Navigating The Murky Waters of ADA and FMLA Legislation

Title Goes Here Subtitle Goes Here

Presenter’s Name Here Date Goes Here

Navigating The Murky Waters of ADA and FMLA

Legislation ��

Presented by Eric B. Meyer, Esquire

Agenda

•  FMLA Basics •  ADA Interplay •  You Make the Call •  Best Prac;ces

FMLA Basics

•  Covered Employers •  Eligible Employees •  Leave En;tlement •  Other Rights

Covered Employers

•  The FMLA only applies to employers that meet certain criteria. A covered employer is a: •  Private-‐sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year;

•  Public employers; or •  Public or private elementary or secondary school.

Eligible Employees

•  Only eligible employees are en;tled to take FMLA leave. An eligible employee is one who: • Works for a covered employer; •  Has worked for the employer for at least 12 months; •  Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and • Works at a loca;on where the employer has at least 50 employees within 75 miles.

•  Note: Look out for state/local leave laws with more generous eligibility requirements.

Leave Entitlement

•  Eligible employees may take up to 12 workweeks of leave in any 12-‐month period for one or more of the following reasons: •  The birth of a son or daughter or placement of a son or daughter with the employee for adop8on or foster care;

•  To care for a spouse, son, daughter, or parent who has a serious health condi8on; •  An FMLA "serious health condi;on" is "an illness, injury, impairment, or physical or

mental condi;on that involves . . . [i]npa;ent care . . . or [c]on;nuing treatment by a health care provider."

•  For a serious health condi8on that makes the employee unable to perform the essen;al func;ons of his or her job; or

•  For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered ac;ve duty or call to covered ac;ve duty status.

Leave Entitlement (con’t)

•  “Any 12-‐month period” is defined in the FMLA regula;ons and allows an employer to elect: •  a calendar year, •  a fixed 12-‐month “leave year,” •  a 12-‐month period rolled forward from the date any employee’s first FMLA leave begins, or

•  a “rolling” 12-‐month period measured backward from the date an employee uses any FMLA leave.


•  Under some circumstances, employees may take FMLA leave on an intermi1ent or reduced schedule basis. •  An employee may take leave in separate blocks of 8me or by reducing the 8me he or she works each day or week for a single qualifying reason.

•  When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer's opera8ons.

•  If FMLA leave is for the birth, adop;on, or foster placement of a child, use of intermi^ent or reduced schedule leave requires the employer’s approval


•  FMLA en;tles eligible employees to take unpaid leave. •  Under certain condi;ons, employees may subs8tute, or run at the same ;me as their FMLA leave, accrued paid leave (such as sick or vaca;on leave) to cover some or all of the period of FMLA leave. •  An employer may also require employees to subs8tute accrued paid leave for unpaid FMLA leave even when the employee has not elected to do so. •  In order to subs;tute accrued paid leave, the employee must follow the employer’s normal rules for the use of that type of leave, such as submiang a leave form or providing advance no;ce.


•  Unpaid leave remains an op7on: If an employee does not meet the requirements to take paid leave under the employer’s normal leave policies, the employee may s;ll take unpaid FMLA leave.

•  Only FMLA leave qualifies as FMLA leave: Paid leave taken for reasons that do not qualify for FMLA leave does not count against the employee’s FMLA leave en;tlement.

Americans With Disabilities Act

•  Purpose •  Coverage/Eligibility •  Overlap with FMLA

Purpose of the ADA

•  The ADA prohibits discrimina;on against applicants and employees who are “qualified individuals with a disability” by providing for equal opportuni;es for work.

Coverage/Eligibility

•  Covered Employer: 15 or more employees for 20 weeks during current or preceding calendar year. •  Disability: An impairment that substan;ally limits one or more major life ac;vi;es, a record of such an impairment, or being regarded as having such an impairment. • Qualified Individual: Must be able to perform the essen;al func;ons of the job with/without reasonable accommoda;on.

Reasonable Accommodations

•  Absent undue hardship, employers must provide reasonable accommoda7on to employees/applicants with disabili7es.

•  Examples of reasonable accommoda7ons •  making exis;ng facili;es accessible; •  job restructuring; •  light duty; •  part-‐;me or modified work schedules; •  acquiring or modifying equipment; •  changing tests, training materials, or policies; •  providing qualified readers or interpreters; •  reassignment to a vacant posi;on; and •  leave from work *Source: The U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable AccommodaBon and Undue Hardship Under the Americans with DisabiliBes Act (Available at hGp://www.eeoc.gov/policy/docs/accommodaBon.html)


•  Undue hardship: An individualized assessment of current circumstances that show that a specific reasonable accommoda;on would cause significant difficulty or expense.

•  Undue hardship factors: •  the nature and cost of the accommoda;on needed; •  the overall financial resources of the facility making the reasonable accommoda;on; the number

of persons employed at this facility; the effect on expenses and resources of the facility; •  the overall financial resources, size, number of employees, and type and loca;on of facili;es of

the employer (if the facility involved in the reasonable accommoda;on is part of a larger en;ty); •  the type of opera;on of the employer, including the structure and func;ons of the workforce, the

geographic separateness, and the administra;ve or fiscal rela;onship of the facility involved in making the accommoda;on to the employer; and

•  the impact of the accommoda;on on the opera;on of the facility.

*Source: The U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable AccommodaBon and Undue Hardship Under the Americans with DisabiliBes Act (Available at hGp://www.eeoc.gov/policy/docs/accommodaBon.html)


•  Interac7ve Dialogue: •  A good faith discussion between employer and employee to determine what reasonable accommoda;on(s) will allow the employee to perform the essen;al func;ons of his/her job •  Generally, ini;ated by the employee • When should the employer ini;ate this process?

Overlap with FMLA

•  “Disability” vs. “Serious Health Condi7on” •  An ADA "disability" is an impairment that substan;ally limits one or more major life ac;vi;es, a record of such an impairment, or being regarded as having such an impairment. •  An FMLA "serious health condi;on" is "an illness, injury, impairment, or physical or mental condi;on that involves . . . [i]npa;ent care . . . or [c]on;nuing treatment by a health care provider."

Overlap with FMLA (con’t)

•  “Disability” vs. “Serious Health Condi7on” (con’t) •  Some FMLA "serious health condi;ons" may be ADA disabili;es, for example, most cancers and serious strokes. •  Other "serious health condi;ons" may not be ADA disabili;es, for example, pregnancy or a rou;ne broken leg or hernia. •  This is because the condi;on is not an impairment (e.g., pregnancy), or because the impairment is not substan;ally limi;ng (e.g., a rou;ne broken leg or hernia).


• Medical Cer7fica7ons, Inquiries and Confiden7ality •  ADA: Only medical examina;ons or inquiries regarding an employee’s disability, which are job-‐related and limited to determining the employee’s ability to perform the job, the need for an accommoda8on, and whether an accommoda8on would be effec8ve.

•  When an employee requests leave under the FMLA for a serious health condi;on, employers will not violate the ADA by asking for the informa;on specified in the FMLA cer;fica;on form.


•  Light duty •  FMLA: Does not exist. •  ADA: Required to be offered if it is a reasonable accommoda;on (i.e. one that does not create an undue hardship for the employer).


•  Leave •  FMLA: 12 workweeks in a 12 month period •  ADA: There is no specific limit on leave. The inquiry should focus on what would cons;tute an undue hardship for the employer.


•  Fitness for Duty •  ADA: Permi^ed as long as the medical examina;on and inquiry is job-‐related and necessary to determine whether the employee can perform the essen;al func;ons of the job.

•  FMLA: Permi^ed for leave taken for the employee’s own serious health condi;on consistent with employer’s uniform policy.


•  Reinstatement •  ADA: The employee must be reinstated unless doing so would create an undue hardship for the employer.

•  FMLA: The employee must be reinstated or placed in a posi;on with comparable pay, seniority, benefits and other terms and condi;ons of employment.

•  HOW MUCH LEAVE TIME CONSTITUTES A REASONABLE ACCOMMODATION? •  Clavin, a mail carrier, has a bad back. He had surgery approximately ten months ago then went through full-‐;me rehabilita;on and has been on unpaid leave since that ;me. The USPS just received a doctor’s cer;fica;on for Clavin, indica;ng a return to work date in two months. •  Should the USPS extend Clavin’s leave for an addi;onal two months?

•  Nunes v. Wal-‐mart Stores, Inc.164 F.3rd 1243 (9th Cir. 1999); •  Melange v. City of Center Line, 2012 U.S. App. LEXIS 11175 (6th Cir. 2012)

(unpublished).

You Make the Call

•  Arthur, a mechanic at Mr. C’s Garage, has been out of work on FMLA leave since crashing his motorcycle 12 weeks ago. A few days before his FMLA leave exhausts, Arthur calls his supervisor, Chachi, and informs him that due to an anxiety disorder related to the crash, his doctor will not medically clear him to return to work. Chachi informs Arthur that he is short handed and needs Arthur back at work. When Arthur does not return to work aper his FMLA leave exhausts, Chachi terminates Arthur’s employment because Arthur no longer has job protec;on under the FMLA.

•  What are Mr. C’s Garage’s obliga;ons before termina;ng Arthur? •  Gibson v. Lafaye^e Manor, Inc., No. 05-‐1082, 2007 WL 951473 (W.D. Pa. Mar. 27,

2007).

You Make the Call (cont.)

Best Practices

•  Policies: Employer policies should clearly address leave issues and employer should post the required no;ces in the workplace. •  Get rid of no-‐fault aLendance policies!!! •  Train employers to address leave issues

•  Documenta7on: Employer should send a le^er to the employee, which sets forth the following:

•  Need for medical documenta;on •  Benefits afforded to the employee •  Requirement that the employee provide updates •  An;cipated return to work date

•  Limit abuse: Require proper foreseeable no;ce (30 days), don’t accept vague cer;fica;ons, require recer;fica;on, provide the health care provider with a list of essen;al job func;ons.

Best Practices (con’t)

•  Return to Work: Before the employee returns to work, the employer must consider:

•  Interplay with other laws, which might en;tle the employee to addi;onal leave ;me

•  What are the essen;al func;ons of the job and can the employee perform with or without reasonable accommoda;on

•  Interac;ve dialogue •  At each stage, effec7ve communica7on by the employer is key.

Questions?

Sources

•  United States Department of Labor (www.dol.gov) •  United States Equal Employment Opportunity Commission (www.eeoc.gov)

•  Society for Human Resource Management (www.shrm.org)

Telephone: 215-‐575-‐7283 Email: [email protected] Blog: TheEmployerHandbook.com Twi^er: @Eric_B_Meyer

That’s me

Not me!

Here’s my contact information again

Navigating The Murky Waters of ADA and FMLA Legislation

Business

Transcript of Navigating The Murky Waters of ADA and FMLA Legislation