Managing Medical Issues In The Workplace: The FMLA and ADA. Sarah K. Willey

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1 Managing Medical Issues In The Workplace: The FMLA and ADA Sarah K. Willey

2 2 The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.

3 3

4 Have You Lost Track Of the Recent Changes to the FMLA? January 2008: Congress passes the National Defense Authorization Act (NDAA). The NDAA creates two new types of FMLA leave related to family members in the military service. 4 January 2009: The Department of Labor issues revised regulations interpreting the FMLA. These regulations contain substantial changes to the rules and require new policies and forms.

5 Have You Lost Track? October 2009: Congress passes the 2010 NDAA. That bill changes the rules for the two types of military family leave. 5 December 2009: President Obama signs the Airline Flight Crew Technical Corrections Act, establishing a special minimum eligibility requirement for airline flight attendants and flight crew members.

6 What s New With the FMLA? June 2010: DOL issues opinion letter very broadly interpreting definition of son or daughter. An employee who assumes the role of caring for a child may take FMLA leave to care for that child regardless of the legal or biological relationship. Seemingly ignores language in regulations that employee must provide day to day care and financial responsibility for child. 6

7 Have You Lost Track? 2010: More new regulations?? 7

8 Quick Overview of Changes to the ADA 8 Employer obligations under the ADA: Employers have an affirmative obligation to provide reasonable accommodations to individuals with a qualifying disability, if such accommodations are necessary for them to perform the essential functions of the job Employers cannot discriminate against individuals because they have a qualifying disability Limited medical examinations and inquiries Required confidentiality of medical information

9 Quick Overview of the Amendments to the ADA The ADA Amendments Act: Expands the definition of a major life activity Relaxes the definition of a substantial limitation Does away with the idea that mitigating measures ought to factor into the evaluation of whether someone is disabled Boosts regarded as disability claims Specifically states that the term disability shall be construed in favor of broad coverage 9

10 Quick Overview of Changes to the ADA The EEOC has published proposed regulations implementing the ADA Amendments Act. As expected, the proposed regulations apply a very broad definition of disabled. 10

11 What Does It Mean? When an employee has a disability, an employer Must provide reasonable accommodation Not discriminate on the basis of the disability 11

12 Case Study Judy 12 Judy has been a trusted manager for more than 10 years. Over the past year or so, Judy s behavior has been different She is at work less and it is not always clear where she is Sometimes while work, she seems distant and out of it Recently she has missed work due to the health condition of her husband. She also had back surgery last year.

13 Case Study Judy You are considering replacing Judy because she does not seem to be invested in the college What are the concerns? ADA FMLA 13

14 Case Study Judy You meet with Judy to discuss the concerns. She says that she is under a tremendous amount of stress and needs time off work. Do you give her the time off? FMLA What if Judy has already used all of her available FMLA leave? ADA 14

15 Interactive Reasonable Accommodation Process It starts when an employee requests an accommodation What is a request for an accommodation? Repeatedly calling into work for medical reasons? Poor job performance? FMLA leave? Request for light duty work? 15

16 Interactive Reasonable Accommodation Process 16 Here is what the EEOC says: When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use plain English and need not mention the ADA or use the phrase reasonable accommodation.

17 17 Interactive Reasonable Accommodation Process Examples: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing" This is a request for a reasonable accommodation. An employee tells his supervisor, "I need six weeks off to get treatment for a back problem" This is a request for a reasonable accommodation. A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office This is a request for reasonable accommodation.

18 Interactive Reasonable Accommodation Process Example: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting a reasonable accommodation. He does not link his need for the new chair with a medical condition. The Employee must only link a request to a medical condition. 18

19 Interactive Reasonable Accommodation Process 19 Here s what some courts say: Smith v. Henderson (6 th Cir.): The employer should have engaged in the interactive process when a newly promoted supervisor asked to transfer time consuming accounting duties to a subordinate employee. This was so even though the employee did not use the word accommodation or mention that she was asking for the change due to a disability. The employer was aware of the employee s rheumatoid arthritis and a medical need to avoid overtime.

20 Interactive Reasonable Accommodation Process Mulholland v. Pharmacia & Upjohn, Inc. (6 th Cir.): The employer had a duty to accommodate an employee with a memory impairment even though the employee did not expressly ask for an accommodation since the employer was aware both of the disability and the measures required to accommodate (the employee performed better when instructions were in writing) 20

21 Leave As A Reasonable Accommodation What about leave? The EEOC recently brought suit against UPS, claiming that its leave policy was inflexible The leave policy had a maximum leave of 1 year without exception 21

22 Leave As A Reasonable Accommodation Leave can be a reasonable accommodation Must be requested Must be for a definite period of time Requested leave must be reasonable (not an undue hardship) Consider Revising leave policies Revising letters to employees after exhaustion of FMLA and other leaves 22

23 Case Study - Judy Judy is ready to return from her leave but requests to work only 6 hours per day Does the college have to comply with her request? FMLA (if available) ADA 23

24 Case Study - Judy Under the ADA, the obligation is to provide a reasonable accommodation that would allow Judy to perform the essential functions of her job What are the essential functions of Judy s job? Can the college argue that Judy s job requires her to work full-time? 24

25 Essential Job Functions 25 Evidence that is relevant to whether a function is essential or marginal includes: The employer s judgment The written job description The amount of time spent performing the function The consequences of not requiring someone in the job to perform the function The actual experiences of other employees (have other employees been required to perform those duties?) Terms of a collective bargaining agreement

26 Essential Job Functions 26 Courts have found the following to be essential job functions: Mental stability The ability to handle stress The ability to get along with others The ability to work independently Regular and predictable attendance (the EEOC disagrees) The ability to stay awake The ability to work full-time and overtime But the analysis is always job specific

27 Case Study Judy What if Judy asked to work from home? What if Judy requested to minimize contact with others? What if Judy wanted more vacation time each year for R & R? 27

28 Reasonable Accommodations Consider getting a medical opinion on whether the employee can perform the essential functions of the job and what accommodations are necessary A carefully detailed letter to the doctor is the best way to obtain useful medical information. 28

29 Reasonable Accommodations Examples of reasonable accommodations Job restructuring Modified work schedules Acquiring or modifying equipment Reassignment to a vacant position Providing qualified readers or interpreters Leaves of absence The employer does not have to offer the accommodation desired by the employee The employer is not limited by the accommodations suggested by employee 29

30 Undue Hardship Evaluate undue hardship Significant difficulty or expense Accommodations that are unduly extensive, substantial or disruptive Accommodations that fundamentally alter the nature or operations of the business Most courts allow employers to look at the costs of the accommodation vs. the benefits of the accommodation Be careful not to assume that an accommodation is unreasonable and would be an undue hardship 30

31 Direct Threat Evaluate direct threat Defined as a significant risk of substantial harm to the individual or others EEOC: significant means highly probable EEOC: substantial means serious harm There is no reasonable accommodation that would reduce the risk of harm below that level 31

32 Direct Threat Evaluate direct threat An employer can exclude an employee from a job if the employee would pose a direct threat to health or safety Individual assessment of the particular job Individual assessment of the employee s condition Objective analysis preferred Consider medical documentation The burden is on the employer! 32

33 Case Study - Judy The college denied Judy s request to work only 6 hours per day Now Judy has earned back FMLA leave and is calling into work intermittently claiming stress and depression Can she do that? What should you do? 33

34 Employer Notice Requirements 34 Two-fold employer notice requirements Eligibility and Rights & Responsibilities notice Within 5 business days Notice form (DOL form is not correct) Certification form (unless for the birth or adoption of a child) with list of essential job functions Designation notice After final decision made (within 5 days of receiving all information from employee) List of essential job functions to preserve right to require fitness for duty certification

35 What Certification Can Be Required? Medical certification can be required for: Leave for the employee s own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee s job Leave to care for a parent, child or spouse with a serious health condition 35

36 Medical Certifications 36 Employee has 15 days from the date of receipt to return a fully completed medical certification form If form returned but either incomplete or insufficient, explain deficiencies and provide an additional 7 days If form requires authentication or clarification, a HR professional, leave administer or management official can contact the health care provider. The employee s direct supervisor cannot contact the health care professional. Second opinions are available if there is reason to doubt the validity of the medical certification (but not for injured service members)

37 Medical Certifications 37 Medical Certifications for conditions with lengthy or indefinite durations Recertifications (limited value) Every 6 months Circumstances have changed significantly The employer receives information that casts doubt on the stated reason for the absence or the validity of the certification New certifications With first absence for the condition in the new leave year

38 Case Study - Judy Judy s job performance continues to deteriorate She has made several mistakes She has been difficult to get along with Important functions are not getting done The college cannot continue to function like this 38

39 The ADA and Job Performance Issues When there are job performance issues: Clearly identify the employee s functional limitations Previous discipline Specific examples Ask whether there is anything that the employer can do to help 39

40 Documenting Job Performance Issues According to the EEOC: An employer should evaluate job performance of an employee with a disability the same way it evaluates any other employee s performance But, a supervisor cannot necessarily require an employee with a disability to perform a job in the same way as a non-disabled employee 40

41 Case Study Abe Abe has chronic back pain and informs his manager that he must have surgery and be out for 14 weeks. Under the college s policy, employees who take medical leave for more than 12 weeks are discharged Abe gets a note from his doctor, releasing him to return to work after the 14 th week 41

42 Case Study Abe Has Abe put the college on notice that he is requesting leave under FMLA? After the 12 th week, can the college discharge him? 42

43 Case Study Abe The doctor s note says that Abe can work but he cannot lift over 20 pounds, stoop, bend, or twist The manager reviews the job description for Abe s position, and it states that he must be able to regularly lift 50 pounds, stoop, bend and twist 43

44 Case Study Abe What should you do? Decide that Abe cannot return to work Ask for a second medical opinion Speak with other employees performing the same job, to see what the job actually requires Speak with Abe to determine if there are ways to help him perform his job, or if there are other open positions where he could work 44

45 Margaret Margaret is returning to work exactly 12 weeks after open heart surgery You are concerned that Margaret is coming back to work just because her FMLA leave is ending. She has stopped by the college on a few occasions and appeared to be very weak. What proactive measures can you take? 45

46 Returning To Work 46 Fitness for Duty Certification/FMLA Leave that is not intermittent Follow uniformly applied policy or practice In order to specifically address whether the employee can perform the essential functions of the job, the list of essential functions must have been provided with the designation notice. Otherwise, the employer is stuck with a broad statement that the employee can return to work. Employer can contact the health care provider to clarify and authenticate fitness for duty certification

47 Returning To Work/FMLA Fitness for Duty Certification Intermittent leave An employer is normally not entitled to a certification of fitness to return to work for each intermittent absence If reasonable safety concerns exist, a fitness for duty certification can be required up to once every 30 days 47

48 Fitness for Duty What about the ADA? Employers can require an employee to take a medical examination if: The employer has a reasonable basis for believing that the employee may be unable to perform the essential functions of the job or may pose a direct threat, and The examination is job-related and consistent with business necessity. 48

49 Margaret Margaret returns to work and she gives you a note from her doctor stating that she cannot work more than 8 hours per day and should avoid any physically demanding activity What should you do? What if Margaret s requests cannot be accommodated? 49

50 Sarah K. Willey Phone: Calder Plaza Building 250 Monroe Ave. NW, Suite 800 Grand Rapids, MI Rose Street Market Building 303 North Rose Street, Suite 600 Kalamazoo, MI

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