The Fundamentals of Managing Employees Under the FMLA …€¦ · The Fundamentals of Managing...

©2017 Jackson Lewis P.C.

The Fundamentals of Managing Employees Under the FMLA and ADA

Joanne Lambert, Esq.

Florida Court Clerks & Comptrollers Summer Conference, June 26, 2019

FAMILY AND MEDICAL LEAVE ACT

FMLA - Eligible Employees

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1 yr of service over a 7 year period (need not be consecutive); and

1,250 hours worked in prior 12 months (unpaid leave and paid time off not counted); and

Works in a location at which at least 50 employees are employed by the employer within 75 miles of the worksite.

FMLA - Leave Benefit

12 work weeks unpaid leave in a 12 month period• Fluctuating workweek• Part-time employees

Employer may elect “12 month period” for its FMLA year:• calendar year• a fixed 12-month leave or fiscal year, or• a 12-month rolling period prior to or after the

commencement of leave (a/k/a the “rolling 12 month period”).

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FMLA – Qualified Reasons for Leave

Newborn or newly adopted/foster children• Employed spouses• Intermittent only if permitted by employer• Must be used within 1 year of birth or placement

Certain family members’ serious health conditions (child, spouse, parent – in loco parentis)

Employee’s own serious health conditions Qualified Military Exigency Military Caregiver Leave (26 weeks)


FMLA – Other Benefits

• Continued benefits & job restoration

• Cannot count FMLA as poor attendance

• Retaliation prohibited

• Individual liability possible


FMLA – “Serious Health Condition”

• Employee is unable to work and needs continuing medical care, whether inpatient or outpatient:- flu, chronic illness, surgery and recovery,

etc.

- not a common cold (unless 3 days of incapacity and being treated by health care provider)



Inpatient care (overnight stay in a hospital, etc.), plus any subsequent period of incapacity or treatment

3 + days of incapacity, that also involves:• Treatment on 2 occasions by a “health care

provider” within 7 then 30 days of onset; or• Treatment by a “health care provider” within 7

days of onset plus “regimen of continuing treatment” (antibiotics, breathing treatments, physical therapy, etc.)



Any period of incapacity due to pregnancy, or for prenatal care.

Chronic conditions (long-term, episodic, 2 doctor visits per year: asthma, migraines)

Permanent or long-term conditions (for which treatment may not be effective: cancer; terminable heart or kidney disease)

Any period of absence to receive multiple treatments and recovery therefrom (chemotherapy, radiation, dialysis)


FMLA – Employer Required Notices

Poster (if covered employer) Handbook (if any eligible employees) Eligibility Notice

• Within 5 business days of leave request• At least 15 days to return certification forms

Designation Notice• Within 5 business days of receipt of completed

certification• If certification incomplete or insufficient, give

employee 7 days to correct


FMLA – Employee Required Notices

30 calendar days’ notice of foreseeable leave. Give notice “as soon as practicable” if leave is

unforeseeable.• ordinarily means within 1 to 2 business days

At a minimum, must orally notify employer of need for leave, anticipated timing and duration of leave.

The employee need not expressly mention FMLA in giving notice.

“Calling in sick” insufficient notice


FMLA – Medical Certifications

Optional, for employer’s protection

FMLA is counted from 1st day of certified leave,regardless of when certification is returned

Leave may be denied if certification not returned within15 day period

Medical certification form:

• Does not always provide a sufficient explanation

• Direct supervisor may never contact employee’shealth care provider directly; HR and others may butonly with consent and limited to authenticating andclarifying


FMLA – 2nd and 3rd Opinions

Only for initial certifications (not re-certificationsor return to work)

At employer’s expense

Reasonable basis to question the employee’smedical certification (observations or crediblereports)

Must use physician not regularly retained (oremployed) by employer


FMLA – 2nd and 3rd Opinions

May require a third opinion if employee’s and employer’s physicians disagree

• must jointly agree to the third physician – if employee will not agree, there will not be a third opinion

• determination is final and binding

Employee entitled to provisional FMLA benefits (including group insurance) pending receipt of second and third opinions


FMLA – Substitution of Paid Leave

May require employees to concurrently exhaust available sick leave, vacation and PTO during FMLA leave

Length of leave does not matter (apply paid leave to partial day absences, even for exempt employees)

Can jointly agree to substitute paid leave in addition to STD/LTD partial wage loss benefits


FMLA – Recertifications

May be requested every 6 months Immediately if:

• significant change in circumstances (duration or frequency of absences, severity, complications)

• receipt of information that casts doubt on stated reason for the absence

May only be requested in connection with an absence

Should only be requested by HR


FMLA – Recertifications

Intermittent leave: may not request for periods less than that specified as necessary for such leave (including treatment)

Annual certifications may be requested for chronic/long-term conditions, but only in connection with 1st absence in the new FMLA year

Employee must provide requested re-certification with 15 days


FMLA – Intermittent Leave

Not available for the birth of a child or newly placed adopted or foster child – healthy children

Medical certification must state why and when intermittent leave is necessary and duration (i.e. 1-3 days for a migraine)

May require return to work certification only if safety issues


FMLA – Return to Work

May require fitness-for-duty certification only with regard to condition that prompted leave

No reinstatement if restrictions

If job description/essential job functions provided to employee at start of leave, may require physician certification that employee can perform essential job duties

If absence is governed by state law, CBA, etc., those return-to-work provisions control

HR may contact health care provider directly to clarify return to work certification, but only with employee’s consent

Manager/superviser may never contact employee’s health care provider


FMLA – Return to Work

Cannot request a second or third opinion

Restoration may be delayed until received

• “Best Practice” – Send letter before leave expires reminding of return to work date and requirement of medical release

May require for intermittent leave only if safety issues

Where employee is unable to return, may request certification to determine whether employer may recoup group insurance premiums


FMLA – Job Restoration Restoration to same or equivalent position

• Geographically proximate worksite with no significant increase in commuting time or distance

• Substantially similar duties, schedule, “prestige”

Employer’s right to deny job restoration

• Failure to provide return to work certification

• Cannot perform essential functions of the job

• Would not otherwise have been employed at the end of the FMLA leave (i.e., layoff, job elimination, termination for misconduct)

• “Key employees” (highest paid 10% of all salaried employees; get leave but can be denied restoration if notified when leave is requested


FMLA – Military Qualifying Exigency Leave

Exigencies arising from active duty status of Armed Forces members, reservists, National Guard

Employee’s spouse, son, daughter or parent is a covered military member on active duty (or has been notified of an impending call or order to activity duty)

Part of “traditional” 12 weeks of FMLA


FMLA – What is a Qualifying Exigency Leave

Exclusive list Short-notice deployment Military events and related activities Childcare and school activities Financial and legal arrangements Counseling Rest and recuperation Post-deployment activities Additional activities related to active duty or call

to active duty


FMLA – Notice of Qualifying Exigency

o If foreseeable, notice must be “reasonable and practicable” o normally means same day or next business day

o If not foreseeable: when employee first seeks to take leave

o Notice not required upon notice of active duty or call to active duty


FMLA – Military Caregiver Leave

o To care for a covered servicemember or veteran with a serious injury or illness

o Employee is the spouse, son, daughter, parent or next of kin of the servicemember or veteran

o Injury must be “incurred by a covered servicemember or veteran on active duty and in the line of duty”

o Renders the servicemember or veteran medically unfit to perform duties of office, grade, rank or rating


FMLA – Calculating Military Caregiver Leave

Employees entitled to 26 weeks of leave “per injury/illness” in “a single 12 month period”

“12 month period” begins on first day of leave taken to care for injured servicemember or veteran

Operates independent of methods for calculating 12 weeks of other FMLA leave

May be used intermittently or reduced schedule


AMERICANS WITH DISABILITIES ACT

What Does the ADA Require?

Cannot discriminate Cannot make medical inquiries, except in limited

circumstances:• Pre-employment/post-offer• Job related and consistent with business

necessity• Voluntary

Must keep medical information confidential Must accommodate absent undue hardship

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WHO HAS A DISABILITY?

The ADA applies to “qualified individuals with a disability.” “Qualified” means that the employee can perform the essential job functions of the position he/she holds or desires, with or without a reasonable accommodation.The ADA’s definition of “disability” is not the same as the definition of disability under other laws, such as state workers’ compensation laws, or federal social security law.

Who is Eligible: the ADA’s Definition of “Disability”

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Three-Part Definition of Disability

Individuals are protected by the ADA if they have:

A physical or mental impairment that substantially limits one or more of the major life activities of such individual;A record of such an impairment; or areBeing regarded as having such an impairment.

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Under the ADA Amendments Act (ADAAA) the term “disability” “shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]”

As a result, it is no longer very useful to analyze whether an employee is “disabled” under the ADA, except in very marginal cases.

Employee Coverage? No length of service requirement for employees to be eligible –employees have protection under the ADA on Day 1!

Who is Eligible: the ADA’s Definition of “Disability”

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Which Disabilities are Covered Under the ADA?

There is no list of conditions that are or are not ADA disabilities.

Conditions that are “temporary” or “minor” might still be covered ADA disabilities.

TIP: All injuries or illnesses that result in medical or FMLA leave should be considered potentiallycovered ADA disabilities, including many work-related injuries resulting in lost work time.

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Illnesses/ injuries likely to be ADA disabilities

Deafness

Blindness

Intellectual disabilities (formerly termed mental retardation)

Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair

Autism

Cancer

Cerebral palsy

Diabetes

Fibromyalgia

Irritable Bowel Syndrome

Epilepsy Human Immunodeficiency Virus (HIV) infectionMultiple sclerosisMuscular dystrophyMajor depressive disorder Bipolar disorderPost-traumatic stress disorder Obsessive compulsive disorderSchizophrenia

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WHAT IS “QUALIFIED” UNDER THE ADA?

Determining if a disabled applicant or employee is “qualified” for a position sought or held

Engage in a Two-Step Process: First, determine if the applicant or employee is “otherwise

qualified” – whether they possess the objective education, experience, training or skills required for the position.

Second, determine if the applicant or employee can perform, with or without reasonable accommodations, the essential functions of the position.

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Can the Applicant Perform the Essential Job Functions? – Step Two

Essential functions are “fundamental” job duties of a position. Essential functions do not include duties that are marginal.

Essential functions are those functions that the individual who holds the position must be able to perform unaided or with the assistance of a reasonable accommodation.

Accurate job descriptions are critical

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Whether the position exists to perform the function (e.g., it is essential for a “cashier” to operate a cash register);

The degree of expertise or skill required to perform the function;

The amount of time spent on the job performing the function;

The consequences of not requiring the employee to perform the function;

The employer's judgment as to which functions are essential;

The work experience of past employees in the job; and/or

The current work experience of employees in similar jobs.

Factors to consider in determining whether a function is essential

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REASONABLE ACCOMMODATIONS

The ADA’s “Reasonable Accommodation” Requirement

Employers must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … ”

“In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”

- EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship

Basic Rule? Provide accommodation unless there is undue hardship or direct threat.

Let’s discuss reasonable accommodation first…

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Requests for Accommodation

An employee may use “plain English” and need notmention the ADA or use the phrase “reasonableaccommodation” when requesting an accommodation.

Any time an employee indicates s/he is having a problemat work and the problem is related to a medical condition,consider whether the employee is making a request foraccommodation.

A written request is not required, but the employer may askthe employee to confirm in writing what accommodationsare sought.

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In general, a reasonable accommodation is any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability.

Reasonable accommodations can cover most things that enable an individual to:• apply for a job; • perform a job;• have equal access to the workplace and employee

benefits such as kitchens, parking lots, and office events.

What are Reasonable Accommodations?

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Examples of Potentially Reasonable Accommodations

Leaves of absence Excused intermittent

absences Work at home Modified equipment Modified work schedule Providing qualified

readers or interpreters

Light duty Reallocating marginal job

functions Service animals Reassignment to vacant

positions Changing tests, training

materials, or policies

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What is NOT A Reasonable Accommodation?

X Creating a new jobX Bumping another employeeX Promoting the disabled workerX Providing personal equipment (wheelchair, hearing

aid, etc.)X Eliminating essential functionsX Lowering production or performance standardsX Excusing misconductX Creating a light-duty position

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Types of Accommodations: Modified Workplace Policies

Modified Workplace Policies May continue to apply the policy to all other employees. Example: Prohibiting employees from eating or drinking

at their workstations except for employee with insulin-dependent diabetes who must immediately eat a candy bar or drink fruit juice.

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Types of Accommodations: Job Performance - Reassignment

“Reassignment to a vacant position“ is a form of reasonable accommodation.

Consider providing to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation.

An employee must be "qualified" for the new position.

The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.

Must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position.

If there is no vacant equivalent position, reassign the employee to a vacant lower level position for which the individual is qualified.

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Types of Accommodations – Change in Supervisor An employer does not have to provide an

employee with a new supervisor as a reasonable accommodation.

The ADA may require that supervisory methods be altered as a form of reasonable accommodation (for example, that supervisors provide instructions or assignments in writing instead of orally)

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Types of Accommodations – Work at Home

An employer must modify its policy concerning work at home if such a change is needed as a reasonable accommodation.

Only if this accommodation would be effective and would not cause an undue hardship.

Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home.

If other employees in the same or similar position are permitted to work from home for reasons unrelated to a disability, it may be difficult to deny work from home as a disability accommodation.

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Workplace Adjustment vs. Leave Accommodation

Generally helpful to consider requests for workplace accommodations separate from requests for leave as an accommodation

With requests for leave as an accommodation - three step process. • 1. Is employee entitled to be absent with job protection (e.g.

FMLA)?

• 2. Has the Company committed to providing additional job protected leave (e.g. company leave policies)?

• 3. Is additional leave a reasonable accommodation?

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How much more leave is needed?• Find out by communicating with employee and/or the employee’s

doctor Is the additional leave sought for a definite or indefinite

duration? What operational hardship is/has been being experienced due

to the employee’s current absence? Will operational hardship change if employee stays on leave?

(and how long have you accommodated so far?) Will employee be able to return to work performing all of

essential job functions?• What work restrictions will exist?• Do restrictions impact essential or marginal job functions?• Can restrictions be accommodated?

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WHAT IS AN UNDUE HARDSHIP?

Undue Hardship

An employer does not have to provide a reasonable accommodation that would cause an "undue hardship."

Generalized conclusions will not suffice.

Requires “significant difficulty or expense.”

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Factors for consideration:• Net cost • Type of business• Financial resources• Number of persons employed• Effect on expenses and resources • Impact of accommodation on operations

Undue Hardship

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WHAT IS REQUIRED UNDER THE INTERACTIVE PROCESS?

What Triggers the Interactive Process?

Interactive Process is Triggered When: Employee or applicant requests reasonable

accommodation. Employer has notice, due to undisputed background

information, that employee/applicant “might have a disability.”

Employee with a disability exhausts the leave provided under some other law (e.g., FMLA) and remains unable to return to work.

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Basics of Interactive Process

Four-step interactive process:

– Determine the job’s essential functions. – Establish the individual’s limitations. – Explore potential accommodations. – Select the most appropriate accommodationFailure to engage in the process can be deemed an ADA violation. An employer does not have to choose the “best” accommodation or the employee’s first choice, so long as the accommodation is effective.

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MEDICAL INQUIRIES AND EXAMINATIONS

Medical Inquiries

Employers and supervisors cannot make medical inquiries, except in limited circumstances:

• Pre-employment/post-offer• Job Related and consistent with business necessity• Voluntary

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Employers cannot ask disability-related questions or require medical exams until after an applicant has been given a conditional job offer

No questions about: X Nature or severity of disability X Condition causing disability X Prognosis X Treatment

Pre-Employment Inquiries

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Pre-Offer Medical inquiries/exams are forbidden May Inquire pre-offer about ability to perform job-

related functions

Medical Examinations & Inquiries─ Job Applicants ─

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Post-Offer Medical inquiries/exams can be required only if:

• Job-related and consistent with business necessity• Required for all new hires for that position

Results can be used to deny job only if job-related, consistent with business necessity, AND no reasonable accommodation is possible

Medical Examinations & Inquiries─ Job Applicants ─

Medical Information

Keep Separate from Personnel File Can Be Shared with:

• Supervisors and managers: work restrictions and necessary reasonable accommodations

• First aid and safety personnel: where appropriate, that a condition may require treatment

• Government officials: investigation into regulation compliance

Managers and supervisors must not keep copies• “Hot Potato!”

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DIRECT THREAT

Employers may refuse to hire or employ persons who pose a “direct threat” to the health and safety of other employees or other persons associated with the business.

Direct Threat Defense

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Process for Determining “Direct Threat”

“Significant risk of substantial harm”Consider the following factors:

• Nature of risk• Duration of risk• Severity of risk to third parties• Probability that disease will be transmitted

and cause harm

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THANK YOU

With 900 attorneys practicing in major locations

throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to

address every aspect of the employer/employee

relationship.

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