Dealing with Illness and Injury in the Workplace: How to Navigate the Bermuda Triangle of ADA, FMLA and Workers' Compensation by Morris L.

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1 Dealing with Illness and Injury in the Workplace: How to Navigate the Bermuda Triangle of ADA, FMLA and Workers' Compensation by Morris L. Hawk In a perfect world, there would be a Universal Comprehensive Leave Law, which would address any and all issues relating to employees requests for time off due to illness or injury. HR professionals and business owners could just scan through the statute and find the one true answer to any question regarding leave for employees. Unfortunately, this is not a perfect world. And when it comes to employee leave, there is no one-stop shopping for answers. HR professionals and business owners must be able evaluate requests for leave under the separate and distinct statutory schemes under the Americans With Disabilities Act ("ADA"), the Family and Medical Leave Act ("FMLA"), and, for leave due to a workrelated injury, under Ohio s Workers Compensation Statute. The purpose of this outline is to provide a general overview of each law and to describe how these laws interact with each other in the context of addressing employee requests for leave. I. FMLA. A. PURPOSE OF THE LAW. The Family and Medical Leave Act (FMLA) (29 U.S.C et seq.) is to provide a minimum standard for leave (12 weeks of unpaid leave for year) to employees who need to take such leave due to a serious health condition, the birth or adoption of a child, or for the care of a child, spouse or parent who has a serious health condition. B. COVERED EMPLOYERS, ELIGIBLE EMPLOYEES AND CALCULATION OF LEAVE. 1. Covered Employers. An private employer is subject to the requirements of the FMLA if it employs 50 or more employees. Public agencies are covered employers without regard to the number of employees employed. Public as well as private elementary and secondary schools are also covered employers without regard to the number of employees employed. Note: Employees jointly employed by two employers must be counted by both employers, whether or not maintained on one of the employer's payroll, in determining employer coverage and employee eligibility. For example, an employer who jointly employs 15 workers from a temporary placement agency and 40 permanent workers is covered by FMLA.

2 2. Eligible Employees. Employees with a FMLA-qualifying reason are eligible to take FMLA leave if they have worked for their employer for at least 12 months and have worked for at least 1,250 hours over the previous 12 months and work at a location where at least 50 employees are employed by the employer within 75 miles. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted. However, the 1,250 hours must be within the previous 12 months and include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included. Note: Time spent on leave, including vacation or sick leave, will apply towards the 12-month requirement, if the employee remains on the employer s payroll and is receiving other benefits. Thus, an employee may become eligible for FMLA leave during the time period that an employee is off work on sick leave. Note: Employees returning from National Guard or Reserve duty must be treated as if they never left employment for the purposes of determining eligibility. For example, returning service member meets both the 12 month and 1,250 hour requirement if the servicemember works full-time for one month; leaves for a Reserve assignment for twelve months; and then returns to the employer. 3. Length Of Leave And Calculation Of 12-Month Period. Eligible employees are entitled to a total of 12 work weeks of leave for certain family and medical reasons during a 12-month period. Employers may select one of four options for determining the 12-month period: the calendar year; any fixed 12-month leave year such as a fiscal year, a year required by state law, or a year starting on the employee s anniversary date; the 12-month period measured forward from the date any employee s first FMLA leave begins; or a rolling 12-month period measured backward from the date an employee uses FMLA leave. B. REASONS FOR LEAVE. 1 An eligible employee may take leave for the following FMLA-qualifying reasons: 1 Special leave requirements relating to military service are included in Section K of this Outline. 2

3 because of a serious health condition; to care for a spouse, child or parent who has a serious health condition; or the birth or adoption or placement for foster care of a child. 1. Employee With A Serious Health Condition Or Employee With A Spouse, Child Or Parent With A Serious Health Condition. Employers are required to provide FMLA leave to eligible employees who suffer from "serious health conditions" that render them incapable of performing an essential function of their jobs. A "Serious Health Condition" must involve an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Continuing treatment must be more than three days and consist of at least two treatments. The regulations specify that a serious health condition means an illness, injury, impairment, or physical or mental condition that involves either: 1) Inpatient care (i.e., an overnight stay) in a medical facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; or 2) Continuing treatment by a health care provider, which includes a period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also includes treatment two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or 3) Any period of incapacity related to pregnancy or for prenatal care. A visit to the health care provider is not necessary for each absence; or 4) Any period of incapacity or treatment for a chronic serious health condition which continues over an extended period of time, requires periodic visits (at least twice a year) to a health care provider, and may involve occasional episodes of incapacity; or 5) A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or, 3

4 6) Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated. 2. Birth Of A Child. Both father and mother are entitled to take FMLA leave for the birth of a child. Under some circumstances FMLA leave may occur before the birth of the child. For example, leave may be taken by an expectant mother for prenatal care. Leave taken for the birth of a child and care of the child may be taken intermittently or on a reduced leave schedule after the birth, only if the employer agrees. The entitlement to FMLA leave for the birth of a child and care of the child expires at the end of the 12-month period beginning on the date of the birth. If a husband and wife are employed by the same covered employer they may be limited to a combined total of 12 weeks of FMLA leave for the birth of a child and care of the child during the 12-month period after birth. 3. Adoption Or Placement For Foster Care Of A Child. FMLA leave taken for placement of a child with the employee for adoption or foster care is available to both the husband and wife. Foster care is 24-hour care for children in substitution for, and away from, their parent or guardian. Although foster care may be with relatives of the child, State action is still required for the removal of the child from parental custody into foster care. Voluntary placement of the child by a parent with a relative or guardian, absent State involvement, does not qualify for FMLA leave. Leave taken for the placement of a child for adoption or foster care may be taken intermittently or on a reduced leave schedule after the placement, only if the employer agrees. FMLA leave taken for adoption or foster care may be taken before the actual placement of the child if the absence from work is required for the placement for adoption or foster care. These absences might include counseling sessions, court appearances, or physical examinations. The entitlement to FMLA leave for the placement of a child for adoption or foster care generally expires at the end of the 12- month period beginning on the date of the placement. If the husband and wife are employed by the same covered employer, they may be limited to a combined total of 12 weeks of FMLA leave for the placement and care of a child during the12-month period following placement. 4. FMLA Leave For Persons Acting In Loco Parentis. The Department of Labor has recently issued new guidance expanding the family members entitled to take FMLA leave due to the birth, adoption or serious medical condition of children. Specifically, the Department of Labor has concluded that an 4

5 employee without a biological or legal relationship with a child may still be eligible for FMLA leave due to the birth, adoption or serious medical condition of the child if the employee provides either day-to-day care or financial support for the child. Thus, an employee who provides day-to-day care for an unmarried partner s child can qualify for FMLA leave if the employee needs time off to work for care for that child due to a serious medical condition. C. NOTICE AND CERTIFICATION. 1. General Employer FMLA Notice. A covered employer must post a general written notice, which under certain circumstances may be done electronically, even if no employees are eligible. The employer also must provide a written FMLA notice to any eligible employee, either through a handbook or leave policy, or by distributing a copy of the notice to each employee upon hire. Attached at Appendix A is a copy of the DOL Form Notice (DOL Form WH-1420). Note: This new notice requirement does not alter the employer s burden to notify an employee about her possible eligibility for FMLA leave or the amount of time that will be counted as FMLA leave. 2. Employee Notice Of Need For Leave. Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer s usual and customary notice and procedural requirements for requesting leave. In such a situation, it will usually be practicable for the employee to give notice of the leave either the same day (if the employee becomes aware of the need for leave during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours). If the employee fails to comply with an employer s call-in procedure, FMLA leave may be delayed or denied. The employee may also be subject to discipline according to the employer s policies and procedures. Employees must provide sufficient information for an employer reasonably to determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee s qualifying family member is under the continuing care of a health care provider. Calling in sick without providing more information is not sufficient notice to trigger protections under the Act. 5

6 When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave, however, due to a FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. 3. Employer Notice Of Rights And Responsibilities: Triggered By Employee Request For Leave. Within five business days after the employer acquires knowledge that a leave may qualify under the FMLA, the employer must provide a Notice of Rights and Responsiblities form to the employee that details what specific expectations and obligations the employee must meet and explaining any consequences if the employee fails to meet them. It is recommended that an employer provide the Notice of Rights and Responsibilities as soon as possible after receiving a request for leave. If eligibility is denied, the employer must give a reason (i.e., less than 12 months employment, less than 1,250 hours, etc). Attached at Appendix B is a copy of the DOL Form Notice (DOL Form WH-381). 4. Designation Notice This notice confirms the leave will be designated as FMLA. It is to be provided within five business days after employer has enough information to determine leave is for a qualifying FMLA reason. Any fitness for duty certification requirement upon a return to work (with a list of essential job functions if the ability to perform them is to be addressed in the certification) should be provided to the employee at this time. Attached at Appendix C is a copy of the DOL Form Notice (DOL Form WH-382). The employer always has the responsibility to designate leave taken for a FMLA reason as FMLA leave. Further, while an employee is required to give an employer notice of the need for leave as soon as practicable when the need for FMLA leave is unforeseen, an employee does not need to use any particular magic words to request FMLA leave. Rather, it is the employer s obligation to help the employee understand that he is entitled to FMLA leave and to get the appropriate forms to the employee if the employer has reason to believe that FMLA might apply in the employee s particular situation. When the employer designates an absence as FMLA leave, the designation must be based upon information furnished by the employee and the employee must be notified in writing that an absence is being designated as FMLA leave. Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if: 6

7 the employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition; the employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave; or the employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave. 5. Certification. The employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter, or, in the case of unforeseen leave, within five business days after the leave commences. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration. The employee must provide the requested certification to the employer within 15 calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts. Attached at Appendix D is the certification form to be used for employees seeking leave for their own serious health condition (DOL Form WH-380E). Attached at Appendix E is the certification form to be used for employees seeking leave to care for a family member (DOL Form WH-380F). A certification of serious health condition is sufficient if it states: The name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization; The approximate date on which the serious health condition commenced, and its probable duration; A statement or description of appropriate medical facts regarding the patient's health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment; 7

8 If the employee is the patient, information sufficient to establish that the employee cannot perform the essential functions of the employee's job as well as the nature of any other work restrictions, and the likely duration of such inability; If the patient is a covered family member with a serious health condition, information sufficient to establish that the family member is in need of care and an estimate of the frequency and duration of the leave required to care for the family member; If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment of the employee's or a covered family member's serious health condition, information sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of such treatments and any periods of recovery; If an employee requests leave on an intermittent or reduced schedule basis for the employee's serious health condition, including pregnancy, that may result in unforeseeable episodes of incapacity, information sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity; and If an employee requests leave on an intermittent or reduced schedule basis to care for a covered family member with a serious health condition, a statement that such leave is medically necessary to care for the family member which can include assisting in the family member's recovery, and an estimate of the frequency and duration of the required leave. Medical records, opinions and certifications submitted on behalf of an employee in connection with the ADA and/or workers compensation may be relevant evidence with respect to making FMLA-related decisions and vice versa. The employer may seek clarification if a certification is incomplete (one or more applicable entries have not been completed) or insufficient (the information provided is vague, ambiguous, or non-responsive. An employer who needs clarification on an initial medical certification may specify in writing to the employee that the information is incomplete or insufficient. The employer must notify the employee in writing as to what additional information is needed and give the employee seven calendar days to complete and return the form (or longer if the employee cannot comply within seven days despite good faith efforts). An employer may also directly contact an employee s healthcare provider to authenticate and clarify information provided on a certification form. "Authentication" 8

9 means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. "Clarification" means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask health care providers for additional information beyond that required by the certification form. Only the following individuals may contact an employee s healthcare provider on an employer s behalf: a healthcare provider, a human resources professional, a leave administrator, or a management official. An employee s direct supervisor is expressly prohibited from contacting the employee s healthcare provider. Any such contact must comply with HIPAA. However, if an employee refuses to provide theemployer with HIPAA authorization and fails to clarify a certification, the employer may deny FMLA leave. If the employer disagrees with the opinion expressed by the employee s health care provider on the certification, the employer may require the employee to obtain a second opinion at the employer s expense. The employer is permitted to designate the health care provider to furnish the second opinion but the person may not be employed on a regular basis by the employer. If the opinions differ, the employer may require the employee to obtain certification from a third health care provider at the employer s expense. The third opinion is final and binding. The third health care provider must be selected jointly by the employer and employee 6. Recertification. If a certification indentifies a period of absence lasting 30 days or less, the employer may request recertification every 30 days in connection with the absence. If the certification provides, that the minimum duration of the condition is more than 30 days but less than six months, the employer must wait until that minimum duration expires before requesting a recertification. In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee. In addition, an employer can request recertification at any time if (1) the employee requests an extension, (2) circumstances described by the previous certification have significantly changed, or (3) the employer receives information that casts doubt on the certification. 9

10 The employer can give the healthcare provider a record of the employee s absence pattern and ask the health care provider if the condition and need for leave are consistent with the pattern of absence. 7. Return to Work/Fitness for Duty. Employers restoring employees to their position after FMLA leave may equire employees to provide fitness for duty certifications before returning to work so long as they let the employee know the requirement before the leave. In order to obtain a fitness for duty certification addressing the employee s ability to perform the essential functions of the job, the employer must provide the employee with a list of the essential functions at the same time the employer provides the Designation Notice. Employers also may ask for fitness for duty certification for intermittent leaves once every 30 days if there are reasonable safety concerns connected with the employee s ability to perform job duties. D. FMLA LEAVE, PAID TIME OFF, AND WORKERS COMPENSATION LEAVE. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins. FMLA leave and workers compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave. The employer, however, may not require the employee to take paid leave, such as sick days or vacation, instead of receiving benefits from the Bureau of Workers Compensation. E. MAINTENANCE OF BENEFITS WHILE ON LEAVE A covered employer is required to maintain group health insurance coverage, including family coverage, for an employee on FMLA leave on the same terms as if the employee continued to work. Where appropriate, arrangements will need to be made for employees taking unpaid FMLA leave to pay their share of health insurance premiums. For example, if the group health plan involves co-payments by the employer and the employee, an employee on unpaid FMLA leave must make arrangements to pay his or her normal portion of the insurance premiums to maintain insurance coverage, as must the 10

11 employer. Such payments may be made under any arrangement voluntarily agreed to by the employer and employee. An employer's obligation to maintain health benefits under FMLA stops if and when an employee informs the employer of an intent not to return to work at the end of the leave period, or if the employee fails to return to work when the FMLA leave entitlement is exhausted. The employer's obligation also stops if the employee's premium payment is more than 30 days late and the employer has given the employee written notice at least 15 days in advance advising that coverage will cease if payment is not received. In some circumstances, the employer may recover premiums it paid to maintain health insurance coverage for an employee who fails to return to work from FMLA leave. F. INTERMITTENT LEAVE The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under the following circumstances: Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee's serious health condition. Intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child only with the employer's approval. However, the employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition. Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less. For example, if an employer normally accounts for non-fmla leave in increments of one hour, but accounts for leave in six-minute increments when employees arrive late for their shift, the employer must likewise use increments of no greater than six minutes to account for intermittent FMLA leave taken at the beginning of the shift. Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee 11

12 temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job. Unfortunately, the alternative job option is still not available where an employee has frequent, unpredictable absences for a chronic condition. G. RESTORATION TO SAME OR EQUIVALENT POSITION. The FMLA requires that employees be restored to the same or an equivalent position when returning from leave. Therefore, if an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work and the FMLA leave may not be counted against the employee. However, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. H. LIGHT DUTY ASSIGNMENT. Subject to certain limitations, the employer may deny the continuation of FMLA leave due to a serious health condition if the employee fails to fulfill any obligations to provide supporting medical certification. The employer may not, however, require the employee to return to work early by offering him/her a light duty assignment. Also, if the employee does accept a light duty assignment, the regulations clarify that light-duty work does not count against an employee s entitlement under the FMLA. While the employee is on light duty, that employee s right to regain full-duty status is put on hold. I. DENIAL OF FMLA LEAVE OR REINSTATEMENT. If an eligible employee who has met FMLA s notice and certification requirements (and who has not exhausted his FMLA leave entitlement for the year) requests FMLA leave, the employer may not deny the leave. However, employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated 12- month period no longer have FMLA protections of leave or job restoration. Similarly, employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff. Employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted. Also, under very limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly-paid, salaried ( key ) employees. An employee is a "key employee" if the employer can establish that 12

13 providing reinstatement rights tot the employee would cause substantial and grievous economic injury to the employer's operation, and the employer provides written notice to the key employee of its intent to deny reinstatement. J. ANTI-DISCRIMINATION AND NO FAULT ATTENDANCE POLICIES. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under FMLA. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies. K. MILITARY FAMILY LEAVE PROVISIONS. Special leave provisions apply where an eligible employee requests leave in relation to a family member who is injured as a result of service in the Armed Forces or as a result of a family member being deployed to serve in a foreign country. 1. Military Caregiver Leave. Eligible employees are entitled to take up to 26 weeks of leave in a single 12- month period to care for a spouse, child, parent or next of kin who is a covered servicemember who has suffered a serious health illness or injury Family members are allowed to take such leave for any medical treatment of a covered servicemember occurring within 5 years of service. A covered servicemember is a member of the Armed Forces, National Guard or Reserves who has a serious health illness or injury that occurred while on active duty (including an injury aggravating a pre-existing condition) and that rendered the servicemember unable to perform the duties of his or her office, grade, rank or rating. Serious health illness or injury means the covered servicemember is: (1) undergoing medical treatment, recuperation, or therapy; (2) otherwise an outpatient; or (3) on the temporary disability retired list. A covered servicemember s next of kin is permitted to take caregiver leave. Next of kin is nearest blood relative other than the covered servicemember s spouse, parent, son or daughter and may include blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles and first cousins. Covered servicemembers may choose and specifically designate in writing another blood relative as his or her next of kin for purposes of military caregiver leave. When no such designation is made and there is more than one family member with the same level of relationship to the covered servicemember, all such family members count as the covered servicemember s next of kin. 13

14 The employer is permitted to obtain details about the servicemember s medical condition and the amount of time the servicemember will require care. Attached at Appendix F is the certification form for caregiver leave (WH-385). 2. Qualifying Exigency Leave. For employees with family members in the Armed Forces, the law provides for an additional basis for leave called a qualifying exigency leave. A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave for qualifying exigencies arising out of the fact that the employee s spouse, son, daughter, or parent is on covered active duty, or has been notified of an impending call or order to covered active duty. Covered active duty is defined to include deployment of any active Armed Service member to a foreign country and any deployment of an Armed Service reservist to a foreign country under a call or order to active duty. Such qualifying exigencies include: issues arising from a covered military member s short notice deployment (i.e., deployment on seven or less days of notice); military events and related activities, such as official ceremonies, programs, or events sponsored by the military; childcare needs arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare; making or updating financial and legal arrangements to address a covered military member s absence; attending counseling arising from the active duty or call to active duty status of the covered military member; taking up to five days of leave to spend time with a covered military member who is on short-term leave during deployment; attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events; and, additional activities as agreed to by both employer and employee. The employer is permitted to require certification. Attached at Appendix G is the certification form for qualifying exigency leave (Form WH-384). 14

15 L. PENDING FMLA LEGISLATION One pending bill would extend FMLA coverage to include employers with 25 or more employees and expand reasons for taking leave (for example, educational reasons, activities and care for elderly relatives). Another pending bill would permit FMLA leave for victims addressing domestic violence, sexual assault, or stalking. II. AMERICANS WITH DISABILITIES ACT A. PURPOSE OF THE LAW. The ADA was enacted to remedy discrimination against persons suffering in the workplace because of disabilities. B. THE ADA AND EMPLOYEE REQUESTS FOR LEAVE. An employer must consider the ADA when addressing employee requests for leave because an employee may ask for a leave of absence, intermittent leave or a reduced schedule as a reasonable acccommodation for the employee s disability. Employees who are otherwise not entitled to leave under the FMLA may be entitled to time off under the Americans With Disabilities Act ( ADA ) or the Ohio civil rights disability statute. If the person is a qualified individual with a disability under federal or state law, the employer is required to offer a reasonable accommodation for the employee unless the employer can show an undue hardship. C. EMPLOYERS COVERED BY THE ADA. Employers employing 15 or more employees is subject to the ADA. D. EMPLOYEES ENTITLED TO A REASONABLE ACCOMMODATION UNDER THE ADA. In order for an employee to be entitled to the protections of the ADA, the employee must be a qualified individual with a disability. 1. Qualified Individual. An employee is a qualified individual if the employee can perform the the essential functions of his or her job with or without a reasonable accommodation. The determination of whether an employee is qualified must be assessed at the time of the relevant employment decision. An employer may not determine that an employee or applicant is not qualified because a medical condition may render the employee unable to perform the job in the future. 15

16 A job function is essential when: 1) the employment position exists to perform the function; or, 2) there a limited number of employees available who could perform the function; or, 3) the function is highly specialized. Employers need to be certain to distinguish between whether something really is a job function or whether it is simply a way of performing a job function. It is important that employers maintain accurate and updated written job descriptions which list the essential functions of each job. It is important to note that most courts have held that reliable attendance is an essential function of most jobs. 2. Disability Under The ADA. In determining whether an employee is entitled to leave as a reasonable accommodation under the ADA, it is important to recognize that a serious health condition under the FMLA is not the same thing as a disability under the ADA. Sometimes a serious health condition (FMLA) qualifies as a disability and sometimes it does not. Generally, the ADA defines a disability as: A physical or mental impairment that substantially limits one or more of the major life activities (walking, seeing, breathing, working). A physical impairment means any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. Major life activities are those basic activities, including major bodily functions, that most people in the general population can perform with little or no difficulty. Major life activities include, but are not limited to: (1) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and, (2) The operation of major bodily functions, including functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. An impairment is a disability within the meaning of this section if it ``substantially limits'' the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or 16

17 severely restrict, the individual from performing a major life activity in order to be considered a disability. In addition, an individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life in order to be considered an individual with a disability. In considering whether or not an employee has an impairment that substantially limits one or more major life activities, mitigating measures other than "ordinary eyeglasses or contact lenses" cannot be considered. For example, the fact that a medical condition is controlled by medication cannot be considered in determining whether that medical condition substantially limits one or more major life activities. In addition, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. In light of these new definitions of major life activity and substantially limits, diagnosis = disability for certain health conditions. For example, diabetes (whether controlled or not) substantially limits the endocrine system and thus constitutes a disability. Cancer (whether in remission or not) substantially limits normal cell growth and thus constitutes a disability. Epilepsy (whether controlled by medication or not) substantially limits functions of the brain and seeing, hearing, speaking, walking or thinking during a seizure and thus is a disability. However, it is important to recognize that a temporary, non-chronic impairment of short duration with little or no residual effects (such as a broken bone that is expected to heal completely) usually will not be considered to substantially limit a major life activity. Even though a broken leg (while healing) substantially limits the major life activities of walking, standing, and bending, it is not considered a disability because this impairment is transitory in nature (when the leg heals, the impairment ends). E. REQUEST FOR MEDICAL INFORMATION. If the employee is requesting an accommodation, such as leave, intermittent leave or a reduced schedule because of an alleged disability, the employer may request medical information. The type of information is not set forth in the regulations as it is under the FMLA. The EEOC guidance says: Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for 17

18 accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation. An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional. As an alternative to requesting documentation, an employer may simply discuss with the person the nature of his/her disability and functional limitations. It would be useful for the employer to make clear to the individual why it is requesting information, i.e., to verify the existence of an ADA disability and the need for a reasonable accommodation. F. REASONABLE ACCOMMODATION. An employee must make a request for an accommodation in order for an employer to have a duty to accommodate. However, an employee does not have to mention the ADA or use any magic language or trigger words like reasonable accommodation to initiate the process. Additionally, the request does not have to be in writing or take any particular form. Instead, the employee only has to use plain English and provide the employer with enough information to notify it of the fact that he or she needs an adjustment or change at work because of a medical condition. If the employee makes a request for an accommodation, the employee is not automatically entitled to the accommodation requested. Instead, the employer must engage in an interactive process to determine whether accommodations are possible. Engaging in the interactive process generally consists of: Analyzing the job Consulting with the disabled employee and appropriate professionals 18

19 Identifying potential accommodations and assessing their effectiveness Considering the preference of the employee Deciding on a reasonable accommodation Reasonable accommodation may include, but is not limited to: Reallocating non-essential job functions (an employer is not required to eliminate or reallocate the essential functions of a job) Extending a leave of absence Reassignment/light duty It is worth noting that an employer may need to put up with some unpredictable attendance under the FMLA but once an employee has exhausted that leave, the employer may not have a duty to allow an employee to continue to take time off on an unpredictable basis. Most courts have held that someone who cannot guarantee reliable attendance is not a qualified individual with a disability. The courts have also held that reliable attendance is an essential function of most jobs. G. UNDUE HARDSHIP. There is duty to reasonably accommodate only if the accommodation will not cause undue hardship on the employer. This is not an easy standard to meet. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including: the nature and cost of the accommodation needed; the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); 19

20 the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; the impact of the accommodation on the operation of the facility. If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation. Employers may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees's ability to work.this is a very tough standard to meet. The relevant: H. LEAVE AS A REASONABLE ACCOMMODATION UNDER THE ADA. Permitting the use of accrued paid leave or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees but must allow additional unpaid leave if it is a reasonable accommodation. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave. An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to: obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or physical or occupational therapy; recuperating from an illness or an episodic manifestation of the disability; obtaining repairs on a wheelchair, accessible van, or prosthetic device; avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis); An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be 20

21 reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position. An employer cannot count unpaid leave provided as a reasonable accommodation against an employee under a "no-fault" leave policy. In lieu of providing leave, an employer may provide a reasonable accommodation that requires an employee to remain on the job (e.g., reallocation of marginal functions or temporary transfer) as long as it does not interfere with the employee's ability to address his/her medical needs. The employer is obligated, however, to restore the employee's full duties or to return the employee to his/her original position once s/he no longer needs the reasonable accommodation. An employer may also offer an employee a modified schedule as a reasonable accommodation. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees. If modifying an employee's schedule poses an undue hardship, an employer must consider reassignment to a vacant position that would enable the employee to work during the hours requested. An employer is not required to grant leave or modify an employee s work hours if this would signficantly disrupt an employer s operation by preventing other employees from doing their jobs. For example, assume that a crane operator, due to his disability, requests an adjustment in his work schedule so that he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one hour later in the evening. But the crane operator works with three other employees who cannot perform their jobs without the crane operator. As a result, if the employer grants this requested accommodation, it would have to require the other three workers to adjust their hours, find other work for them to do from 7:00 to 8:00, or have the workers do nothing. The ADA does not require the employer to take any of these actions because they all significantly disrupt the operations of the business. Thus, the employer can deny the requested accommodation, but should discuss with the employee if there are other possible accommodations that would not result in undue hardship. Providing leave to an employee who is unable to provide a fixed date of return is a form of reasonable accommodation. However, if an employer is able to show that the lack of a fixed return date causes an undue hardship, then it can deny the leave. In certain circumstances, undue hardship will derive from the disruption to the operations of the entity that occurs because the employer can neither plan for the employee's return nor permanently fill the position. If an employee cannot provide a fixed date of return, and an employer determines that it can grant such leave at that time without causing undue hardship, the employer has the right to require, as part of the interactive process, that the employee provide periodic updates on his/her condition and possible 21