ADA, FMLA & INTERMITTENT LEAVES. Presented by Scott Rose Marie Davis

Transcription

1 ADA, FMLA & INTERMITTENT LEAVES Presented by Scott Rose Marie Davis

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4 About Our Presenters Scott Rose Over 30 Years in Enterprise Software sales. 10 Years with NOVAtime. Happily Married with 7 children (all capable of producing grandchildren) Lucky me! Lives in Long Beach, CA. Surfs/paddles daily. Cancer survivor Clinical Trials poster child.

5 About Our Presenters Marie D. Davis, Esq. Attorney with Landegger Baron Law Group Worked building low-income housing for a nonprofit org., prior to attending law school. Received her B.A. from U.C.L.A.; J.D. from U.C. Hastings College of Law. Specializes in helping businesses navigate complex employment laws. Member of the Ventura County Bar Association and the Pasadena Bar Association, Consumer Attorneys Assocation of Los Angeles County and Ventura County Hispanic Chamber of Commerce.

6 Laws Protecting Disabled Employees Federal: Family and Medical Leave Act (FMLA) Americans with Disabilities Act (ADA) State: California Family Rights Act of 1993(CFRA) Pregnancy Disability Leave (PDL) Reasonable Accommodation (FEHA and ADA) State and Local Paid Sick Leave Workers Compensation

7 Employee Leave Management Issues to Consider Is the Leave Medical or Family Related? (FMLA/CFRA) Is there a separate pregnancy disability leave statute? (FMLA/PDL) Is there a Duty to Offer Reasonable Accommodation? (FEHA/ADA) Workers Compensation Law Triggered? (Labor C.) What are the employer s obligations to maintain health coverage and other benefits? Does the Employer need to designate the leave and send out notices?

8 FMLA Basic Entitlement Under the Family and Medical Leave Act (FMLA), covered employers must provide up to 12 weeks of unpaid, job-protected leave to eligible employees. Who is an eligible employee? 1. Must be employed by a covered employer for at least 12 months 2. Must have had at least 1,250 hours of service during the 12-month period immediately before the leave started 3. Must have been employed at a worksite with 50 or more employees within 75 miles, or a public agency, public school board, or at an elementary or secondary school

9 FMLA Basic Entitlement Under the Family and Medical Leave Act (FMLA), covered employers must provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons: A serious health condition that makes the employee unable to perform his or her job Incapacity due to pregnancy, prenatal medical care, or child birth Care for employee s child after birth, or placement for adoption or foster care (within 1 year) Care for employee s spouse, son, daughter or parent with a serious health condition

10 FMLA Definition of Serious Health Condition Definition of a serious health condition illness, injury, impairment, or physical or mental condition that: Involves either an overnight stay in a medical care facility or Continuing treatment by an HCP for a condition that either prevents the employee from performing their job or prevents their qualified family member from participating in school or daily activities

11 FMLA Definition of Serious Health Condition (Cont.) Continuing treatment requirement may be met by: A period of incapacity of more than three consecutive calendar days combined with at least two visits to HCP or one visit and a regimen of continuing treatment Incapacity due to pregnancy Incapacity due to a chronic condition

12 FMLA Use of Leave Leave can be taken intermittently when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment to not disrupt employers operations. Employees must provide 30-day notice when foreseeable or as soon as possible. Employees must provide sufficient information for employer to determine if the leave qualifies and the anticipated timing and duration of leave. Employer can require medical certification (or recertification) supporting the need for leave.

13 FMLA Substitution of Paid Leave for Unpaid Leave BENEFITS AND PROTECTION Employees may choose or employers may require the use of accrued paid leave. Employees must comply with the employer s normal paid leave policies. Employer must maintain the employee s health coverage on the same terms. Employee must be restored to their original or equivalent (nearly identical) position with equivalent pay, benefits and other employment terms.

14 FMLA Employer Responsibilities Employer must inform employee whether they are eligible for FMLA. If so, the notice must specify the employee s rights and responsibilities. If employee is not eligible, employer must provide the reason for ineligibility.

15 Implement Compliant Corporate Policies CFRA is a state law found in the FEHA CFRA mirrors the federal FMLA and runs concurrently Differences: CFRA includes registered domestic partners in the definition of family member. Disability related to Pregnancy is not considered a serious health condition and not covered under CFRA. (See PDL) Under CFRA, ER may not require EE to use Sick Time unless the leave is for EE s own serious health condition. ER may require EE to use accrued vacation or other accrued paid leave, except sick leave.

16 FMLA VS. CFRA EE guaranteed return to the same or comparable position and can request the guarantee in writing (versus equivalent ) Comparable in terms of pay, location, job content, and promotional opportunity Under FMLA, intermittent bonding is only allowed if ER agrees; Under CFRA, EE does not need ER agreement to take intermittent bonding leave; ER can require that leave be taken in 2-week minimum increments (but must grant shorter on two occasions)

17 Pregnancy Disability Leave Employers with five or more FT or PT employees EE disabled by pregnancy is entitled to up to four months of leave. (the number of working days EE would normally work in 1/3 of the year or 17 1/3 weeks) Leave can be taken before or after birth during any period of time the EE is physically unable to work because of pregnancy or a pregnancy-related condition. Disabled: prenatal/postnatal care, severe morning sickness, bed rest, childbirth, recovery, loss or end of pregnancy Transfer to a less strenuous or hazardous position/duties (if available)

18 Pregnancy Disability Leave (Cont.) EE must provide 30 day notice if possible or as soon as practical The leave may be modified as dictated by the pregnancy Continuation of health insurance coverage ER may require use of accrued sick leave EE may choose to use accrued vacation ER may require EE to use vacation or other paid accrued time off Entitled to PDL in addition to CFRA - EE could take four months of PDL and 12 weeks CFRA to bond with the baby, adopted child or to care for a parent, spouse or child with a serious health condition.

19 CFRA and Pregnancy Disability Leave Both guarantee return to the same position or comparable. (no protection from lay off) EE can request guarantee in writing. Both CFRA and PDL require posting in a conspicuous place where employees tend to gather. ER who provide EH must include information. EEs may also be eligible for six weeks paid leave under the FTDI (Family Temp. Disability Ins.) administered by the EDD.

20 FMLA Cautionary Tales Employer may not interfere with an employee s FMLA/CFRA/PDL rights or retaliate for using or trying to exercise rights. Discouraging employee from using FMLA leave (i.e. suggesting that delaying surgery would better accommodate needs of business) Mischaracterizing leave Entitled to medical diagnosis? Not under state law Failing to send out appropriate forms and notices All too often, employers make the mistake that they can terminate an employee who has exhausted their 12 weeks FMLA/CFRA or the four months PDL entitlement.

21 Fair Employment and Housing Act (FEHA) and The American with Disabilities Act (ADA) Prohibits discrimination, harassment and retaliation on the basis of a disability Requires employers to make reasonable accommodations to enable a disabled individual to perform the essential functions of the job. The ADA/FEHA do not provide job security (compare with FMLA) State law may impose a higher burden on the employer.

22 ADA Managing A Disabled Employee What is a disability? Physical or mental impairment that substantially limits one or more major life activities An individual with a record of such an impairment or Being regarded as having such an impairment This is broadly construed!

23 ADA Managing a Disable Employee (Cont.) A Qualified individual with a disability is an employee who is able to perform the essential duties of the job, with or without a reasonable accommodation. No protection otherwise A leave of absence is a recognized reasonable accommodation under the Americans with Disabilities Act (ADA). ADA/FEHA leave covers situations where FMLA/CFRA/PDL leave does not apply.

24 ADA Reasonable Accommodation (Employee Returns with Work Restrictions) The ADA provides that an employer must provide reasonable accommodation for the known physical or mental disability of an applicant or employee unless it would create hardship. Who has the burden? The employee usually has the burden of giving the employer notice of disability (unless it is observable or otherwise known). The employer has the burden to take positive steps to accommodate the employee s limitations unless to do so would create undue hardship. Finally, the employee has a duty to cooperate with an employer s efforts by explaining his or her disability and qualifications for the job.

25 ADA Considerations for Reasonable Accommodations The goal is to find the best match between the employee s capabilities and an available position. The ADA does not obligate an employer to choose the best accommodation or the specific accommodation that a disabled employee or applicant seeks. Accommodations must be reasonable, meaning that the size of the employer, the type of business, and the positions available are taken into consideration. Examples include: Job restructuring Part-time, modified work schedules Reassignment to a vacant position or another location Temporary leave of absence Equipment or special devices

26 FMLA VS. ADA The ADA poses no such requirements. Instead, a qualified employee with a disability may be entitled to leave as a reasonable accommodation under the ADA even if: The employer has less than 50 (but at least 15) employees; The employee has not worked at the company for twelve months; The employee has not worked at the company for the requisite 1,250 hours; or The employee has already exhausted twelve weeks of FMLA leave.

27 FMLA VS. ADA (Cont.) The only basis for a denial of leave as a reasonable accommodation under the ADA is through showing that it would pose an undue hardship to the employer. Thus, a qualified individual with a disability is entitled to additional leave time beyond the twelve weeks permitted under the FMLA so long as that additional leave time would not constitute an undue hardship on the employer.

28 FMLA VS. ADA (Cont.) The ADA operates independently of the FMLA When an employee requests time off for a reason related or possibly related to a disability, the employer should consider the employee s leave-entitled rights under both the FMLA and ADA. The employer is also required to initiate the interactive process to determine what reasonable accommodations, if any, are needed.

29 FMLA VS. ADA (Cont.) Given that the ADA and FMLA operate independently of each other, an employer must therefore provide leave under whichever statutory provision provides the greater rights to employees. For example, although the FMLA permits the employer to place an employee returning from a covered leave in an equivalent position, the ADA requires that the person returning from leave be returned to her original position. Therefore, an employee covered by both statutes would need to be returned to her original position following a return from a medical leave, absent the employer demonstrating undue hardship.

30 ADA Job Reassignments Typically sought when there are no reasonable accommodations that permit the injured employee to perform the essential functions of his or her job. When reassignment is sought, employers must determine whether the employee is qualified and able to perform the essential functions of the position to which reassignment is sought. Recent EEOC cases may require employers to reassign the disabled employee despite having another candidate with better qualifications. (EEOC v. United Airlines, Inc. [7 th Cir. 2012].)

31 ADA Must the Employer Create a New Job? To be protected, individuals must be qualified to do their job! An employer is NOT required to create a new job An employer is NOT required to move another employee An employer is NOT required to promote a disabled employee An employer is NOT to violate another employee s right in order to accommodate a disabled employee The duty is to reassign a disabled employee if an already funded, vacant position at the same level exists or one will become available in the foreseeable future. Note: Although an employer is not obligated to compensate an employee at the same rate of pay if they are moved to a lower paid position as an accommodation, employers can avoid retaliation claims if they maintain the same level of compensation.

32 ADA How to Effectively Implement the Interactive Process Begin the process when triggered do not delay Employer is required to engage in a timely, good faith, interactive process Meet with employee in person, if possible Interview others and obtain pertinent medical information Complete any necessary forms, reports, claims, etc. and document your file Make sure company policies are up to date, comply with the law and are applied consistently Obtain job descriptions and update if necessary

33 ADA How to Effectively Implement the Interactive Process (Cont.) Begin the process when triggered do not delay (cont.) Do not disparage or discriminate against an employee who reports an injury, claim or disability Examine all reasonable accommodations Stay in contact with the employee Do not forget the process is ongoing and must be revisited Develop a plan to offer an accommodation, if available, and be prepared to deal with an employee you cannot accommodate.

34 ADA How to Effectively Implement the Interactive Process (Cont.) DOCUMENT THE PROCESS!! Identify participants Identify all documents reviewed List work restrictions List essential functions of the job List all accommodations suggested and considered (even the unreasonable ones) List all alternative positions considered Employee comments Everyone signs Complete this form every time a new restriction is provided

35 ADA Undue Hardship Requires significant difficulty or expense. Consider: Financial resources of the facility and the company Number of employees Nature and net cost of the accommodation Impact accommodations place on the operation VERY DIFFICULT TO PROVE

36 ADA Leave Undue Hardship (Cont.) The employee need only show that a requested accommodation is generally reasonable; It is the employer s obligation to demonstrate specifically that a request would create an undue hardship. A leave is more likely to be deemed an undue hardship the more complex the nature of the employee s work, the more difficult it would be to replace the employee, or the more difficult it would be to redistribute that employee s work.

37 ADA Leave Policies Because the employer has an obligation to assess each requested accommodation on a case-by-case basis, it may not apply a maximum leave policy. A no fault attendance policy can violate the ADA Leaves of varying durations have been deemed reasonable difficult to tell what reasonable means

38 ADA Uncertain and Indefinite Leave An employee need not show that the leave is certain or even likely, only that it would plausibly enable the employee to return and perform their job. An employer is not required to provide an indefinite leave of absence. A leave request is not indefinite simply because the nature of the employee s condition is such that only an approximate return date is provided.

39 ADA Uncertain and Indefinite Leave (Cont.) An indefinite leave must be distinguished from one where an employee gives an approximate return date or where the situation changes and the original date has been revised. Intermittent leaves and modified schedules can be reasonable accommodation.

40 Work Related Injuries Provide employee with a claim form if they put you on notice of a potential work related injury don t wait for them to ask. Evaluate whether the employee is eligible for FMLA leave and provide all required notices. Manage the workers compensation leave in keeping with the requirement of ADA. Engage in the interactive process Provide reasonable accommodations

41 California Paid Sick Leave Healthy Workplace, Healthy Family Act of 2014 went into effect July 1, 2015 California employers must provide a paid sick leave benefit to all employees. Only exceptions: Certain union employees Certain in-home services Airline cabin/flight deck crews

42 California State and City Paid Sick Leave (PSL) Laws California PSL Accrual Methods City of Los Angeles PSL Option 1: Provide one hour of PSL for every 30 hours worked. Option 2: Provide a lump sum of 3 days or 24 hours of PSL at the start of each employment year, calendar year, or 12-month period. Option 1: One hour for every 30 hours worked in the City. Option 2: Provide a lump sum of 48 PSL hours at the start of each employment year, calendar year, or 12-month period.

43 California State and City Paid Sick Leave (PSL) Laws California PSL Accrual Caps City of Los Angeles PSL 48 hours or 6 days per year (whichever is greater.) 72 hours

44 California State and City Paid Sick Leave (PSL) Laws Use Caps California PSL 24 hours or three days (whichever is more for the particular employee) per employment year, calendar year, or 12- month period. City of Los Angeles PSL 48 hour per employment year, calendar year, or 12-month period.

45 California State and City Paid Sick Leave (PSL) Laws Carry Over California PSL Accrued, unused PSL carries over into the next year but is limited by the employer s accrual cap. City of Los Angeles PSL Accrued, unused PSL, including unused frontloaded PSL, carries over year-to-year but is limited by the employer s accrual cap.

46 How NOVAtime Can Help Leave Management / FMLA Supports continuous, Intermittent, and reduced schedule leave Configurable workflow / To-do lists Document storage s and reminders sent to employees and the FMLA Administrators

47 How NOVAtime Can Help Fully Automated Eligibility Validation for Employees Service month Work hours Available balance Reviews & submits FMLA documents through the life of the FMLA cases.

48 How NOVAtime Can Help Online Process Employees can download / upload and complete documents online Employees and FMLA Administrators can track/review case details and progress FMLA Administrators can submit leave requests on behalf of employees FMLA Administrators can quickly identify the current status of all active cases using the dashboard.

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51 Thank You for Attending! Landegger Baron Law Group Marie. D. Davis, Esq Ventura Blvd. Suite 1200 Encino, California Daily Drive, Suite 325 Camarillo, California NOVAtime Technology, Inc. Scott Rose, Sales Director - Scott.Rose@NOVAtime.com 9680 Haven Avenue #200 Rancho Cucamonga, CA Phone: x-7181 Los Angeles Office: Ventura County Office: