LEAVES OF ABSENCE: FMLA VS ADA

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1 LEAVES OF ABSENCE: FMLA VS ADA Presented by: Roxana E. Verano, Esq. Landegger Baron Law Group, ALC Exclusively Representing Employers Employment Law, Advice, Litigation and Solutions

2 The Payroll Advisor

3 HOUSEKEEPING Credit Questions Today s topic

4 TO EARN RCH CREDIT YOU MUST Stay on the webinar, online for the full 60 minutes Be watching using your unique URL Certificates delivered by , to registered , by March 4 th The use of this seal confirms that this activity has met HR Certification Institute's (HRCI ) criteria for recertification credit pre-approval. This activity has been approved for Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ).

5 ABOUT OUR SPEAKER Roxana E. Verano, Esq. Attorney with the Landegger Baron Law Group Specializes in helping businesses navigate complex employment laws Member of the Ventura County Bar Association, the Consumer Attorneys Association of Los Angeles County, and the Ventura County Hispanic Chamber of Commerce Received her J.D. from the U.C. Hastings College of Law 5 Copyright 2015 The 2016 Payroll mercer.com Advisor

6 FMLA BASIC ENTITLEMENT Under the Family and Medical Leave Act (FMLA), covered employers must provide up to 12 weeks of unpaid, job-protected leave to eligible employees for: Incapacity due to pregnancy, prenatal medical care or child birth Care for employee s child after birth, or placement for adoption or foster care Care for employee s spouse, son, daughter or parent with a serious health condition A serious health condition that makes the employee unable to perform their job

7 FMLA DEFINITION OF SERIOUS HEALTH CONDITION Definition of a serious health condition Illness, injury, impairment, or physical or mental condition Involves either an overnight stay in a medical care facility or continuing treatment by a health care provider Either prevents the employee from performing their job or prevents their qualified family member from participating in daily activities

8 FMLA USE OF LEAVE Leave can be taken intermittently or when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment to not disrupt employer s operations. Leave due to qualifying reasons can also be taken intermittently All too often, employers make the mistake that they can terminate an employee who has exhausted their 12 weeks FMLA entitlement.

9 FMLA SUBSTITUTION OF PAID LEAVE FOR UNPAID LEAVE Employees may choose or employers may require the use of accrued paid leave Employees must comply with the employer s normal paid leave policies

10 ADA LEAVE A leave of absence is a recognized reasonable accommodation under the Americans with Disabilities Act (ADA) ADA leave covers situations where FMLA leave does not apply

11 FMLA VS ADA In order for an employee to be entitled to leave under the FMLA, he must be deemed an eligible employee, and must: 1. have been employed by a covered employer for at least 12 months; 2. have had at least 1,250 hours of service during the 12-month period immediately before the leave started; and 3. be employed at a worksite where the employer employs 50 or more employees within 75 miles or at a public agency, public school board, or elementary or secondary school.

12 FMLA VS ADA The ADA poses no such requirements. Instead, a qualified employee with a disability may be entitled to leave as a reasonable accommodation under the ADA even if: The employer has less than 50 but at least 15 employees; The employee has not worked at the company for twelve months; The employee has not worked at the company for the requisite 1,250 hours; or The employee has already exhausted twelve weeks of FMLA leave.

13 FMLA VS ADA The only basis for a denial of leave as a reasonable accommodation under the ADA is through showing that it would pose an undue hardship to the employer Thus, a qualified individual with a disability is entitled to additional leave time beyond the twelve weeks permitted under the FMLA so long as that additional leave time would not constitute an undue hardship on the employer

14 FMLA VS ADA The ADA operates independently of the FMLA When an employee requests time off for a reason related or possibly related to a disability, the employer should consider the employee s leave-entitled rights under both the FMLA and ADA The employer is also required to initiate the interactive process to determine what reasonable accommodations, if any, are needed

15 FMLA VS ADA Given that the ADA and FMLA operate independently of each other, an employer must therefore provide leave under whichever statutory provision provides the greater rights to employees For example, although the FMLA permits the employer to place an employee returning from a covered leave in an equivalent position, the ADA requires that the person returning from leave be returned to her original position Therefore, an employee covered by both statutes would need to be returned to her original position following a return from a medical leave, absent the employer demonstrating undue hardship

16 ADA LEAVE The ADA requires a fact-specific, individualized inquiry to determine whether a requested accommodation must be provided An employer must provide a reasonable accommodation to a qualified employee under the ADA unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business

17 ADA LEAVE - UNDUE HARDSHIP A requested accommodation would impose an undue hardship where it requires significant difficulty or expense 5 factors are considered

18 ADA LEAVE - FIVE FACTORS 1. The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding

19 ADA LEAVE - FIVE FACTORS 2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources

20 ADA LEAVE - FIVE FACTORS 3. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities

21 ADA LEAVE - FIVE FACTORS 4. The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity, the overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities

22 ADA LEAVE - FIVE FACTORS 5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility s ability to conduct business

23 ADA LEAVE - UNDUE HARDSHIP The employee need only show that a requested accommodation is generally reasonable; It is the employer s obligation to demonstrate specifically that a request would create an undue hardship A leave is more likely to be deemed an undue hardship the more complex the nature of the employee s work, the more difficult it would be to replace the employee, or the more difficult it would be to redistribute that employee s work

24 ADA - LEAVE POLICIES Because the employer has an obligation to assess each requested accommodation on a case-by-case basis, it may not apply a maximum leave policy A no fault attendance policy can violate the ADA Leaves of varying durations have been deemed reasonable

25 ADA - UNCERTAIN AND INDEFINITE LEAVE An employee need not show that the leave is certain or even likely, only that it would plausibly enable the employee to return and perform his job An employer is not required to provide an indefinite leave of absence A leave request is not indefinite simply because the nature of the employee s condition is such that only an approximate return date is provided

26 ADA - UNCERTAIN AND INDEFINITE LEAVE An indefinite leave must be distinguished from one where an employee gives an approximate return date or where the situation changes and the original return date has been revised Intermittent leaves and modified schedules can be reasonable accommodation

27 PREGNANCY CONSIDERATIONS UNDER FMLA, ADA AND PDA Pregnancy alone is not considered a disability for purposes of the Americans with Disabilities Act (ADA) To be considered a disability under the ADA, covered persons must have physical or mental impairments that substantially limit one or more major life activities Pregnancy is not the result of a physiological disorder, so it is not considered an impairment

28 PREGNANCY CONSIDERATIONS UNDER FMLA, ADA AND PDA Complications resulting from pregnancy may be impairments that the employer will need to consider and accommodate on a case-by-case basis An employee is permitted to take FMLA leave if she is incapacitated by pregnancy, or after the birth of her child Although the ADA does not recognize pregnancy as a disability, The Pregnancy Discrimination Act, or PDA, makes it illegal for employers to terminate an employee for taking time off due to complications arising out of pregnancy, even if she has exhausted her FMLA entitlement

29 QUESTIONS?

30 HOW CAN ASCENTIS HELP ME? Employees FMLA request validation On-screen compliance form entry Administrator Configurable workflow / to-do list Reminders sent via the notification engine Calendar / Analytics integration Document Manager View scanned documents Fill in PDF compliance forms on screens Workflow integration Questionnaires To-do lists / dates Compliance forms Notifications / reminders

31 To earn RCH credit you must Stay on the webinar, online for the full 60 minutes Be watching using your unique URL Certificates delivered by , to registered , by March 4 th The use of this seal confirms that this activity has met HR Certification Institute's (HRCI ) criteria for recertification credit pre-approval. This activity has been approved for Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ).

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