Employee Leave Under FMLA, ADA and Workers' Comp: Navigating...
Transcript of Employee Leave Under FMLA, ADA and Workers' Comp: Navigating...
Employee Leave Under FMLA, ADA and Workers' Comp: Navigating Overlapping and Conflicting Leave LawsAvoiding Pitfalls With Accommodation, Retaliation/Discrimination; Handling Light Duty, Company Policy Violations and Discipline
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WEDNESDAY, APRIL 18, 2018
Presenting a live 90-minute webinar with interactive Q&A
Neil A. Capobianco, Partner, Dentons, New York
Matthew U. Scherer, Esq., Littler Mendelson, Portland, Ore.
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Employee Leave Under FMLA, ADA and
Workers' Comp: Navigating Overlapping
and Conflicting Leave LawsAvoiding Pitfalls With Accommodation, Retaliation/Discrimination; Handling Light Duty, Company Policy Violations and Discipline
Presenting a live 90-minute webinar with interactive Q&A
WEDNESDAY, APRIL 18, 2018
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
Today’s faculty features:
Neil A. Capobianco, Partner, Dentons US LLP, New York
Matthew U. Scherer, Esq., Littler Mendelson, Portland, Ore.
The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions
emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.
Neil A. Capobianco, Esq.
Dentons US LLP1221 Avenue of the AmericasNew York, New York 10020(212) [email protected]
Matthew U. SchererLittler Mendelson P.C.121 SW Morrison Street, Suite 900Portland, OR 97204 (503) [email protected]
Employee Leave Under the
FMLA, ADA and
Workers’ Compensation Law
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• Prohibits discrimination against a QID – “qualified individual with a
disability.”
• “Reasonable accommodation” may include:
• “other accommodations could include permitting the use of accrued paid leave
or providing additional unpaid leave for necessary treatment.” (EEOC
Interpretive Guidance to 29 C.F.R. § 1630.2(o)).
• Employer has obligation to engage in “interactive process” if it suspects that an
employee has a disability and may require a reasonable accommodation
• ADA prohibits both disability inquiry and medical exam unless inquiry or
exam “is shown to be job-related and consistent with business
necessity.” (29 U.S.C. § 12113(d)(4)(A), § 12112(d)(4)(A)).
• ADA prohibits retaliation against individual for requesting a reasonable
accommodation or complaining about discrimination.
American with Disabilities Act Overview
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• Covers all accidents and injuries that arise “out of” or “in the course of”
employment employee is entitled to any benefits to which eligible under state or
company’s short-term or long-term disability programs;
• Pays medical benefits and wage replacement benefits.
• Medical benefits continue as long as employee needs treatment arising out of
work-related injury.
• Wage replacement benefits continue as long as employee is unable to work.
• Employee loses wage replacement benefits if employer offers employee a
position (e.g. light duty).
• Employer entitled to medical records & can compel IME.
• All disputes/settlements require approval of specialized state agency.
• Retaliation against claimants is prohibited.
State Workers’ Compensation Law Overview
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• Applies to Employees with 12 months & 1,250 hours.
• Covers birth/adoption of child, employee’s own serious health condition, or
serious health condition of employee’s spouse, daughter, or parent.
• Entitles employee up to 12 weeks of leave for entire 12 weeks (birth/adoption)
or for duration of serious health condition.
• FMLA Certification only.
• Prohibits retaliation against any employee for:
• requesting or taking FMLA leave;
• opposing any unlawful FMLA practice;
• filing an FMLA complaint; or
• providing information or testimony in connection with any FMLA case (29
U.S.C. § 2615).
Family and Medical Leave Act Overview
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• If an employee is out for an FMLA-qualifying reason, the employer
should designate the time off as FMLA leave, including:
• worker’s compensation leave;
• disability leave; or
• time off for medical treatment.
• If employee is out of workers’ compensation, employer may:
• designate all time off as FMLA leave (assuming it constitutes a serious health
condition);
• inform employee that termination of employment will occur if employee is
unable to return to work by end of 12 weeks;
• offer employee a light duty position (within doctor’s restrictions) and if employee
refuses, stop wage-replacement benefits;
• if employee refuses light duty position, FMLA leaves continues for up to 12
weeks;
Interaction Between FMLA and Worker’s
Compensation
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• employer (or insurance carrier) is entitled to all relevant medical records, IME,
and doctor’s FMLA certification;
• if employee is unable to return at end of 12 weeks of FMLA leave, employer
may terminate employee’s employment:
• no right to reinstatement of employment (employee must re-apply for employment);
• ending employer-provided health coverage, unless employee elects COBRA at own expense.
• if employment is terminated at end of 12 weeks of FMLA leave:
• employee is entitled to worker’s compensation medical benefits and wage replacement benefit as
long as unable to work and ongoing treatment needed;
• all benefits and rights are governed by workers’ compensation law;
Interaction Between FMLA and Worker’s
Compensation
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• If employee with an ADA disability is out for an FMLA-qualifying reason,
the employer should designate the time off as FMLA leave.
• If employee is out in connection with an ADA disability, employer may:
• designate all time off as FMLA leave (assuming it constitutes a serious health
condition);
• inform employee that termination of employment will occur if employee is
unable to return to work by end of 12 weeks;
• no obligation to offer a light duty position (unless policy provides otherwise);
Interaction Between FMLA and ADA
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• Employer must consider possible reasonable accommodations,
including:
• additional leave (possibly even beyond 12-week FMLA limit);
• alterations to workspace;
• modified schedule;
• modified workplace policies;
• reassignment to a vacant position (only when accommodation to current
position would pose an undue hardship);
• Employer must engage in interactive process to determine what
accommodation(s) will allow employee to perform essential functions of
job
• If multiple accommodations would allow employee to perform essential
functions, employer may choose which accommodation to implement
Interaction Between FMLA and ADA
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• Employee may qualify for short-term disability or long-term disability
under Company programs if unable to work as long as disability
commenced at a time when employee was actively employed.
• Employer is not entitled to any information about the reasons for the
leave, except:
• Doctor’s FMLA certification;
• Additional information about the ADA disability if the employee requests a
reasonable accommodation.
• Employment termination may occur if:
• Employee is unable to return at end of 12 weeks of FMLA leave;
• Reasonable accommodation will not allow the employee to perform the
essential functions of positions; and
• Consideration is given to extending the employee’s leave for a reasonable
additional period of time.
Interaction Between FMLA and ADA
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• If employment is terminated at end of 12 weeks of FMLA leave:
• employee is entitled to any benefits to which eligible under state or company’s
short-term or long-term disability programs;
• employee has no right to reinstatement (must re-apply); and
• employer-provided health coverage and other benefits end, unless continuation
or conversion is offered and elected.
Interaction Between FMLA and ADA
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• Clearly written policy explaining who is eligible. Historically, only
employees out on workers’ compensation were eligible for light duty, but
US Supreme Court nixed that in Young v. UPS (2015).
• Emphasize that program is transitional – to help employee transition
back to former full-time position.
• Clear time limits establishing how long an employee can continue in a
light duty position.
• Place employees in useful light duty positions only and insist that the
functions of that position be performed.
• Communicate specific functions and expectations of light duty position
and maximum duration in writing to employee before the light duty
assignment begins.
Keys to a Successful Light Duty Program
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• Written policy with a bright light test establishing when termination occurs
that is consistently and uniformly applied.
• Cover letter to Employer’s Response to FMLA Request that clearly
explains that if employee is unable to return to work after exhausting 12
weeks of leave, employment will be terminated.
• Warning letter to employee 3-4 weeks before 12 weeks are exhausted
explaining the date by which employee must return to work or
employment will be terminated.
• Clearly written policy explaining what leave will be offered to employees
who do not satisfy 1 year and 1,250 hours requirement (e.g., prorate 12
weeks).
• Termination letter to employee upon exhaustion of 12 weeks should
explain that employee is eligible to re-apply for employment.
Keys to Successful FMLA Termination Program
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• Don’t forget about ADA compliance
• If employee’s SHC would qualify as a disability under the ADA, employer has
obligation to engage in interactive process to determine whether employee
could return to work with an accommodation—which may include additional
leave beyond 12-week FMLA limit
• Except for reasonable accommodation, do not make any exceptions to
policy because:
• employee is exceptional or long-term;
• employee’s reason for leave evokes sympathy;
• employee is high-ranking (key employee provisions may apply); and
• employee needs employer-provided health or other benefits.
Keys to Successful FMLA Termination Program
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• FMLA retaliation claim.
• ADA or ADA retaliation claim.
• Worker’s compensation retaliation claim.
• Federal or state discrimination claims.
What are the litigation risks?
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• Statewide laws passed in 11 states (AZ, CA, CT, DC, MA, MD, NJ, OR,
RI, VT, WA—HI also close to enacting one)
• Also ordinances in Austin, Chicago, Minneapolis/St. Paul, NYC, Philadelphia
• Collectively cover almost one-third of American workers, and rising each year
• Covered uses
• Medical: Diagnosis, treatment, or recovery from minor illnesses for EEs and
immediate family members; or preventative care
• “Safe time” for victims of domestic violence, sexual assault, or stalking
• Employers typically CANNOT require verification for employee
absences and CANNOT require advance notice/supervisory
approval
• Most laws only permit employers to ask for documentation if absence is 3+
consecutive workdays
Paid Sick Leave
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• Employers can roll sick time into broader Paid Time Off policies, but
structuring those policies to comply with all sick leave requirements can
be tricky
• Amount
• Typically 1 hour of sick time accrues per 30 hours worked
• Some states allow sick time to be “front-loaded” at beginning of each year
• Laws generally permit employers to cap accrual, carry-over, and/or use
• Accrual: Cap on total amount of sick time employees can have in leave bank
• Carry-over: Cap on how much unused PST can be carried over into next year
• Use: Cap on how much sick time an employee can use in one year
• Usually starts accruing immediately after employment begins, and must
be made available for use after 90 days of employment
Paid Sick Leave
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• Generally cannot require employees to use PST in increments greater
than 1hr
• Rate of pay is typically employee’s regular rate, but laws split on whether
supplemental sources of wage income (lost tips, commissions, etc) are
included
Paid Sick Leave
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California NYC Washington (State)
Employee Threshold 1 employee 5 employees (paid)
1 employee (unpaid)
1 employee
Accrual Rate Accrual: 1:30
Front-load: 3 days/24 hrs
Accrual: 1:30
Front-load: 40 hrs
Accrual: 1:40
Front-load: N/A
Annual Use Cap N/A 40 hours Not permitted
Annual Accrual Cap Greater of 3 days or 24 hrs 40 hours Not permitted
Maximum accrual cap Greater of 6 days or 48 hrs
(N/A if front-loading)
40 hours
(N/A if front-loading)
Not permitted
Carry-over Accrual: 6 days
Front-load: N/A
40 hours 5 days
New hires Accrual: Accrue immediately,
use after 90 days
Front-load: 120 days
Accrue immediately, use
after 120 days
Accrue immediately, use
after 90 days
Minimum increments 2 hours Lesser of 1 hour or smallest
increment for which pay is
tracked
Lesser of 1 hour or smallest
increment for which pay is
tracked
Paid Sick Leave
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