Presenting a live 90-minute webinar with interactive Q&A Employee Leave Under FMLA, ADA and Workers' Comp: Navigating Overlapping and Conflicting Leave Laws Avoiding Pitfalls with Accommodation, Retaliation/Discrimination; Handling Light Duty, Company Policy Violations and Discipline WEDNESDAY, AUGUST 20, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Diane L. Kimberlin, Shareholder, Littler Mendelson , Los Angeles Jeffrey S. Kopp, Partner, Foley & Lardner , Detroit Johanna T . Wise, Senior Associate, Seyfarth Shaw , Atlanta The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Employee Leave Under FMLA, ADA and Workers’ Comp: Navigating Overlapping and Conflicting Leave Laws Diane Kimberlin Jeffrey S. Kopp Johanna T. Wise Littler Mendelson Foley & Lardner LLP Seyfarth Shaw LLP dkimberlin@littler.com jkopp@foley.com jwise@seyfarth.com 310-772-7207 313-234-7140 (404) 881-5448 August 20, 2014
THE ADA, FMLA & WORKERS’ COMP OVERLAP FMLA ADA Workers’ Comp 5
Legal Framework Unpaid time off with Prohibits Reasonable and job and benefit discrimination necessary medical protection for against a qualified treatment and specified family and individual with a temporary total or medical leave disability who, with permanent reasons or without disability benefits reasonable for a work related 12 weeks of leave in accommodation, injury or illness a 12 month period / can perform 26 weeks in a 12 essential functions month period to of the job care for injured service member 6
Eligibility 12 months, 1250 Applicants, One second hours in last 12 one second employee months, employee at facility with 50 employees in 75 miles 7
Critical Definitions Serious health Disability Arising out of condition (greatly and in course of broadened by employment ADAAA ) 8
Employer Notice Requirements Extensive notice Posting of Posting of requirements, EEO poster WC poster obligation on employer to designate as FMLA leave 9
Employee Notice Requirements Employee’s Employee must 30 days if report injury within foreseeable; as soon obligation to certain time period; as practicable if not request a however, failure to foreseeable reasonable do so usually accommodation doesn’t disqualify ************* BUT BEWARE! Believe FMLA reason or enough to ask more questions? 10
Medical Certification Medical certification Medical exams Medical exams permitted for current permitted can be required employees if job- related and No restrictions on 15 days to return consistent with selection of first, business necessity second or third Can contact employee’s HCP to (but generally opinions request information authenticate and from employee’s clarify medical HCP first) certification 11
Employee Cooperation Duty to engage in Duty to cooperate Duty to cooperate in interactive process providing medical with employer ****** certification and other requested ******* Failure to medical information cooperate can lead (i.e., recertification) Failure to to denial of cooperate can lead benefits ********* to denial of reasonable Failure to accommodation cooperate can lead to delay/denial of leave 12
Hypo - Angela Angela has been a tax accountant for Smith, Jones, & Smith LLC, a private wealth management firm, for the last four years. Angela begins suffering from debilitating migraines and goes to visit her doctor, and learns that she will likely have recurring migraine headaches which may make it impossible for her to work for two to three days at a time. Angela notifies her supervisor, who puts her in touch with HR. HR provides Angela with FMLA paperwork to be completed by her doctor. Angela returns a certification within the 15 day deadline, but the certification is largely illegible and incomplete. 13
Hypo - Angela 1. How does the Firm request that the form be completed and that all relevant information be included? 2. Once the Firm receives the completed FMLA paperwork, it realizes that the certification has been completed by Dr. Green, who has a less-than-reputable practice in the community, and the Firm is wary of his diagnosis. Can the Firm require Angela to get a second opinion? 3. Dr. Green indicates that Angela will need to miss work for approximately three days a month for recovery from her migraines, and possibly follow-up treatment. It is only mid-August, and Angela has already missed five days of work related to her migraines this month. Is there anything the Firm can do? 4. Averaging her time both during and outside of tax season, Angela regularly works 50 hours a week. How much intermittent FMLA leave is she entitled to? 5. What happens if Angela is out of FMLA leave? 14
Hypo - Samantha Samantha has asserted that she has a condition that qualifies as a “ serious medical condition ” for which she will need surgery, but does not want to designate her leave as FMLA leave. She is pregnant and does not want to exhaust her FMLA leave so that she can take her full 12 weeks of FMLA leave when she has her baby. To prevent her employer from forcing her to exhaust her FMLA leave, she simply refuses to turn in her FMLA certification from her medical provider. Can the employer force designate this leave as FMLA protected anyway? If she refuses to turn in the requested paperwork, can the employer terminate her employment? 15
What Is A Reasonable Accommodation? All persons must be able to perform essential functions of the job with or without reasonable accommodation Essential Functions - Does the individual meet the basic qualifications of the job? Must provide reasonable accommodation absent undue hardship: Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position 16 16 |
What Is A Reasonable Accommodation? Making existing Reassignment of Part-time or facilities more non-essential job modified work accessible functions schedules, including unpaid leave Reassignment to Providing or Modifications of a vacant position modifying examinations, equipment or training materials devices or policies Providing Telecommuting qualified readers or interpreters 17
The Interactive Process Must engage in an interactive process ! Case by case analysis When do you need to engage in the interactive process? An applicant or employee requests an accommodation (no magic words required); or An employer: (i) knows that the employee has a disability, and (ii) knows, or has reason to know, that the employee is having difficulty performing job functions because of an impairment The safest approach is to consider any notification that a job modification is needed because of a medical condition as a request for reasonable accommodation 18
How Do You Determine Whether There Is An “Undue Hardship?” Individualized assessment showing specific accommodation would cause significant operational difficulty or expense Generalized conclusions will not suffice Based on several factors: Nature and cost of the accommodation needed Overall financial resources; size, number of employees, and type and location of facilities of the employer, the effect on expenses and resources of facility Type of operation of the employer Impact of the accommodation on operations Generally, cost alone will not be sufficient 19
Examples of Operational Impact Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error Lower quality and less accountability for quality Lost sales Less responsive customer service and increased customer dissatisfaction Deferred projects Increased burden on management staff required to find replacement workers, or readjust work flow or priorities in light of absent employees Increased stress on overburdened co-workers 20
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