The ADA, FMLA, and Accommodating Time Off - - The Intersection of Leave Laws

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1 The ADA, FMLA, and Accommodating Time Off - - The Intersection of Leave Laws 1 Purpose of The Family Medical Leave Act Balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity. 29 C.F.R (a). 2 Chapter 2 Page 1

2 Balancing Statute The FMLA is a Balancing Statute that is designed to provide job protection during the twelve (12) week balanced FMLA leave period. 3 Requirements of FMLA The FMLA allows employees up to 12 weeks of unpaid leave for the birth or adoption of a child, or because of the serious health condition of the employee or his or her spouse, parent, or child. Upon return from leave, the employee is entitled to the same position he or she held before the leave, or to an equivalent position - - a position with substantially the same pay, benefits, responsibilities and other conditions as the pre-leave position. 4 Chapter 2 Page 2

3 Serious Health Condition A serious health condition is one involving an illness, injury, impairment, or physical or mental condition that involves: -Inpatient care (requires an overnight stay); -Continuing treatment by a health care provider (incapacity for more than 3 consecutive calendar days and a regimen of continuing treatment.) 5 Eligibility For FMLA Leave TheEmployeemust: a) be employed for at least twelve months; b) have worked at least 1,250 hours during the 12 months preceding the beginning of the leave; and c) request or give notice of leave The Employer must employ at least fifty (50) people (within 75 miles). 6 Chapter 2 Page 3

4 What Constitutes A Request? Any mention of a need to take time off to care for a medical or physical condition of the employee or his or her spouse, parent, or child. 7 Employer s Potential Responses to Notice Simply allow the leave without calling it FMLA Immediately designate the leave as FMLA if it possesses the information to do so. Do not have to require a certification Start the FMLA certification process: -Within 5 business days of request for leave, notify employee he or she is eligible or not eligible (and why) for FMLA; provide the rights and responsibilities notice; and then designate the leave as FMLA leave. 8 Chapter 2 Page 4

5 Running All Possible Leaves Together Potential Leaves FMLA Short Term Disability Worker s Compensation Leave ADA concerns Can and Should Run All Concurrently 9 Certification If employer is going to require certification oftheneedforleave,mustaskforitin most situations at time notified of need for leave or within five business days of notification/start of leave. - The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration. 10 Chapter 2 Page 5

6 Certification Issues Incomplete/insufficient certification - must inform employee in writing of the additional information needed and provide employee opportunity to cure (7 calendar days) Employee has option of signing authorization for his or her health care provider to give information directly to health care provider designated by employer. -If not returned at all or still incomplete/insufficient, can deny leave. 11 FMLA Paperwork WH-380-E Certification of Health Care Provider for Employee s Serious Health Condition WH-380-F Certification of Health Care Provider for Family Member s Serious Health Condition WH-381 Notice of Eligibility and Rights & Responsibilities WH-382 Designation Notice 12 Chapter 2 Page 6

7 Intermittent Leave Intermittent leave is leave taken in separate blocks of time due to single qualifying reason Scheduling: -Each block can be taken at once, or separate by weeks, days, hours, or minutes -It can be structured as a reduced work schedule (i.e., full to part-time). Accounting increment: -no greater than lesser of shortest period used for other leaves, or by the hour 13 Employee Notice for Intermittent Leave Same general rules apply Reasonable effort required to scheduled planned absences so as not to unduly disrupt employee operation -consultation ordinarily expected prior to scheduling 14 Chapter 2 Page 7

8 Dealing with Intermittent Leave Employee required to make reasonable effort to schedule planned absences so as not to unduly disrupt employer s operation -Consultation ordinarily expected prior to scheduling -Employer should develop checklist for unduly disruptive scheduling (e.g., avoid busy Friday). Employer may consider alternative positions 15 Alternative Positions Employee can be assigned to an alternative position during foreseeable intermittent leave if: -Same rate of pay and benefits -Employee qualified for position and -Position better accommodates recurring periods of leave than employee s regular position 16 Chapter 2 Page 8

9 Alternative Position Caveats Transfer to alternative position cannot be used to discourage employee from taking leave For example: -Day to night shift -Longer commute -Alternative position ultimately less flexible 17 Intermittent Leave Also May Be Required Under ADA Intermittent leave may also be required by: -ADA -State and local FMLA -State or local disability accommodation laws 18 Chapter 2 Page 9

10 Intersection of FMLA and Other Laws --The Civil Rights Act of 1964 (Title VII) -The Pregnancy Discrimination Act (PDA) -Americans with Disabilities Act (ADA-AA) -Age Discrimination in Employment Act (ADEA) -Employee Retirement Income Security Act (ERSIA) -The Equal Pay Act (EPA) -Workers Compensation Laws -Genetic Information Nondiscrimination Act (GINA) -Polygraph Protection Act (PPA) -The Fair Labor Standards Act (FLSA) -Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) -National Labor Relations Act (NLRA) -Miscellaneous State Laws 19 Workers Compensation Inquiry First inquiry is whether the FMLA Leave is requested for the care of a spouse, parent, child, or self. If not self, no workers compensation issues exists. If it is self, was it a serious health condition, other than pregnancy. If SHC, did it come from workplace injury. If so, workers compensation implicated, and we must be concerned with any action taken by employer regarding employee s job, as it can be deemed retaliation for taking Workers Compensation Leave. Remember, Workers Compensation Leave and FMLA Leave should run concurrently (balancing), so must consider aspects of both laws. 20 Chapter 2 Page 10

11 Remember the FMLA is a balancing statute designed to protect jobs during the 12-week period. The ADA and Workers Compensation Laws are really discrimination statutes which are designed to prevent discrimination or retaliation. And to deal with accommodating disabilities, especially the ADA. 21 Persons Protected Under the ADA Qualified Individuals With Disabilities Disabled Persons Who Can Perform The Essential Functions of The Job With or Without Reasonable Accommodation Physically, mentally History of impairment Perceived or regarded as being disabled Major life activity Primary Job Duties i.e. Reassignment of duties, work schedules; modification of physical plant Unless undue hardship Significant difficulty or expense, or which substantially alters nature of the business Engage in interactive process 22 Chapter 2 Page 11

12 Duty to Reasonably Accommodate Is Limited To: The employer s knowledge of an employee s disability His or Her request for an accommodation 23 Duty to Engage in Interactive Process The interactive process duty is shared It is a duty of both the employer and the employee If employer fails to engage in the process, it is a failure to accommodate and a violation of the ADA If the employee fails to cooperate in the process, they lose the ability to sue under the ADA 24 Chapter 2 Page 12

13 Potential Accommodations Modified work schedules Modified work responsibilities Adaptive devices Providing an assistant Temporary light-duty jobs (but not required) Work at home Extended leave Intermittent leave -- But only if accommodation allows the employee to perform the essential functions of his or her job. 25 Not Required as an Accommodation under the ADA To provide the reasonable accommodation the employee requests (as long as accommodation offered by the employer is reasonable and effective) To eliminate the essential functions of the employee s job To create a new position for an employee To allow indefinite leave Reassignment to a new position is questionable 26 Chapter 2 Page 13

14 THERE IS NO DUTY TO REASONABLY ACCOMMODATE AN EMPLOYEE UNDER THE FMLA If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers compensation, the employee has no right to restoration to another position under the FMLA (c) 27 Poor Performance Poor performance does not affect the right to FMLA or ADA leave Performance issues can still be addressed, with continued documentation critical, BUT Past performance does not affect the right to FMLA or ADA leave Absences cannot be the cause, for example: tasks not completed earlier because of absences absences counted as attendance violations 28 Chapter 2 Page 14

15 Termination Employer must be able to show that employee would have been terminated even if he or she has not taken medical leave Generally, reason for termination should occur relatively close in time to termination decision Honest Belief Rule 29 Attendance Policies/Termination Cannot penalize employees for taking leave protected by statute, even under no-fault attendance policy Policies that provide for automatic termination after FMLA leave expires or afteremployeeisoffworkforsetperiod of time are extremely problematic and not encouraged 30 Chapter 2 Page 15

16 Top 10 Ways to Lose An ADA/FMLA Case 10. Automatically terminate under attendance policy 9. Deny leave because of performance issues 8. Require same volume while on reduced work schedule 7. Supervisor not recognizing notice of qualifying leave 6. Terminating employee on FMLA leave because of reorganization triggered by him or her going on leave 31 Top 10 Ways to Lose An ADA/FMLA Case 5. Failing to properly communicate with employee for the interactive process 4. Waiting until on leave to address performance issues 3. Transferring to inappropriate alternative position 2. Denying leave because creates undue hardship 32 Chapter 2 Page 16

17 Top 10 Ways To Lose An ADA/FMLA Case 1. Making biased comments: o o o o o You re going to leave at the worst possible time Cannot count on her, she s always absent How are we going to get work done while you are gone I wouldn t recommend her for promotionwe ve had to spend too much time and money covering for her absences I m not sure she is really that disabled 33 Chapter 2 Page 17

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