The FMLA Process. Who is Eligible for FMLA Leave? 10/16/2013 MLA AND THE ADA PIECING TOGETHER OBLIGATIONS UNDER THE LAW. Eligibility Requirements

Transcription

1 MLA AND THE ADA PIECING TOGETHER OBLIGATIONS UNDER THE LAW Robert J. Simandl, Esq. Simandl Law Group, S.C Swenson Drive, Suite 250 Waukesha, WI (262) The FMLA Process FMLA Policy Eligibility for FMLA Leave Employees FMLA Leave Entitlements Notice Obligations for FMLA Leave Health Care Provider Certification Leave Options Returning to Work Employer s Liability for Noncompliance 2 Who is Eligible for FMLA Leave? Eligibility Requirements Federal Law At least 12 months of employment Worked at least 1,250 hours in the last 12 months Wisconsin Law 52 consecutive weeks of employment Paid for at least 1,000 hours of work in the last 12 months 3 1

2 How Much Leave Is an Employee Entitled to Take? Federal Law 12 workweeks total Birth, adoption or foster care placement of child or to care for child after birth To care for a parent, spouse, or child with a serious health condition Own serious health condition To address qualifying exigencies related to a covered service member s call to active duty member of the reserve or regular component of the armed forces 26 weeks of leave (in total) to care for an ill or injured covered service member 4 How Much Leave Is an Employee Entitled to Take? Wisconsin Law 6 workweeks to care for a child after birth or adoption 2 workweeks to care for a parent, spouse, child or domestic partner with a serious health condition 2 workweeks to care for the Employee s own serious health condition These may be in addition to federal leave. 5 What is a Serious Health Condition? Illness, injury, impairment, or physical or mental condition that involves: Inpatient care in a hospital, hospice, or residential medical care facility; or Outpatient care for a disabling condition which includes continuing treatment by a health care provider 6 2

3 Serious Health Condition Elements Physical or mental illness, injury, impairment; Requiring treatment by a health care provider; Period of incapacity; The incapacity is for more than three consecutive calendar days and/or requires subsequent treatment; and Involves treatment two or more times by a health care provider (within 30 days), or at least one occasion that results in a regimen of continuing treatment 7 Is and Is Not a Serious Health Condition? Covered Cancer AIDS Heart Conditions Migraines Pregnancy Alzheimer s Stroke Epilepsy Severe High Blood Pressure Pneumonia Severe Arthritis Back conditions Requiring Surgery or Therapy Emphysema Severe Psychological or Nervous Disorders Not Covered Ear Infection Common Cold Sore Throat Flu Headache Orthodontia Work/Routine Dental Upper Respiratory Infection Death of Parent Food Poisoning Minor Ulcer Maybe Chicken Pox Asthma Morning Sickness Concussion Broken leg/sprained Ankle Appendicitis Injuries from Accidents Surgical Procedure 8 Other Important Definitions for FMLA Purposes Parent: Biological parent of the Employee or individual who stands or stood in loco parentis to the Employee. Examples:» adoptive parent;» foster parent;» stepparent;» guardian;» maternal or paternal grandparents;» brother or sister. 9 3

4 Other Important Definitions for FMLA Purposes Son/Daughter child under 18 years of age or child 18 years of age or older incapable of self care (disabled within meaning of ADA). Examples:» biological child;» adopted child;» foster child;» stepchild;» legal ward;» a child of a person standing in loco parentis (i.e., a person with day-to-day responsibility to care for and financially support a child, even if no biological or legal relationship exists). Spouse husband or wife as defined by state law for marriage purposes. 10 Employer Notice Obligations General Notice of Rights and Obligations Include in the Employee Handbook Include in some other written guidance (if relevant) By distributing a copy to each Employee upon hire Notice may be posted electronically Provided that all applicants and employees have access to electronic information 11 Employer Notice Obligations Designation Notice Must inform Employee whether leave is FMLA designated within 5 business days of receiving information sufficient to make decision Where possible, inform Employee of the number of hours, days, or weeks to be designated Eligibility and designation notice may be given simultaneously if Employer has sufficient information 12 4

5 How Much Notice is required? Employers have the right to advance notice in accordance with the Company s written policy 10 days before leave is to begin As soon as practicable (Employee shall make reasonable effort not to unduly disrupt operations) For unplanned or unforeseeable leave, at least 2 days notice must be given after start of leave 13 When Notice is Received Calling-In A simple statement that the Employee is sick without more is not enough to trigger FMLA obligations Notice of the need for leave must be sufficient for the Employer to understand the need for FMLA-protected leave However, a change in behavior may be enough to put Employer on notice 14 Health Care Provider Certification If Employee takes leave for a serious health condition Timely return of certification Right to Clarification for incomplete certifications Return within 7 days Company may contact HCP to get required information 15 5

6 What Are an Employee s Leave Options? Intermittent/Reduced Leave Intermittent Leave-Leave taken in separate blocks of time due to a single illness or injury Reduced Leave-Leave schedules that reduce usual number of working hours per workweek or hours per workday Permitted for serious health condition when medically necessary. Not allowed for care of newborn unless Employer agrees 16 What Are an Employee s Leave Options? Substitution Employers may require, or Employee may elect, substitution of any accrued paid vacation, personal or family leave for birth/placement or serious health condition of child, spouse or parent Employer may require, or Employee may elect, substitution of any accrued paid vacation, personal or medical or sick leave for any serious health condition leaves Other paid leave for disability periods where less than 100% of pay is received by Employee 17 Key Concepts Under the ADA ADA makes it unlawful for an employer to discriminate against a qualified individual with a disability 6

7 WFEA and the ADA The WFEA and the ADA both protect disabled individuals from workplace discrimination. The WFEA s definition of disability is similar, but not identical, to the ADA s definition. The definition of disability under federal law is intended to be inclusive. Under both State and Federal law, the focus will be on accommodations. ADA Amendments Act Burden of Proof for Qualification Purposes Retained: Employee has burden of proving that s/he is a qualified individual with a disability. ADAAA broadened definition of disability Technical definition remains the same: 1. A physical or mental impairment that substantially limits one or more major life activities; or 2. A record of such a physical or mental impairment; or 3. Being regarded as having such a physical or mental impairment. ADA Amendments Act: Major Life Activities HOWEVER, recall disability definition. physical or mental impairment that substantially limits one or more major life activities 7

8 Major Life Activities Old Definition Major life activities include, but were not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. New Definition Major life activities also include operation of major bodily functions, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Major Life Activities The ADAAA s non-exhaustive list identifies: Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The regulations add: Interacting with others. The House Report also lists: Writing, engaging in sexual activities, drinking, chewing, swallowing, reaching and fine motor coordination. Expanded Definition of Physical Impairment Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. 8

9 Substantially Limits : An impairment is a disability only if it substantially limits a major life activity. Now under the ADAAA a substantial limitation of a MLA is: Less than severe or significant but Greater than moderate. Virtually Always Disabilities The regulations state that the following conditions will virtually always meet the definition of disability : Deafness Epilepsy Blindness HIV infection Intellectual disability Multiple sclerosis Missing limbs and mobility/wheelchair Muscular dystrophy use Major depressive disorder Autism Bipolar disorder Cancer PTSD Cerebral palsy OCD Diabetes Schizophrenia Although not required by law, these conditions should be considered per se disabilities. ADA Amendments Act: Just Tell Me What Qualifies as a Disability? ADA Amendments list specific types of physical and mental impairments that will consistently qualify as disabilities under the ADA, including: deafness, blindness, missing limbs, cancer, cerebral palsy, epilepsy, HIV-AIDS, bipolar disorder, schizophrenia 9

10 ADA Amendments Act: Just Tell Me What Qualifies as a Disability? Episodic Impairment: an impairment that is episodic or in remission. An episodic impairment is a disability if it would substantially limit a major life activity when active. Examples: depression, bipolar disorder, Post- Traumatic Stress Disorder, other psychiatric conditions, epilepsy, cancer ADA Amendments Act: Just Tell Me What Qualifies as a Disability? Illnesses/ injuries likely to be ADA disabilities: Diabetes Hypertension Heart disease Cancer Depression Back impairments Carpal tunnel Accommodation Under the ADA an employer must provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment unless providing an accommodation would cause the employer undue hardship. 10

11 Accommodation Accommodation: generally any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. 29 C.F.R. Section (o). Accommodation: A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done that enables a qualified individual with a disability to enjoy equal employment opportunity. Accommodation: Requests for Accommodation An employee may use plain English and need not mention the ADA or use the phrase reasonable accommodation when requesting an accommodation. Any time an employee indicates s/he is having a problem at work and the problem is related to a medical condition, consider whether the employee is making a request for accommodation. Accommodation Requests for accommodation? Example 1: Employee tells supervisor, I m having trouble getting to work at my scheduled starting time because of medical treatments. Example 2: Employee tells supervisor, I need six weeks off to get treatment for my back problem. Example 3: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. 11

12 Accommodation Request for accommodation? Example 4: An employee tells supervisor, I would like a new chair because my chair is not comfortable. Example 5: An employee who has been out for six months with a workers compensation injury. The employee s doctor sends employer a letter stating that the employee is released to return to work, but for light duty only. Accommodation: Interactive Process Generally, employee must come forward and notify employer that s/he has a disability (BUT employer s knowledge can be constructive). Employer must engage in an interactive dialogue with employee to identify an accommodation to provide (unless accommodation would result in an undue hardship to employer). Employer can only refuse to accommodate an employee when each available alternative has been explored and cannot be done. Employer does not have to provide employee with the accommodation favored by the employee, only has to provide a reasonable accommodation. Accommodation: Interactive Process Employee requests a change at work due to a medical condition (i.e., notice). Employer obtains permitted medical documentation about the condition. Employer evaluates whether employee is a qualified individual with a disability. Employer meets with the employee to: a. Identify/verify the need for accommodation b. Identify possible accommodations c. Evaluate the identified accommodation possibilities 12

13 Accommodation: Interactive Process Meeting should include HR and Operations personnel Questions to clarify accommodation requested: What specific accommodation are you requesting? If you are not sure what accommodation is needed, do you have any suggestions about what options we can explore? Is your accommodation request time sensitive? Accommodation: Interactive Process Questions to document the reason for accommodation request: What, if any, job function are you having difficulty performing? What, if any, employee benefit are you having difficulty accessing? What limitation is interfering with your ability to perform your job or access an employment benefit? Have you had an accommodations in the past for this same limitation? If yes, what were they and how effective were they? If employee is requesting a specific accommodation- how will that accommodation assist you? Catchall question: Can you provide any additional information that might be useful in processing your accommodation request? Accommodation What is NOT a reasonable accommodation? Employer does not have to eliminate an essential function of the position. (i.e. fundamental duty of the position). This is because a person with a disability who is unable to perform the essential functions with or without a reasonable accommodation is not a qualified individual within the meaning of the ADA. Employer does not have to lower production standard standards that are applied uniformly to employees with and without disabilities. 13

14 Workplace Accommodation Obligations Arose Under: Federal and Wisconsin FMLA Workers Compensation Laws Americans with Disabilities Act, as amended (ADA) Wisconsin Disability Law Also need to consider the Genetic Information Nondisclosure Act (GINA) Accommodation Issues under ADA and FMLA ADA: Requires reasonable accommodation. FMLA: Requires 12 weeks leave; Cannot compel employee to return via implementation of reasonable accommodation; and Must return employee to same job. Workers Compensation Leave: Reemployment Right, including alternative positions. FMLA Obligations Scenarios: Personal Illness or Injury Work-related Illness or Injury Intermittent/Reduced Leave For Either 8/40 Restrictions Collectively Bargained Employee CBA Interface Equalization of OT Seniority Absence restrictions scheduled work hours 14

15 FMLA Obligations Accommodations for Absence Employee Full-time Leave Intermittent Leave Reduced Leave Schedule Where do 100% healed rules fit? Call-in obligations Administration period Accommodation: Leaves Of Absence- How Long? ADA has no set rules or standards regarding length of leave. ADA does not say that you must hold a job open while employee is on leave. EEOC thinks you should hold position open unless it constitutes an undue hardship. EEOC is pursuing companies that have inflexible rules about length of leave. Many courts have held that indefinite leave is not reasonable accommodation, so no duty to provide. Employers should make a reasonable determination on the amount of leave to be provided- consider importance of position, job duties, etc. Leave of Absence Factors Has the Company fully complied with FMLA? Does the company have a non-fmla LWOP policy? How much leave has the employee already taken? Is the request for a specific amount of time, open-ended, or somewhere in between? How is the job being performed now? Is that less or more expensive than if the employee were working? Is there anything on the business s operational calendar impacting the ability to grant leave? What other employees have been granted leave in this department in the last few years? How soon can the position be filled? 15

16 Accommodations Is an accommodation possible? Does the accommodation create an undue hardship? Employers must show undue hardship even if employee s requested accommodation is a leave of absence above and beyond FMLA. Wisconsin and federal analysis is the same. ADA Obligations Wisconsin Disability Law Individual who has physical or mental impairment that makes achievement unusually difficult or limits the capacity to work; has a record of such an impairment; or is perceived as having such an impairment. ADA Accommodation Issues Conduct the FMLA analysis first, if eligible. FMLA will usually be more generous regarding intermittent leave and reinstatement rights. When accrued leave and any FMLA rights are exhausted, if the employee wants/needs more leave, you need to do an ADA analysis. If an impairment goes more than 12 weeks (or not?), it may well be substantially limiting under the ADAAA. Focus on whether extended leave, reinstatement to a light duty position or other accommodations are reasonable. 16

17 and What About Workers Comp? FMLA concurrency ADA covered absence Permanent restrictions Severing Employment Return to work CBA Job preference Union involvement QUESTIONS?? 17