New Perspectives on Disability & Absenteeism. Whatever Happened to Reliable Attendance as an Essential Job Function? Greg Hare

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1 New Perspectives on Disability & Absenteeism Whatever Happened to Reliable Attendance as an Essential Job Function? Greg Hare Employment Attorney

2 Understanding the Laws of Leave

3 HE S NOT HERE... When in doubt... run your business!

4 What is a qualifying event for FMLA leave? New Child: birth, adoption, or foster care Serious health condition of: employee that makes him/her unable to perform essential functions of job needed to care for employee s parent, spouse or child that requires care from employee

5 Serious Health Conditions Interpretation Guidelines Incapacity > 3 Calendar Days Must be accompanied by at least 2 visits to doctor within 30 days Chronic Conditions Periodic visits to doctor at least 2 times per year

6 Serious Health Conditions Interpretation Guidelines Employee Absence Notice Worker must follow advance call in rules Employee Eligibility Notice Employer gets 5 days, up from 2 Perfect Attendance FMLA leave now allows disqualification

7 Serious Health Conditions Interpretation Guidelines Deficient Medical Certification Employer must demand details, in writing Employee gets 7 days to correct Now, Direct Contact Allowed! Employer (HR or Manager) can contact medical provider directly to obtain clarification or authentication Still must comply with Health Insurance Portability and Accountability Act (HIPAA)

8 What if Employee Still Can t Perform Essential Functions After 12 Weeks? ADA Analysis Assume Disabled Always focus on reasonable accommodation

9 IS MANDATORY OT AN ESSENTIAL FUNCTION? Hardwick v Amsted Ry. Co. (D. Kan. 2013) All machinists were required to work 50+ hours per week Dr. said employee s HBP limited him to max 40 hours per week Court: mandatory OT was an essential function! Employer need not eliminate an essential function or make others do more to cover the employee s job duties

10 IS MANDATORY OT AN ESSENTIAL FUNCTION? Boitnott v Corning, Inc. (4th Cir. 2012) Engineer had heart attack and follow up complications RTW statement specified not greater than 8 per day/40 per week Company needed all engineers to rotate day/night and work OT Court: employee not qualified Same result = company could refuse RTW if employee unable to perform all essential functions

11 Is Attendance an Essential Function? Job Description On site vs. telecommuting Consequence of being gone Loss of production Burden on others

12 Quandary If long-absent employee cannot come to work and certainly cannot perform essential functions of existing job... what are the employer s options?

13 The Steps of Reasonable Accommodation (in order) 1. Accommodate within employee s job 2. More leave but only if it will help 3. Vacant positions 4. Terminate

14 1. Accommodate Within existing job Is this function really essential Would job modification be: feasible reasonable or undue burden?

15 2. Perpetuate - Grant more LOA? FMLA has been exhausted Grant Indefinite Leave? Coming to work is an essential function Replace Termination When in doubt, run your business! Defending failure to reinstate is easier than retaliatory termination Administrative Termination? Firm out date can be very useful, but also very dangerous

16 More Leave???? EEOC says strict maximum leave policies create barriers to ADA Light at the end of tunnel is the touchstone for an employer Is Dr. confident that more leave = viable return? Focus on reasonable medical certainty

17 3. Relocate? Different Job e.g., Light Duty where did that come from? what does FMLA say? under ADA, must company create light duty? or offer it, even in non-wc situations? continue it how long?

18 e.g., Vacant Positions Must employer consider disabled employee for different job? Must employer grant preference when filling vacant job? EEOC v United Airlines (7th Cir. 2012) Court: disabled employee who s qualified for another job jumps to front of line

19 4. Terminate: Inability to Perform? DFEH v. Lucent (9th Cir. 2011) Installer couldn t frequently lift lbs. LTD for 52 week max Still couldn t meet lifting mandate Therefore, fired by company Frequent communications and assessments, all along the way Court: asking Lucent to ignore lifting requirement, or offer indefinite leave, not reasonable (even on left coast )

20 Lesson: Take Control Once 12 weeks exceeded, ensure interactive dialogue Set deadlines Non-response = abandonment Or, get admission of unable to perform essential functions Monitor your TPA s communications

21 Don t Suffer Perpetual Uncertainty Understand HIPAA No flying blind Have a systematic procedure! Documentation protocol Be prepared to prove the company was very reasonable Ask me for Process Checklist

22 He s Not Here Additional Workers Comp Worries When the injury is work-related, beware the Bermuda Triangle In addition to interactive dialogue Now, bring insurance adjuster into the fold Don t give away money for free!!! Even with long-term absences Beware WC retaliation

23 She s Not Here Pregnancy & Postpartum Issues Understanding exposures FMLA PDA & Title VII Pre-delivery Medical appointments Pop-up absences

24 She s Not Here Pregnancy & Postpartum Issues While on LOA Paid or unpaid What if company wants her to perform work? What if she insists on staying connected? Exempt or non-exempt Post-delivery: RTW What about reasonable accommodation? Like ADA? EEOC strategic enforcement initiative

25 FAMILY ILLNESSES Stansberry v. Air Wisconsin (6th Cir. 2011) Wife had autoimmune disorder employee missed lots of work employee performed poorly Asked company for reasonable accommodation namely, excuse his performance problems Court: not protected by a claim of ADA association discrimination not a valid excuse for nonperformance After FMLA, then what...?

26 WHAT S FAMILY. OOPS? Dawkins v. Fulton County (11th Cir. 2013) FMLA covers: spouse, child, parent Mechanic asked for FMLA leave for dad s terminally ill brother Supervisor hastily approved via HR later rescinded Employee argued estoppel Court: employer that grants leave for uncovered absences is not stuck with it forever

27 Key Takeaways Disability & Absenteeism Take control & be systematic Understand the interplay among various legal mandates Don t give up it s manageable!

28 OGLETREE FOOTPRINT ALWAYS NEARBY Portland Denver Kansas City St. Louis Minneapolis Chicago Indianapolis Detroit Metro Pittsburgh Cleveland Boston Stamford New York City Morristown Philadelphia San Francisco Washington, DC Richmond Raleigh Las Vegas Torrance Charlotte Greenville Columbia Los Angeles San Diego Phoenix Tucson Orange County Nashville Dallas Memphis San Antonio Jackson Houston New Orleans Tampa Austin ODNSS State Bar Admissions ODNSS Offices* *We also have offices in Berlin, Germany and London, England Charleston Atlanta Birmingham Miami St. Thomas

29 STAY UPDATED OD NEWSLETTER? PPT COPY? Greg Hare

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