LEAVES OF ABSENCE: FMLA VS ADA - Ascentis€¦ · LEAVES OF ABSENCE: FMLA VS ADA Presented by:...
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LEAVES OF ABSENCE: FMLA VS ADA Presented by: Roxana E. Verano, Esq. Landegger Baron Law Group, ALC Exclusively Representing Employers Employment Law, Advice, Litigation and Solutions
Transcript of LEAVES OF ABSENCE: FMLA VS ADA - Ascentis€¦ · LEAVES OF ABSENCE: FMLA VS ADA Presented by:...
LEAVES OF ABSENCE: FMLA
VS ADA
Presented by:
Roxana E. Verano, Esq.
Landegger Baron Law Group, ALCExclusively Representing Employers
Employment Law, Advice, Litigation and Solutions
©2015 The Payroll Advisor2
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©2015 The Payroll Advisor5 Copyright 2016 mercer.com
Roxana E. Verano, Esq.
• Attorney with the Landegger Baron Law Group
• Specializes in helping businesses navigate
complex employment laws
• Member of the Ventura County Bar Association,
the Consumer Attorneys Association of Los
Angeles County, and the Ventura County
Hispanic Chamber of Commerce
• Received her J.D. from the U.C. Hastings
College of Law
ABOUT OUR SPEAKER
FMLA—BASIC ENTITLEMENT
Under the Family and Medical Leave Act (FMLA), covered
employers must provide up to 12 weeks of unpaid, job-protected
leave to eligible employees for:
● Incapacity due to pregnancy, prenatal medical care or child birth
● Care for employee’s child after birth, or placement for adoption
or foster care
● Care for employee’s spouse, son, daughter or parent with a
serious health condition
● A serious health condition that makes the employee unable to
perform their job
FMLA DEFINITION OF SERIOUS HEALTH
CONDITION
Definition of a “serious health condition”
Illness, injury, impairment, or physical or mental
condition
Involves either an overnight stay in a medical care
facility or continuing treatment by a health care
provider
Either prevents the employee from performing their
job or prevents their qualified family member from
participating in daily activities
FMLA—USE OF LEAVE
● Leave can be taken intermittently or when medically
necessary.
● Employees must make reasonable efforts to schedule
leave for planned medical treatment to not disrupt
employer’s operations.
● Leave due to qualifying reasons can also be taken
intermittently
● All too often, employers make the mistake that they
can terminate an employee who has exhausted their
12 weeks FMLA entitlement.
FMLA—SUBSTITUTION OF PAID LEAVE FOR
UNPAID LEAVE
● Employees may choose or employers may
require the use of accrued paid leave
● Employees must comply with the employer’s
normal paid leave policies
ADA LEAVE
A leave of absence is a recognized reasonable
accommodation under the Americans with Disabilities
Act (ADA)
ADA leave covers situations where FMLA leave does
not apply
FMLA VS ADA
In order for an employee to be entitled to leave under the
FMLA, he must be deemed an eligible employee, and must:
1. have been employed by a covered employer for at least 12 months;
2. have had at least 1,250 hours of service during the 12-month period
immediately before the leave started; and
3. be employed at a worksite where the employer employs 50 or more
employees within 75 miles or at a public agency, public school board,
or elementary or secondary school.
FMLA VS ADA
The ADA poses no such requirements. Instead, a qualified
employee with a disability may be entitled to leave as a
reasonable accommodation under the ADA even if:
● The employer has less than 50–but at least 15–employees;
● The employee has not worked at the company for twelve months;
● The employee has not worked at the company for the requisite
1,250 hours; or
● The employee has already exhausted twelve weeks of FMLA
leave.
FMLA VS ADA
● The only basis for a denial of leave as a reasonable
accommodation under the ADA is through showing that it
would pose an undue hardship to the employer
● Thus, a qualified individual with a disability is entitled to
additional leave time beyond the twelve weeks permitted
under the FMLA so long as that additional leave time
would not constitute an undue hardship on the employer
FMLA VS ADA
The ADA operates independently of the FMLA
● When an employee requests time off for a reason related or
possibly related to a disability, the employer should consider the
employee’s leave-entitled rights under both the FMLA and ADA
● The employer is also required to initiate the interactive process to
determine what reasonable accommodations, if any, are needed
FMLA VS ADA
● Given that the ADA and FMLA operate independently of each
other, an employer must therefore provide leave under
whichever statutory provision provides the greater rights to
employees
● For example, although the FMLA permits the employer to place
an employee returning from a covered leave in an “equivalent”
position, the ADA requires that the person returning from leave
be returned to her original position
● Therefore, an employee covered by both statutes would need to
be returned to her original position following a return from a
medical leave, absent the employer demonstrating undue
hardship
ADA LEAVE
● The ADA requires a fact-specific, individualized inquiry to
determine whether a requested accommodation must be
provided
● An employer must provide a reasonable accommodation
to a qualified employee under the ADA unless the
employer can demonstrate that the accommodation would
impose an undue hardship on the operation of its business
ADA LEAVE - UNDUE HARDSHIP
● A requested accommodation would impose an “undue
hardship” where it requires “significant difficulty or
expense”
● 5 factors are considered
ADA LEAVE - FIVE FACTORS
1. The nature and net cost of the accommodation needed under
this part, taking into consideration the availability of tax credits
and deductions, and/or outside funding
ADA LEAVE - FIVE FACTORS
2. The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the
number of persons employed at such facility, and the effect on
expenses and resources
ADA LEAVE - FIVE FACTORS
3. The overall financial resources of the covered entity, the
overall size of the business of the covered entity with respect to
the number of its employees, and the number, type and location
of its facilities
ADA LEAVE - FIVE FACTORS
4. The type of operation or operations of the covered entity,
including the composition, structure and functions of the
workforce of such entity, and the geographic separateness and
administrative or fiscal relationship of the facility or facilities in
question to the covered entity, the overall financial resources of
the covered entity, the overall size of the business of the covered
entity with respect to the number of its employees, and the
number, type and location of its facilities
ADA LEAVE - FIVE FACTORS
5. The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility’s ability to
conduct business
ADA LEAVE - UNDUE HARDSHIP
● The employee need only show that a requested
accommodation is generally reasonable; It is the
employer’s obligation to demonstrate specifically that a
request would create an undue hardship
● A leave is more likely to be deemed an undue hardship
the more complex the nature of the employee’s work, the
more difficult it would be to replace the employee, or the
more difficult it would be to redistribute that employee’s
work
ADA - LEAVE POLICIES
● Because the employer has an obligation to assess each
requested accommodation on a case-by-case basis, it
may not apply a maximum leave policy
● A “no fault” attendance policy can violate the ADA
● Leaves of varying durations have been deemed
reasonable
ADA - UNCERTAIN AND INDEFINITE LEAVE
● An employee need not show that the leave is certain or even
likely, only that it would plausibly enable the employee to
return and perform his job
● An employer is not required to provide an indefinite leave of
absence
● A leave request is not “indefinite” simply because the nature
of the employee’s condition is such that only an approximate
return date is provided
ADA - UNCERTAIN AND INDEFINITE LEAVE
● An indefinite leave must be distinguished from one where an
employee gives an approximate return date or where the
situation changes and the original return date has been
revised
● “Intermittent” leaves and modified schedules can be
reasonable accommodation
PREGNANCY CONSIDERATIONS UNDER FMLA,
ADA AND PDA
● Pregnancy alone is not considered a disability for
purposes of the Americans with Disabilities Act (ADA)
● To be considered a disability under the ADA, covered
persons must have physical or mental impairments that
substantially limit one or more major life activities
● Pregnancy is not the result of a physiological disorder, so
it is not considered an impairment
PREGNANCY CONSIDERATIONS UNDER FMLA,
ADA AND PDA
● Complications resulting from pregnancy may be impairments
that the employer will need to consider and accommodate on a
case-by-case basis
● An employee is permitted to take FMLA leave if she is
incapacitated by pregnancy, or after the birth of her child
● Although the ADA does not recognize pregnancy as a
disability, The Pregnancy Discrimination Act, or “PDA”, makes
it illegal for employers to terminate an employee for taking time
off due to complications arising out of pregnancy, even if she
has exhausted her FMLA entitlement
QUESTIONS?
HOW CAN ASCENTIS HELP ME?
Employees
•FMLA request validation
•On-screen compliance form entry
Administrator
•Configurable workflow / to-do list
•Reminders sent via the notification engine
•Calendar / Analytics integration
Document Manager
•View scanned documents
•Fill in PDF compliance forms on screens
Workflow integration
•Questionnaires
•To-do lists / dates
•Compliance forms
•Notifications / reminders
To earn RCH credit you must
Stay on the webinar, online for the full 60 minutes
Be watching using your unique URL
Certificates delivered by email, to registered email,
by March 4th
The use of this seal confirms that this activity has met HR Certification Institute's® (HRCI®) criteria for recertification credit
pre-approval. This activity has been approved for Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR
(General) recertification credit hours toward aPHR™, PHR®, PHRca®, SPHR®, GPHR®, PHRi™, SPHRi™ recertification
through HR Certification Institute's® (HRCI®).
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