Transcript ADA FMLA - Northeast Arkansas SHRM | Affiliate of the
NEASHRM FMLA and ADA
Abe Bogoslavsky Bogoslavsky Law Firm 111 Center Street, Ste. 1200 Little Rock, AR 501-244-0722 www.bogolaw.com
FMLA Regulations Revised
On November 17, 2008, the Department of Labor issued revised FMLA regulations.
These regulations attempt to address several recurrent issues by providing formal guidance, and incorporate the NDAA into the FMLA regs.
COVERED EMPLOYERS AND EMPLOYEES
The FMLA entitles eligible employees to take up to twelve weeks of unpaid, job protected leave during a twelve month period as a result of the employee’s serious health condition, or to take care of an immediate family member who has a serious health condition.
COVERED EMPLOYERS AND EMPLOYEES (NDAA)
Up to 12 weeks of leave as the result of a “qualifying exigency” because the employee’s spouse, son, daughter or parent is a covered military member.
Up to 26 weeks of leave to care for a covered servicemember with a serious injury or illness.
COVERED EMPLOYER
Employs 50 or more employees for each working day during 20 calendar workweeks in current or prior year.
Employee whose name appears on payroll will be considered employed each day of the calendar workweek (even if not paid for that week).
JOINT EMPLOYMENT
Occurs when an employee performs work that simultaneously benefits 2 or more employers.
Employee must be counted by BOTH employers.
“Primary employer” is responsible for FMLA leave, job restoration, etc. Look at who exerts control and hiring/firing authority.
EMPLOYEE ELIGIBILITY
The employee must have been employed by the company for at least 12 months & have worked at least 1,250 hours with the employer preceding the date the leave is to begin.
50 employees within 75 mile radius of workplace
NEW Regs
Break in service of 7 years or more is not counted in determining 12 months of service.
Time spent in military service (including Guard or Reserve) must be counted in determining 12 months and 1,250 hours. (USERRA)
NEW Regs (cont’d)
50 employee count is determined at the time notice of leave is given.
Worksite is the site employee reports to, or from which work is assigned.
Joint employment is site of primary employer UNLESS worked for 1,000 hours during year at one location.
75 miles is surface miles (shortest transportation route).
SERIOUS HEALTH CONDITION
Illness, injury, impairment or physical or mental condition that makes employee unable to perform functions of job.
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Inpatient care
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Continuing treatment by health care provider
DEFINITION OF CONTINUING TREATMENT
Any period of incapacity requiring absence from work of more than 3 full calendar days that involves continuing treatment by a health care provider.
CONTINUING TREATMENT DEFINITION
Two or more visits to health care provider, OR two or more treatments by a health care practitioner under orders from a health care provider, within a 30 day period.
A single visit that results in a regimen of medication or therapy.
SERIOUS HEALTH CONDITION (cont’d).
TREATMENT
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Includes exam to determine if serious health condition exists REGIMEN Includes continuing prescription meds Does NOT include: over-the-counter meds; bed rest; drinking fluids; etc.
NORMALLY cold, flu, ear aches, upset stomach, etc. are NOT FMLA events. However, the new regulations clarify that they can be if they otherwise meet the definition that follows.
CONTINUING TREATMENT (cont’d)
Pregnancy or prenatal care
Chronic conditions
Permanent or long-term conditions
Conditions requiring multiple treatments Absences due to pregnancy or chronic condition usually qualify even if there is no treatment prescribed.
PREGNANCY
Applies equally to males and females. Dads can attend prenatal visits and care for a spouse with severe morning sickness.
Both mother and FATHER are entitled to FMLA leave for birth and bonding during 12 month period beginning on day of birth.
ADOPTION OR FOSTER CARE
May take FMLA leave prior to placement or adoption if required for adoption or foster care to proceed (interviews, counseling, court appearances).
DEFINITION OF “SPOUSE” AND “PARENT”
Husband or wife, under state law;
Includes common law marriages in States where recognized.
“Parent” specifically excludes in laws.
In Loco Parentis
On June 22, 2010, the Administrator issued an interpretation regarding employee standing “in loco parentis” to a child.
Regulations do NOT require both day-to-day care AND financial support of the child.
In Loco Parentis (cont’d)
Look at the intent of the person claiming in loco parentis status.
Specifically includes individuals who provide day-to-day care for unmarried partner’s child and employee who will raise adopted child with same sex partner.
UNABLE TO PERFORM
“Unable to perform functions of position” is unable to perform ANY ONE of essential functions of job within meaning of ADA.
Employer may provide list of essential functions to health care provider. These should be provided with the “eligibility notice.”
SUBSTANCE ABUSE
Substance abuse may be a serious health condition.
FMLA leave only for treatment for substance abuse by health care provider, not simply absence due to substance abuse.
Allows for “need to care for family member” coverage.
AMOUNT OF LEAVE
Same as prior
If employer changes time period for calculating “12 month period”, must give at least 60 days notice.
NEW TYPE OF LEAVE
FMLA also provides leave due to a “qualifying exigency” arising out of employee’s spouse, son, daughter, or parent is a covered military member on active duty.
“QUALIFYING EXIGENCIES”
Short-notice deployment (leave up to 7 days)
Military events/related activities
Childcare and school activities (childcare is urgent/immediate basis)
Financial and legal arrangements
Counseling
“Qualifying Exigencies” (cont’d)
Rest and recuperation (up to 5 days of leave)
Post-deployment activities (events for a period of up to 90 days following termination of active duty status)
NEW TYPE OF LEAVE
FMLA also provides for leave to care for a covered servicemember with a serious injury or illness, if the employee is the spouse, son, daughter, parent, or next of kin.
Care for Servicemember
Applies when servicemember: Is on the temporary disability retired list; or, Has a serious injury or illness incurred in line of duty while on active duty, for which he is undergoing medical treatment, recuperation or therapy.
Care for Servicemember (cont’d)
An eligible employee is entitled to up to 26 weeks of leave during a single 12 month period to care for a covered servicemember with a serious illness or injury.
This leave is calculated on a “per servicemember”, “per injury” basis.
INTERMITTENT/REDUCED LEAVE SCHEDULE
• Must be medical need for leave AND it can best be accommodated through intermittent or reduced schedule (as opposed to employee simply wanting intermittent leave).
• Expressly includes morning sickness.
INTERMITTENT/REDUCED LEAVE SCHEDULE
Employer may transfer employee to alternative position during intermittent leave; HOWEVER pay and benefits must remain the same.
Employees must attempt to schedule leave so as not to disrupt company’s operations.
CONTINUATION OF BENEFITS
When employee returns from leave, must be reinstated on same terms as prior to taking the leave, without any qualifying period, physical examination or exclusion of pre existing conditions.
These rules apply even if employee failed to make premium payment or declined coverage initially.
JOB RESTORATION EQUIVALENT PAY
Any unconditional pay increases
NOT increases based on seniority, length of service or work performed.
NO bonus if based on the achievement of specified goal such as hours worked, products sold or perfect attendance. (You must apply the same policy for all employees on any type of “leave without pay.”)
JOB RESTORATION EQUIVALENT BENEFITS
Not entitled to accrue any additional benefits or seniority during unpaid FMLA leave.
Employee on FMLA leave is deemed to be employed for purposes of vesting in pension plan.
NOTICE
Employer must post notice of FMLA rights and have policy in handbook.
The employee does not have to expressly request FMLA leave, but must give enough information to indicate the leave could qualify for FMLA designation.
Notice cont’d
“ Eligibility Notice .” After leave is requested, the employer has 5 days to notify the employee of whether or not leave is available, and if not, state why it is unavailable. They should also notify the employee of medical certification requirements. “ Designation Notice .” The employer must designate leave as FMLA, paid or unpaid, in writing and notify the employee within 5 business days of making such determination (Up from 2 days).
PENALTY
Failure to follow notice requirements may constitute an interference with, restraint or denial of FMLA rights. The employer may be responsible for any actual damages the employee suffers due to notice requirements not being followed.
DESIGNATION OF FMLA LEAVE
Remains employer’s right/responsibility to make decision.
In cases of a dispute on whether paid leave qualifies as FMLA leave, it should be resolved through discussions between the two. Such discussions and the final decision MUST be documented.
NOTICE BY EMPLOYEE
Must provide sufficient information for employer to determine that FMLA may apply. Calling in “sick” not enough.
For PLANNED medical treatment, employee must consult with employer to attempt to schedule treatment so as not to unduly disrupt operations – subject to approval of health care provider.
MEDICAL CERTIFICATION
Must give notice of requirement IN WRITING and advise of consequences.
Employee must provide a complete and sufficient certification. If not all entries on certification are completed, this is NOT complete.
If the certification is insufficient, employee must receive notice in writing of deficiencies.
MEDICAL CERTIFICATION
Certification requirements can include:
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date condition began; probable duration; medical facts re: condition; statement of need to care for family member, or inability to perform functions of job; &
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If leave is not continuous, & leave is due to planned medical treatment, the expected dates & duration of the treatment.
QUESTIONING A COMPLETE MEDICAL CERTIFICATION
AUTHENTICATION – verifying that information was completed/authorized by health care provider CLARIFICATION – cannot read handwriting or do not understand a response. Cannot ask for information beyond what is required on certification.
Workers Comp claims/inquiries are still “exempt” from these regs.
RECERTIFICATION
Still no less than 30 days.
Still no sooner than minimum duration on medical certification.
However, if the employer receives information that casts doubt upon the stated reason for the absence or the continuing validity of the certification, may request recertification sooner.
INTENT TO RETURN TO WORK
Not the same as recertification. May require employee to report periodically on intent to return to work. (Don’t discriminate though.)
If employer receives UNEQUIVOCAL notice of intent not to return to work, FMLA obligations cease.
FITNESS FOR DUTY REPORT
Only if required for similarly situated employees, whether on FMLA or not.
Must be related to employee’s health condition necessitating FMLA leave
Cost is borne by employee
Intermittent leave – no report for each absence. Only once every 30 days and only if reasonable safety concerns regarding ability to perform duties.
EMPLOYEE’S RIGHTS
Prohibited from interfering with, restraining, or denying the exercise of (or attempt to exercise) rights.
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Refusing to authorize leave Improper notice, or lack thereof Delay in authorizing leave
Anti-retaliation provision
REMEDIES
File complaint with DOL
File private lawsuit
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2 years (3 if willful violation)
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Wages, benefits, other actual losses directly associated (up to 12 weeks of pay)
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Liquidated damages (double amounts)
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Costs and attorney’s fees
Americans with Disabilities Act
ADA
The ADA prohibits discrimination in employment against a qualified individual with a disability who is able to perform the essential functions of the job, with or without a reasonable accommodation .
DIRECT THREAT
An individual who poses a direct threat to the safety of himself or others is NOT covered under the Act.
Threat must be actual, not perceived.
DRUG USE
Current users of illegal drugs are specifically exempted from the ADA. However, an individual who has successfully completed drug rehabilitation, or is undergoing drug rehabilitation, is considered to be “disabled” under the ADA.
UNDER THE ADA, A “DISABILITY” IS DEFINED AS:
A physical or mental impairment substantially limits one or more of the major life activities of an individual; or that
A record of such impairment; or
Being regarded as having such an impairment; or
Being associated with an individual who has such an impairment.
MAJOR LIFE ACTIVITIES INCLUDE SUCH THINGS AS:
Walking, seeing, hearing, speaking, breathing, learning, working, lifting, reaching, standing, sitting, and caring for oneself.
SUBSTANTIALLY LIMITING
Factors which are considered in making this determination include:
– The nature and severity of the
disability;
– The length of the disability; and – The permanent or long term impact
of the disability.
“QUALIFIED INDIVIDUALS” WITH A DISABILITY
The individual must meet the prerequisites of the job (i.e., Education level, certified or licensed in a particular area, etc.) and be able to perform the essential functions of the job.
Courts will give deference to a company’s job description in determining the essential functions of a job.
REASONABLE ACCOMMODATION
A reasonable accommodation is an action which an employer must take that would allow a disabled person to perform essential functions of the job despite the individual’s disability.
EXAMPLES OF REASONABLE ACCOMMODATIONS INCLUDE:
Modifying existing facilities or equipment;
Altering work schedules;
Eliminating non-essential elements of the job; and
Reassigning an individual to a vacant position.
REASONABLE ACCOMMODATION Must make accommodation unless it would create an undue hardship on the employer.
ATTENDANCE
Attendance is an essential job function
ACCOMMODATING ABSENT EMPLOYEES
Can employee perform essential functions of job with or without reasonable accommodation?
Accommodation not reasonable if it eliminates essential element of job, i.e. attendance
ACCOMMODATING ABSENT EMPLOYEES
Employer is not required to hold open a job indefinitely while employee recovers from work-related injury
PRE-EMPLOYMENT PHYSICALS
Only after conditional offer of employment
Offer may be withdrawn if employee fails physical
EFFECT OF WC ON DEFINITION OF DISABILITY
Only employees who meet ADA’s definition of “individual with a disability” are covered regardless of meeting criteria for receipt of benefits under Workers Comp or other disability laws
ARE WORK-RELATED INJURIES COVERED BY ADA?
If injury meets technical definition of ADA, employee is covered
If injury is of short duration with no long-term or permanent impact, ADA is not applicable
Receipt of workers comp benefits not automatic entitlement to ADA coverage
WORKERS’ COMPENSATION HISTORY INQUIRIES
NO
before conditional offer of employment
YES
after conditional offer if in the context of medical exam/inquiry required of all applicants in same job category
MEDICAL EXAMINATIONS
Job-related
Consistent with business necessity
Prior to return-to-work following leave due to illness or injury
ADAAA
ADAAA
On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008.
The provisions of the ADAAA went into effect January 1, 2009.
Proposed regs and Q & A were published in late 2009.
ADAAA (cont’d)
The ADAAA specifically rejected several Supreme Court cases that had limited the scope of the ADA.
“Disability” is to be broadly construed to “maximum extent” permitted.
Major Life Activities
Includes sleeping, concentrating, thinking, interacting with others.
Operation of bodily functions – immune system; digestive, bowel, bladder, brain, respiratory, circulatory and reproductive functions.
“Disability” defined
Only needs to limit one major life activity.
Does not have to prevent or significantly restrict performance of major life activity to be “substantially limiting.”
Compare to “most people in the general population.”
Substantially limited in working
No longer requirement that someone be limited from performing “broad range of jobs”. New concept is “type of work.” Nature of work: commercial truck driving, clerical jobs, law enforcement.
Job-related requirements: repetitive bending, heavy lifting, etc.
Mitigating Measures
Specifically rejected Supreme Court decision in Sutton v. United Airlines.
Impairments are to be evaluated in unmitigated state (medication, prosthetics, hearing aids, learned behavior) except for glasses and contact lenses.
Mitigating Measures (cont’d)
Surgical procedures, unless they permanently eliminate the impairment.
If episodic, OR IN REMISSION, it is still a disability if it would substantially limit when active.
Definitely disabled under ADAAA
Deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular distrophy, major depression, bipolar disorder, obsessive-compulsive disorder and schizophrenia.
May be disability under ADAAA
Asthma, high blood pressure, back and leg impairments, learning impairments, panic or anxiety disorders, some forms of depression, carpal tunnel syndrome, and schizophrenia.
Probably NOT disability under ADAAA
Common cold, seasonal influenza, sprained joint, minor and non chronic gastrointestinal disorders, a broken bone expected to heal completely, appendicitis, and seasonal allergies.
“Regarded as”
Prohibits discrimination based on alleged perception of a physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity.
Does not apply to transitory impairment - actual or expected duration of 6 months or less.
What does this mean?
More Charges and lawsuits.
More expensive – fewer summary judgments.
Review job descriptions and reasonable accommodation process.