The Unusual Complications When Dealing With FMLA/ADA, And Workers Compensation Leaves

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1 W e s t e r n C o l o r a d o H u m a n R e s o u r c e A s s o c i a t i o n T R A I N I N G S E M I N A R A u g u s t 1 5 G r a n d J u n c t i o n, C o l o r a d o The Unusual Complications When Dealing With FMLA/ADA, And Workers Compensation Leaves

2 What Will We Cover? The Basics of FMLA The Complications Potential Actions that Can Get the Company in Trouble The Reinstatement Requirement Additional Leave under the ADA ADA Basics The Interactive Process Determining When Leave Can Finally End Intermittent/Reduced Leave

3 The FMLA Basics FMLA provides for: 12 weeks unpaid leave For a Serious Health Condition For the employee or a close family member For Eligible Employees Someone who: o Has worked for 12 months o Has worked 1,250 hours in 12 months before is leave needed) Requires Continuation of Health Insurance Requires Job Reinstatement

4 FMLA Documentation FMLA is very document oriented. Give notice of Rights & Responsibilities within 5 business days of learning of need for leave: Supervisors need to know to alert you! Ask for medical documentation at the same time Employee has 15 calendar days to provide medical documentation from health care provider Tip: Note the deadline on your calendar and follow up promptly if the medical document is not received. Give a new specific deadline and state consequences (termination) for failure to comply.

5 FMLA Documentation Company reviews medical documentation and, if need for leave is confirmed, issues a Notice of Designation of Leave within 5 business days Tip: Make sure that on the Notice of Designation, you check the box that makes clear that the employee must have a fitness for duty evaluation to return. You must attach the job description to the Notice. * FP has an FMLA kit with instructions that you may want to consider using.

6 What Makes The Law So Complicated? Bob sustains a broken wrist while at work. After six weeks, the worker s comp doctor certifies that Bob can return to work. According to the doctor, Bob s broken bones have healed properly and there will be no residual impairment. Bob claims, however, that he does not believe he can safely do his job because of pain in his wrist. Bob refuses to return to work. What do you need to consider?

7 It s Just a Request For Time Off From Work. What s the Big Deal? Bob s ailing wrist involves: State workers compensation laws. FMLA: ois Bob s injury a Serious Health Condition? ois Bob an eligible employee under the FMLA? odoes Bob have any leave time available? odid you designate his time away as FMLA leave? ADA: ois Bob s injury a disability? owhat reasonable accommodation, if any, is required? Company policies

8 Where Does This Leave You? Leave laws are complicated. You avoid (or better manage) most leave of absence problems by maintaining hyper-communication with the employee and documenting all of these communications not just for the Company s file, but written communications with the employee at every step of the process. Most legal problems can be avoided (or at least managed) with good communications.

9 What Gets You In Trouble?

10 Speaking Unwisely to Employees Who Request Leave or Accommodation Those dates you say you need to take off are a terrible time for the Company to have to deal with being short-staffed. Are you sure you need that much time off? You re really going to take paternity leave? Accommodation? You want us to hire someone else to do the parts of your job you don t like? You must check in with me twice a week so you stay connected to what s going on in the department.

11 Case Study Kathy is on FMLA for alcohol rehabilitation. Kathy s supervisor feels the department is short-handed. He goes to HR to ask for permission to terminate Kathy due to difficulty in getting the work done in the department. Everyone is simply spread too thin, mistakes are being made, and customers are starting to complain. In other words, Kathy s absence is causing an undue hardship. Is this a valid reason to terminate Kathy?

12 Case Study Analyzed When an employee is on FMLA leave, it does not matter if the employee s time away is making it difficult for the Company to get the work done properly. The employee gets the leave and is entitled to reinstatement at the end of the leave. The employer must find some way to cover the workload in the employee s absence. Undue hardship is a defense in an ADA claim, not in an FMLA claim.

13 Case Study Kathy s supervisor comes back to HR again to ask to terminate Kathy on the basis of misconduct. He found 6 checks in Kathy s desk that should have been deposited immediately. Kathy has been written up about this issue before. Is this a basis to terminate Kathy? What else do you need to know?

14 Terminating a Leave-Taker Optics are almost always bad Timing kills in retaliation litigation How close in time will the discharge be? Right after the request for leave While on leave Right after the employee s return date from leave The closer the proximity, the greater the inference of retaliation

15 Why Might You Terminate Someone on Leave? Misconduct: In connection with leave request Committed prior to leave, discovered previously Committed prior to leave, discovered during or after leave Committed during leave Poor performance RIF/Job Elimination

16 Terminating Leave-Takers for Misconduct Easier cases In connection with leave request phony documentation While employee is on leave sets up new business Misconduct committed just after employee returns Could-be-tough cases Misconduct committed before request or commencement, but discovered after request or commencement

17 Terminating Leave-Takers for Misconduct Toughest cases: Misconduct committed before request or commencement, discovered before request or commencement, but no action/investigation until after leave requested or begins

18 Terminating Leave-Takers For Pre-Leave Poor Performance We knew he wasn t cutting it, but just hadn t gotten around to dealing with it. Before he disappears for 12 weeks, this seems like a good time. Was the employee on any notice? Is there any record of counselling or documentation? Was the employee given a deadline to improve? Is the employee on a performance improvement plan? If not, now is almost certainly NOT a good time! Invites a VERY BAD litigation experience

19 Dealing With Less-Than-Ideal Situations No prior documentation? Don t start just after leave request Don t play catch-up during leave No old write-ups delivered first day back from leave Address performance issues after leave is over Pick up from where we were when leave began

20 Dealing With Less-Than-Ideal Situations PIP in place? Consider extending deadline We gave him a meaningful chance to succeed after he returned NOT: The deadline was going to expire while he was out, he wasn t meeting the PIP before he left, and so we just went ahead with things.

21 Failing to Reinstate to the Same Pre-Leave Job FMLA doesn t specify that you must return the employee to the very same job it says equivalent position One that is virtually identical to the employee s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort responsibility and authority. One person s equivalent position is someone else s demeaning demotion Safest move: Return the employee to the very same job

22 Case Study John is your CFO. He began leave in February due to cancer treatments. John has stayed in close communication with you and has come back for a short period, left again, came back, and is now out again. You have filled John s position temporarily by others in the office and from other divisions. Your sense is that John is not going to be able to return to work due to the aggressive nature of his cancer. What do you do?

23 Case Study Analyzed These are difficult decisions. If you fill John s position, you run the risk that you have violated the FMLA by not returning him to his job if he is able to return. If you don t fill the position, you run the risk that you won t have a CFO until after you engage in an appropriate search. The best process is to have get updated information from John about whether he plans and believes he will be able to return to work. You might have to get updated medical information.

24 Case Study Analysis If he says yes, and his doctor does not say no, you should hold the job open for John but arrange for a backup or other process until you have definitive information that he cannot return.

25 Can You Terminate a Leave Taker if the Job Has Been Restructured? There is no prohibition on restructuring But: Position offered upon return must be substantially equivalent Purposely tough standard Same or substantially similar duties and responsibilities Substantially equivalent effort, responsibility and authority Human nature: expectation of returning to same job Addition of duties can be spun as negative action So can reduction of duties

26 Safest Plan For Job Restructuring Defer major efforts while occupant is on FMLA leave Limit restructuring to tweaks Tie any restructuring into broad reorganization (departmentwide) Don t restructure only the leave-taker s job

27 The Trade Up in Quality Failure-to-Reinstate The temporary replacement was outstanding and performed much better than regular employee Employer keeps replacement in job Offers to reinstate leave-taker to another position Employer thinks its move is defensible because the alternative position is substantially equivalent Leave-taker doesn t agree Plaintiff probably wins resulting lawsuit fairly easily

28 Case Study John, the CFO, exhausts his 12 workweeks of leave but is unable to return at the end of his leave. His doctor says he needs 4 more months of treatment. Can the Company hire a new CFO in this circumstance?

29 The Leave-Taker Who Can t Return The Company cannot automatically terminate employees who don t return at the end of 12 workweeks Instead, the employer must make an individual determination of why the employee cannot return The Company must remember that the employee may be entitled to an ADA accommodation (of extra leave) if the employee can t perform essential elements of job at end of leave

30 ADA: The Basics ADA requires that you provide a reasonable accommodation to an employee with a disability A reasonable accommodation could be additional time off to recuperate or recover from a medical condition, surgery, etc. The Company must enter into the interactive process with the employee when the employee requests an accommodation

31 The Requirements of the Interactive Process (in General) Conduct initial dialogue with employee, in-person if possible Elicit information from the employee about abilities, restrictions, and limitations caused by the medical condition Ask treating doctor for information on nature and length of restrictions Ask the employee to identify a desired accommodation Consider the feasibility of what the employee wants Document the process and outcome

32 Tips For a Defensible Interactive Process Get employee sign-off on essential functions of the job: Having an accurate job description is very helpful Have employee identify which functions he can t perform Don t ask the employee s doctor for a diagnosis - just get limitations and expected duration If employee s doctor isn t clear, consider writing a letter or sending a form with questions Consider an IME (Independent Medical Examination): Must be at no cost to employee

33 Tips For a Defensible Interactive Process If employee isn t offered the accommodation he asked for, provide written explanation If first accommodation doesn t work, investigate, document why it failed and why #2 ought to succeed If no feasible accommodation would enable the employee to perform the current position, identify other possible vacant positions

34 When Can You Declare the Interactive Process Over? When the accommodation has been successful When the employee no longer needs an accommodation When no reasonable accommodation can be identified When the only reasonable accommodation(s) would constitute an Undue Hardship When the employee would be a Direct Threat of harm to self or others even with (or without) an accommodation When the employee fails to cooperate with the Interactive Process

35 When is an Accommodation Not Reasonable? When it requires lowering a quality or quantity standard When it excuses an employee from performing an essential job function When it requires employer to tolerate misconduct When it creates a new job for the employee When it requires the employee to be given a new supervisor (or maybe a kinder, gentler one) When it permits an employee to stay out on leave indefinitely

36 Case Study In the last case study, John s doctor advised that John needed 4 more months of leave to complete his cancer treatments and recuperate. Must you grant this much additional leave? If so, must you keep John s job open?

37 Additional Leave as Accommodation Under ADA Additional leave must be granted unless it would impose an Undue Hardship This is a very tough standard to meet 14/30/45 more days almost never likely to sink the Company Even 4 months is probably not going to be viewed as unreasonable Problem: When employee s doctor keeps saying he needs just a little more time o 30 days becomes becomes 90 - and so on

38 Additional Leave as Accommodation Under ADA Employer need NOT grant indefinite, open-ended leave such a leave is not a reasonable accommodation The leave must be for a limited and finite period of time The purpose of the additional leave has to be to allow the employee to recover and be able to return to work within the finite period What do you do when the leave turns into another 30 days or we will evaluate John s ability to return at his next appointment?

39 Dealing With Multiple Requests For Additional Leave There is no real magic bullet Ask the doctor why he believes the next few weeks of leave will permit the employee to return? Use counsel to help you draft questionnaire to doctor Consider: Are you being played, or is the employee s recovery really that hard to forecast? Sometimes you have unpalatable choices: Terminate the process argue what s being sought is indefinite, open-ended leave Live with it

40 Intermittent & Reduced Leave This is one of the most difficult aspects of FMLA/ADA administration. Intermittent or reduced schedule leave for serious health conditions must be provided under FMLA if medically necessary. You must give employee a summary of leave taken every 30 days, if requested. Cannot require minimum leave increments; increments must be in smallest amounts your system can calculate. If the employee s condition also qualifies as a disability under the ADA, you may need to allow intermittent or reduced leave beyond the 12 weeks of FMLA leave if it is a reasonable accommodation if it does not pose an undue hardship.

41 Tips For Managing Intermittent Leave Take advantage of your right to temporarily transfer the employee. You may transfer an employee taking planned intermittent leave for medical treatments or to recover from a serious health condition to an alternative position if this would make the employee s periodic absences less disruptive to the Company s operations. Employee must receive pay and benefits while in the alternative position that are equivalent to those available to the employee when doing his or her regular job.

42 Case Study Test Your Knowledge Your facilities manager called and said that he wants to terminate Suzanne due to excessive absenteeism. What are the questions you need to ask?

43 Case Study Analyzed Why has Suzanne been absent? How many absences? Over what period of time? What documentation do you have of the absences? If medical reasons, have you reported the information to HR? If no, why not? If yes, was the time away properly documented as FMLA or ADA leave? Has Suzanne exhausted her leave rights? When? Analyze the Company s risks of terminating now.

44 Summary FMLA and ADA issues are some of the most complicated issues that all types of employers have to deal with. Train supervisors/managers to alert HR about an employee s time away from work for personal or family reasons. Document FMLA/ADA leave promptly using forms that are employer-oriented. Document the interactive process under ADA.

45 Summary Keep the lines of communication open to ensure you understand the employee s needs and can act promptly when necessary. When complications arise or others within the Company get anxious about an employee s ability to return or need for more time off or discovered misconduct, consult counsel early to ensure you make good decisions. Remember, if it feels like the right answer (i.e., if common sense is telling you to make a particular decision), you are probably wrong.

46 Uniformed Services Employment and Reemployment Rights Act (USERRA)

47 Employer Obligations 1) Prohibition against discrimination 2) Continuation of benefits while on leave up to five years Seniority Health care benefits Pension benefits 3) Right to reemployment

48 Coverage Employers almost all employers, without exception Employees Full-time, part-time, private, public Temporary and seasonal, except for reemployment rights Certain employees laid off, on leave or on strike Type of Service those who have served in uniformed services either voluntarily or involuntarily

49 Employee Obligations Employees must provide written or verbal notice of the need for leave But employees do not have to: Obtain permission Give written notice Give notice where unreasonable or impossible Tell employers when or if they are returning to work

50 Length of Service & Discharge USERRA can cover service up to five (5) years USERRA rights do not extend to: Dishonorable discharge Discharge based on bad conduct Discharge ending in conviction or court martial

51 Prohibition Against Discrimination No employee or applicant can be denied: initial employment reemployment retention in employment promotion; or any benefit of employment on the basis of membership in, application to, obligation to or performance of uniformed service.

52 Prohibition Against Retaliation Employers cannot take any adverse action against either an employee seeking to exercise a right under USERRA or anyone assisting that employee

53 Benefit Continuation - Generally Must provide benefit continuation for employees who are participating in an existing health plan immediately prior to uniformed services leave Employers do not have to: Establish a health plan if one is not offered Allow a uniformed service member to elect new health coverage at the beginning of service

54 Benefit Continuation Notice & Duration Employers no obligation to provide notice of continued entitlement to health benefits Employees no provision specified for election of continued benefits Duration must provide benefits for the lesser of: o o 24 months (18 months prior to December 10, 2004) or Length of service

55 Right to Reemployment - Timeliness Employee must report to pre-service employer (orally or in writing) or submit an application for reemployment Failure to report means employees are subject to standard conduct rules for absences

56 Right to Reemployment Notice Service of 30 days or less first full regularly schedule work shift at least 8 hours after safe transport home Service of days no later than 14 days after completing service Service of more than 180 days no later than 90 days after completing service Injured or ill employees end of recovery period not exceeding 2 years from completion of service Longer time periods where reporting is impossible or unreasonable through no fault of the employee.

57 Right to Reemployment Documentation For leave of more than 30 days, the employer may request documentation demonstrating that: The application for reemployment is timely The uniformed service has not exceeded the five year limit; and The uniformed service ended under honorable circumstances

58 Right to Reemployment Position Upon Return The Escalator Principle the position the employee would have attained but for the uniformed service absence

59 Right to Reemployment Position Upon Return Absence of 90 days or less Qualified to perform duties of the position Employer must take steps to qualify Pre-service position if not qualified Absence of more than 90 days Qualified to perform duties of the position or position of like seniority, status and pay Plus above duties

60 Right to Reemployment Timing Absence of 30 days or less immediate reemployment Absence of more than 30 days two weeks

61 Right to Reemployment Exceptions Changed circumstances make reemployment impossible or unreasonable Employee is no longer qualified and reemployment is an undue hardship Pre-service position was for a brief, non-recurrent period and no reasonable expectation of indefinite continuation

62 Right to Reemployment Benefit Rights Seniority based benefits Non-seniority based benefits Health care benefits Pension benefits

63 Recent Cases USERRA does not apply retroactively Bowlds v. General Motors Manufacturing (7th Cir. 2005) Injunctions under USERRA require regular showing of irreparable harm Bedrossian v. Northwestern Memorial Hospital (7th Cir. 2005)

64 Recent Discrimination Cases Employee allowed to proceed with claim for denial of benefits where he was moved from head coach to assistant coach (with equal pay) and required to use vacation for service leave Harris v. Montgomery (M.D. Ala. 2004) Employees not entitled to preferential non-seniority based benefits upon return, only equal benefits - Rogers v. San Antonio (5th Cir. 2004)

65 Recent Discrimination Cases Employee allowed to proceed with claim for discrimination when told to get out of military service drills and training despite harassment investigation of employee before his service Mills v. Earthgrains Baking Cos. (E.D. Tenn. 2004) Employee s sabotage of website justified termination of employee after return from service Haight v. Katch (D. Neb. 2005)

66 Recent Reemployment Cases Employer s financial difficulties did not justify lay-off of employee recently returned from service where employer could not show financial difficulties caused the need for lay off Duarte v. Agilent Technologies, Inc. (D. Colo. 2005) Change in circumstances due to transfer of defense contract employee was working on to another company justified failure to reinstate employee following service Coffman v. Chugach Support Serv., Inc. (11th Cir. 2005)

67 Recent Reemployment Cases No USERRA protection to employee on disability leave following military service Bowlds v. General Motors Mfg. (7th Cir. 2005) 8 hour rest period (for notice following 30 days or less of service) strictly construed as an employee obligation not a requirement for employers to provide employees with 8 hours rest before starting work Gordon v. Wawa Inc. (3rd Cir. 2004)

68 Recent Reemployment Cases Employee allowed to proceed with claim for failure to reemploy promptly where employer rehired the employee less than 2 weeks after reemployment demand Vander Wal v. Sykes Enters., Inc. (D.N.D. 2004) Prompt reemployment under USERRA required even where uncertainty about USERRA obligations Haight v. Katch (D. Neb. 2005)

69 Final Questions

70 THANK YOU F O R T H I S O P P O R T U N I T Y Danielle Urban durban@