TMHRA Annual Conference May 3-5, 2017

Transcription

1 TMHRA Annual Conference May 3-5,

2 Complicated Leave Issues: Leave under FMLA and as a Reasonable Accommodation under ADA Presented by: Julie B. Ross Direct Ross@Laborcounsel.net 2

3 Which of the following federal laws cover employee medical leaves? The Family Medical Leave Act (FMLA) The Americans with Disabilities Act (ADA) 3

4 Overlap Between FMLA & ADA Under expanded ADAAA, an employee with a serious health condition under FMLA is likely to have an ADA-protected disability. 4

5 Differences between FMLA & ADA: Covered Employers: FMLA 50 employees; ADA 15 employees Waiting Period: FMLA 12 months; ADA - no waiting period Medical Condition: FMLA serious health condition ; ADA disability Who is covered: FMLA leave for employee, spouse, child & parent; ADA - covers employee Length of Absence: FMLA -12 weeks of leave; ADA - reasonable accommodation Resulting Hardship: FMLA too bad!; ADA no duty to provide if undue hardship Light Duty: FMLA - employee can decline light duty assignment under FMLA; ADA light duty or job reassignment may be a reasonable accommodation 5

6 What Happens if No FMLA or if 12 Weeks of FMLA Runs Out? Additional leave may be a reasonable accommodation under ADA if it: Enables employee to return to work & perform essential job functions, and Does not cause employee undue hardship 6

7 Duty of Reasonable Accommodation under ADA Absent undue hardship, employer must provide reasonable accommodation to an otherwise qualified individual with a disability When employee requests accommodation & need is not obvious, employer may request documentation. Recommend written policy for Requesting an Accommodation under the ADA. 7

8 Leave as a Reasonable Accommodation under the ADA Always consider leave as a possible accommodation Watch out for: Blanket/inflexible leave policies Return to work policies that require full medical release or no restrictions or 100% healed Policies limiting light duty assignments to on-the-job injuries EEOC is taking a very aggressive position 8

9 EEOC s New Resource Document: Employer Provided Leave and the ADA Issued May 9, 2016 EEOC is troubled by pervasiveness of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation Document does not contain any new EEOC policy or position, but reiterates EEOC s position on leave as a reasonable accommodation under ADA Reasonable accommodation can include making modifications to existing leave policies and providing leave, even when employer does not provide leave to other employees Reasonable accommodation does not mean employers must provide paid leave beyond what is set out in its paid leave policies 9

10 EEOC s New Resource Document: Employer Provided Leave and the ADA Employers may consider the following to determine undue hardship: Amount and/or length of leave required Frequency of the leave Whether there is any flexibility with respect to the days on which leave is taken Whether need for intermittent leave on specific days is predictable or unpredictable Impact of absence on coworkers & whether specific job duties are being performed in an appropriate & timely manner Impact on employer s operations & its ability to serve customers timely and appropriately, which takes into account, for example, the employer s size 10

11 EEOC s New Resource Document: Employer Provided Leave and the ADA How much leave is enough? What about return to work date that keeps getting extended? 11

12 Lowe s Settles Leave Lawsuit for $8.6m EEOC Press Release (May 13, 2016) EEOC sued Lowes alleging pattern and practice of discrimination against disabled employees for failing to provide leave as reasonable accommodation Lowes had 180-day (later increased to 240-day) maximum leave policy "This settlement sends a clear message to employers that policies that limit the amount of leave may violate the ADA when they call for the automatic firing of employees with a disability after they reach a rigid, inflexible leave limit," said EEOC General Counsel David Lopez. "We hope that our efforts here will encourage employers to voluntarily comply with the ADA." 12

13 Fixed Leave Policy Costs Employer $1.35 Million Employer paid to settle lawsuit brought by EEOC. EEOC alleged fixed leave policy, that limited leave to maximum of 12 weeks, failed to consider leave as reasonable accommodation. EEOC v. Princeton HealthCare System, No. 3:10-cv (D.N.J., June 26, 2014). 13

14 Employer Cannot Rely on Maximum Leave Policy Without First Considering if Reasonable Accommodation, Such as Extending Leave, is Appropriate Employer failed to conduct individualized analysis to determine if additional leave reasonable. Employee wins, despite post-termination evidence showing employee still unable to return to work at time of trial. Casteel v. Charter Communications, Inc. (W.D. Wash., Oct. 23, 2014). 14

15 Is Attendance an Essential Job Function? EEOC says No, but many courts disagree 5 th Circuit has held that regular attendance is essential function of many jobs Individualized assessment required This is a hotly litigated topic 15

16 6 th Circuit Says Indefinite Intermittent Leave is Not a Reasonable Accommodation. Employee needed 8 12 weeks off every 1 to 2 months to deal with complications from lupus. Court held that employee, who could not attend work regularly, is not qualified under the ADA. Boileau v. Capital Bank Financial Corp (6th Cir. April 25, 2016). 16

17 Inflexible Six-Month Leave Policy Is Virtually Always More Than Sufficient & Is Not Discriminatory Despite EEOC s position to the contrary, 10 th Circuit holds accommodations are about enabling employees to work, not to not work and difficult to conceive how employee s six month absence could be consistent with discharging essential functions of most jobs. Hwang v. Kansas State University (10 th Cir. May 29, 2014). 17

18 ADA Allows Employer to Require Firm Return-to-Work Date. After FMLA exhausted, court reporter with blood clots in lung and brain requested three more weeks of leave, then another three more weeks of leave, because doctors still uncertain as to cause of clots. Return did not appear to be on the horizon and temporary replacement caused extra work for other employees. Court found for employer. Where employer has already provided an employee with a lengthy period of medical leave, an extension to that leave can be a reasonable accommodation only when its duration is definite. Maat v. County of Ottawa (6 th Cir. Aug.10, 2016). 18

19 Extended Leave & Multiple Daily Work Breaks NOT Reasonable Because Regular Attendance is Essential Job Function. CSR suffering from depression and anxiety attacks asked for flexible start time, multiple breaks throughout day (to calm down after stressful calls), and extended leave of absence for treatment. AT&T denied requests, and employee sued for ADA discrimination and failure to accommodate. Court ruled for employer, holding regular in-person attendance is an essential function of most jobs especially the interactive ones and prior leaves failed to improve employee s condition. Williams v. AT&T Mobility Services (6 th Cir. Jan. 27, 2017). 19

20 Telecommuting NOT Reasonable Accommodation if In-Person Attendance is Essential Job Function Employee with hypothyroidism, depression, and migraines had many unscheduled absences. After exhausting FMLA leave, employee requested late start time and telecommuting. Because job required regular participation in interactive, on-site meetings during normal business hours, requested accommodations not reasonable. Doak v. Johnson (D.C. Cir. 2015). 20

21 Courts more likely to find regular, predictable attendance to be essential job function if: Job requires specialization or creates other circumstances where it is difficult to replace employee Job requires performance at place of employment Employment tasks are time sensitive Performance requires teamwork Work is critical, and failure to be present adversely affects others Number of available employees to cover absences is limited Employer has strictly enforced its attendance policy, i.e., consistently treats attendance as essential job function. 21

22 Leave as a Reasonable Accommodation - Best Practices to Avoid Potential Liability and ADA Lawsuits: Perform individualized analysis in each case Engage in interactive process & focus on interactive dialogue with employees Focus on reasonableness of accommodation & undue hardship, not disability Train supervisors to recognize accommodation requests & respond appropriately Review job descriptions make sure they are accurate, up-to-date, and include regular & timely attendance as an essential job function 22

23 Leave as a Reasonable Accommodation - Best Practices to Avoid Potential Liability and ADA Lawsuits: (con t) Always consider extension of leave as a reasonable accommodation & provide time off unless undue hardship Document undue hardship, e.g., significant loss in productivity if work must be done by less effective, temporary workers, last minute substitutes, or overburdened coworkers; lower quality and less accountability for quality; lost sales; less responsive customer service and increased customer dissatisfaction; deferred projects; increased burden on management staff; increased stress on overburdened coworkers; and, lower morale. Revise policies/practices that require full release or no restrictions before employees can return to work 23

24 Leave as a Reasonable Accommodation - Best Practices to Avoid Potential Liability and ADA Lawsuits: (con t) Include saving language in long-term absence policy, e.g., exceptions will be made to this policy as necessary to comply with applicable law, including the ADA. Update form letters to employees at or near end of approved leave Create protocols & formalize process for dealing with accommodation requests Inject flexibility into policies and practices Indefinite leave is not reasonable Document what you did/didn t do & why 24

25 FMLA Basics: Benefits of FMLA 12 weeks of job protected leave can t give discipline or other adverse action Same or equivalent job upon return not required under ADA, but.... Continuation of group health insurance not required under ADA Unpaid, but most employers require unpaid FMLA to run concurrently with paid leave (such as vacation, personal, and sick leave). Also make sure FMLA runs concurrently with workers comp leave 25

26 FMLA Basics: Eligibility 50 or more employees, within 75 miles 12 months of employment and 1,250 hours (include OT) during 12 months before start of leave Not already taken 12 or more weeks leave within previous 12 month period Employee must provide 30-days notice if foreseeable; otherwise, as soon as practicable 26

27 FMLA Basics: Covered Absences Employee s own serious health condition (SHC) (if prevents him/her from working) To care for a spouse, child, or parent with a SHC Incapacity due to pregnancy, prenatal medical care, or child birth To care for the employee s child after birth, or placement for adoption or foster care (must conclude within 12 months of the birth/placement) Military family leave 27

28 Why is it critical for employers to care if an absence is FMLA qualifying? Ability to address attendance issues FMLA qualifying absences are protected even if not designated as FMLA To prohibit protected absences of indefinite duration To comply with law 28

29 Does employee have choice to not designate absence as FMLA? Employer may place employee on FMLA leave if absence due to a SHC Have & enforce consistent policy: If absence is FMLA-qualifying, then designate as FMLA It is not employee s choice 29

30 I Was Under Doctor s Orders To Go Fishing. Employee caught participating in numerous out-of-town pro-fishing tournaments while on paid FMLA claimed doctor ordered him to fish to reduce stress. Doctor said, You ve got to find a happy place in your life. NBC Chicago and Better Government Association Investigation (published Feb. 12, 2014). 30

31 I m Sick Not Enough to Invoke FMLA The only information available to the employer when it fired Phillips was the fact she called in sick and went to the health center. Phillips v. Quebecor World Rai, Inc. 31

32 Designation of FMLA Leave When Employee Refuses to Provide Certification If employer has sufficient information to designate leave as FMLA immediately after receiving notice of employee s need for leave, employer may provide employee with designation notice at that time (d)(2). While a medical certification is not required to designate absence as FMLA, it is advisable to have a policy, applied consistently, requiring certification. Refusal can be insubordination, and employer might consider having policy that makes employee ineligible for paid leave benefits for the absence. 32

33 FMLA: Discipline v. Recertification If employee s absences exceed the frequency or duration set out an FMLA certification, employer should request recertification rather than assume leave is unexcused. Hansen v. Fincantieri Marine Group, LLC (E.D. Wis. June 14, 2013). 33

34 Employee can be required to provide fitness-for-duty certification before returning to work if FMLA leave due to employee s own SHC, but only if advance notice given to employee Must specifically address employee s ability to perform essential job functions set out in Designation Notice (or in attached job description), but limited to health condition that caused FMLA leave Employee responsible for costs & not paid for time or travel costs HR (not supervisor) may contact health care provider (HCP) to clarify/authenticate, but can t delay employee s return to work while contacting HCP FMLA: Fitness-for-Duty/Return to Work Certification 34

35 Can t require for each intermittent absence, but can require once every 30 days if reasonable safety concerns (i.e., a reasonable belief of significant risk of harm to the employee or others) exist If employee fails to timely provide, not allowed to return to work If employee fails to provide at all & fails to request additional FMLA leave, then no longer entitled to reinstatement & may be terminated Don t forget option of requiring fitness-for-duty exam under ADA; employers have much more leeway under ADA than under FMLA FMLA: Fitness-for-Duty/Return to Work Certification (con t) 35

36 Intermittent FMLA Leave FMLA grants eligible employees the right to be absent from work on an "intermittent" basis, that is, leave taken in separate periods of time because of a single illness, rather than one continuous period of time. FMLA can be taken in small chunks of time if: Medically necessary Because of a qualifying exigency For planned medical treatment, or As otherwise approved by employer Certification must set out reasons for & schedule of intermittent leave; if unforeseeable, then an estimate of the frequency & duration of absences. Can t require employee to bring doctor note for each intermittent FMLA absence. Intermittent leave under ADA may not pose undue hardship 36

37 Intermittent Leave - It not only covers migraines, it causes them! No undue hardship defense under FMLA! 37

38 Employee Must Comply with Employer s Call-In Procedures Employee must comply with employer s normal call-in procedures for reporting absences, tardies and requesting leave, e.g., contacting a specific supervisor by a certain time. Notice may be given by employee s spokesperson only if employee physically unable to do so personally. If employee does not comply with call-in procedures & no unusual circumstances justify, FMLA-protected leave (& paid time off) may be delayed/denied. Employee is also subject to discipline. 38

39 Use Caution When Communicating with Employees on FMLA Employee took intermittent leave for severe depression. Her supervisor reacted negatively. He told her she needed to be at work, questioned if she was really sick because he couldn t see anything wrong with her, threatened to fire her if she kept using FMLA, and fired her for minor rule violations. Hite v. Vermeer Manufacturing. 39

40 Use Caution When Communicating with Employees on ADA Leave An employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although employer may reach out to employer on extended leave to check on the employee s progress. EEOC s New Resource Document: Employer Provided Leave and the Americans with Disabilities Act 40

41 FMLA: Caution to Supervisors Simply discouraging FMLA leave is a violation of FMLA regulations. Examples of discouraging acts by supervisors: Pressuring an employee to take leave at another time Suggesting that employee work from home instead of taking leave, or Suggesting employee ask other family members to help out 41

42 Supervisors Don t Make Negative Comments About FMLA Absences Use of FMLA noted negatively in performance reviews & salary discussions, together with sudden, downward change in performance evaluation means case goes to jury. Goelzer v. Sheboygan County, Wis. (7 th Cir. 2010). 42

43 Don t Bug Me I m on FMLA Excessive Job-Related Calls to Employee Violates FMLA. Reasonable amounts of contact between an employer and employee during FMLA leave, e.g., getting passwords, determining status of pending projects, & identifying others who can fill in during absence, are acceptable, but too much is a violation of FMLA. Vess v. Scott Medical Corp. (N.D. Ohio, March 15, 2013). 43

44 DOL Issued New FMLA Guidance: The Employer s Guide to the FMLA Issued April 25, 2016 (75 pages) Four years earlier, DOL issued Employee s Guide to the FMLA According to DOL, Guide is designed to provide essential information about the FMLA, including information about employers obligations under the FMLA Leaves many unanswered questions but does provide helpful information 44

45 This is not legal advice; please contact your labor and employment attorney regarding your situation. Thank you Julie B. Ross 306 WEST BROADWAY AVENUE FORT WORTH, TEXAS MAIN/ FAX LABORCOUNSEL.NET 45