REFRESHER. What do the FMLA & the ADA require? Key FMLA Components

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1 I Read the Rules, but I m Still Not Sure How to Handle Bob s Health Situation: The Continuing ADA/FMLA Conundrum Elizabeth Wells Skaggs March 18, 2015 Important Notice: This presentation has been prepared by Varnum LLP for informational purposes only and does not constitute legal advice. Copyright 2014, Varnum LLP. All rights reserved. REFRESHER What do the FMLA & the ADA require? 2 Key FMLA Components Up to 12 weeks of unpaid leave per year for: - Birth or adoption of child, or foster care placement - Care for spouse, child, or parent who has a serious health condition - Serious health condition of employee that renders employee unable to perform his/her job - Qualifying exigency related to active duty of immediate family member 3 1

2 Key FMLA Components Up to 26 weeks of unpaid leave during a single 12 month period to care for a family member injured in the line of duty with the Armed Forces 4 Key FMLA Components FMLA provides for continuation of health care benefits during leave (employees may be required to pay their portion of premiums) Restoration to former position upon conclusion of leave (limited exceptions) Non-interference / non-retaliation FMLA Eligibility 1 year of service 1250 hours in the 12 months immediately preceding the leave Work at a covered facility (at least 50 employees within 75 miles) Must count employees jointly employed with another employer 2

3 Serious Health Condition Five Main Types Overnight Stay - Hospital - Hospice - Residential medical care More than 3 consecutive full calendar days incapacitated PLUS - Treatment 2 times by a health care provider (1 st within 7 days and 2 nd within 30 days (health care provider decides whether 2 nd is needed)) - Treatment 1 time by a health care provider and a continuing treatment regime (i.e., prescription) 7 Serious Health Condition Pregnancy Chronic conditions (asthma, diabetes, epilepsy, etc.) => must visit a health care provider at least 2 times per year Permanent/long-term continuing treatment (i.e. cancer) 8 Typical Serious Health Conditions Cancer Pregnancy complications Surgery Anxiety/depression Broken bones Asthma Migraines Back problems 9 3

4 Key ADA Components No Discrimination / No Retaliation based on disability Duty of Reasonable Accommodation to Qualified Person with Disability Conditions that Usually Qualify as Disabilities Deafness Blindness Paralysis (paraplegics, quadriplegics) Missing Limbs Cancer Diabetes (if insulin-dependent) Epilepsy HIV/AIDS Major Depression Conditions that Do Not Qualify as Disabilities Broken bones (if expected to heal relatively quickly) Pregnancy (w/o complications) Correctable vision problems Physical characteristics (such as left-handedness) Common personality traits (being irresponsible, showing poor judgment, irritability/temper, chronic lateness) Cultural, environmental, or economic disadvantages 4

5 Conditions that Do Not Qualify as "Disabilities" Homosexuality/bisexuality Transvestism/transsexualism or gender identity disorders Normal deviations in height, weight, or strength Compulsive gambling, kleptomania, or pyromania Disorders stemming from the current illegal use of drugs Accommodations that Might be Required Facility Access Job Restrictions Modified Work Schedule Acquiring or Modifying Equipment Reassignment to a Vacant Position Leave of Absence When Does the Accommodation Duty "Kick-In"? Employee must let the employer know that he/she (1) needs an adjustment or change at work (2) for a reason that is related to a medical condition Employee need not mention the ADA or use the phrase accommodation 5

6 What is the Process for Determining a Reasonable Accommodation? Clarify what the employee needs Identify reasonable alternatives Consult with the employee Consult with medical professionals, as appropriate => can request a release from employee so HR can talk directly to the doctor Select an appropriate alternative This is referred to as "the interactive process" Common FMLA and ADA Scenarios In the Real World Scenario #1 Employee presents a doctors slip with restrictions How do you handle? Step 1: Can the employee still do the job? Step 2: Do you have any reason to doubt the restrictions? Step 3: Can you accommodate the restrictions? Step 4: Do you have any vacancies? Step 5: Is the employee willing to take a LOA? FMLA eligible? 6

7 Scenario # 2 Employee seeks continuous leave or leave in one block Easy FMLA scenario: What if employee is not yet eligible for FMLA or has exhausted available FMLA leave but not yet able to return to work? Leave in these circumstances may be a "reasonable accommodation" that employer is required to provide Insist on medical documentation that supports need for leave Scenario #3 Employee seeks intermittent or sporadic leave Employee may want the right to take a day off, come in late, leave early, or take an unscheduled break whenever condition "flares up" FMLA eligible => employer may have no choice ADA => will depend on circumstances Intermittent/sporadic leave may also be considered a "reasonable accommodation" Employer not required to tolerate frequent unscheduled absences, but may have to put up with the occasional absence Insist on medical documentation that supports need for leave, and treat the situation as an intermittent/sporadic leave situation Scenario #4 Employee with attendance/tardiness problems Employee may claim he/she missed work/was late because of disability/health issue Consider need to provide FMLA paperwork Enforce attendance rules as written if no advanced notice of disability given Going forward, insist on medical documentation to support need for leave, and treat the situation as an intermittent/sporadic leave situation 7

8 Scenario # 5 Employee is having performance problems (making mistakes, not getting work done on time, etc.) You suspect that employee is having medical or mental issues. FMLA not implicated as no time-off request Possible approaches: Just deal with performance issues Engage in interactive process Require a fitness-for-duty examination Scenario #6 Employee engages in misconduct. During investigation, employee says that the misconduct was due to a "disability" What are you allowed to do? With respect to what has already occurred Going forward Questions? Important Notice: This presentation has been prepared by Varnum LLP for informational purposes only and does not constitute legal advice. Copyright 2014, Varnum LLP. All rights reserved. 8

9 Contact Information: Joseph J. Vogan 616/ Important Notice: This presentation has been prepared by Varnum LLP for informational purposes only and does not constitute legal advice. Copyright 2014, Varnum LLP. All rights reserved. Contact Information: Elizabeth Wells Skaggs 616/ Important Notice: This presentation has been prepared by Varnum LLP for informational purposes only and does not constitute legal advice. Copyright 2014, Varnum LLP. All rights reserved. 9

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