Transcript Good Intentions Gone Awry: What Every Employer Should Know

Good Intentions Gone Awry:
What Every Employer Should Know About the
Interaction of the ADA and FMLA
Peter J. Petesch
[email protected]
(202) 719-2013
Topics to Be Discussed:
• Employee Rights and Employer
Responsibilities under the ADA and FMLA;
• Defining “Disability” under the ADA
and “Serious Health Condition”
under the FMLA;
• Reasonable Accommodations for Disabled
Individuals who are Otherwise Qualified;
• Determining Concurrent ADA and FMLA
Leaves
• Implementing Light-Duty Policies
Employee Rights and
Employer Responsibilities
under the ADA and FMLA
Covered Employers
ADA
• 15 or more
employees
• Each work day
during 20 or more
calendar weeks in
the current or
preceding year
FMLA
• 50 or more
employees
• Each work day
during 20 or more
calendar weeks in
the current or
preceding year
Covered Employees
ADA
FMLA
• Any “qualified” individual with a • Individuals working for an employer
with 50 or more employees within a 75
disability
mile surface radius
An individual is “qualified” if,
• Who worked 1,250 hours within
with or without a reasonable
previous 12-month period
accommodation, he or she can
The employer designates the 12-month
perform all essential job
period used for FMLA purposes
functions
• Eligibility determined at the time of the
• Short-term and part-time
request and, once granted, may not be
employees are eligible
revoked because the employee is later
• Applicants are also eligible
deemed ineligible
Covered Condition
ADA
•Recognized physical or
mental impairment that
substantially limits a
major life activity;
•Record of such
impairment; OR
•Perceived to be disabled
FMLA
•Serious health
condition of employee
or employee’s spouse,
child or parent
•Birth, placement or
adoption of a child
Leave Allowed for
Care of Others?
ADA
•May not discriminate
because of association
with an individual with a
disability
•Modified work schedule
to care for another not
required
FMLA
•Yes, if spouse or
child has serious
health condition
•Modified work
schedule required
if serious health
condition
Intermittent / Reduced Leave?
ADA
FMLA
•No absolute right
•Undue hardship
defense
•May lose defense
if intermittent
leave taken under
FMLA
•Absolute right for
serious health
condition
•Employer
discretion for
birth, placement,
adoption
Notice by Employer
ADA
• Post a notice in an
accessible format to
applicants and
employees that
describes ADA
provisions
FMLA
• Posting FMLA poster
• FMLA policy in handbook or
manual (written guidance if
neither)
• Written notice of FMLA rights
and obligation upon request for
leave
• Written notice of designation as
FMLA leave
• Notice of certification and fitness
for duty certification
Notice by Employee
ADA
•Obligation to
request
reasonable
accommodation
FMLA
•No need to specifically
state “FMLA”
•Foreseeable leave – 30
days
•Unforeseeable – as soon
as practicable, usually
verbal notification within
1 or 2 business days
Medical Exams
ADA
•Only to determine
ability to do job or
for legitimate
business necessity
(very limited
application)
FMLA
•Allowed to certify
serious health
condition or
upon employee’s
return to work
Requiring Employees to
Demonstrate Fitness for Duty
ADA
•Allowed to determine if
still able to perform
essential functions of job
•For reasonable
accommodation process
•Must be job-related and
consistent with business
necessity
FMLA
•Need uniform practice
for all employees, not
just FMLA
•Only for condition
causing FMLA leave
•No second or third
opinion
Accrual or Continuation
of Benefits
ADA
•On same
terms as all
other
employees
FMLA
•Group health
continues if
employee
continues paying
required
contributions
Length of Leave, Termination,
and Compensation
ADA
FMLA
•Indeterminate length
•12 weeks per year
•Termination allowed but
May be taken intermittently
must not be on account of •Termination allowed as long as
disability
not related to leave (e.g.,
•Compensation on same
layoff)
basis as all other active
•Not compensated unless paid
employees
leave is substituted for FMLA
leave
Right to Reinstatement or
Retention of Job as Part of Leave?
ADA
FMLA
•Not guaranteed
•Must satisfy
reasonable
accommodation
requirements
•Guaranteed
•Same or
equivalent
position
Defining “Disability” under the ADA
and “Serious Health Condition”
under the FMLA
“Disability” Defined
An individual is “disabled” if he/she has:
• a recognized physical or mental impairment
- that substantially limits a major life activity;
• a record of such impairment; OR
• is regarded as having such an impairment
Note on Major Life Activities
•
•
•
•
Caselaw is continually being defined:
8th Circuit (2005): Lifting restriction is not a
substantial limitation on the major life activity of
working
4th Circuit (2006): Ability to eliminate bodily waste
9th Circuit (2005): Reading
2nd Circuit (2005): Ability to interact with others
– Need severe limitation on the fundamental ability to
communicate or connect with other people
“Serious Health Condition”
Defined
Illness, injury, impairment, or physical or
mental condition that involves either:
• In-patient care in a hospital, hospice, or - - -residential medical care facility; or
• Continuing treatment by a health care - - - - provider (HCP)
“Continuing Treatment” Defined
• Period of incapacity;
– Inability to do work, attend school or perform other regular
daily activities due to SHC treatment or recovery
• For more than three consecutive calendar days; AND
• Treatment two or more times by a HCP; OR
• Treatment by a HCP on at least one occasion which
results in a regimen of continued treatment (e.g.
prescription drugs such as antibiotics)
– A regimen of continued treatment does not include resting,
drinking fluids, taking aspirin or anything else that can be
done without visiting a HCP
Comparison: ADA vs. FMLA
• Serious health condition is more broadly
defined than disability
• Many serious health conditions are not covered
disabilities under the ADA
– Substance Abuse – not a disability, but could be SHC
• Still not all SHCs are disabilities – temporary
nature of pregnancies, hernias, broken bones
• Some conditions may be both: continuing
treatment for cancer or strokes
Reasonable Accommodations for
Disabled Individuals who are
Otherwise Qualified
Where to Begin
Once an employer learns that an employee is a qualified
individual with a disability, it must begin an interactive process
with that employee to determine the need for a reasonable
accommodation:
• Meet with the employee
• Document the interactive process – potential defense
• Gain information about the employee’s disability
• Discuss alternatives if an accommodation cannot initially - be agreed upon
• Do not jump to undue burden defense too quickly – very - -high burden, especially if the only burden is cost related
Obligations
• Only need to accommodate essential job functions
• Create written job descriptions before advertising or
interviewing applicants
– Job descriptions can serve as evidence of essential
functions
• Process does not require participation of third
parties, including employee’s attorney
• Maintain a “good faith” effort
• Employee has obligations also…
– Does not have to specify specific accommodation, but
needs to describe problems posed
The Term “Reasonable
Accommodation” May Include
• Making existing facilities used by employees
readily accessible to, and usable by,
individuals with disabilities
• Job restructuring, modified work schedules,
reassignment to a vacant position,
modification of equipment or devices,
adjustment or modification of exams, training
materials or policies, the provision of
qualified readers, interpreters or assistants
• Other similar accommodations for individuals
with disabilities
Undue Hardship
Factors to consider when determining whether an
accommodation causes an undue hardship include the:
• nature and cost of the suggested accommodation;
• financial resources of the particular facility;
• overall financial resources of the employer;
• type and operation of the entity;
• impact of the accommodation on operations;
• impact and burdens on other employees
Determining Concurrent
ADA and FMLA Leaves
Employer’s Notice Obligations
• FMLA leave and other paid/unpaid leave may run
concurrently if employees are notified that:
 Paid sick leave, vacation time, WC, personal
leave, and ADA accommodations
 Can all be “counted” as FMLA leave
• Inform employees in handbooks and in response
to any employee request for FMLA leave
Establishing Concurrent Leave
• Request enough information from employee to
determine if leave is FMLA-protected
• Notify employee that leave is being designated
and will be counted as FMLA leave
• Provide notification promptly – within 2 business
days after learning leave is FMLA-protected
• Confirm any oral notice in writing by the next
payday
Retroactive Designation
• Generally cannot retroactively designate FMLA leave
• Exceptions:
 Learned leave was FMLA-qualifying after employee
returned to work; or
 Awaiting second or third opinion to confirm leave is
qualifying (should preliminarily designate leave as
FMLA-qualifying and later confirm or withdraw in
writing)
Leaves of Absence
• Determine which laws are applicable
 Is the employee disabled?
 Is the requested leave covered by FMLA?
 Was the employee injured on the job?
• If disabled, determine if leave is a reasonable
accommodation. If leave is a reasonable accommodation,
is it also the preferred accommodation for the employer?
 If it is, grant leave regardless of whether it exceeds 12
weeks allowed under FMLA (assuming not indefinite and no
undue hardship)
 If it is not, still must grant leave if covered by FMLA
(assuming 12 weeks have not been exhausted)
Implementing Light-Duty Policies
Light-Duty and the ADA
• If FMLA leave has been exhausted or is not
applicable, an employer can require an
employee to accept a light-duty position as a
reasonable accommodation
Light-Duty and the FMLA
• If an employee cannot perform the essential
functions of his or her job, then he or she has
an ABSOLUTE RIGHT to take FMLA leave and
can not be required to take a light-duty position
• If an employee accepts on intermittent or
reduced-scheduled leave, then the employer
CAN temporarily transfer him or her to a similar
position with the same pay and benefits to
assist granting leave
Questions?
Peter J. Petesch
[email protected]
(202) 719-2013