Presenting a live 90-minute webinar with interactive Q&A Performance and Termination Decisions Under the FMLA and ADA Avoiding Retaliation Claims and Litigation When Disciplining or Discharging Employees on Protected Leave WEDNESDAY, JANUARY 13, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Evan H. Pontz, Partner, Troutman Sanders , Atlanta Johanna T . Wise, 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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Performa formance nce and nd Termination mination Decisions sions Under r th the FMLA and ADA January 13, 2016 Johanna T. Wise Evan H. Pontz Seyfarth Shaw LLP Troutman Sanders LLP jwise@seyfarth.com evan.pontz@troutmansanders.com 404-881-5448 404-885-3518 5
AMERICANS WITH DISABILITIES ACT 6
American’s with Disabilities Act (1990) An employer may not discriminate against an employee with a disability in any aspect of employment Employers must reasonably accommodate employees with disabilities to allow them to perform the essential functions of their jobs The ADA protects applicants, new employees, and existing employees The ADA protects individuals with a disability, with a record of a disability, or who are regarded as disabled 7
• EEOC regulations became final in May 2011 Much broader universe of covered individuals If disability is in question, individual is likely disabled (de facto presumption) More requests for accommodation (beware of retaliation) More internal complaints (beware of retaliation) More EEOC charges More federal court lawsuits More ADA suits filed by EEOC Litiga igati tion focus us shifts s to quali lifi ficat ation ions and reasonabl onable e acc ccom ommodat datio ion 8
◦ A covered disability is a physical or mental impairment which substantially limits an individual’s ability to perform a major life activity Before : substantially limits = “significantly restricts” and many cases were dismissed for failure to show disability Now : substantially limits “should not demand extensive analysis” and “usually will not require scientific, medical or statistical analysis” 9
◦ Mitigating Measures must be set aside in analyzing whether someone is disabled ◦ Temporary Impairments lasting fewer than 6 months can be substantially limiting ◦ Episodic Impairments or conditions in remission are covered if they would substantially limit major life activity when active 10
Major Life Activities: 11
Specifically listed conditions that are covered in “virtually all” cases: 12
All persons must be able to perform essenti ential al func ncti tions ons of the job with or without rea easonabl sonable e accommodati odation on ◦ Essential Functions - Does the individual meet the basic qualifications of the job? tasks fundamental to the job not marginal tasks that can easily be distributed to others job descriptions ◦ Must provide reasonable accommodation absent undue hardship Significant difficulty or expense Based on several factors 13
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 14
Employee’s preferred accommodation when Employer has offered an alternative, effective accommodation Eliminating or reallocating essential functions Creating a job where none exists Eliminating qualification requirements Lowering quality or production standards 15
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 16
FAMILY AND MEDICAL LEAVE ACT 17
◦ An absolute entitlement to a certain amount of job protected leave in a defined period of time 12 weeks (26 weeks to care for injured service member) Employed for 12 months Worked 1,250 hours in previous 12 months 50+ employees within 75 miles ◦ FMLA leave can be taken in a block of time, intermittently, or on a reduced schedule and can be taken in weeks, days, hours, or minutes ◦ Right to reinstatement to the same job ◦ Right to have health benefits continued as if still working the same regular schedule 18
Emplo ployee yee Medical ical : Employee’s own serious health condition that makes employee unable to perform one or more of the employee’s essential job functions Famil amily Care: Care for a family member (parent, spouse or child) with a serious health condition Birth/Plac th/Placem emen ent : Birth of employee’s child or placement of a child with the employee for adoption or foster care Quali ualifyin ing g Exigen ency: in connection with a covered family member’s military service Injured jured Servic vice e member mber: Care for injured service member with serious illness or injury who is employee’s parent, spouse, child, or for whom employee is next of kin 19
Employee needs to give notice of leave Proper notice for leave depends on the following: If need for leave is foreseeable – at least 30 days If need is not foreseeable – as soon as practicable If leave is for planned medical treatments, the employee must provide as much notice as possible and attempt to schedule leave so that there is no disruption to business Once the Employer is on notice that an Employee may need FMLA leave, the Employer needs to provide the Employee with certain written information (Notice of Eligibility and Rights and Responsibilities) 20
Thorn rny y Issues ues For r Em Emplo loyers rs Under er The ADA DA & FMLA 21
Sometimes a diagnosis appears to be in • response to discipline or a bad performance evaluation Accommodation requests may appear to • be excuses to avoid the bad or hard parts of the job 22
What should an Employer do if an Employee requests leave or an accommodation for the first time in response to counseling? The Employer may address the performance issues BUT: If an accommodation is requested, begin the “interactive process” by discussing how the disability may be affecting performance and what accommodations may be needed Poor performance does not impact an Employee’s right to take FMLA leave NOTE: Do not counsel an Employee for performance issues that are caused by the FMLA absences (e.g., Employee isn’t getting his/her work done because of taking intermittent leave) 23
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