Complex Leave Issues: Intersection of the FMLA and the ADA Presented by Penny C. Wofford February 20, 2018. 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ogletree.com
Leavolution! ADA FMLA Company Policies
Making Sense Of Leaves
ADA & FMLA Interplay Employee cites his/her own impairment and a barrier in the workplace or wants leave
The FMLA Is Law granting an employee the right to take leave for qualifying conditions without the leave counting against them
No Undue Hardship When Medically Necessary No Undue Hardship Defense No interference No changing schedules No removing essential functions
ADA A law that requires employers to offer reasonable accommodation to qualified individuals with a disability Accommodation = modifications to the workplace or policies that remove barriers This can include leave
The FMLA vs. The ADA vs.
The FMLA Exact amount of leave Concurrently exhausts with almost everything (very promiscuous) Has Eligibility criteria Very precise medical questions that can be asked Strict rules on when you can make medical inquiries and when you can ask for fitness for duty Employee favorable rules on how long they have to return medical information Doesn t care about you at all Maintenance of health benefits The ADA Not Exact at all (In fact, maddeningly inexact) By rule, forces you to exhaust everything else, and then it runs by itself. Everyone is eligible (no wait period) You are entitled to what you need You are entitled to what you need under the circumstances Loosey-Goosy Cares about everything (including you) Just follow your plan
Why is the ADA such a big deal now? Congress changed the definition of disability in 2009 Makes it easier to have a disability Impairment (something outside the norm) Substantially limiting (means sort of limits) A major life activity (really broad if humans do it, it is probably a major life activity) So, significantly more people are covered Temporary Conditions Pregnancy
Leave Process Leave Entitlement under Policies FMLA if Eligible Hopefully Concurrent ADA
ADA Process Accommodation within Job Grant Leave if Effective Consider for Open Positions Termination
ADA & Leave Process Merged Accommodation within Job Consider Company Leave and FMLA Grant ADA Leave if Effective Consider for Open Positions Termination
Within each tier collecting data and asking these questions Is there an accommodation? If there is one (or more) are any reasonable? Will any cause an undue hardship? If no accommodation within that tier, go to the next tier
Usually, An employee must ask for an accommodation What does an ask look like? Says they are disabled and need an accommodation Employee cites an impairment causing a challenge to performing job Other requests for accommodation Employee asks for leave, citing an impairment Employee brings in a return to work note with restrictions
Interactive Process Do they have a disability? (Doctor) What are their restrictions and needs? (Doctor) How long will they have these restrictions/needs? (Doctor) Enough information to determine Whether there is an accommodation Whether there are any reasonable accommodations Whether granting the accommodation will result in a hardship Whether employee will pose a significant risk
Interactive Process
Interactive Process
Leave Leave can be intermittent or block Light Duty EEOC s position, must offer light duty to disabled and pregnant employees and not just hold for those on workers compensation
Leave as an Accommodation? Leave = job protected leave Finite Leave policies unlawful Must exhaust all applicable job protected leaves before we consider it Leave you give to anyone is not an accommodation... Accommodation means something more What have you done for me lately? Law doesn t care about how much leave you have already given
Three questions when considering leave as an accommodation Would it be an accommodation? Accommodation means Effective If I grant you this leave, will it be effective in returning you to your job, permitting you to perform all essential functions? Temporary Restrictions vs Permanent Restrictions Indefinite
Is it reasonable? High C o n f i d e n c e Additional Length of Leave Needed Pulling teeth to get doctors to tell us when the employee will be able to return, and how confident they are with that date Long
Undue Hardship? Can the job wait? If not... How are you going to get it done? Temporary Labor Did anyone even look? Non-exempt Labor Exempt Labor Cost to getting it done (Net) What will it cost, minus what we save If extra cost, what is impact on budget? What are the consequences of not meeting budget?
Vacant Position Concepts Vacant positions what does that mean? No discrimination = Reasonable accommodation Reasonable accommodation includes reassignment Reassignment is a last resort No promotion required No red-circling pay required No inferior job, if comparable job vacant Employee must be qualified Employee must comply with company prerequisites
Employee Benefits Follow terms of plan Communicate Premium payments When due Where to send Amount Option to waive coverage Termination of coverage
Questions Penny C. Wofford penny.wofford@ogletree.com 864-240-5679