Americans with Disability Act Family Medical Leave Act Workers' Compensation: The Perfect Storm

Americans with Disability Act

Family Medical Leave Act

Workers’ Compensation

The Perfect Storm

James K. Cowan, Jr.

[email protected]

540-443-2850 main

888-755-1450 fax

www.cowanperry.com

Overview of the Family &

Medical Leave Act (“FMLA”)

Basic Protections

The FMLA allows eligible employees of a

covered employer to take job-protected,

unpaid leave, or to substitute appropriate

paid leave, for up to a total of 12

workweeks in any 12 month period for any

of the following reasons:

Overview of the FMLA cont.

(1) the birth of a child and to care for the newborn child;

(2) the placement of a child for adoption or foster care;

(3) the care of a family member with a serious health condition;

(4) the employee's own serious health condition which makes the employee unable to perform the functions of his or her job; or

(5) because of a “qualifying exigency” with regards to an employee’s family member who is a covered military member on active duty.

Overview of the FMLA cont.

Eligible employees may also take

FMLA leave for up to 26 work weeks

in a single 12-month period to care for

a covered service member with a

serious injury or illness.

FMLA Cheat Sheet

1. Covered Employer = The FMLA covers private employers with 50 or more employees (part-time and temporary employees count) for each working day during each of twenty or more calendar workweeks in either the current or preceding calendar year. Virtually any person or business entity, regardless of form, that affects commerce in any way and has the requisite number of employees is subject to this Act. No comparable Virginia law. We provide this benefit to the Association even though the Association does not meet the legal number.

FMLA Cheat Sheet cont.

2. Eligible Employee = worked at least 12

months (the 12 months need not be

consecutive) and 1,250 hours in 12 months

before leave starts. Also, the employee must

work at a site where 50 or more employees are

employed by the employer within 75 miles of

that work site.


3. Serious Health Condition (“SHC”) = hospitalization or continuing medical treatment.

4. Leave = 12 weeks of unpaid leave for the employee's SHC; or SHC of spouse, child, stepchild, or parent; or birth, adoption or placement of a foster child; or qualifying exigency. 26 weeks unpaid leave for covered service member with serious injury or illness. Leave given to both men and women. Keep health coverage under same conditions as if employee not on leave.


5. Return to Work Rights = Employer can require a fitness-for-duty certification. If employee cannot perform the essential functions of the job at the end of the FMLA leave, the employer can terminate them if there are no ADA issues. At the conclusion of FMLA leave, an employee is entitled to be returned to the same position he or she held when leave commenced. If the position is unavailable, the employee is entitled to an "equivalent position" with equivalent pay, benefits and other terms and conditions.


6. Exhaust all paid leave; if a workers' comp injury also a SHC, exhaust FMLA.

7. Watch out for ADA issues when FMLA leave is finished.

8. If the employer violates the FMLA, the penalties are: (a) damages due to lost compensation; (b) interest on that amount; (c) liquidated damages equal to (a) and (b); and (d) attorney’s fees and costs.

9. Employees can sue individual supervisors for violation of the FMLA.

Intermittent Leave or a

Reduced Leave Schedule

Intermittent or reduced leave schedule when medically necessary for planned or unanticipated medical treatment for a SHC or for recovery from a SHC. This is also allowed to provide care or psychological comfort to an immediate family member with a SHC. This can be leave of 1 hour or more.

Intermittent or reduced leave schedule allowed for leave due to a qualifying exigency.

“Medical necessity” for intermittent leave requires a medical condition that can best be treated during intermittent leave. Employees must schedule intermittent leave so as not to disrupt the employer’s operations. (29 CFR 825.202)

Transfer to an “Alternative Position” –

29 CFR 825.204

Transfer to accommodate intermittent leave or reduced leave schedule:

The employer can require the employee to transfer temporarily to an alternate position that better accommodates the schedule for the employer.

The alternate position must have equivalent pay and benefits. However, the duties don’t need to be equivalent.

May not transfer just to discourage employee from taking leave or just to cause hardship to the employee.

Reinstatement and Equivalent Position

29 CFR 825.214-219

Reinstatement Rights: When an employee returns from FMLA leave,

he/she is entitled to be returned to the same position he/she held before going on leave, orto an equivalent position.

The equivalent position must have the equivalent pay, benefits and other terms and conditions of employment. If the employer has a replacement worker in the job, that replacement worker must be removed so the employee goes back into the same job.

Limits on Reinstatement Rights

29 CFR 825.216

No reinstatement required if the employee:

1. Is no longer qualified to perform the job (watch out for ADA issues);

2. Cannot perform an essential function of the job at the end of the 12 weeks because of a SHC or other physical or mental condition (watch out for ADA issues);

3. Would have lost his or her job, even if no leave had been taken - for example, layoffs, plant closings;

4. Announced that he or she did not intend to return from leave. Terminate immediately, don't wait to see what happens. Take them up on the offer not to return;

Limits on Reinstatement Rights cont.

29 CFR 825.216

5. Is a "key" employee, whose reinstatement would cause substantial and grievous economic injury to the employer. These are people in the top 10% of salaried employees, usually highly paid executives;

6. Obtained leave fraudulently; or

7. Violated the employer's "moonlighting" policies while on leave. Employees cannot take other outside employment while on leave.


Limits on Reinstatement Rights cont.

29 CFR 825.216


8. Employees on FMLA leave may be disciplined and terminated as if they were at work. The FMLA does not protect employees from discipline, although it does make discipline more problematic.

The burden of proof when an employee has been discharged and not reinstated is with the employer. (825.216(a))

OVERVIEW OF THE ADA

Federal law enacted in 1990 aimed at eliminating and remedying discrimination against individuals with physical or mental disabilities.

Prohibits discrimination against qualified individuals with disabilities, and affirmatively requires employers to reasonably accommodate such persons.

Prohibits discrimination (like other EEO laws)

Disparate treatment

Disparate impact

Harassment

Retaliation

Imposes affirmative duty to provide reasonable accommodation to individuals with disabilities to afford them equal opportunities to perform essential job functions.

How do I reasonably

accommodate a disability?

Accommodations must be made on a case-by-case basis, because the nature and extent of a disabling condition and the requirements of the job will vary.

Accommodation may be suggested by the individual – The Employee Must Ask for help but the employee does not have to use the word “accommodation”!

A reasonable accommodation need not be the “best” or “preferred” accommodation

The principal test in selecting a particular type of accommodation is that of effectiveness, i.e., whether the accommodation will enable the person with a disability to perform the essential functions of the job.

The appropriate accommodation may be obvious

How do I reasonably accommodate

ADAAA disabilities? 4-Step Process

1. Look at the particular job involved. Determine its purpose and its essential functions.

CONTACT HR—DON’T DO THIS ALONE

2. Consult with the individual with a disability to find out his or her specific physical or mental abilities and limitations as they relate to the essential job functions. Identify the barriers to job performance and assess how these barriers could be overcome with an accommodation.

How do I reasonably accommodate

ADAAA disabilities? 4-Step Process

3. In consultation with the individual, identify potential accommodations and assess how effective each would be in enabling the individual to perform essential job functions.

If this consultation does not identify an appropriate accommodation, technical assistance is available from a number of sources, many without cost. (Job Accommodation Network (JAN))

There are also financial resources to help with accommodation costs.

4. If there are several effective accommodations that would provide an equal employment opportunity, consider the preference of the individual with a disability and select the accommodation that best serves the needs of the individual and the employer.

Examples of Reasonable

Accommodations

Lowering the height of a desktop to

accommodate a worker in a wheelchair

Providing TDD telephone equipment for a

hearing impaired worker

Providing a quiet, distraction-free

workspace for a worker with ADD

Part-time or modified work schedules

Reassignment

Leaves of Absence May Be

Reasonable Accommodation

The EEOC has recognized the following as examples of situations in which an employee may be entitled to time away from work as a reasonable accommodation:

To obtain medical treatment, rehabilitation services, or occupational therapy

To recuperate from an illness or an episodic manifestation of the disability

To avoid temporary adverse conditions in the work environment (e.g., a breakdown in air conditioning that will aggravate a respiratory disability)

If the employee has paid leave available, the employer should allow its use before requiring unpaid leave. Otherwise, leave granted as an accommodation need not be paid.

Leaves of Absence May Be

Reasonable Accommodation cont.

Indefinite leaves or with no proposed end date

are generally unreasonable and need not be

granted.

How long a leave needs to be to be

considered a “reasonable” accommodation

generally depends on specific circumstances,

such as whether the employee has already

been given significant time off, whether the

requested leave is of a substantial duration,

and how likely it is that the employee will be

able to return on the proposed end date.

Conflicts Between ADA and FMLA

ADA FMLA “Disability”

Enforced by EEOC

Covers private employers w/ 15 or more employees

No protected leave

Disability related inquiries and examinations prohibited

“Serious Health Condition”

Enforced by DOL

Covers private employers

w/ 50 or more employees

12 weeks unpaid,

protected leave

Requiring medical

certifications pursuant to

request for leave is

permissible

Managing ADA Leave to Minimize

Operational Disruptions

Require, as part of the interactive process, that the employee provide periodic updates on his/her condition and possible date of return.

Consider transferring marginal functions to other employees for the duration of the leave

Consider an accommodation that requires the employee to remain on the job in lieu of providing leave (as long as it does not interfere with the employee’s ability to address his/her medical needs).

Laws to Review When an Employee is Sick,

Injured, or Otherwise Needs to Take Leave:

(1) Family and Medical Leave Act (FMLA)[Sets minimum leave standards for various enumerated circumstances]

Is employee eligible?

Is the leave for a FMLA-qualifying reason?

12 weeks of unpaid leave for the employee's serious health condition (SHC); or SHC of spouse, child, stepchild, or parent; or birth, adoption or placement of a foster child; or qualifying exigency.

26 weeks unpaid leave for covered service member with serious injury or illness.

Keep health coverage under same conditions as if not on leave.

Serious health condition = hospitalization or continuing medical treatment.

Provide all required notices.



(2) Workers’ Compensation[Provide for payment of compensation and rehabilitation for

workplace injuries]

Is the workers’ comp injury also a serious health condition under the FMLA?

Is employee eligible for FMLA leave?

IF YES to both: Exhaust the employee’s FMLA leave (treat workers’ comp leave as FMLA leave also) and continue benefits for duration of FMLA leave.

Return to work: Offer Employee light duty but cannot require light duty if FMLA leave still available.

Employee may lose workers comp benefits but can still remain on FMLA leave.



(3) Americans With Disabilities Act (as amended (ADAAA)[Prohibits discrimination against employees and applicants who are

“qualified individuals with a disability.”]

Is disability / impairment also a serious health care condition under FMLA?

Is employee eligible for FMLA leave?

If YES to both: Exhaust the employee’s FMLA leave and continue benefits for the duration of the FMLA leave.

If absence exceeds 12 weeks or FMLA leave otherwise exhausted Additional leave may be a reasonable accommodation unless it would create an undue hardship.

Must offer light duty as reasonable accommodation unless it would create an undue hardship, but cannot require light duty if FMLA leave is still available.

Fitness-for-duty / medical certifications: Allowed, but must be job-related and limited to determining ability to perform essential functions of the job and whether accommodation is needed and would be effective.



(4) Military Leave (USERRA)

[Provides reemployment rights for veterans and members of National Guard and Reserve after qualifying military service; prohibits discrimination.]

Service members who are reemployed receive all benefits of employment that they would have obtained if they had been continuously employed.

This includes the 12-month and 1250-hour requirements to become eligible for FMLA leave. The time spent out of work for military service counts.

Employee must give advance notice of the leave; no time frame is required and notice can be oral.



Company Benefit Policies (LTD, paid sick leave, etc.)

Does the employee who needs to go on FMLA leave have paid time off (accrued paid vacation, family leave, sick leave or leave share) available?

IF YES: Exhaust the employee’s accrued paid time off –require the employee to use paid leave concurrently with FMLA leave.

Even employees who are not entitled to any paid time off under standard Company policies may still be eligible for unpaid FMLA leave.

LTD payments are made by insurance carrier and decision to pay is made by insurance carrier.

If Employee is approved for workers comp benefits, LTD will probably be denied.

YESYES

YESNO

NO

ALSO

NO

Is it a “serious health condition” under the FMLA?

Is employee

eligible for FMLA

leave?

Employee is entitled to leave under

the FMLA: See FMLA Checklist

Send the required notices.

Exhaust FMLA leave – if also a

workers’ comp issue, treat workers’

comp leave as FMLA leave.

If employee has accrued paid time

off, exhaust paid time off

concurrently with FMLA leave.

Employee entitled to 12 weeks leave,

unless more leave given as an

accommodation for a disability.

Is it a workplace

injury?

Workers’

Compensation /

HR issue:

Employee will get

the workers’ comp

benefits and/or

leave to which

he/she is entitled.

Is it a “disability” under

the ADA?

YES

ADA Issue:

See ADA Checklist

Interactive Process

Is there a reasonable

accommodation that

would allow employee

to perform the essential

functions of the job?

Consider leave /

additional leave as an

accommodation – if not

undue hardship.

Employee may

still need to take

leave under

Company

benefit policies /

insurance: LTD,

sick leave,

personal leave,

etc.

(if also a workplace injury)

NO

250 South Main Street, Suite 226

Blacksburg, VA 24060

p: 540.443.2850

1328 3rd Street, S.W.

Roanoke, VA 24016

p: 540.777.3450

www.cowanperry.com

James K. Cowan, [email protected] fax