Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

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1 Presenting a live 90-minute webinar with interactive Q&A Employee Leave Under FMLA, ADA and Workers' Comp: Navigating Overlapping and Conflicting Leave Laws Avoiding Pitfalls With Accommodation, Retaliation/Discrimination; Handling Light Duty, Company Policy Violations and Discipline WEDNESDAY, APRIL 18, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Neil A. Capobianco, Partner, Dentons, New York Matthew U. Scherer, Esq., Littler Mendelson, Portland, Ore. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

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3 Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you that you will receive immediately following the program. For additional information about continuing education, call us at ext. 2.

4 Presenting a live 90-minute webinar with interactive Q&A Employee Leave Under FMLA, ADA and Workers' Comp: Navigating Overlapping and Conflicting Leave Laws Avoiding Pitfalls With Accommodation, Retaliation/Discrimination; Handling Light Duty, Company Policy Violations and Discipline WEDNESDAY, APRIL 18, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Neil A. Capobianco, Partner, Dentons US LLP, New York Matthew U. Scherer, Esq., Littler Mendelson, Portland, Ore. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

5 Employee Leave Under the FMLA, ADA and Workers Compensation Law Neil A. Capobianco, Esq. Dentons US LLP 1221 Avenue of the Americas New York, New York (212) Matthew U. Scherer Littler Mendelson P.C. 121 SW Morrison Street, Suite 900 Portland, OR (503)

6 American with Disabilities Act Overview Prohibits discrimination against a QID qualified individual with a disability. Reasonable accommodation may include: other accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. (EEOC Interpretive Guidance to 29 C.F.R (o)). Employer has obligation to engage in interactive process if it suspects that an employee has a disability and may require a reasonable accommodation ADA prohibits both disability inquiry and medical exam unless inquiry or exam is shown to be job-related and consistent with business necessity. (29 U.S.C (d)(4)(A), 12112(d)(4)(A)). ADA prohibits retaliation against individual for requesting a reasonable accommodation or complaining about discrimination. 6

7 State Workers Compensation Law Overview Covers all accidents and injuries that arise out of or in the course of employment employee is entitled to any benefits to which eligible under state or company s short-term or long-term disability programs; Pays medical benefits and wage replacement benefits. Medical benefits continue as long as employee needs treatment arising out of work-related injury. Wage replacement benefits continue as long as employee is unable to work. Employee loses wage replacement benefits if employer offers employee a position (e.g. light duty). Employer entitled to medical records & can compel IME. All disputes/settlements require approval of specialized state agency. Retaliation against claimants is prohibited. 7

8 Family and Medical Leave Act Overview Applies to Employees with 12 months & 1,250 hours. Covers birth/adoption of child, employee s own serious health condition, or serious health condition of employee s spouse, daughter, or parent. Entitles employee up to 12 weeks of leave for entire 12 weeks (birth/adoption) or for duration of serious health condition. FMLA Certification only. Prohibits retaliation against any employee for: requesting or taking FMLA leave; opposing any unlawful FMLA practice; filing an FMLA complaint; or providing information or testimony in connection with any FMLA case (29 U.S.C. 2615). 8

9 Interaction Between FMLA and Worker s Compensation If an employee is out for an FMLA-qualifying reason, the employer should designate the time off as FMLA leave, including: worker s compensation leave; disability leave; or time off for medical treatment. If employee is out of workers compensation, employer may: designate all time off as FMLA leave (assuming it constitutes a serious health condition); inform employee that termination of employment will occur if employee is unable to return to work by end of 12 weeks; offer employee a light duty position (within doctor s restrictions) and if employee refuses, stop wage-replacement benefits; if employee refuses light duty position, FMLA leaves continues for up to 12 weeks; 9

10 Interaction Between FMLA and Worker s Compensation employer (or insurance carrier) is entitled to all relevant medical records, IME, and doctor s FMLA certification; if employee is unable to return at end of 12 weeks of FMLA leave, employer may terminate employee s employment: no right to reinstatement of employment (employee must re-apply for employment); ending employer-provided health coverage, unless employee elects COBRA at own expense. if employment is terminated at end of 12 weeks of FMLA leave: employee is entitled to worker s compensation medical benefits and wage replacement benefit as long as unable to work and ongoing treatment needed; all benefits and rights are governed by workers compensation law; 10

11 Interaction Between FMLA and ADA If employee with an ADA disability is out for an FMLA-qualifying reason, the employer should designate the time off as FMLA leave. If employee is out in connection with an ADA disability, employer may: designate all time off as FMLA leave (assuming it constitutes a serious health condition); inform employee that termination of employment will occur if employee is unable to return to work by end of 12 weeks; no obligation to offer a light duty position (unless policy provides otherwise); 11

12 Interaction Between FMLA and ADA Employer must consider possible reasonable accommodations, including: additional leave (possibly even beyond 12-week FMLA limit); alterations to workspace; modified schedule; modified workplace policies; reassignment to a vacant position (only when accommodation to current position would pose an undue hardship); Employer must engage in interactive process to determine what accommodation(s) will allow employee to perform essential functions of job If multiple accommodations would allow employee to perform essential functions, employer may choose which accommodation to implement 12

13 Interaction Between FMLA and ADA Employee may qualify for short-term disability or long-term disability under Company programs if unable to work as long as disability commenced at a time when employee was actively employed. Employer is not entitled to any information about the reasons for the leave, except: Doctor s FMLA certification; Additional information about the ADA disability if the employee requests a reasonable accommodation. Employment termination may occur if: Employee is unable to return at end of 12 weeks of FMLA leave; Reasonable accommodation will not allow the employee to perform the essential functions of positions; and Consideration is given to extending the employee s leave for a reasonable additional period of time. 13

14 Interaction Between FMLA and ADA If employment is terminated at end of 12 weeks of FMLA leave: employee is entitled to any benefits to which eligible under state or company s short-term or long-term disability programs; employee has no right to reinstatement (must re-apply); and employer-provided health coverage and other benefits end, unless continuation or conversion is offered and elected. 14

15 Keys to a Successful Light Duty Program Clearly written policy explaining who is eligible. Historically, only employees out on workers compensation were eligible for light duty, but US Supreme Court nixed that in Young v. UPS (2015). Emphasize that program is transitional to help employee transition back to former full-time position. Clear time limits establishing how long an employee can continue in a light duty position. Place employees in useful light duty positions only and insist that the functions of that position be performed. Communicate specific functions and expectations of light duty position and maximum duration in writing to employee before the light duty assignment begins. 15

16 Keys to Successful FMLA Termination Program Written policy with a bright light test establishing when termination occurs that is consistently and uniformly applied. Cover letter to Employer s Response to FMLA Request that clearly explains that if employee is unable to return to work after exhausting 12 weeks of leave, employment will be terminated. Warning letter to employee 3-4 weeks before 12 weeks are exhausted explaining the date by which employee must return to work or employment will be terminated. Clearly written policy explaining what leave will be offered to employees who do not satisfy 1 year and 1,250 hours requirement (e.g., prorate 12 weeks). Termination letter to employee upon exhaustion of 12 weeks should explain that employee is eligible to re-apply for employment. 16

17 Keys to Successful FMLA Termination Program Don t forget about ADA compliance If employee s SHC would qualify as a disability under the ADA, employer has obligation to engage in interactive process to determine whether employee could return to work with an accommodation which may include additional leave beyond 12-week FMLA limit Except for reasonable accommodation, do not make any exceptions to policy because: employee is exceptional or long-term; employee s reason for leave evokes sympathy; employee is high-ranking (key employee provisions may apply); and employee needs employer-provided health or other benefits. 17

18 What are the litigation risks? FMLA retaliation claim. ADA or ADA retaliation claim. Worker s compensation retaliation claim. Federal or state discrimination claims. 18

19 Paid Sick Leave Statewide laws passed in 11 states (AZ, CA, CT, DC, MA, MD, NJ, OR, RI, VT, WA HI also close to enacting one) Also ordinances in Austin, Chicago, Minneapolis/St. Paul, NYC, Philadelphia Collectively cover almost one-third of American workers, and rising each year Covered uses Medical: Diagnosis, treatment, or recovery from minor illnesses for EEs and immediate family members; or preventative care Safe time for victims of domestic violence, sexual assault, or stalking Employers typically CANNOT require verification for employee absences and CANNOT require advance notice/supervisory approval Most laws only permit employers to ask for documentation if absence is 3+ consecutive workdays 19

20 Paid Sick Leave Employers can roll sick time into broader Paid Time Off policies, but structuring those policies to comply with all sick leave requirements can be tricky Amount Typically 1 hour of sick time accrues per 30 hours worked Some states allow sick time to be front-loaded at beginning of each year Laws generally permit employers to cap accrual, carry-over, and/or use Accrual: Cap on total amount of sick time employees can have in leave bank Carry-over: Cap on how much unused PST can be carried over into next year Use: Cap on how much sick time an employee can use in one year Usually starts accruing immediately after employment begins, and must be made available for use after 90 days of employment 20

21 Paid Sick Leave Generally cannot require employees to use PST in increments greater than 1hr Rate of pay is typically employee s regular rate, but laws split on whether supplemental sources of wage income (lost tips, commissions, etc) are included 21

22 Paid Sick Leave California NYC Washington (State) Employee Threshold 1 employee 5 employees (paid) 1 employee (unpaid) Accrual Rate Accrual: 1:30 Front-load: 3 days/24 hrs Accrual: 1:30 Front-load: 40 hrs 1 employee Accrual: 1:40 Front-load: N/A Annual Use Cap N/A 40 hours Not permitted Annual Accrual Cap Greater of 3 days or 24 hrs 40 hours Not permitted Maximum accrual cap Carry-over New hires Greater of 6 days or 48 hrs (N/A if front-loading) Accrual: 6 days Front-load: N/A Accrual: Accrue immediately, use after 90 days Front-load: 120 days 40 hours (N/A if front-loading) 40 hours 5 days Accrue immediately, use after 120 days Minimum increments 2 hours Lesser of 1 hour or smallest increment for which pay is tracked Not permitted Accrue immediately, use after 90 days Lesser of 1 hour or smallest increment for which pay is tracked 22

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