Complex FMLA and ADA Issues: New Regulations and Case Law

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1 Complex FMLA and ADA Issues: New Regulations and Case Law Presented by: Alia Wynne and Mauro Ramirez Phone: (713) Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Phoenix Portland ME Portland OR San Diego San Francisco Tampa Washington, DC

2 What the DOL is Saying 91% of employers report that complying with the FMLA has had either a positive effect or no noticeable effect on employee absenteeism, turnover and morale. 85% of employers report that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect.

3 What the DOL is Saying 24% A relatively small portion of leave taken for FMLA reasons is intermittent leave. 13% of all employees reported taking leave for a FMLA reason in the past 12 months.

4 What the DOL is Saying Employers reported the misuse of FMLA is rare. Fewer than 2% of covered worksites reported confirmed misuse of FMLA. Fewer than 3% of covered worksites reported suspicion of FMLA misuse.

5 DOL s Wage & Hour Division seeking a $3.4million increase in budget for pursuing FLSA/FMLA violations

6 Update New EEOC Guidance Cancer Epilepsy Diabetes Intellectual Disabilities

7 Hypothetical No. 1 Jackie has had attendance issues throughout her 18 months of employment. Jackie requested to be transferred to first shift two months ago following her divorce due to childcare issues. It was denied because transfers are awarded based on seniority. She has now submitted an FMLA leave form indicating that she needs to be transferred to first shift or granted intermittent leave 4-6 times a month due to Shift Work Shift Disorder. You call BS until you Google Shift Work Shift Disorder and find out that it is the real deal its on Wikipedia and WebMD. You are still just not buying this and are reluctant to approve this leave request. What can you do?

8 Certification Regulations permit an employer to contact an employee s HCP to authenticate or clarify information required by a certification form Cannot contact to obtain additional info Direct supervisors may not contact HCP Only health care providers, HR professional, leave administrator or management official may contact HCP

9 Certification If an employer believes a certification is incomplete or insufficient to make a serious health condition determination, employers must notify employees in writing of the deficiencies and specifically identify the missing/insufficient information. Employers must provide employees with seven calendar days to correct the problem.

10 Second Opinions The regulations to the FMLA specifically provide that [a]n employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer s expense. Pending receipt of the second opinion, the employer must continue to provisionally designate the employee s leave as FMLA leave. As a result, all group health benefits must be maintained while the leave is provisionally designated as FMLA. (713)

11 Second Opinions The Company has the right to select the health care provider who will furnish the second opinion, provided, the healthcare provider selected is not employed on a regular basis by the employer. In particular, the employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion.

12 Second Opinions Employer must pay the costs of the obtaining the second opinion and must reimburse employee for any reasonable out of pocket travel expenses incurred to obtain the second opinion. If the opinion of the healthcare provider who furnishes the second opinion is the same as the employee s provider, FMLA leave must be granted.

13 Third Opinions However, [i]f the opinions of the employee s and the employer s designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer s expense. Such a third opinion is final and binding.

14 Third Opinion The expenses associated with obtaining the third opinion must be borne by the Company. The third health care provider must be designated or approved jointly by the employer and the employee. Both parties have an obligation to act in good faith to attempt to reach agreement on whom to select for the third opinion.

15 Hypothetical No. 2 Susan has been out on FMLA leave for 8 weeks after injuring her back in a car accident. Her coworkers are claiming she is a fraud because she has posted pics of herself on Facebook riding in a boat on vacation in Mexico, holding her grandkids, and posted about taking classes at the local community college. Her employer terminates her because they believe she is fraudulently using leave. She has sued her employer alleging FMLA interference and retaliation. What are her chances of success?

16 FMLA Protections The FMLA does not afford an employee greater rights than she would have if she was not on FMLA leave. In February 2013, a federal judge in Michigan dismissed the lawsuit finding that the Medical Center had terminated the nurse for its honest belief that she had abused leave and not for taking leave.

17 Hypothetical No. 3 Lindsay has been out on leave due to surgery to remove a brain tumor. While she was out, another employee has been filling in for her handling accounts receivable. She has found so many mistakes in the records, she has lost count. She also found revealing pictures of Lindsay s husband on her computer. She is not expected back from leave for another 3 weeks. The Company decides to wait until her leave expires. On the day she is due back, it informs her that her employment is terminated for misconduct. Which side has the better position? Plaintiff s counsel or defense counsel?

18 Risk of retaliation claim Lessons of Adams v. Fayette Home Care Consistency, consistency, consistency

19 Hypothetical No. 4 Jake is a maintenance employee who took 12 weeks of FMLA leave due to cancer. He developed an infection during leave and has said that he needs 6-8 weeks of leave or more as a result. What are the employer s obligations?

20 Leave as a Reasonable Accommodation EEOC Interpretative Guidance indicates leave is a reasonable accommodation Nearly every circuit agrees Must be granted unless undue hardship

21 Reasonable Accommodations Obligations did not change Determined on a case-by-case basis Employer allowed to define essential functions Requires interactive process

22 Undue Hardship Do not have to provide an accommodation if it will cause an undue hardship Undue hardship is not limited to financial difficulty, but includes anything that would be unduly extensive, substantial, or disruptive or fundamentally alter the nature or operation of the business.

23 Undue Hardship Significant loss in productivity Decrease in customer responsiveness Deferred projects Lost sales Increased burden on management Temporary employees or overtired/overworked co-workers Complexity of employee s job, size of the facility, and other factors all relevant

24 The Interactive Process Employer must engage in good faith. Document each step of interactive process.

25 Hypothetical No. 5 True or False A job duty can still be essential if the employee hasn t performed it in the preceding 15 months?

26 Knutson v. Schwan s Home Service (8 th Cir. 2013) Eighth Circuit ruled a job task could considered an essential function by an employer even if it is rarely performed Individual terminated after eye injury because he couldn t drive a truck. Testimony showed he had performed his job of running his delivery depot for nine months after the injury does not mean driving wasn t an essential function. Court found that being DOT qualified to drive was an essential function of the job.

27 Hypothetical No. 6 True or False An employee must be disabled in order to sue under the ADA and allege that his/her employer implemented non job-related medical evaluations

28 Owusu-Ansah v. Coca-Cola (11 th Cir. 2013) Eleventh Circuit ruled that employees who seek refuge under ADA section that bans non job-related medical evaluations need not be disabled to challenge an employer s evaluation or test. Plaintiff pitched a fit at work and based on his behavior was referred to a psychiatrist for evaluation. The Company mandated that he see the psychiatrist and undergo a personality test to retain his job. The test results found he was within normal limits and he was reinstated. He sued alleging the test and evaluation was unlawful. The Eleventh Circuit held that he had standing to sue, even though he wasn t disabled, but found that the test was nevertheless lawful.

29 Final Questions? Presented by: Alia Wynne and Mauro Ramirez Phone: (713) Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville Solutions at Work New Jersey New Orleans Orlando Philadelphia Phoenix Portland ME Portland OR San Diego San Francisco Tampa Washington, Phone DC (zzz) zzz-zzzz

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