The ABCs of FMLA & ADA€¦ · *The use of this seal confirms that this activity has met HR Certification Institute’s®(HRCI®) criteria for recertification credit pre-approval

Basics of the Family Medical & Americans with Disabilities Acts

The ABCs of FMLA & ADA

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Our Presenter

Note: Material contained in this presentation is not legal advice and should not be construed as legal advice. If legal advice or other professional assistance is required regarding any issues referenced in this presentation, the services of a competent legal or tax professional should be immediately sought.

Olivia Ash, JD, MS, worked the last 16 years in roles ranging from account management to business development contracting. She’s a licensed teacher with experience in higher education. Olivia speaks about ERISA regulations, and writes content for ComplianceDashboard©.

Agenda

• Housekeeping• FMLA• ADA• 2020 State Law Updates

Note: Material contained in this presentation is not legal advice and should not be construed as legal advice. If legal advice or other professional assistance is required regarding any issues referenced in this presentation, the services of a competent legal or tax professional should be immediately sought.

The Family Medical Leave Act

FMLA

TitleBody TextNote:

FMLA is a federal regulation overseen by the

DOL’s Wage and Hour Division.

However, FMLA is interpreted differently from state to state.

Therefore, consult your local attorney for questions.

What’s the purpose?

FMLATo provide eligible

employees of a covered employer unpaid, job-

protected leave

to care for themselves or family members for a

prescribed period.

Applicability

FMLA

Leave generally available to:

➢ All public agencies, including local, state, or federal gov., regardless of EE #

➢ Public or private elementary or secondary school, regardless of EE #

Applicability

FMLA

Leave generally available when these conditions are met:

➢ If Employer (ER) employ 50+ employees (EE) for each working day during each of 20+ calendar work weeks in the current or preceding calendar year;

Applicability

FMLA

Leave generally available when these conditions are met:➢ An eligible EE has been employed for 12 months prior to the requested leave and

provided at least 1,250 hours of service with ER during the previous 12-month period; and

➢ EE works at a site with at least 50 EEs within 75 miles

Applicability

FMLA

Covered Employers must

➢ Post a notice

➢ Include FMLA guidelines in handbooks or at hiring

➢ Provide EE with notice re: FMLA leave once requested

➢ Notify EE whether leave is designated as FMLA and amount of time deducted

13

Question #1

Which of the following is a covered employer under FMLA?

A: Tech. co. owned by partnership with 5 EEB: Primary school with 49 teachersC: Private nonprofit with 25 FT EE & 5 PT EE

Benefits

FMLA

➢ An eligible EE of a covered ER is entitled to:

➢ Job-protected, unpaid leave for a total of 12 work weeks in any 12-month period;

➢ Maintenance of health benefits as if they had continued to work; and

➢ A right to return to the same position or an equivalent position with equivalent pay, benefits, and working conditions

Certification

FMLA

➢ An employer has the right to:

➢ Advance notice from the EE;

➢ Require EE to submit certification to substantiate the leave;

Certification

FMLA

➢ An employer has the right to:

➢ Require EE to present a certification of fitness to return to work when the absence was caused by EE’s serious health condition; and

➢ Delay restoring the EE to employment w/o receipt of certificate relating to the health condition which caused the absence.

Certification

FMLA

➢ In calculating leave, the ER may establish:

➢ Calendar year; anniversary year; or

➢ Moving from date of current request (moving year)

➢ prevents stacking of leave from 2 consecutive years

Designation: Pat’s Story: the Facts

FMLA

➢ Pat is an EE; Pat requests leave of ER

➢ Widowed, elderly mother lives with Pat & needs care for Stage 4 cancer

➢ Pat is an only child

Designation: Pat’s Story: the Analysis

FMLA

➢ Timing of notice?

➢ Level of disclosure?

➢ Other regulatory laws apply to the facts?

➢ What must an ER do?


FMLA

➢ Employer MUST designate leave as FMLA-qualifying in ALL circumstances; and

➢ Give note of designation to EE within 5 business days

➢ ER must have enough info. from EE to determine if leave is FMLA-qualified


FMLA

➢ Employer may NOT

➢ Delay designation of FMLA-leave (even if requested by EE); nor

➢ Designate more than 12 weeks of leave as FMLA (26 for military caregiver)


FMLA

➢Neither ER nor EE may decline FMLA protection for leave

➢ If EE choose to use paid leave for unpaid FMLA leave, it counts towards the 12-week FMLA entitlement (no expansion)


FMLA

➢ What about accrued paid leave?

➢ ER may require use; OR

➢ Pat may elect to “substitute” paid leave to cover unpaid FMLA-entitled leave

“Substitute”

Paid leave runs concurrently with unpaid FMLA-leave

Qualifying Event

FMLA

➢May include:

➢ Birth or care of newborn;

➢ Placement or care of child for foster care/adoption;

➢ Serious health condition (Incapacitation) of EE or their family member

25

Question #2

Which of the following statements is false?A. An employer may determine the method to

calculate FMLA leave

B. An employee is eligible for FMLA after 12 months & at least 1,250 hour of service

C. An employer may pause medical coverage during FMLA leave

The Americans with Disabilities Act

ADA

What’s the purpose?

ADA “Prohibits private employers, State and local governments, employment agencies, and

labor unions from discriminating against

qualified individuals with disabilities in job application

procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of

employment.” -ADA.gov

TitleBody TextNote:

The ADA is a federal regulation overseen by the U.S. Department of Justice, Civil Rights Division. Several departments implement the regulations including DOE and EEOC. ADA regulations apply to

• State & Local Governments (Title II) &

• Public Accommodations & Commercial Facilities (Title III).

Please consult your local attorney for questions.

https://www.eeoc.gov/eeoc/publications/fs-ada.cfm

29

Question #3

Employee numbers are below; which employer is subject to the ADA?

A. 10B. 5C. 20D. 14

What is a Disability?

ADA

1. Physical or mental impairment that substantially limits 1+ major life activities

2. A record of such an impairments; or

3. The individual is regarded as having such an impairment

Reasonable Accommodation

ADA

➢ May include:

➢ Updating facilities

➢ Job restructuring

➢ Modifying equipment or devices

What’s Permitted?

ADA

➢ An ER may make a disability-based distinction in EE benefit plans based on

➢ Actuarial principles or

➢ Reasonably anticipated experience

What is a disability-based distinction in a benefit plan?

ADA Disability-based if it singles out…

• A disability;

• Ex: plan covers all physical & mental disorders except depression

• A discrete group of disabilities; or

• Ex: plan caps coverage for cancer treatments at $1 million by caps treatment for all other physical conditions at $20 million

• Disability in general

• Ex. ER requires EE who can’t work due to physical disorder to retire on disability retirement, eve if they’re also eligible to retire under ER’s service retirement plan

What is not a disability-based distinction in a benefit plan?

ADANot disability-based if it…

• Is a “broad distinction” applicable to many dissimilar conditions; and

• Constrains everyone

• Ex: MRIs performed for many different conditions whether one does or does not have a disability

What happens if an Employer makes a disability-based distinction?

ADA The Employer must

• Justify it; and

• Demonstrate that the plan:

• Is bona fide

• Exist & pays benefits; and

• Plan terms must be accurately communicated to eligible EEs

• Is not a subterfuge to evade ADA purposes

• Refers to disability-based disparate treatment in a benefit plan

Legitimacy of Data

ADA

1. Legitimate actuarial data; or

2. By actual or reasonably anticipated experience; and

3. Conditions with comparable data are treated similarly

4. ER may NOT relay on outdated data or data base don myths, fears, stereotypes, or assumptions about the disability at issue

Additional justification for disparate treatment…necessary to

ADA

➢ maintain solvency of the plan

➢ Avoided unacceptable change in coverage of, or premiums for, a benefit plan

➢ A treatment provides no medical benefit

Question #4

True or False? An employer may distinguish their medical benefit plan without violating the ADA if they choose not to cover CAT scans for any condition.

A. True

B. False

How does the ADA affect wellness plans?

ADA & Wellness Programs

Prohibits ERs from

➢ Requiring EEs to submit to physical exam;

➢ Asking health-related questions…unless it’s a voluntary EE health program

The BIG issue:

ADA

To what extent are incentives/penalties

connected with these programs

VOLUNTARY?

Note: The Rule…


➢ Applies only to programs asking EEs disability-related questions/medical exams

➢ Limits the incentive to the average cost of the coverage under a given plan

Excepted wellness plans


➢ No disability-related questions/medical exams

➢ Only general health & educational material

➢ ADA applies regardless of whether the wellness program is also a health plan

3 Prong Evaluation


1. Voluntary Participation & Incentives

2. Confidentiality

3. Reasonable Program Design

Voluntary Participation & Incentives


➢ The ER may not➢ Require EE to participate, deny access for nonparticipation, limit coverage

under its health plan, take any adverse action, or

Voluntary Participation & Incentives


➢ The ER may not➢ Retaliate, interfere, coerce, intimidate, or threaten an EE who does not

participate or fails to achieve certain health outcomes

The ER must provide a notice!

Confidentiality


➢ The ER may not➢ Require EE to agree to the sale, exchange, sharing, transfer, or other disclosure

of medical information; or waive confidentiality protections as a condition for participating or receiving a program incentive

Confidentiality


➢ The ER may ➢ Obtain data necessary to administer the plan

Data must not disclose the identify of the EE!

Reasonable Program Design

“Reasonably designed to promote health or

prevent disease.”


49

Question #5

Which of the following are ADA-permissible in wellness plans? A. Offering a reasonable alternative standard

B. Requiring a participant to agree to sell HRA data with a business associate to receive the incentive

C. Designing future programming based on aggregated employee biometric data

D. Obtain de-identified cholesterol data to administer the incentive for the plan

Good Ideas➢ Complete a health risk

assessment ➢ A biometric screening➢ Use de-identified,

aggregate data➢ Design & offer health

programs aimed at conditions reflected within your population


Bad Ideas➢ To obtain a reward:➢ Imposes overly burdensome

time to participate➢ Requires unreasonably

intrusive procedures➢ Places significant costs on EE

➢ Program exists to:➢ Shift costs from CE to targeted

EE based on health➢ Give ER data to estimate

future healthcare costs


2020 State Law Updates

ADA

A few noteworthy items…


➢ FLSA OT pay increased $455-$684/wk

➢ CA bill AB5→ reclassify independent contractors as employees

➢ NJ ban on requiring salary history for applicants

➢ NV Bill 132→bar employers from refusing to hire for testing positive for marijuana in drug screening tests

➢ OR Bill 2341 expands fair employment practices → all ER with 6+ EE provide reasonable accommodations for those with workplace limits or medical conditions related to pregnancy or childbirth



➢CA Bill 142 →must provide lactation accommodations (not in a bathroom) ➢ Complete privacy➢ Place to sit➢ Surface for pump ➢ Access to electricity, fridge, & sink

➢WA increased paid FMLA ➢ Up to 18 weeks➢ 90% pay➢ Federal EE not eligible ➢ 5th state to increase the 12 week➢ D.C. & MA expected to follow in

July 2020 and January 2021



➢ NY 4-year phase-in➢ Required leave for eligible farm laborers➢ 10-week period of parental leave➢ 2021 increase to 12 weeks➢ 60% avg. weekly wage➢ Funded via EE payroll deductions

➢ CA required leave up to 8 weeks

➢ NV ER 50+ EE → .019 hrs/hour worked to all EEs➢ = 40 hours paid leave/40 hrs/wk

➢ D.C. private ER up to 8 weeks paid parental leave , 6 weeks for family member and 2 weeks for own condition

➢ NJ doubled paid leave from 6 →12 weeks, 85% wage replacement

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Documents

The ABCs of FMLA & ADA€¦ · *The use of this seal confirms that this activity has met HR Certification Institute’s®(HRCI®) criteria for recertification credit pre-approval