The Alphabet Soup of Employee Leaves

Transcription

1 The Alphabet Soup of Employee Leaves Presented by David J. Middlebrooks, Jamie Brabston, and Whitney R. Brown Lehr Middlebrooks & Vreeland, P.C. Your Workplace is our Work November 12, 2013 Copyright 2013 Lehr Middlebrooks & Vreeland, P.C. All rights reserved. Reproduction or use of these materials, including for in-house training, without authorization of the authors is prohibited.

2 Sources of Employee Leave Family Medical Leave Act For a Serious Health Condition Because of a Qualifying Exigency To be a Caregiver to an Ill or Injured Servicemember or Veteran Americans with Disabilities Act Pregnancy Discrimination Act (and related) Workers Compensation Employer Policies and Benefits USERRA

3 FMLA Serious Health Condition FMLA 12 weeks of unpaid leave for employee s serious health condition (including conditions related to pregnancy), a spouse s, parent s, or child s serious health condition, or birth or adoption. Qualifying Exigency 12 weeks of unpaid leave necessitated by spouse s, parent s, or child s military service. Servicemember Caregiver 26 weeks to care for a next of kin Servicemember with a serious illness or injury related to his/her military service.

4 FMLA: New Regulations New regulations took effect March 8, Implements the FMLA Amendments from the National Defense Authorization Act for Fiscal Year 2010 (signed into law in October 2009). Significantly impacts Servicemember Caregiver Leave. Impacts important elements of Qualifying Exigency Leave.

5 FMLA: New Regulations Caregiver Leave: Veterans New regulations include veterans who are/were: Undergoing medical treatment for a serious injury or illness incurred or aggravated in active duty; and Other-than-dishonorably discharged no more than five years before the employee first requests to use Caregiver Leave.

6 FMLA: New Regulations Caregiver Leave: Veterans Serious Illness or Injury (1) Continuation of a serious illness or injury that renders the veteran, when he was a servicemember, medically unfit to perform the duties of his office, grade, rank, or rating. (2) Condition for which the veteran received a VA Service Related Disability Rating of 50% or more; and the rating is based on the veteran s need for a caregiver. (3) Condition substantially impairing the veteran s ability to secure or retain gainful employment; or, a condition that would render the veteran unable to secure or retain gainful employment if not for treatment. (4) An injury for which the veteran has been enrolled in the VA Department s Program of Comprehensive Assistance for Family Caregivers.

7 FMLA: New Regulations Caregiver Leave: Veterans Serious Illness or Injury One practical effect: the need for a separate certification form for veterans.

8 FMLA: New Regulations Caregiver Leave: Veterans Eligibility Omission of lag time in enacting regulations for veterans discharged before March 8, No exhaustion for leave to care for a veteran provided prior to March 8, 2013.

9 FMLA: New Regulations Caregiver Leave: Veterans Eligibility For veterans discharged before March 8, 2013: When considering whether or not these veterans were discharged in the last five years, employers should not count the lag time between the enactment of the 2010 NDAA and the effective date of these regulations.

10 FMLA: New Regulations Caregiver Leave: Veterans Eligibility Regulations FMLA: New Regulations NDAA 2010 The 3 years, 4 months, and 8 days between October 28, 2009, and March 8, 2013, don t figure into the five-year span.

11 FMLA: New Regulations Caregiver Leave: Veterans Eligibility Caregiver Leave for Veterans did not exist before March 8, [T]he Department has taken and continues to take the position that the military caregiver leave to care for veterans is not effective until the effective date of this Final Rule --78 Fed. Reg. 8848

12 FMLA: New Regulations Changes to Qualifying Exigency Leave: Parental Care Permits qualified employees to take leave to care for the military member s parent who is incapable of self-care when the care is required by the military member s active duty.

13 FMLA: New Regulations Changes to Qualifying Exigency Leave: Parental Care Examples of Parental Care: To make alternative care arrangements To provide urgent, immediate care To admit or transfer the parent into a care facility To attend meetings with the staff of a care facility when necessitated by the military member s call to active duty.

14 FMLA: New Regulations Changes to Qualifying Exigency Leave: Rest and Recuperation Previous regulations instructed employers to provide a minimum of five days leave. New regulations instruct employers to provide a minimum of fifteen days leave. The employee is entitled to this leave only during the military member s rest and recuperation period.

15 FMLA & DOMA Section 3 of the Defense of Marriage Act excluded state-sanctioned, same-sex marriages from the federal definition of marriage. U.S. v. Windsor: U.S. Supreme Court held that Section 3 of DOMA was unconstitutional. DOL has announced that it now considers samesex spouses (as recognized by state law in the state of the employee s residence) covered by FMLA.

16 The Setup: FMLA: Managing Tough Cases Facebook and FMLA Sara is on intermittent FMLA leave for back issues, which cause flare ups that prevent her from working. During one such absence, Sara posts nine pictures of herself at a Polish heritage festival; she did not appear to be in pain. The Response: Use/Investigate the pictures. Give the employee an opportunity to respond. Document. Make credibility determination. Develop plan including investigation plan with legal counsel.

17 The Variation: FMLA: Managing Tough Cases Facebook and FMLA Carol works as an RN. She develops sudden back and leg pain that prevents her from performing her physically demanding job and is approved for FMLA. While on FMLA leave, Carol takes a planned vacation to Mexico. She posts pictures of herself on a boat, holding two beers, holding each of her infant grandkids in each arm as she stood; she also posts activities like, going to Home Depot and watching grandkids.

18 FMLA: Managing Tough Cases Misconduct Discovered During Leave The Setup: Alice properly requests, certifies, and begins 12 weeks of FMLA leave. The employee(s) who fill in for her report incomplete work, poorly-completed work, and/or evidence of misconduct. The Response: Difference in style or an actual performance or misconduct issue? When did it begin, and why wasn t it noticed previously? Assess seriousness of problem and ability of employee to respond. Develop plan including investigation plan with legal counsel.

19 FMLA: Managing Tough Cases Prompt Documentation May Preempt Claims The Setup: Brian is on a final warning for quality/production issues. His weekly work fails quality inspection, which you learn by automated report on Friday afternoon. The Response: If possible, verify the report. Write and send an recommending termination based on failure to pass quality inspection. The Aftermath: When Brian comes in with his FMLA request, the termination decision has been set in motion prior to protected action.

20 ADA Elements of disability claim Disability: Employee has, has a record of having, or is regarded as having a disability (substantial limitation on a major life activity). Qualification: Employee can perform essential job functions, with or without reasonable accommodation. Discrimination: Either: Failing to provide a reasonable accommodation. Taking traditional discriminatory action (fails to hire or promote; terminates; serious discipline). 20

21 ADA The Interactive Process Employee initiates conversation. Employer considers essential job functions and how impairment affects those functions. Cooperative process May include consultation with health care workers. Employer selects the most appropriate reasonable accommodation. 21

22 ADA Potential Reasonable Accommodations Affecting the Employee s Presence in the Workplace Working from home/telecommuting Flexible Schedule Reduced Schedule Leave Intermittent Leave Leave in excess of FMLA Indefinite Leave 22

23 ADA Working from Home/Telecommuting Changes/Improvements in technology will have a tremendous impact on this subject. Look to policies and past practices on the subject of telecommuting. Look also at Company s policies and past practices on attendance/punctuality. Allowing unsupervised work or flexible scheduling may undermine arguments that workers are required to be present.

24 ADA Flexible Schedule Employer is in best position to deny flexible schedule leave if working certain hours/shifts/overtime is an essential function. Ex: receptionist must be present to greet customers; many supervisory positions may also require personal presence. Look to policies and past practices on flex-time, making up work, working ahead, etc.

25 ADA Reduced Schedule Employer is in best position to deny reduced schedule leave if actual presence is an essential function. Should be run concurrently with FMLA, if applicable. Permutations: No overtime, No shift rotation.

26 ADA Leave: Beyond that Provided by FMLA

27 ADA Leave: Intermittent The term reasonable accommodation may include job restructuring, part-time or modified work schedules. 42 U.S.C (9). However, under the ADA (not FMLA), courts tend to hold that frequent, sporadic, unpredictable absences will prevent an employee from performing the essential functions of his/her position.

28 ADA Leave: Indefinite Indefinite leave ( until I get better ) is not a reasonable accommodation. Leave that becomes effectively-indefinite is not a reasonable accommodation. Ex: Employee repeatedly requests to extend leave to a certain date. At some point depending on circumstances such as total leave taken and plausibility of employee s return this becomes a request for indefinite leave.

29 PDA The PDA does not require maternity leave It requires that pregnant employees be given the same benefits (including leave) that nonpregnant employees would receive. Distinction between employees with workplace injuries and non-workplace injuries is intact, for now. It would also forbid a paternalistic approach of requiring leave.

30 PDA (and related) Lactation Breaks PDA extends non-discrimination to pregnancy, childbirth, or related medical conditions. Fifth Circuit has recently held that lactation is a related medical condition of pregnancy for purposes of the PDA. FLSA requires employers to provide unpaid break time and a private, non-bathroom space for the expression of breast milk for one year after the birth of a child.

31 PDA (and related) Pregnancy-Related Disability The ADAAA provides that an impairment which appears or is made serious by pregnancy is a qualifying disability. Therefore, a pregnancy-related disability is subject to reasonable accommodation process (including leave as a reasonable accommodation).

32 Workers Compensation Most states workers compensation laws do not prescribe a certain amount of leave to be provided.

33 Workers Compensation and FMLA Always run FMLA concurrently with any leave provided after a workers compensation injury.

34 Workers Compensation and FMLA Light Duty If an employee injured on the job is cleared for light duty and offered light duty, he may decline it and take FMLA. Thought he likely will forfeit workers comp payments. Employee who voluntarily accepts light duty after exhaustion of FMLA leave waives his right to reinstatement to former position after one year.

35 Workers Compensation and FMLA Tough Cases: Expiration of FMLA Leave, Employee Unready to Return to Work Get comfortable with leaving the employee in limbo: taking them off the schedule and filling position but not terminating. If COBRA notice sent, it is because employee has not met requisite hours, not termination.

36 Employer Policies and Benefits Paid Leave (PTO, Sick, Vacation, Etc.) In most states, these are discretionary. Depending on exact language used in your policies and the judicial preferences of your jurisdiction, employees may have contractual rights to paid leave.

37 Employer Policies and Benefits Unpaid Leave (Administrative, Personal) In most states, these are discretionary. Should be run concurrently with FMLA, if applicable.

38 Employer Policies and Benefits Long-Term Disability Like Workers Compensation, this is actually a compensation benefit. Study policy language defensively if litigation on other matters seems likely.

39 USERRA USERRA Applies to all employers regardless of size. For employee s own military service. Broad anti-discrimination and job protection program.

40 USERRA USERRA Leave Non-seniority rights and benefits should accrue as with other employees on leave or furlough. Reinstatement to Escalator Position.

41 USERRA USERRA Leave Period of service less than 31 days or for a period of any length for the purpose of a fitness examination. Employee must report to work on first regularly scheduled workday after completion of service. Period of service between 31 and 180 days. Employee must submit written or verbal application for reemployment 14 days after completing service. Period of service 181 or more days. Employee must submit written or verbal application for reemployment 90 days after completing service.

42 USERRA USERRA Leave Period of service less than 31 days or for a period of any length for the purpose of a fitness examination. Employee must report to work on first regularly scheduled workday after completion of service. Period of service between 31 and 180 days. Employee must submit written or verbal application for reemployment 14 days after completing service. Period of service 181 or more days. Employee must submit written or verbal application for reemployment 90 days after completing service.

43 The Setup: USERRA and ADA Jack, a five-year employee, enlists in the armed forces and is stationed overseas for over a year, becoming seriously injured in the course of duty. He returns to the States and is told he will need a prosthetic and 18 months of intense physical therapy. The Response: Request Jack keep in touch; if/when appropriate, look into modifications to work station necessary for prosthesis. The Rationale: USERRA gives an injured-during-service employee up to two years to recover. ADA requires accessibility of the workplace.

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