Complex Leave Issues Intersection of the FMLA and ADA

Transcription

1 Complex Leave Issues Intersection of the FMLA and ADA Tri-State Healthcare Human Resources Conference August 29-31, 2018 Presented by: Michael M. Shetterly and Penny C. Wofford. 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ogletree.com

2 Leavolution! Company Policies FMLA ADA

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4 Making Sense Of Leaves

5 ADA & FMLA Interplay Employee cites his/her own impairment and a barrier in the workplace or wants leave

6 When is the Act triggered? FMLA any time an employee asks for leave citing certain medical conditions: Pregnancy, chronic condition, permanent condition, treatments (multiple) to keep a condition under control, condition that causes greater than 3 days incapacity plus treatments There are other types of FMLA (we are focused only on SHCs of EEs) ADA according to EEOC any time: Employee seeks leave citing their own impairment Employee expresses challenges with performing specific tasks or complying with a work rule because of an impairment Employee provides a RTW note with restrictions

7 The FMLA Is Law granting an employee the right to take leave for qualifying conditions without the leave counting against them

8 Not an accommodation statute just leave No such thing as light duty under the FMLA - Working is working; if you are working, you are not on FMLA

9 No Undue Hardship Defense Permitted When Medically Necessary No Undue Hardship Defense No interference No changing schedules No removing essential functions Hyper-technical rules (designed to ensure employees can take their leave)

10 ADA A law that requires employers to offer reasonable accommodation to qualified individuals with a disability Accommodation = modifications to the workplace or policies that remove barriers This can include leave

11 The FMLA vs. The ADA vs.

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13 The FMLA Exact amount of leave (12 weeks; based upon the actual workweek) Concurrently exhausts with almost everything (very promiscuous) Has Eligibility criteria Only very precise medical questions can be asked, and only at certain times Employee favorable rules on how long they have to return medical information Doesn t care about you at all Doesn t care if it will work (unequivocal statements are only real exception) The ADA Not exact at all (In fact, maddeningly inexact) Won t concurrently exhaust with another job protected leave; it runs by itself Everyone is eligible (no wait period) You are entitled to what you need, when you need it, to MEANINGFULLY participate in the interactive process Loosey-Goosey Cares about everything (including you) The leave has to work (be effective) Maintenance of health benefits (required) Follows plan definition of active employee

14 Some nerdy differences FMLA Protection begins for all absences after the request, but only if the employee requested as soon as possible and practicable (i.e., protection can be delayed if the employee gives late notice) Failure to provide medical paperwork (proof) causes a pause or delay in coverage (until they do) ADA Protection begins immediately upon the request (so any absences after request) Failure to provide medical paperwork (proof) causes the employee to lose their protection under the ADA (for failure to participate in the interactive process). This is drastic. Make sure you look very reasonable and warn them.

15 Why is the ADA such a big deal now? Congress changed the definition of disability in 2009 Makes it easier to have a disability Impairment (something outside the norm) Substantially limiting (means sort of limits) A major life activity (really broad if humans do it, it is probably a major life activity) So, significantly more people are covered Temporary Conditions Pregnancy

16 Leave Process Leave Entitlement under Policies FMLA if Eligible Hopefully Concurrent ADA

17 ADA Process Accommodation within Job Grant Leave if Effective Consider for Open Positions Termination

18 ADA & Leave Process Merged Accommodation within Job Consider Company Leave and FMLA Grant ADA Leave if Effective What about light duty? Consider for Open Positions Termination

19 ADA & Leave Process Merged Accommodation within Job Consider Company Leave and FMLA Grant ADA Leave if Effective Light Duty employer option Consider for Open Positions Termination

20 Within each tier collecting data and asking these questions Is there an accommodation? If there is one (or more), are any reasonable? Will any cause an undue hardship? If no accommodation within that tier, go to the next tier.

21 Tier 1 95% of the time, the issue comes down to whether removing the barrier will be removing an essential function of the job. To decide three steps: 1) Job description phase 2) Jigsaw puzzle phase 3) Sacred cow phase

22 Job Description Job Title Description Time Frame Duties Skills Reference

23 Jigsaw puzzle

24 Sacred Cow

25 Leave as an Accommodation? Leave = job protected leave Finite Leave policies unlawful Leave can be block or intermittent Must exhaust all applicable job-protected leaves before we consider it. Leave you give to anyone is not an accommodation... Accommodation means something more. What have you done for me lately? Law doesn t care about how much leave you have already given it wants to know if you can tolerate what they need now.

26 Three questions when considering leave as an accommodation Would it be an accommodation? Accommodation means Effective If I grant you this leave, will it be effective in returning you to your job, permitting you to perform all essential functions? Temporary Restrictions vs Permanent Restrictions Indefinite

27 Is it reasonable? High C o n f i d e n c e Additional Length of Leave Needed Doctors almost never provide this information unless you get very specific with them about what you want Long

28 Undue Hardship? Can the job wait? If not... How are you going to get it done? Temporary Labor Did anyone even look? Non-exempt Labor Exempt Labor Three types of hardship: 1) Net Cost Analysis (have to show impact on budget, and impact of that) 2) Undue Burden on Coworkers (can t be speculative) 3) Failure of deliverable (We can t get it done)

29 Some more undue hardship concepts Are you going to solve the hardship by removing job-protected leave? How long has the position been open in the past? What if the hardship is because of everyone else who is on leave?

30 ADA Leave - in light of Severson (7 th Circuit)

31 Severson Findings Leave is an accommodation under the ADA But it is not reasonable unless it is short term or intermittent leave. Two (2) months is not reasonable. Light-duty jobs should be created as an accommodation IF offered for persons with work-related injuries, unless the light duty provided to work-injured employees is ad hoc and of a very short duration.

32 The Primrose Path It says leave is an accommodation. BUT leave of a long time (2 months) is not reasonable. However, in US Airways v. Barnett, the Supreme Court says reasonableness is rebuttable on a case-by-case basis.

33 US Airways v. Barnett The [employee] nonetheless remains free to show that special circumstances warrant a finding that, despite the [fact that in the run of cases the accommodation is unreasonable], the requested "accommodation" is "reasonable" on the particular facts. That is because special circumstances might alter the important expectations described above.... [T]he plaintiff must bear the burden of showing special circumstances that make an [accommodation] reasonable in the particular case. And to do so, the plaintiff must explain why, in the particular case, [the proposed accommodation] can constitute a "reasonable accommodation" even though in the ordinary case it cannot.... [In short, where a proposed accommodation is unreasonable, then the employer is entitled to summary judgment] unless there is more. The plaintiff must present evidence of that "more," namely, special circumstances surrounding the particular case that demonstrate the assignment is nonetheless reasonable. [of course the Supreme Court leaves it for another day to decide what they mean by more, but the implication is, a Plaintiff may be able to show NO HARDSHIP.]

34 The Primrose Path BEST PRACTICE REMINDER: DO NOT DENY ACCOMMODATION BECAUSE IT IS UNREASONABLE WITHOUT CONSIDERING WHETHER, IN THE SPECIFIC INSTANCE, you will be able to show at least some hardship One way to think about reasonableness then is not a black and white concept, but a sliding scale, telling you how much of a hardship you will have to show.

35 More headaches from Severson ADA does provide for intermittent leave of a day or two per week But is it going to be effective at having the employee return, performing all essential functions? Is regular, predictable, full attendance an essential function, or not?

36 More Severson language not getting any press Create light-duty role as accomodation if provide to work injured, unless - Light duty to the work injured is completely ad hoc and if only a few days in duration when provided.

37 Vacant Position Concepts The accommodation of last resort Accommodation within Job Grant Leave if Effective Consider for Open Positions Still holds position The Line of Displacement Termination Position gone

38 Vacant Position Concepts The accommodation of last resort Vacant positions what does that mean? No discrimination = Reasonable accommodation Reasonable accommodation includes reassignment Reassignment is a last resort No promotion required No red-circling pay required No inferior job, if comparable job vacant Employee must be qualified Employee must comply with Company prerequisites

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40 Thank You Mike Shetterly Penny Wofford Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 300 North Main Street, Suite 500 Greenville, SC Phone: