Hot Topics in Employment Law

Transcription

1 Hot Topics in Employment Law FMLA/ADA Return-to-Work Issues

2 Family and Medical Leave Act ( FMLA ) 12 weeks of job-protected leave in a 12 month period, applies to employers with 50 or more employees within a 75 mile radius for qualifying circumstances Birth of an employee s child and to care for the newborn child, or placement of an adopted or foster child Care for employee s spouse, child or parent with a serious health condition Employee s own serious health condition that makes the employee unable to perform the essential functions of his/her job Military caregiver leave or a qualifying exigency arising out of a spouse, child or parent being called to active duty in the armed forces. Application of USERRA

3 FMLA Special Public Sector Considerations The self care provisions cannot be enforced by awards of money damages against public sector employers. Injunctive and other equitable relief may be available. So saith the Supreme Court.

4 FMLA Special Public Sector Considerations Individual liability for supervisors and managers under the FMLA (and FLSA) for public sector employers is an open question. That will get their attention.

5 FMLA,cont. FMLA leave can be continuous, intermittent, or reduced schedule. Light duty is not required. An employer is required to place an employee on FMLA leave if leave qualifies and the employee is eligible. The employee must be returned to the same or substantially similar position if able to return to work within 12 weeks of leave.

6 Intermittent FMLA Leave An employer cannot require an employee to take more leave than is necessary. An employer may involuntarily transfer an employee to a position that better accommodates recurring periods of leave only if the FMLA intermittent leave is foreseeable and for a medical appointment; this option if NOT available for unforeseeable leave.

7 Americans with Disabilities Act, as Amended ( ADAAA ) No discrimination Who is disabled? Reasonable accommodation unless an undue hardship or direct threat reduced hours work area modification light duty Must engage in interactive process

8 Does your organization s internal structure help or hurt the way you manage leave and attendance issues? Methods of internal communication regarding employees leaves of absences Leave and attendance policies No fault attendance policies Required documentation regarding employee leave 100% healed policies

9 Intermittent Leave Scenario Employee has FMLA leave certified as intermittent for 2-3 times a month for anxiety/depression Employee is calling out for FMLA leave 1-2 times a week Can Employer discipline Employee when she calls out more than is allowed under the FMLA certification?

10 Return to Work Scenario Employee, who has been out of work and on designated FMLA leave, can return to work 2 weeks after his FMLA leave expires, but not to the job Employee held before the leave commenced, due to medical restrictions. What are Employer s obligations with respect to returning Employee to work? Allow Employee to apply for vacant positions? Facilitate an interview for positions for which Employee applies? Place Employee in a vacant position for which Employee qualifies?

11 Accommodation Issues The EEOC s stance regarding return-towork accommodations How long must an employer provide a reasonable accommodation? How may an employer discontinue a longstanding accommodation? Confidentiality of medical information and reasons for accommodations; communications with fellow employees

12 Leave and Attendance Issues State law implications An on-the-job injury may also qualify for FMLA leave or a reasonable accommodation under the ADAAA.

13 Living Wage & Paid Sick Leave Ordinances At least 140 municipalities, counties, and communities have passed LWO s or Paid Sick Leave Ordinances over the past two decades, including Portland, San Jose, San Francisco, Oakland, Los Angeles, San Diego, St. Louis, Miami (no sick leave), and New York. These must considered when assessing leave, especially whether leave should be classified as paid leave. Many LWO s and Paid Sick Leave Ordinances have longer record retention requirements, too. Direct employees of airlines, like flight attendants and pilots, are excluded because cities cannot regulate interstate carriers. But, contracting out means just about all ground crew jobs, from cleaning planes to moving baggage, are covered. Make sure your HR Department knows if local laws provide for mandatory paid sick leave before making leave decisions.

14 Best Practices Review the structure of your organization and assess the flow of attendance and leave issues; identify and correct any gaps in the process. Review and update leave and attendance policies. Determine the level of authority of supervisors to handle and respond to leave requests. Train supervisors to properly handle leave and accommodation requests.

15 Discussion