Complex Leave Issues: Intersection of the FMLA and the ADA

Transcription

1 Complex Leave Issues: Intersection of the FMLA and the ADA Presented by Penny C. Wofford February 20, , Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ogletree.com

2 Leavolution! ADA FMLA Company Policies

3

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

7

8 No Undue Hardship When Medically Necessary No Undue Hardship Defense No interference No changing schedules No removing essential functions

9 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

10 The FMLA vs. The ADA vs.

11

12 The FMLA Exact amount of leave Concurrently exhausts with almost everything (very promiscuous) Has Eligibility criteria Very precise medical questions that can be asked Strict rules on when you can make medical inquiries and when you can ask for fitness for duty Employee favorable rules on how long they have to return medical information Doesn t care about you at all Maintenance of health benefits The ADA Not Exact at all (In fact, maddeningly inexact) By rule, forces you to exhaust everything else, and then it runs by itself. Everyone is eligible (no wait period) You are entitled to what you need You are entitled to what you need under the circumstances Loosey-Goosy Cares about everything (including you) Just follow your plan

13 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

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

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

16 ADA & Leave Process Merged Accommodation within Job Consider Company Leave and FMLA Grant ADA Leave if Effective Consider for Open Positions Termination

17 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

18 Usually, An employee must ask for an accommodation What does an ask look like? Says they are disabled and need an accommodation Employee cites an impairment causing a challenge to performing job Other requests for accommodation Employee asks for leave, citing an impairment Employee brings in a return to work note with restrictions

19 Interactive Process Do they have a disability? (Doctor) What are their restrictions and needs? (Doctor) How long will they have these restrictions/needs? (Doctor) Enough information to determine Whether there is an accommodation Whether there are any reasonable accommodations Whether granting the accommodation will result in a hardship Whether employee will pose a significant risk

20 Interactive Process

21 Interactive Process

22 Leave Leave can be intermittent or block Light Duty EEOC s position, must offer light duty to disabled and pregnant employees and not just hold for those on workers compensation

23 Leave as an Accommodation? Leave = job protected leave Finite Leave policies unlawful 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

24 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

25 Is it reasonable? High C o n f i d e n c e Additional Length of Leave Needed Pulling teeth to get doctors to tell us when the employee will be able to return, and how confident they are with that date Long

26 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 Cost to getting it done (Net) What will it cost, minus what we save If extra cost, what is impact on budget? What are the consequences of not meeting budget?

27 Vacant Position Concepts 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

28 Employee Benefits Follow terms of plan Communicate Premium payments When due Where to send Amount Option to waive coverage Termination of coverage

29 Questions Penny C. Wofford