Effectively Managing Leave Under the FMLA and ADA

Transcription

1 Effectively Managing Leave Under the FMLA and ADA Manesh K. Rath 1001 G Street NW, Ste. 500W Washington, D.C (202) Rath@khlaw.com 2011

2 FMLA Reasons for Leave For the birth/care of a child or newborn For the adoption/foster care of a child or care for newly placed child To care for an immediate family member with a serious health condition When the employee is unable to work because of a serious health condition 2011

3 FMLA: Serious Health Condition An illness, injury, impairment or physical or mental condition that involves: Any period of incapacity or treatment connected with inpatient care in a hospital, hospice or residential medical care facility A period of incapacity requiring absence of more than three calendar days from work plus two visits to a health care provider in 30 days or one requiring ongoing treatment. First must take place w/in 7 days of first day of incapacity (revised regs) 2011

4 Cont d: Serious Health Condition Incapacity due to pregnancy or for prenatal care Any period of incapacity due to a chronic serious health condition (plus periodic visits, 2/year) A period of incapacity that is permanent or longterm due to a condition for which treatment may not be effective. Any absences to receive multiple treatments by a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated 2011

5 FMLA: DOL Medical Certification Employer may require certification by health care provider Employer may require a second opinion or third opinion, if first two differ (at its own expense) NEW FORMS: one for employee, family Employer must request certification w/in 5 days Employee has 15 days to return form If form is deficient, employee must advise employee in writing and allow an additional 7 days. Employer may contact health care provider directly to authenticate 2011

6 FMLA: Recertification Employer may request recertification every 30 days after the period provided for in the original certification. For intermittent leave, employers may request recertification every 6 months regardless of the length provided in first form. If an employee s need for leave extends beyond a single 12 month period, then an employer may require a new medical certification form every successive year of leave. 2011

7 FMLA: Fitness For Return To Duty Certification Employers are no longer allowed to announce this requirement just as an employee is about to return to work. Employers will only be allowed to require this certification if the employee was notified at the time that the employer designated the leave as FMLAqualifying. The same limit applies to asking a health care provider to verify if the employee can perform the essential functions of the job. 2011

8 Common FMLA Question: When Does Employer Have Notice That Leave Qualifies Under FMLA? Supervisor may know of condition, but decision maker may not, when disciplining or terminating worker Employer may know of condition, but not seriousness Employees required to follow employer s specific notice procedures. Employer call-in procedures may require specific reason for absence, whether a doctor s visit is scheduled, etc. If an employee is seeking leave for the same reason that the employer has previously qualifed under the FMLA, then the employee must specifically reference the same qualifying reason or the need for FMLA leave. 2011

9 Call In Requirements An employer may require an employee: if an employee is on sick leave for an indefinite period, to call in her absence every day. to specifically reference the qualifying reason for leave to reference a reason that has previously been approved for FMLA purposes to report periodically on her status and intent to return to work. Any such policies must be applied without regard to FMLA status 2011

10 ADA: Leave As Reasonable Accommodation? June 8, 2011, U.S. EEOC hearing: Addressed the issue of leave as a reasonable ADA accommodation even after an employee has exhausted all of his FMLA/other leave. EEOC litigation against employers with a policy of automatic termination if absent for a set period of time Sears had a 12 mo. policy. Sears settled for $6.2 M EEOC: Employer policy must allow for an individualized assessment; cannot be automatic EEOC: undue hardship may exist in cases with high frequency absences, often without advance notice EEOC: Truly indefinite leave, not even a range of dates, can create an undue hardship. 2011

11 Solutions: No-fault Absentee Program? EEOC opines that no-fault absence programs that do not provide for reasonable accommodations violate the ADA Set limit of unscheduled absences. Progressive disciplinary actions after use of allotted days Disregard the reason for absence. Allow reasonable accommodation for absences that are caused by protected disability undue hardship cannot be based solely on the existence of a no-fault leave policy But the employer may be able to show undue hardship based on an individualized assessment showing the disruption to the employer's operations if additional leave is granted beyond the period allowed 2011

12 Solutions: Know Your Laws Training Managers Re: Recordkeeping 2011

13 Solutions: Recordkeeping Keep accurate attendance record. Record: A. The reason for the absence B. The number of days requested C. Whether the employee followed the correct procedure for notifying the employer D. Notices given to employee, including whether a cert for return to duty will be expected 2011

14 Solutions: Positive v. Negative? Studies show reward systems are typically more effective than discipline However, cash rewards can be ineffective with excessively absent employees, because time away is, for some, more valuable than money Discipline failures to use proper call in procedures Discipline excessive absences that are not premises upon protected reasons 2011

15 Title Here Text Here Manesh K. Rath QUESTIONS? Please Fe Free To Contact U Any Time With Further Question Keller and Heckman

16 THANK YOU! MANESH K. RATH KELLER AND HECKMAN LLP 1001 G STREET, NW, STE. 500 WASHINGTON, DC (202) RATH@KHLAW.COM 2011