Transcript FAMILY MEDICAL LEAVE ACT AND AMERICANS WITH DISABILITIES ACT

FAMILY MEDICAL
LEAVE ACT
(FMLA)
AND
AMERICANS WITH
DISABILITIES ACT
(ADA)
What is the
Family Medical Leave Act?
 Provides certain employees with up to 12 weeks of unpaid,
job-protected leave per year for a qualifying event. It also
requires that their group health benefits be maintained
during the leave.
 It also provides certain employees with up to 26 weeks of
unpaid, job-protected leave per year to care for an injured
or ill member of the Armed Forces and permits an
employee to take FMLA leave for “any qualifying exigency.”
 FMLA is designed to help employees balance their work
and family responsibilities by allowing them to take
reasonable unpaid leave for certain family and medical
reasons. It also seeks to accommodate the legitimate
interests of employers and promote equal employment
opportunity for men and women.
FMLA Eligibility
To be eligible for FMLA benefits, an employee must:
work for a covered employer
have worked for the employer for a total of 12 months;
have worked at least 1,250 hours over the previous 12
months; and
have a qualifying event.
While the 12 months of employment need not be consecutive, employment periods prior to
a break in service of seven years or more need not be counted unless the break is
occasioned by the employee’s fulfillment of his or her National Guard or Reserve military
obligation (as protected under the Uniformed Services Employment and Reemployment
Rights Act (USERRA)), or a written agreement, including a collective bargaining
agreement, exists concerning the employer’s intention to rehire the employee after the
break in service.
WHAT IS A QUALIFYING EVENT?
 for the birth and care of a newborn child of the employee;
 for placement with the employee of a son or daughter for
adoption or foster care;
 to care for a spouse, son, daughter, or parent with a
serious health condition;
 to take medical leave when the employee is unable to
work because of a serious health condition; or
 for qualifying exigencies arising out of the fact that the
employee’s spouse, son, daughter, or parent is on active
duty or call to active duty status as a member of the National
Guard or Reserves in support of a contingency operation.
When is FMLA paid?
 FMLA is unpaid leave UNLESS the employee
uses their sick or vacation leave accruals.
 Does your County have a policy regarding
FMLA and other Leaves of Absence?
 Dallas County will not place an employee on Unpaid
status until they have exhausted all accruals.
FORMS
Request
for FMLA
This form is
the
employee’s
formal
request for
FMLA.
FORMS
Certification of
Health Care
Provider
This form is
completed by
the employee’s
health care
provider.
FORMS
Designation
Notice
This form
notifies the
employee of
their approval or
non-approval of
FMLA and of
their
responsibilities
while out and
returning to work
FORMS
Notice of
Eligibility and
Rights and
Responsibilities
This form notifies
the employee, after
you receive their
request, of their
eligibility and
additional
information that
may be required
from them to gain
approval.
FORMS
 The US Department of Labor has
available on their website the various
forms your office needs to meet the
requirements of the FMLA.
 http://www.dol.gov/whd/fmla/index.htm
What about record keeping?
 Create a separate filing system for you FMLA files. Do not
keep health information in the “official” personnel file.
 WHY??? Because of HIPAA – Health Information
Portability and Accountability Act is a federal law that
requires employers and health care providers to protect
medical records as confidential, separate and apart from
other business records. That means we may no longer
retain medical information in a personnel file. Here are
some examples of information you should extract from
your personnel files and place in separately protected
files as medical information:







Health insurance application form
Life insurance application form
Request for medical leave of absence regardless of reason
Personal accident reports
Workers' compensation report of injury or illness
OSHA injury and illness reports
Any other form or document which contains private medical
information for a specific employee.
Is she eligible?
 Suzy Creamcheese comes in to the office and
states she needs to take FMLA to care for her
mother, who is having her right leg amputated
due to complications of diabetes. You give her
the paperwork and when she returns the
medical certification, you learn while talking to
her that her “mother” is actually her mother-inlaw. Suzy has worked for the office since
7/20/2000, and in her 10 plus years with the
office has called in sick only twice and has over
1,000 “Sick” hours accrued. Is she eligible for
FMLA?
SUZY CREAMCHEESE
 Yes, she works for a covered employer.
 Yes, she has worked for the employer for 12
months.
 Yes, she has worked at least 1,250 hours over
the previous 12 months.
 NO… she does not have a qualifying event.
IN-Laws are NOT eligible family members.
 What are Suzy’s options?
Is he eligible?
 Darryl Dinglehopper is recently divorced, single
father. In the past three (3) weeks, he has had
to leave work four (4) times, and has called in
twice, missing a total of 32 hours of work.
When you bring it to his attention, he mentions
his son has severe asthma and has to receive
breathing treatments at the doctor’s office
when the rag weed count is up. He started
working for the office as a part time clerk
January 23, 2010; promoted to full time May
20, 2010. Is he eligible for FMLA?
DARRYL DINGLEHOPPER
 Yes, he works for a covered employer.
 Yes, he has worked for the employer for 12 months.
Part Time work DOES count toward FMLA.
 Yes, he has worked over 1,250 hours the past 12
months.
 YES, he has a qualifying event. His son’s chronic
medical condition, when certified by a physician, is a
qualifying event. Time missed due to his son’s illness
should be “charged” to FMLA and should not be used
against him should your office have a sick time usage
policy.
Is he eligible?
 Bart was raised by his aunts because his parents died
when he was very young. Bart’s aunt suffers from lung
cancer which requires constant treatment by a nurse.
The nurse who cares for the Bart’s aunt has a sick
child and has sporadic absences several times a
month. On days that the nurse is not available, Bart
cares for his aunt. Bart provides a note from his aunt's
physician to his supervisor stating that his aunt suffers
from lung cancer and needs full-time attendance. Bart
includes a handwritten statement that he will substitute
for the nurse on days that the nurse is not available.
BART SIMPSON
 Yes, he works for a covered employer.
 Yes, he has worked for the employer for 12 months.
 Yes, he has worked at least 1,250 hours over the
previous 12 months.
 Yes, his aunt meets the definition of parent under FMLA
as parent is defined as biological parent or individual who
stands in loco parentis.
 Yes, Bart’s aunt's cancer is specifically identified in the
FMLA regulations as a "serious health condition.,' In
addition, his aunt is under continuing care and is covered
by FMLA. Bart’s supervisor should request medical
certification to the facts.
Performance Appraisals
 It is performance appraisal time! Bobby
has been on FMLA leave for a "serious
medical condition" for three weeks. Can
his supervisor take his use of leave as an
occurrence for attendance purposes?
Can you do that?
 The employee’s supervisor is prohibited by
FMLA from taking into consideration the
employee’s use of FMLA leave as a negative
factor in any employment action. Whether the
employee’s leave is paid or unpaid, it cannot
be counted as an "occurrence" under any
applicable attendance policy. Any other
interpretation would represent discrimination
on the basis of FMLA use.
Misuse of FMLA
 Ima Hogg is on intermittent FMLA, taking turns with her
sister, Ura, in caring for their sick father, Jim, who has
pancreatic cancer. She has reported that on Mondays,
Wednesdays and Fridays, she will be taking her father to his
radiation treatments at the hospital in Garland, Texas.
 One of your employees, Wyatt Earp, comes to your office
Monday morning and casually mentions he ran in to Ima
twice at Schlitterbahn in New Braunfels on Wednesday and
Friday morning of last week. They even took pictures
together at the river. Wyatt was on scheduled vacation with
his gang when he saw her there.
 You know Ima called in last Thursday morning to report that
she was sick and would not be coming in to work.
 What, if anything, can you do?
What can you do?
 Ask Wyatt for a written statement.
 Confront Ima with the allegations against her.
 If she denies the allegations, you may ask her for
documentation from the medical facility that treats her
father.
 Be careful! You can only truly ask for documentation if
you have substantial proof of misuse. If you don’t have
proof, but wish to challenge whether or not there is a true
need for the intermittent FMLA or FMLA, you can ask the
employee for recertification only every 30 days.
What is the AMERICANS
WITH DISABILITIES ACT?
 The ADA prohibits discrimination on the
basis of disability in employment, State
and local government, public
accommodations, commercial facilities,
transportation, and telecommunications.
It also applies to the United States
Congress
Who is protected?
 To be protected by the ADA, one must have a disability or
have a relationship or association with an individual with a
disability.
 An individual with a disability is defined by the ADA as a
person who has a physical or mental impairment that
substantially limits one or more major life activities, a
person who has a history or record of such an impairment,
or a person who is perceived by others as having such an
impairment.
 The ADA does not specifically name all of the impairments
that are covered.
What is a major life activity?
 Under the ADA, you have a disability if you have a
physical or mental impairment that substantially
limits a major life activity such as:







Hearing
Seeing
Speaking
Thinking
Walking
Breathing
Performing manual tasks.
 You must also be able to do the job you want or
were hired to do, with or without reasonable
accommodation.
What is a “reasonable accommodation?”
 A reasonable accommodation is any change or adjustment
to a job, the work environment, or the way things usually
are done that would allow you to apply for a job, perform
job functions, or enjoy equal access to benefits available
to other individuals in the workplace. Some of the most
common types of accommodations include:
 physical changes, such as installing a ramp or modifying a
workspace or restroom;
 sign language interpreters for people who are deaf or readers for
people who are blind;
 providing a quieter workspace or making other changes to reduce
noisy distractions for someone with a mental disability;
 training and other written materials in an accessible format, such
as in Braille, on audio tape, or on computer disk;
 TTYs for use with telephones by people who are deaf, and
hardware and software that make computers accessible to people
with vision impairments or who have difficulty using their hands;
and
 time off for someone who needs treatment for a disability.
How to request an
accommodation…
 When an individual decides to request accommodation,
the individual or his/her representative must let the
employer know that s/he needs an adjustment or
change at work for a reason related to a medical
condition. To request accommodation, an individual
may use "plain English" and need not mention the ADA
or use the phrase "reasonable accommodation
 A request for an accommodation does not need to be
in writing! An employee may request accommodations
in conversation or may use any other mode of
communication.
Case Study….
 Joe Black is a gay, HIV positive male that recently transferred to
your family courts division from the criminal division as a
second clerk. He has been placed on the 4th floor in your “Diva”
pod. Your “Divas” are women that have worked for your office
for an average of 15 plus years.
 Joe is very outspoken and does not keep his opinions to
himself. Joe has started questioning the Lead, tenured clerks in
the pod regarding processing the mail, a job he feels is beneath
him. This has caused him to become crossways with some of
your experienced clerks.
 He comes to you, requesting an accommodation to be moved
from the 4th floor pod, basing his request on his HIV status and
that it is dangerous to his health to be working on a floor where
“snotty nosed kids” come in to the building for hearings with
their parents. He produces a letter from his physician
supporting his request.
Step by step guide:

Gather facts from the employee: Meet with the employee and gather
information from them regarding their request. Ask them to identify both
the work limitations and a range of various accommodations the
employee believes would address those limitations. If input from a
physician is necessary, ask the employee to provide that documentation
as well.

Identify potential accommodations: Armed with the employee’s
specific request and any additional information needed from treating
physicians, the employer should then independently – and outside the
presence of the employee – identify what you believe are potential
accommodations that would address the employee’s limitations. Your list
of potential accommodations need not be limited to those proposed by the
employee. Indeed, it should encompass the whole universe of options. To
identify possible accommodations, you should review the essential job
functions of the employee’s current position to determine how and
whether the employee may continue to perform those functions.
Step by step…
 Determine the reasonableness of potential accommodations. Once
all of the potential accommodations are identified, review each for its
reasonableness. According to the ADA, an accommodation is
reasonable if it does not “fundamentally alter the nature of the goods,
services, facilities, privileges, advantages or accommodations” of the
employer’s business.
 An accommodation that would cause an “undue hardship” to the
employer is not a reasonable one. However, an “undue hardship” is not
simply a generalized conclusion that an accommodation would cost too
much.
 A determination of undue hardship should be based not only on the cost
of the accommodation, but also on the overall financial resources and
size of the business, the type of business, and the specific impact of the
accommodation on business operations. The ADA requires an employer
to consider all possible sources of outside funding when assessing
whether a particular accommodation would be too costly.
Step by step…
 Communicate the decision to the employee.
An employer is not required to provide the
accommodation requested by the employee. If
the employee specifically asks for an
accommodation that either cannot be provided
(or the employer decides not to provide), the
employer should explain in detail why the
accommodation requested by the employee
was not selected.
And most importantly…
 Document the process. You should draft and
retain a confidential, internal file memorandum
documenting the above-outlined interactive
process, regardless of whether the employee
agrees to the accommodation(s) offered.
 The memorandum should identify the dates of each
meeting with the employee, the accommodations and
limitations identified by the employee, and your own
efforts to identify and assess the reasonableness of
accommodations. The memorandum will memorialize
your efforts and be important in the event the employee
files an ADA claim against the you!
Responding to the request…
 Write up your findings and present them
to him in memo form so that you have a
clear record of your due diligence.
Back to Joe Black … Is the
request “reasonable?”
 The first question to ask is … is his request valid? Can you
do anything to help him avoid the “dangers” to his health?
 Moving him to a different floor or division will not remove
him from the “dangers” he faces. He works in a County
courthouse. He will still have to push the same elevator
buttons, touch door handles, and be around people who
may be sick but have come to the Courthouse for their
hearings.
 Unless you can provide him with a “boy in the bubble”
work environment, his accommodation is not reasonable.
 So now what? Draft a letter to him, responding to his
request and outline the specific reasons he cannot be
accommodated.
Questions…
 Why the picture
of the three
cute redheaded
girls?
 My boss said it
would be a
great ending!