ADA, FMLA, and WC When does the leave clock start to tick? - PDF document

11/3/2019 ADA, FMLA, and WC When does the leave clock start to tick? Presented by Jill Fisher, Esq. 1 The Bermuda Triangle • Area in the Atlantic Ocean • Unusually high number of ships and planes have mysteriously disappeared 2 2 The Workplace Bermuda Triangle 3 3 1

11/3/2019 Walking the Tightrope 4 4 Purpose of the Laws ADA - prohibits discrimination against employees who are “qualified individuals with a disability.” FMLA - provides job protected leave to employees who need time off to care for themselves or their families. WC - provides insurance coverage that will compensate employees injured on the job for lost wages and medical care. 5 5 What You Need to Consider Compliance checklist: 1. Employer Coverage 2. Employee Eligibility 3. Length of Leave 4. Medical Documentation 5. Restricted or Light Duty 6. Fitness-to-Return-to-Work Certification 7. Benefits While on Leave 8. Reinstatement 6 6 2

11/3/2019 Length of Leave ADA – No specific statutory limit. FMLA – 12 weeks in the designated 12 month period. WC – No specific statutory limit. 7 7 Accommodations Under the ADA The ADA requires employers to provide a 1. “reasonable” accommodation to a qualified individual unless to do so would create an undue hardship. The ADA does not entitle an employee carte 2. blanche to any accommodation he or she chooses. Employers must engage in the “interactive 3. process.” Employers must make informed decisions. 4. 8 8 When is Leave “Reasonable” When it enables an employee to return to work 1. following the period of leave. Employers must seriously explore leave requests 2. even if the employer does not provide leave benefits or the employee already exhausted available leaves of absence. Like FMLA, “reasonable” leave may even be 3. intermittent. Extended leave may even be reasonable . 4. 9 9 3

11/3/2019 When is Leave “Un - Reasonable” When it is of indefinite, or unknown, or open-ended 1. duration. When there is a specific end date, but the request is 2. deemed excessive for the circumstances. When there are repeated requests for extensions of 3. leave or additional time out of work (e.g., a doctor’s note extending leave month after month). 10 10 Scenario Factory worker injured on 1/1/19 (1 broken arm and 1 broken leg requiring overnight stay in hospital, plus PT when casts are removed). Out of work since that date (1/1/19). Received FMLA Med Cert on 1/15/19: “must remain out of work through 3/1/19.” WC carrier denied coverage 2/26/19. Employee calls employer on 3/1/19 and says needs another 4 weeks of leave. 11 11 Consider WC 1st - It’s 1/2/19 1. Employer Coverage YES 2. Employee Eligibility YES 3. Length of Leave TOO EARLY TO KNOW 4. Medical Documentation YES 5. Restricted or Light Duty TOO EARLY TO KNOW 6. Fitness-to-Return-to-Work Certification N/A at this time 7. Benefits While on Leave NO statutory requirement 8. Reinstatement TOO EARLY TO DETERMINE 12 12 4

11/3/2019 Consider FMLA 2nd - It’s 1/2/19 1. Employer Coverage Assume YES 2. Employee Eligibility Assume YES 3. Length of Leave TOO EARLY TO KNOW (up to 12 weeks) 4. Restricted or Light Duty NO 5. Fitness-to-Return-to-Work Certification N/A at this time 6. Benefits While on Leave YES 7. Reinstatement YES 13 13 Consider ADA 3rd - It’s 1/2/19 1. Employer Coverage Assume YES 2. Employee Eligibility TOO EARLY TO KNOW 3. Length of Leave TOO EARLY TO KNOW 4. Restricted or Light Duty TOO EARLY TO KNOW 5. Fitness-to-Return-to-Work Certification N/A at this time 6. Benefits While on Leave NO statutory requirement 7. Reinstatement TOO EARLY TO KNOW 14 14 It’s 1/2/19 MON 1/1 TUE 1/2 WED 1/3 THU 1/4 FRI SAT SUN 1/5 1/6 1/7 WC LEARN in INJURY hospital overnight; send out FMLA paperwork; report to WC carrier 15 15 5

11/3/2019 It’s 2/26/19 Remember… 1/15/19 FMLA Med Cert said “must remain out of work through 3/1/19.” 2/26/19 WC carrier denied coverage. 16 16 Consider WC 1st - It’s 2/26/19 1. Employer Coverage NO 2. Employee Eligibility N/A 3. Length of Leave N/A 4. Medical Documentation N/A 5. Restricted or Light Duty N/A 6. Fitness-to-Return-to-Work Certification N/A 7. Benefits While on Leave N/A 8. Reinstatement N/A 17 17 Consider FMLA 2nd - It’s 2/26/19 1. Employer Coverage Assume YES 2. Employee Eligibility Assume YES 3. Length of Leave CAN RTW 3/1/19 (9 weeks) 4. Medical Documentation YES 5. Restricted or Light Duty NOT while on FMLA leave 6. Fitness-to-Return-to-Work Certification TOO EARLY 7. Benefits While on Leave YES 8. Reinstatement YES 18 18 6

11/3/2019 Consider ADA 3rd - It’s 2/26/19 1. Employer Coverage YES 2. Employee Eligibility Assume YES 3. Length of Leave Expected RTW 3/1 4. Medical Documentation NOT at this point 5. Restricted or Light Duty NOT at this point 6. Fitness-to-Return-to-Work Certification NOT at this point 7. Benefits While on Leave NO statutory requirement 8. Reinstatement YES, but... 19 19 It’s 2/26/19 (2) MON 1/1 TUE 1/2 WED THU FRI 1/5 SAT SUN 1/7 1/3 1/4 1/6 WC LEARN in END OF INJURY hospital WEEK 1 DAY 1 overnight; send OF FMLA out FMLA FMLA paperwork; report to WC carrier 1/8 1/9 1/10 1/11 1/12 1/13 1/14 END WEEK 2 FMLA 20 20 It’s 2/26/19 (3) MON 1/15 TUE WED THU FRI SAT SUN 1/16 1/17 1/18 1/19 1/20 1/21 RCV’D FMLA END MED CERT WEEK RTW 3/1 3 FMLA 1/22 1/23 1/24 1/25 1/26 1/27 1/28 END WEEK 4 FMLA 21 21 7

11/3/2019 It’s 3/1/19 Remember… 1/15/19 FMLA Med Cert said “must remain out of work through 3/1/19.” 2/26/19 WC carrier denied coverage. 22 22 MON 2/26 TUE WED THU FRI 3/1 SAT SUN 3/3 2/27 2/27 2/28 3/2 WC DENIED E. WANTS TO END EXTEND WEEK 9 LEAVE FOR FMLA ANOTHER 4 WEEKS 23 23 What should you do? ENGAGE IN THE INTERACTIVE PROCESS! 24 24 8

11/3/2019 What else can you do? FMLA - can request another DOL Medical Certification Form. ADA - can request a doctor’s note to determine employee’s ability to perform the job tasks and whether an accommodation is needed that would be effective. Let’s assume the employee’s doctor says he needs 4 weeks more of leave, after which he definitely can return to work, with no limitations. 25 25 What now? Do you grant the extended leave? Do you require a Fitness to RTW Certification? Do you reinstate the employee? 26 26 Fitness to Return-to-Work Certification ADA – Permitted as long as the medical examination and inquiry is job-related and necessary to determine whether the employee can perform the essential functions of the job. FMLA – Can only be required under a policy or practice that requires employees who have been on a similar type of leave of absence. 27 27 9

11/3/2019 Reinstatement ADA – Required reinstatement to previous job unless doing so would create an undue hardship on the employer. FMLA – Required reinstatement to the same or an equivalent job. NO undue hardship exception. Let’s assume you reinstated the employee to the same job. 28 28 It’s 3/31/19 MON TUE WED THU FRI SAT SUN 3/24 3/18 3/19 3/20 3/21 3/22 3/23 END WEEK 12 FMLA 3/25 3/26 3/27 3/28 3/29 3/30 3/31 END OF EXTENDED LEAVE 29 29 In Conclusion Consider and analyze the facts under all three laws...throughout the duration of the leave. Use a calendar and the compliance checklist (or chart). Document your processes and decisions. 30 30 10

11/3/2019 Don’t … Be fair. Stick to the facts. Stay focused. 31 31 11