POTENTIAL PITFALLS (cont’d) • Don’t assume If the employee is on STD the employee is automatically entitled to leave If the STD is denied/exhausted that the employee is not entitled to leave under the ADA/FMLA 37
Limits of Leave as a Reasonable Accommodation Presented by: Michelle Bush Pierce Atwood LLP (207) 791-1102 mbush@pierceatwood.com
DUTY OF REASONABLE ACCOMMODATION An employer’s failure to make “reasonable accommodations” to the known physical or mental limitations of an otherwise “qualified individual with a disability” constitutes discrimination, unless the accommodation would impose an “undue hardship” on the business. 42 U.S.C. § 12112(b)(5)(a) 39
Tip 1 There is no probationary or qualification period under ADA 40
EEOC v. Ezeflow (WD Pa. 2014) Former marine with PTSD; had seizure 10 • weeks after started; wanted 6 weeks off Had used up sick time; still on probation • Generous leave policy for non- • probationary employees (26 weeks paid) Leave request denied • Settled soon after EEOC sued for $65,000 • 41
Tip 2 Avoid inflexible leave policies 42
AUTOMATIC LEAVE CUT OFFS AND 100% CURED POLICIES EEOC v. UPS, Inc., (N.D. IL February 12, 2014) UPS policy that separation of employment after 12 • months of leave. Individuals could not return to work until 100% healed, even if could perform essential functions with reasonable accommodation. Court denied UPS motion to dismiss class action. • Acknowledging that although regular job attendance can be an essential job requirement, plaintiffs’ claims were not premised on attendance, but rather on UPS’s imposition of a 100% healed requirement on those seeking to return. 43
Hwang v. Kansas State University , (10 th Circuit May 29, 2014) Hwang Court: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no .” “Unsurprisingly?” 44
Tip 3 Dialogue with employee 45
INTERACTIVE DIALOGUE Whether Employee is Disabled • Caution: definition is broad Whether employee can perform essential • functions of the job, with or without accommodation Duty to dialogue goes both ways • 46
Tip 4 Can you articulate specific undue hardship? 47
SHOWING UNDUE HARDSHIP Coworkers neglect certain responsibilities • to cover absent employee duties Additional costs of temporary employees • or use of overtime Company product/services suffer • Other business needs: i.e. key project • requiring dedicated employee 48
Tip 5 Leave for indefinite period is likely not a reasonable accommodation 49
Henry v. United Bank (1 st Cir. 2012) Cervical Myelopathy; exhausted FMLA • Told she had to return to work for • legitimate business reasons Right before RTW, plaintiff submitted • doctor’s note that out of work “until further notice” Told employer that she had scheduled • surgery for 1 month from then Terminated • 50
Henry v. United Bank , (cont’d) No time frame for when or even if she • would return Scheduled surgery date not enough – • needed info about expected recovery “Such an open-ended request for • additional leave is just the type of wait- and-see approach that has been rejected” Here, there likely was undue burden; but • court said that was not the analysis 51
EVALUATING LEAVE AS ACCOMMODATION Is leave necessary or are there other • accommodations? How long is it expected to last? • How will job be covered during leave? • Will leave likely facilitate return to work? • Is there an undue hardship? • 52
Medical Exams – Who, What, When, Where, How Presented by: Joanne Pearson Pierce Atwood LLP (207) 791-1308 jpearson@pierceatwood.com
MEDICAL EXAMINATIONS Why do you want an exam? • Need to look at various legal constraints • ADA/State laws FMLA Drug testing Wellness State recreational use laws Rules are different depending on whether • an applicant or an employee 54
MEDICAL EXAMINATIONS - ADA • Applicants: Cannot do pre-offer Post-offer need to perform for everyone entering the job category • Employees: job related and consistent with business necessity Unable to preform job because of medical condition Direct threat Employee has requested an accommodation 55
MEDICAL EXAMINATIONS - FMLA Model form for requesting certification of • health condition Can require fitness for duty • Designation Can request recertification in certain situations Allowed to follow procedures of other laws, • such as ADA or workers’ compensation, and can use that information to determine eligibility for leave
WHO PERFORMS THE EXAM? Employee’s own physician • Outside third-party chosen by the • employer? RISK: Relying too heavily on the • physician 57
WHAT CAN/SHOULD YOU LEARN? Diagnosis? • Restrictions? • Family history? • Be careful what you learn from your • own health department 58
WHAT CAN/SHOULD YOU LEARN? Diagnosis? • Restrictions? • Family history? • Be careful what you learn from your • own health department 59
What Can You Disclose? To Whom? Increasing area of litigation • Take care in emails, discussions etc. • Obtain authorization from employee • before disclosing medical issues 60
ADA/MHRA CONFIDENTIALITY Keep “medical condition or history” • confidential and “on separate forms and in separate files” Limited exceptions for disclosure: • Supervisors and managers may be informed regarding necessary restrictions and accommodations; First aid and safety personnel may be informed if the disability might require emergency treatment; and Government officials investigating compliance with ADA shall be provided relevant information on request 61
FMLA CONFIDENTIALITY Records and documents relating to certifications, • recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files, and if the ADA is also applicable , such records shall be maintained in conformance with ADA confidentiality requirements except that: Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations First aid and safety personnel may be informed (when appropriate) if the employee's physical or medical condition might require emergency treatment; and Government officials investigating compliance with FMLA (or other pertinent law) shall be provided relevant information upon request 62
Attendance Policies You Can Safely Enforce Presented by: Suzanne King Pierce Atwood LLP (617) 488-8159 sking@pierceatwood.com
ATTENDANCE POLICY Include: Report to work Requirements regularly and on regarding absence time reporting Prohibit (and Address tardiness define) excessive and early quit absence 64
ATTENDANCE POLICY Include: Is unpaid time off No call/no show available? Only (but be careful after paid time is with state leave used? laws) Address work from home – is it allowed? With approval only? 65
IMPORTANT REMINDERS FMLA, leave as accommodation under • ADA, state leave laws . . . CANNOT COUNT AGAINST AN EMPLOYEE UNDER AN ATTENDANCE POLICY Supervisors/managers may benefit from training on this Notice requirements may have to be • modified for state leave laws Supervisors/managers should not pry into • details! 66
Impact of Leave on Benefits Administration Presented by: David Coolidge Pierce Atwood LLP (207) 791-1135 dcoolidge@pierceatwood.com
BENEFIT PLANS WITH LEAVE CONSIDERATIONS • Welfare Benefit Plans Health, dental, vision, flexible spending accounts, life insurance, short-term and long-term disability, severance plans • Pension Benefit and Related Plans Defined contribution, defined benefit, bonus and incentive, non-qualified deferred compensation plans 68
BENEFIT PLAN REVIEW Locate plan documents • Includes plan & summary plan description – Most current version? – Are there changes or amendments? Includes plan notices, forms – Online forms – Paper/PDF documents Decide what to look for in which plans • 69
HEALTH, DENTAL & VISION Confirm health benefits maintained during • employee’s FMLA leave Determine how employees pay premiums • Deduction from STD/by check on COBRA schedule Prepayment / catch-up payment after return Determine procedure to terminate • coverage on leave or if employee does not return and when qualifying event occurs for COBRA 70
FLEXIBLE SPENDING ACCOUNTS Ensure participants are given option to • continue participating in health FSA during leave & how premiums are paid Ensure dependent care FSA claims are • allowed only for up to two weeks of leave Determine how participants contribute to • HSA during leave 71
LIFE INSURANCE Determine whether policy/plan requires • employee to be “actively at work” to remain eligible for coverage Determine what happens if employee • does/does not return from leave Employer may need to pay if insurer • refuses because policy/plan terms differ 72
SHORT-TERM DISABILITY Review policy/plan for leaves continuing • longer than FMLA period Does employer have “no fault” policy • setting specific duration for leave Is process “interactive” for determining if • inability to return to work is “disability” for which longer leave may be “reasonable accommodation” 73
LONG-TERM DISABILITY If employer has LTD and defined benefit • pension plan, determine if design is coordinated with LTD benefits Does pension plan offer disability benefit? When does LTD cease & does pension offset? On what date does employee terminate? Does pension “compensation” include LTD? 74
SPECIAL ISSUE: HEALTH COVERAGE DURING LEAVE Must coverage continue during leave? • Review terms of group health plan/policy To avoid ACA play-or- pay penalty, “stability period” rule (lookback or monthly) applies Full-time: 30 hours week/130 hours month Are health benefits nondiscriminatory? • Highly-paid employees cannot receive better coverage during leave or after termination 75
SPECIAL ISSUE: FURLOUGHS Which employees affected and how? • Employment classifications/work status change Life, AD&D and Disability Plans • Coverage ends…when? Actively -at-work rule Covered earnings during leave are…? If coverage is lost, we then…? Review policy for conversion/portability provisions. On return to work, reinstate…when? Waiting period, evidence of insurability 76
SPECIAL ISSUE: FURLOUGHS (cont’d) Group Health Plans • If insured, carrier approval for continued coverage if policy eligibility is lost If self-insured, employer can amend to continue coverage, but is stop loss carrier approval required? Flexible Spending Accounts • Pension & 401(k) Plans • No contributions/no distributions allowed Loan repayments/loan default concerns 77
TAKEAWAYS Review leave policies in affected benefit • plans and identify gaps in coverage, law Tell employees how leave affects benefits • Be sure leave administrators know how • plans work & plan administrators know how leave procedures work Revise plan forms so consistent with • leave 78
Military Leave Presented by: Charlie Einsiedler, Jr. Pierce Atwood LLP (207) 791-1388 ceinsiedler@pierceatwood.com
INTRODUCTION TO USERRA • Detailed Regulations • All Employers and all Employees Are Covered By USERRA • Floor Not a Ceiling of Benefits • States May Provide Additional Benefits ( and Maine has ) • Some Familiar and Some Different Concepts 80
BASIC LEAVE RULES • Absence Must be Necessitated by Reason of Service • Service Need Not be Sole Reason for Absence • Leave Encompasses Reasonable Time to Travel to Uniform Service Site 81
BASIC LEAVE RULES • Absence Must be Necessitated by Reason of Service • Service Need Not be Sole Reason for Absence • Leave Encompasses Reasonable Time to Travel to Uniform Service Site 82
BASIC LEAVE RULES (cont’d) Notice Requirements : • Employee Required to Give Advance Notice of Need for Leave • Notice May be Verbal or Written • No Specific Time Frame, “As Far In Advance As Is Reasonable Under the Circumstances” • DOD “Strongly Recommends” Employees Give 30 Days Notice 83
REEMPLOYMENT RIGHTS • 5 Year Limit on Period of Service • Includes Only Time Spent in ACTUAL Service • Several (over 12) Exceptions Apply to 5 Year Rule ( captive, mission critical ) • No Requirement to Accommodate Employer Needs as to Timing, Frequency or Duration of Leave (Employer May Make Request of Military Authorities) 84
REEMPLOYMENT RIGHTS (cont’d) Time For Reporting To Work • Sliding Scale • Less Than 31 Days of Service : Next Full Day Following Travel • More Than 30; Less Than 180: Must Apply Within 14 Days of Completing Service • More Than 180 Days: Must Apply Within 90 Days of Completing Service • Exceptions to Rules • Employer May Require Documentation of Service 85
RIGHTS, BENEFITS & OBLIGATIONS WHILE ON LEAVE • Employee Deemed to be on Furlough or Leave of Absence • May Use Accrued Vacation While on Military Leave • May Use Sick Leave if Other Employees Who Are On Leave ( other than sick leave ) Are Allowed to Use Sick Leave • Entitled To All Benefits Provided to Other Employees Who Are On Leave: ( vacation accrual, paid holidays, etc., if provided to any employee on any other leave ) 86
RIGHTS, BENEFITS & OBLIGATIONS WHILE ON LEAVE (cont’d) • Entitled to Maintain Health Plan Coverage For 24 Months • Employee Cannot be Charged More Than Employee Regular Share if Service is Less Than 31 Days • If Service is for 31 or More Days, Employee May be Required to Pay 102% of Employee Premium • Employer Must Reinstate Employee to Health Plan Upon Reemployment • Issues Regarding Service Related Illnesses or Injuries Dealt With In Regulations 87
RIGHTS UPON REEMPLOYMENT • Escalator Principle • Entitled to Raises, Promotions and Seniority Accruals as if Continuously Employed • “Reasonable Efforts”, Including Training Must Be Provided to Allow Employee to Move to Escalator Position • Employers Required to Fund Pension and 401(k) Contributions 88
PENSION ISSUES / CONTRIBUTION • General Rule Make-Up Required • Not Required to Make Contributions Until Employee is Reemployed • Time In Military Service Treated as Continuous Service ( including convalescent time not exceeding two years ) • Employee Allowed Time to Make Elective Contributions • No Losses or Gains Attributed 89
NON-DISCRIMINATION AND NON- RETALIATION Discrimination in Employment, Re-Employment, • Retention or Benefits Prohibited Hostile Work Environment Actionable • Retaliation for Exercising Rights Under USERRA • Prohibited Light Burden of Proof: • Need Only Show Uniformed Service was “One of the Reasons” the Employer Took Adverse Action Eichaker v. V illage of Vicksburg (6th Cir., 2015) “It would be hard” to have Eichaker as Chief if “called away” or “deployed” 90
PROTECTION AGAINST DISCHARGE Not “At - Will” Following Reemployment • Protected From Discharge Except for Cause • Length of Protection Varies: • 180 Day Protection for Service of More Than 30 Days and Less Than 181 Days One Year Protection for Service of More Than 180 Days Cause “Defined” as Reasonable to Discharge • Employee for the Conduct in Question and Employee Had Notice That Conduct Could Lead to Discharge Jury question whether failure to sign non-competition and Confidentiality Agreement was “cause” Legitimate Job Elimination or Layoff is Permissible • 91
FEDERAL FAMILY MILITARY LEAVE Qualifying Exigency Leave Up to 12 Weeks of Leave • Triggered by Call or Order to Duty • Nine (9) Broad Categories of Qualifying Exigencies • Issues Due to Short Notice (Less than 7 days) Attend Military Events or Activities Deal with Child Care Issues or School Enrollment Care for Military Member’s Parent Making or Updating Financial and Legal Arrangements Addressing Military Member’s Absence Attending Counseling for Employee, the Military Member, or Child Up to 15 Calendar Days to Spend time with Military Member During Short Term R & R 92
MILITARY CARE GIVER LEAVE Employee Must be Spouse, Son, Daughter, • Parent or “Next of Kin” of Military Member Up to 26 Weeks of Unpaid Leave in Single 12 • Month Period “Serious Injury or Illness is a Defined Term” • Condition caused a VA disability rating of 50% or greater; or Condition substantially impairs veteran’s ability to work; or Veteran enrolls in VA Program of Comprehensive Assistance for Family Caregivers Condition must be caused or aggravated in the line of active duty 93
MAINE FAMILY MILITARY LEAVE LAW • Applies to Employers Larger Than 15 • Provides 15 Days of Leave for Spouse, Domestic Partner or Parent • Leave May be Taken Within 15 Days Immediately Prior to Deployment; 15 Days Immediately Following Return; or During Deployment If On Leave • Advance Notice Required; 14 Days if Leave is Greater Than 5 Days; “As Soon As Practicable” For Leave of Less Than 5 Days 94
Pregnancy After Young V. UPS Presented by: Michelle Bush Pierce Atwood LLP (207) 791-1102 mbush@pierceatwood.com
ACCOMMODATING PREGNANT EMPLOYEES FMLA? 96
PREGNANCY DISCRIMINATION ACT Title VII prohibition on discrimination on • basis of sex includes on basis of pregnancy, childbirth, or related medical conditions “Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . .” 97
Young v. UPS (4 th Cir. 2013) Young was UPS delivery driver. Became pregnant and doctor • imposed 20 pound lift restriction. Job required 70 lb lift UPS refused to accommodate and she stayed home without • pay for her pregnancy and eventually lost her medical coverage UPS provided temporary alternative work assignments to • those injured on the job, to disabled employees, and to drivers who lost DOT certification Fourth Circuit Court of Appeals held that (1) pregnancy is • not a disability under the ADA and (2) Pregnancy Discrimination Act (PDA) requires only that employers treat employees with temporary, non-work related impairments the same as employees with temporary restrictions due to pregnancy. UPS policy does not violate PDA 98
SCOTUS VACATES Denial of accommodation may be unlawful under PDA if Plaintiff shows: • She belonged to protected class; • She sought accommodation; • Employer did not accommodate her; and • Employer did accommodate others “ similar in their ability or inability to work.” 99
LEGITIMATE NONDISCRIMINATORY REASON Employer may justify refusal to accommodate with “legitimate, nondiscriminatory” reasons But , “that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates .” 100
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