I NTERPLAY OF FMLA, ADA, D ISABILITY , W ORKERS ' C OMPENSATION , P REGNANCY , A DOPTION , O THER S TATE L EAVE , GINA AND B US D RIVING IN N.C. P UBLIC S CHOOLS
The Interactive Process Under the ADA, the interactive process is the opening dialogue between the employer and the employee regarding issues related to the employee's alleged disability and the possible need for reasonable accommodations.
According to the ADA Regulations, when an employee requests reasonable accommoda- tions, "it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that overcome those limitations."
Bottom-line: In order to determine if an accommodation and/or leave from work is mandatory, necessary, reasonable or even possible you must have a conversation with the employee and seek medical information when necessary.
Dear ____________: {Insert introductory facts re: employee 1) claim of disability or 2) request for accommodation.} Please be advised that the {employer} does not regard you as disabled based upon {facts known or claims made by employee}. Therefore, in order for the school system to evaluate any request we must have the following information 1 from your medical provider(s) as soon as possible: An explanation of the nature, severity and duration of any impairment; 1) A description of the activity or activities limited by the impairment, and the extent to which such activity(ies) are limited; and 2) A description of any and all measures suggested as reasonable accommodation for the __________ school year. For your convenience I have included a copy of your job description which should be shared with any medical professionals providing this information and/or conducting an evaluation. Unless you qualify to be absent from work pursuant to law or policy, and until this information is received, your obligation to {current job assuming no doctor's note or injury} will continue. Please provide the information requested above to me within fifteen (15) calendar days if you wish to pursue any request for accommodation. Sincerely, 1 The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Available Leave Balances
Sick Leave Temporary illness or disability. • 60 day waiting period for STD • Worker’s Compensation leave to maintain 100% salary • to care for a child placed with the employee for adoption (up to 30 days) • illness in the immediate family including medical appointments • pregnancy, miscarriage, abortion, childbirth, or postnatal recovery same as other short-term disability
Sick Leave Superintendent may require a statement from a medical doctor or other acceptable proof that the employee was unable to work
Annual Leave • instructional personnel who require substitutes for their own catastrophic illness • "new parents" can use their vacation leave for consecutive workdays to care for a newborn or adopted/foster child placed with the employee(s) during the first 12 months after the birth or placement
Extended Sick Leave • classroom teachers and media coordinators who require substitutes • personal illness or injury in excess of available sick leave and vacation leave
Episode of Violence Leave • Permanent full-time employees • Injured or disabled while engaged in course of employment • Full salary for one year, the continuation of the disability, or the time during which the employee is unable to engage in his or her employment because of injury, whichever is shortest • Employee cannot be forced to use any other paid leave
Contagious Disease Leave • an employee may be placed on paid leave if the director of the county health department orders the employee to leave work to avoid the spread of contagious disease and/or protect the health of the employee. Other leave cannot be charged against the employee
Parental Leave without Pay Employee • May take up to one calendar year from the date of birth or adoption to care for a newborn or newly adopted child. • The employee can elect to take leave without pay rather than using available sick or annual leave. • While on leave without pay, the employee must pay the employer’s portion of health coverage
Leave Without Pay • Subject to Superintendent discretion and Board policy. • Set the beginning and end date after consideration of the welfare of students and the need for continuity of service. • Employee must pay the employer’s portion of health coverage.
Voluntary Shared Leave • Purpose is to provide economic relief for employees who are likely to suffer financial hardship due to a prolonged absence or frequent short-term absences caused by a serious medical condition • Full-time and part-time permanent employees • Requires that ALL leave be exhausted • Cannot be used if employee is eligible for STD or LTD benefits • Can be used for serious medical condition of self or immediate family member • Superintendent must approve • Limits on who can donate and how much.
Scenario #1: Employee is Permanently Unavailable to Work • Not entitled to FMLA or other leave if the employee gives an unequivocal statement regarding their intent not to return NOTE: Allowing FMLA to be exhausted before making any dismissal decisions is the safest course of action. o Can be terminated without an ADA violation; o May be eligible for Workers’ Compensation or state disability
Scenario #2: Employee is Temporarily Unavailable to Work If the Employee is still unable to return to work after FMLA leave has been exhausted, the Employee can • continue on Workers’ Compensation leave; • continue on other applicable paid leave; • be granted leave without pay; or • continue on, or move to, state disability.
• The Employer should hold the job position (workers' comp. or ADA) or an equivalent position (FMLA or state disability) while the Employee is on approved leave or disability. • Unless the Employer can demonstrate an undue hardship, the EEOC takes the position that unpaid leave is a reasonable accommodation.
• After accrued paid leave is used up employee may either i. return to work; ii. be given unpaid leave; or iii. Be terminated due to “undue hardship”
Scenario #3: Employee is Temporarily Unavailable for an Indefinite Period • If temporary disability prevents a return to work and the prognosis is uncertain, employee may be terminated due to unavailability of an indefinite duration or the Employee may be granted leave without pay. The safest course is to allow the Employee to exhaust FMLA and all applicable accrued leave prior to any determination. • Employee remains eligible for Workers’ Compensation or state disability
Failure to Report to Work after the End of Approved Leave • Subject to certain due process protections, Employee's failure to return to work is an act of insubordination and grounds for termination.
Adverse Employment Action Unrelated to Disability • Employee may be disciplined or terminated for misconduct or other factors (e.g. reduction-in-force) unrelated to their disability even if the misconduct is discovered after the employee asserts their disability rights.
GINA • Title II of GINA prohibits employers from discriminating in hiring, firing and other employment actions based upon the use of genetic information (i.e. “family medical history”). • "GINA" - "safe harbor" language
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
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