.PPT

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