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| Date post: | 28-Oct-2014 |
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FMLA/ADA 101What Every Manager Needs to Know
About
1. President/Owner, HR Luminary, LLC
2. HR Generalist, SPHR Certified
3. Over 25 years experience in Human Resources in the private sector
4. Member of SHRM, both national and local
5. BSBA from Arizona State University4
Intent of Webinar
1. Inform/educate HR professionals on the legal consequences surrounding FMLA and ADA.
2. Focus on the important role of HR professionals to manage FMLA and ADA related issues and their understanding of laws, policies and practices to ensure compliance.
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Learning Objectives
1. Understand the basic intent of the FMLA law and the primary purpose of the ADA.
2. Know who are qualified individuals and when to designate leave as FMLA.
3. Know how to communicate policies and insure that employees are adequately informed.
4. Understand key ADA concepts, such as reasonable accommodation, essential function and qualified individuals with a disability
5. Understand the ADA Amendments Act of 2008 (ADAAA)
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Learning Objectives
6. Know what is and is not allowed under each act.
7. Understand the basic interplay between FMLA/ADA/Worker’s Compensation/Disability
HRCI has approved this program
for 1.25 General Recertification
credits for PHR, SPHR and/or GPHR
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Family and Medical Leave Act 1993
• Allows employees to balance their work and family life due to certain family and medical reasons.
• Provided for in a manner that accommodates the legitimate interests of employers.
• Minimizes the potential for employment discrimination on the basis of gender.
• Promotes equal employment opportunity for men and women.
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Family and Medical Leave Act
• FMLA requires employers to grant eligible employees a maximum of 12 work weeks of unpaid, job protected leave during a 12 month period.
• This applies to all companies engaged in commerce where at least 50 employees are employed at the location, or within 75 miles of the location.
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Who is Eligible?
• Full and part time employee who have worked for the employer for at least 12 months (does not have to be 12 continuous or consecutive months)
• Employee must have worked at least 1,250 hours during the 12 months prior to the start of the qualified leave.
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What does FMLA Cover?
FMLA allows employees to take up to 12 workweeks of unpaid, job protected leave during a designated 12 month period in the following cases:
For incapacity due to pregnancy, prenatal medical care, or childbirth
To care for the employee’s child after birth or placement for adoption or foster care
To care for the employee’s spouse, son or daughter, or parent who has a serious health condition
For a serious health condition that makes the employee unable to perform his or her job.
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What doesn’t FMLA Cover?
The law does not cover:
• In-laws• Grandparents• Aunts• Uncles • Siblings• Cousins• Children over the age of 18 (with exceptions)• Unmarried domestic partners
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Serious Health Condition“Serious Health Condition” – illness, injury, impairment, or physical or mental condition:
• Health condition lasting more than three consecutive days, requiring continuing treatment (e.g., hospitalization), plus two visits
• Any period of incapacity due to pregnancy or prenatal care
• Any period of incapacity due to a chronic, serious health condition that continues over an extended period of time and requires visits to a health care provider
• A permanent or long term condition for which treatment may not be effective, requiring supervision by a health care professional (e.g. terminal cancer)
• Any absences to receive multiple treatments for restorative surgery or for a condition resulting in a period of incapacity of more than three days if left untreated, such as chemotherapy or radiation treatments.
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Serious Health ConditionIn January 2009, DOL issued a new set of regulations to clarify one of the definitions.
Original definition of Serious Health Condition:A health condition lasting more than 3 consecutive days requiring continuing treatment, (such as hospitalization), plus 2 visits to a health-care provider or 1 visit to a h/c provider plus continuing treatment.
Amendment:The first health-care provider visit must occur within 7 days of the first day of incapacity. Where applicable, the two visits must occur within 30 days of the beginning of the period of incapacity.
In addition, for chronic serious health conditions, the employee must visit a health-care professional at least twice/year.
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What is A Serious Health Condition
• Heart Conditions/Strokes• Back Injuries• Injuries caused by accidents• Pregnancy and related conditions (miscarriages, morning sickness)
• Cancer• Asthma• Pneumonia• Diabetes• Epilepsy• Serious Infections• Alzheimer’s Disease• Arthritis
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What is Protected
• The employee is entitled to be restored to the same or equivalent position with equivalent benefits, pay, other terms/conditions of employment
• New position must involve the same or substantially similar duties and responsibilities, skill requirement, responsibility and authority
• Attendance based awards must not consider FMLA based absences
• Company cannot take negative action toward employee, such as hiring, promotions, or disciplinary action
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FMLA Expansion
On January 28, 2008, George W. Bush signed into law the National Defense Authorization Act, creating two new qualifying events:
• Qualified Exigency Leave
• Military Caregiver Leave
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Qualified Exigency Leave
Qualified Exigency Leave - Provides up to 12 workweeks of FMLA due to a spouse, son, daughter or parent being on covered active duty or having been notified of an impending call or order to covered active duty in the armed forces.
Covered Active Duty • For members of regular component of armed forces (army, navy,
marines, etc.) – duty during deployment to a foreign country• For members of the reserves – duty during deployment to a
foreign country under a call or order to active duty in a contingency operation
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Qualified Exigency Leave
Qualifying events as defined by DOL in 2009: - Short notice deployment - Military Events
- Child Care/School Activities - Financial/Legal Arrangements - Counseling: rest /recuperation - Post Deployment Activities
Additional activities agreed to by employer and employee
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Military Caregiver Leave
Provides up to 26 workweeks of unpaid FMLA leave during a single 12 month period for an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member with a serious injury or illness.
Under NDAA in 2010, “covered service members” was expanded to include veterans
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Requesting FMLA
30 day advance notice of need to take FMLA when the need is foreseeable
If unforeseeable, notice should be provided as soon as practicable
If employee was absent for an unknown reason and wants the leave counted toward FMLA, need to provide timely notice (within 2 business days)
If employee is absent but doesn’t let the employer know why, employer is under no obligation to protect the employee’s job
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Employer Responsibilities
To provide written notice designating the leave as FMLA leave and providing specific expectations and obligations of the employee
Notice should be provided within one or two business days after receiving notification of employee’s request for leave
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Employer Responsibilities
– To provide employee preliminary designation letter and medical certification form
– Employee must be allowed 15 calendar days to obtain medical certification
– Failure to do so may result in disciplinary action for unexcused absences
– HR/Responsible Party will determine eligibility for FMLA
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Retroactive Designation of FMLA
An employer may not designate FMLA retroactively for more than two business days unless:
- The employer doesn’t learn of the need for leave until after the leave has begun
- The employer doesn’t know the reason for an absence and is notified by employee within two business days after returning to work
- The employer made a preliminary designation of FMLA leave, conditioned upon providing timely medical certification
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Intermittent Leave
May be taken when medically necessary to care for a seriously ill family member or because of an employee’s serious health condition
May be taken prior to birth
May be taken to care for a newborn or newly placed adopted or foster care child
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Intermittent Leave• Only the amount of leave
actually taken may be charged to FMLA
• Cannot require employees to take more FMLA leave than necessary. Leave must be tracked in the shortest period of time payroll system allows
• If disruptions occur, employee may be transferred to an alternative job
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Two Spouses at Same Company ?
Spouses employed by the same employer may be limited to a combined total of 12 workweeks for the following reasons:
Birth and care of a child
For the placement of a child for adoption or foster care or to care for a newly placed child
To care for an employee’s parent
But they may each take 12 workweeks of FMLA for their own serious health condition.
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Defining the FMLA Timeframe
Employers are required to use one of the following methods:
• The calendar year
• Any fixed 12-month “leave year” (e.g., a fiscal year, anniversary date)
• The 12-month period measured forward from the date an employee’s first FMLA leave begins
• A “rolling” 12-month period measured backward from the date an employee uses any FMLA
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Other FMLA Facts
• Holidays – full workweek of FMLA is used even if some days are holidays
• If “exempt” employee is on intermittent leave, under FLSA that employee can be “docked” for any unpaid leave time
• Some employers require employees to use PTO to cover some or all of the FMLA leave
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Other FMLA Facts• Disability leave and Worker’s
Compensation run concurrent with any FMLA leave
• A company can suggest, but not force an employee to return to light duty
• If there is a state family or medical leave law, employee is entitled to the most generous benefit
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Other FMLA Facts
• If an employee gives notice that they do not intend to return to work, they lose their entitlement to FMLA
• FMLA makes it unlawful for any employer to interfere with, restrain or deny the exercise of any right provided , or discharge or discriminate against anyone due to involvement in any proceeding related to FMLA
• Enforced by the Wage & Hour Division of the DOL
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Americans with Disabilities Act 1990
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Americans with Disabilities Act 1990
• Bring those who have disabilities of one kind or another into the mainstream of life
• Adds a new category to the Civil Rights Act of 1964: Disability
• Amended in 2008 by George W. Bush to broaden the definition of “disability”
• Enforced by the Equal Employment Opportunity Commission
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What is a disability?
Under the ADA, an individual with a disability is a person who:
1. Has a physical or mental impairment that substantially limits one or more major life activities
2. Has a record of such impairment
3. Is regarded as having such an impairment
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Who is Covered?The scope of the ADA’s definition of protected disabilities extends to persons who:
Have mental disabilities that substantially limit their relations with others
Have a history of a disability
Are perceived as having a disability, even though the impairment is not substantially limiting
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Who is Covered?The scope of the ADA’s definition of protected disabilities extends to persons who:
Are recovering or former drug addicts
Are infected with AIDS or HIV virus
Are able to control their disability through mitigating measures, such as medication but are still substantially limited in a major life activity
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Who is Covered?The scope of the ADA’s definition of protected disabilities extends to persons who:
Temporary impairments may or may not be considered disabilities under the ADA.
Hidden disabilities – AIDS, HIV, Kidney failure, TB
No definitive list of “disabilities”
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What Is Not Covered?Conditions that are not protected disabilities:
Sexual disorders
Compulsive gambling
Current illegal use of drugs
Environmental, cultural, or economic disadvantages
Stress/depression – may or may not be covered
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Definition of Impairment
An impairment is a “disability” only if it substantially limits one or more major life activities by
1. Its nature and severity
2. How long it will last or is expected to last
3. Its permanent or long term impact or expected impact
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Major Life Activities
• Walking
• Seeing
• Hearing
• Speaking
• Breathing
• Learning
• Caring for oneself
• Working40
ADA Amendments Act of 2008The Act retains the ADA’s basic definition of disability; however it changes the way that these statutory terms should be interpreted, most significantly:
1. It directs the EEOC to revise the portion of its regulations defining the term “substantially limits”
2. Expands the definition of “major life activities” by including two non exhaustive lists to include 1) reading, bending, communicating and 2) major bodily functions i.e., immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, etc.
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ADA Amendment Act of 20083. Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
4. Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g. failure to hire or termination) based on an impairment that is not transitory or minor
5. Provides that individuals covered under the “regarded as” prong are not entitled to reasonable accommodation.
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Who is Qualified?
Individuals with disabilities are protected under ADA provided they are qualified to perform the essential functions of the job.
1. Person must meet the legitimate skill, experience, education, licensing or other requirements for the position
2. Requiring the ability to perform the “essential functions” assures that the person will not be considered unqualified due to inability to perform marginal/incidental, i.e., “non essential” job functions.
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Essential Job Functions
When making this distinction, there are two considerations:
1. Whether employees in the position actually are required to perform the function
2. Whether removing the function would fundamentally change the job
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Essential Job Functions
– The position exists to perform the function
– There are a limited number of other employees available to perform the functions
– A function is highly specialized and the person is hired for special expertise or ability to perform
– Employee spends most of his/her time performing the function
– There would be consequences if the function were not carried out
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Reasonable Accommodation
Accommodation means a change to:
• Workplace – ramps, elevators to accommodate wheelchairs, accessible rest room facilities, parking spaces
• Work Schedule – allowing time off for treatment, making up time, unpaid leave, taking breaks, adjusting start and end times
• Job Structure – Restructuring or redistributing duties that are not essential functions
• Equipment modifications – raising or lowering a desk or chair, telephone amplifiers, Braille machine
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Reasonable Accommodation
A reasonable accommodation must:
– Be effective – provide an opportunity to achieve the same level of performance or enjoy the same benefits or privileges
– Necessary – must be employment related, reducing barriers to a disabled person’s ability to perform.
A reasonable accommodation may go beyond the ADA’s requirements
Determining the best way to identify a reasonable accommodation:
Consult with the person. 47
Interviewing Individuals with Disabilities
To have an effective interview, be aware of “attitudinal barriers”, have information about specific disabilities and understand the accommodation process.
Some managers may feel uncomfortable; some may have negative attitudes towards people with disabilities.
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Attitudes toward the disabled
- Avoid asking questions necessary to make an informed decision
- Terminate the interview prematurely
- Assume potential coworkers would feel the same
- Conclude the applicant would not “fit in”
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Interviewing Individuals with Disabilities
Make the interview accessible:
– Accessible location
– A sign interpreter
Etiquette:
– Look directly at applicant
– Speak directly to the applicant
– Don’t assume applicant needs assistance
– Don’t tell applicant you admire his/her courage
– Don’t avoid certain questions for fear of sensitivity
– Ask all questions in a straightforward, matter of fact manner50
What Can I ask in the Interview?
– Ask whether the person knows of any reason he/she cannot perform the essential functions of the job
– Ask questions about an applicant’s ability to perform job-related functions
– Describe or demonstrate a job function and ask all applicants whether they can perform the function with or without reasonable accommodations
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Performance Issues
If an employee cannot perform the essential functions of the job, he/she is no longer a qualified person.
Three components of each employee’s suitability for employment supervisors should focus on:
CAP = Conduct, Attendance and Performance
If the disabled employee can comply, the person is qualified.
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Key Points for Success
1. Ensure FMLA Posters are displayed
2. Act quickly when you are aware of a qualifying event
3. Keep accurate attendance records
4. Don’t deny FMLA for an employee who meets eligibility requirements
5. Don’t ask an employee for doctor’s notes for intermittent leave. Could be deemed as harassment
6. Don’t talk to employee’s doctor53
Key Points for Success
7. ADA & FMLA are not the same, but both may be involved.
8. Some serious health conditions under FMLA may be ADA disabilities
9. ADA relates to an impairment that “substantially limits one or more major life activities”.
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Next Steps
1. Download this Event at HRLuminary.com
2. View Upcoming Events
• Fair Labor Standards Act
• Patient Protection and Affordable Care Act
3. Check back soon for a recording of this event
4. A brief survey will be sent at the end of the webinar
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