Managing FMLA, ADA, Workers Compensation, and Disability Issues in Today s Workforce

Transcription

1 Managing FMLA, ADA, Workers Compensation, and Disability Issues in Today s Workforce Presented by: Carolyn D. Richmond, Esq. Fox Rothschild LLP 100 Park Avenue 15 th Floor New York, NY T: crichmond@foxrothschild.com Glenn S. Grindlinger, Esq. Fox Rothschild LLP 100 Park Avenue 15 th Floor New York, NY T: ggrindlinger@foxrothschild.com v1

2 Table of Contents Key Definitions and Terms... Tab 1 Notice of Eligibility and Rights & Responsibilities (FMLA)... Tab 2 Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave (FMLA)... Tab 3 Certification of Qualifying Exigency for Military Family Leave (FMLA)... Tab 4 Designation Notice (FMLA)... Tab 5 Certification of Health Care Provider for Family Member s Serious Health Condition (FMLA)... Tab 6 Certification of Health Care Provider for Employee s Serious Health Condition (FMLA)... Tab 7 Attorney Profiles... Tab 8 Fox Rothschild LLP 2014 Confidential

3 KEY DEFINITIONS AND TERMS UNDER THE ADA, NYCHRL, FMLA, SHORT TERM DISABILITY AND WORKERS COMPENSATION I. Americans with Disabilities Act ( ADA ) (A) Definition of Disability Under the ADA, an individual with a disability is a person who: (1) has a physical or mental impairment that substantially limits one or more major life activities; or (2) has a record of such an impairment; or (3) is regarded as having such an impairment A physical impairment is defined by ADA as "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." (B) Employers are required to provide a reasonable accommodation to an employee with a disability unless doing so would create an undue hardship (1) Reasonable Accommodation -- 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 and provided it does not create an undue hardship on the employer. (i) (ii) Determined on a case-by-case basis Two general types: (a) (b) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and

4 privileges of employment as are enjoyed by its other similarly situated employees without disabilities. (iii) (iv) Examples include: making existing facilities accessible; Reasonable? job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; and reassignment to a vacant position. (2) Undue Hardship A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases; this means it is "reasonable" if it appears to be "feasible" or "plausible. An accommodation also must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Any "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on a case-bycase basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

5 If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. II. New York City Human Rights Law ( CHRL ) (A) Definition of Disability Under the CHRL, a disability is any physical, medical, mental or psychological impairment, or a history or record of such impairment. (1) "physical, medical, mental, or psychological impairment" means: (i) An impairment of any system of the body; including, but not limited to: the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system; or (2) A mental or psychological impairment; or (3) An individual who is recovering or has recovered from alcoholism, drug addiction or other substance abuse, provided the individual currently is free of such abuse, and shall not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. (B) CHRL requires employers to provide a reasonable accommodation to an employee with a disability unless doing so would create an undue hardship (1) Reasonable Accommodation means such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity's business. (i) In other words An accommodation is reasonable unless it causes an undue hardship (2) Undue Hardship (i) (ii) Burden is on the employer; Factors to be considered: The nature and cost of the accommodation;

6 The overall financial resources of the facility or the faculties involved in the provision of the reasonable accommodation; The number of persons employed at such facility; The effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. III. Family & Medical Leave Act ( FMLA ) (A) Eligibility for FMLA leave: (1) Employee seeking FMLA leave must: (i) (ii) (iii) Have been employed by the employer for at least 1 year; have worked at least 1,250 hours for the employer within the past 12 months; and Be employed at a work site or within 75 miles of a worksite in which the employer employs at least 50 individuals. (2) Employers are subject to the FMLA if: (i) (ii) They employ at least 50 individuals during 20 or more calendar workweeks in either the current calendar year or the preceding calendar year. When determining whether the 50-employee threshold is met, all employees are counted including part-time employees, temporary employees, employees on leave, and paid interns.

7 (B) Applicable employers must provide up to 12 weeks of unpaid leave to eligible employees for: (1) The care of a child following the birth or adoption of a child, or the placement of a foster child; (2) The care of a parent, child, or spouse with a serious health condition; (3) The employee s own serious health condition which makes the employee unable to perform the essential functions of his or her job; (4) Incapacity due to pregnancy, prenatal medical care, or child birth; (5) The care of a covered servicemember, which is defined as a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness, when the eligible employee is the spouse, son, daughter, parent, or next of kin (i.e. nearest blood relative) of the covered servicemember who was a member of the Armed Forces at any time during the five years preceding the date of treatment; or (6) Any qualifying exigency arising out of the fact that the employee s parent, child, or spouse is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation or who is deployed in a foreign country on active duty. (C) Serious health condition is an illness, injury, impairment, or physical or mental condition that causes a period of incapacity resulting in: (1) The need for inpatient care in a hospital, hospice, or medical care facility, and any subsequent treatment in connection with such inpatient care; (2) Absence from work, school, or other regular activities for more than three consecutive, full calendar days and requiring continuing treatment or supervision by a healthcare provider at least once within seven days of the first day of incapacity and (i) requires either a regimen of continuing treatment initiated by the health care provider during the first treatment or (ii) a second in-person visit to the health care provider for treatment (the necessity of which is determined by the healthcare provider) within 30 days of the first day of incapacity; (3) The need for continuing treatment or supervision by a healthcare provider for a condition so serious that, if not treated, would likely result in a period

8 of incapacity of more than three calendar days and requires visits for treatment by a healthcare provider at least twice a year; or (4) The need for continuing treatment or supervision by a healthcare provider for prenatal care. (D) Reinstatement (1) After taking leave employees are entitled to return to their former position job or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment upon return from leave. (2) Exceptions to reinstatement: (i) (ii) Position was eliminated or restructured or other right or benefit was impacted due to events unrelated to employee s leave; Employee is a key employee : (a) One of the highest paid 10% of all employees within a 75- mile radius of the employee s worksite; and (b) Employee s reinstatement would cause substantial and grievous economic harm to Company operations. No specific test, but determined on the specific facts and circumstanced at issue. Reinstatement of the employee must cause substantial and grievous economic injury to the operations of the employer, not the employee s absence. The employer s operations as a whole are to be reviewed. Impact of reinstatement must be significant. More stringent than the ADA s undue hardship test. IV. New York State Short Term Disability ( STD ) (A) (B) Partial income replacement for employees who are temporarily disabled from injury or disease which does not arise from a workplace incident. Complements Workers Compensation.

9 (C) Disability The inability of an employee as a result of an injury or sickness that did not arise out of and in the course of employment to perform the duties of his or her employment. V. Workers Compensation ( WC ) (A) (B) (C) Compensation to an employee because of the employee s disability or death caused by an injury or disease arising out of and sustained in the course of employment. Injury or sickness must arise out of and in the course of employment. Covers medical bills and partial income replacement. VI. Interplay of ADA, FMLA, NYCHRL, and STD/WC (A) Statues are overlapping and concurrent Could all be applicable at the same time. (B) Leaves of Absence (1) Could be a reasonable accommodation under ADA and/or NYCHRL even if the employee is not entitled to or eligible for FMLA leave (2) Employee could be injured on the job thereby obtaining WC benefits and need a leave of absence (3) Length of leave? (i) (ii) Depends upon facts and circumstances of the situation. New York courts hold that under the NYCHRL, a leave of absence of up to one year may be reasonable Phillips v. City of New York, 66 A.D.3d 170 (1 st Dep t 2009) Even had plaintiff's request been only for a one-year extension of her leave, however, it was error under the circumstances to dismiss the case on the basis that she failed to allege that she could reasonably perform the job with a reasonable accommodation of extended leave. (4) If an employer provides a leave of absence as a reasonable accommodation, the employer should also:

10 Put the employee on FMLA at the same time File for STD or WC (C) Employee on FMLA (1) Extended leave may be a reasonable accommodation (2) STD and WC still applicable do not forget to file appropriate forms (D) Employee on STD or WC (1) Extended leave may be a reasonable accommodation (2) FMLA may still applicable do not forget to put employee on FMLA leave if they are out on WC or STD.

11 Carolyn D. Richmond Partner New York, NY p f crichmond@foxrothschild.com Carolyn is co-chair of the firm s Labor and Employment Department and the Hospitality Practice Group. Her practice largely consists of representing and counseling employers in the hospitality industry, specifically restaurants, hotels, caterers, night clubs, lounges and fitness centers. In particular, Carolyn has extensive experience litigating wage and hour class actions, restrictive covenants and employment discrimination cases. She also counsels clients extensively with respect to workplace issues such as the hiring process, diversity awareness training, union avoidance, employee handbooks and other policy initiatives. Carolyn is also counsel to a number of employers in the retail, financial services, healthcare and manufacturing industries. She frequently provides union avoidance and sexual harassment training, and represents employers before a variety of state and federal agencies. Practice Areas Labor & Employment Hospitality Education J.D. New York Law School B.S., Cornell University Bar Admissions New York New Jersey Court Admissions U.S. District Court, Southern, Eastern and Northern Districts of New York U.S. District Court, District of New Jersey Before Fox Rothschild Carolyn also served as General Counsel to B.R. Guest Restaurants & James Hotels, where she was responsible for the legal and business affairs for both expanding restaurant operations and the development of James Hotel properties. This experience gave Carolyn an insider s perspective into both the business and legal needs of her clients. Beyond Fox Rothschild Carolyn is a prolific writer and often is a guest speaker at legal conferences and industry events on various labor and employmentrelated topics. She is active in the community with several board appointments and memberships including: Member of the President's Council of Cornell Women at Cornell University Board of Directors Member, President's Council of Cornell Women, Cornell University Alumni Board of Directors, Cornell University, School of Industrial & Labor Relations Advisory Board, Center for Hospitality Research, Cornell University Counsel, New York City Hospitality Alliance Board of Editorial Advisors, Hospitality Law Member of the Advisory Board for the Center for Hospitality Research at Cornell University

12 Member of the Alumni Board of Directors for Cornell University, School of Industrial and Labor Relations Serves on the Board of Editorial Advisors for Hospitality Law Serves as Counsel to the New York City Hospitality Alliance Serves on Culintro's Culinary Trade Organization's Board of Advisors Carolyn is also involved with the PENCIL Partnership, and is teamed with a New York City charter school to help link the business community with the students. Carolyn has testified before the New York City Council and New York State Department of Labor concerning proposed changes to the law that would adversely affect New York businesses. Client Resources Restaurant Law Update Lately, the food service industry has been under increasing scrutiny from government, plaintiff groups and social justice groups. In this podcast, Carolyn discusses current issues in employment law affecting food service operators. Honors and Awards Selected as one of Crain's Forty Under 40 class of 2009, honoring a diverse group of New Yorkers who have excelled in their respective fields Law Review Outstanding Service Award, New York Law School American Jurisprudence Award, New York Law School In The News Featured, Fox Rothschild Picks New Philly Office Managing Partner, Philadelphia Business Journal (April 3, 2014) Featured, Fox Rothschild Makes Leadership Changes, The Legal Intelligencer Blog (April 2, 2014) Featured, Fox Rothschild Taps New Managing Partner for Philly Office, Law360 (March 31, 2014) Featured, Fox Rothschild To Launch its New Fiscal Year With Practice and Office Leadership Transitions, (March 31, 2014) Quoted, Without Rules, Sick-Leave Law Leaves Biz in Dark, Crain s New York Business (March 17, 2014) Quoted, Charging for ACA Costs is Legal Gamble for Restaurants, Law360 (March 7, 2014) Quoted, Domino s Deal Heralds FLSA Woes for Fast-Food Chains, Law360 (February 4, 2014) Featured, Crain s New York s The Business of Restaurants: How The Eatery Industry Serves New York, Total Food Service (February 1, 2014) Quoted, New Sick Leave Bill Could Shift Enforcement, Crain s New York Business (January 24, 2014)

13 Articles / Publications Co-author, Connecticut Hospitality Employers Tipped Minimum Wage To Remain the Same in 2014, Labor & Employment Alert (December 30, 2013) Co-author, Updated: New York Employers Minimum Wage Increases and Other Reminders for the New Year, Labor & Employment Alert (December 17, 2013) Co-author, Despite the Rise in Minimum Wage Rates, Employers in the Hospitality Industry Will Not Be Required To Pay Additional Direct Wages to Food Service Workers or Service Employees, Hospitality Alert (October 23, 2013) Author, At the Bar: The Facts About Service Animals, New York City Hospitality Alliance (August ) Co-author, New York State Court of Appeals Upholds Employers Right to Allow Service Employees Who Have Limited Supervisory Authority to Receive Tips, Labor & Employment Alert (June 2013) Co-author, New York Requires Employers To Provide Paid Sick Days An Update, Labor & Employment Alert (May 2013) Co-author, New York State Raises its Minimum Wage and New York City Will Require Employers to Provide Employees With Paid Sick Days, Labor & Employment Alert (April 2013) Co-author, New York City Now Prohibits Discrimination Based on Unemployment Status Over Mayor's Veto, Labor & Employment Alert (March 2013) Author, Hurricane Sandy: Employment Issues for New York and New Jersey Employers, Labor & Employment Alert (November 2012) Co-author, Second Circuit Refuses to Endorse Longstanding New York Rule That Service Employees With Minor Supervisory Authority Can Share in Tips, Hospitality Alert (October 2012) Co-author, Check Your Pay Stubs, Because the Plaintiff s Bar is Too, Hospitality Alert (October 2012) Speaking Engagements / Presentations Speaker, Legal Think Tank, 8th Annual National HR in Hospitality Conference & Expo, Las Vegas, NV (April 28, 2014) Presenter, Sick Pay and Pregnancy Accommodation Requirements for New York City, The New York Hospitality Alliance (February 24, 2014) Panelist, Mediating Wage and Hour Cases A Practical Guide to a Successful Resolution, American Bar Association Section of Labor and Employment Law (February 20-23, 2014) Panelist, The Business of Restaurants: How the Eatery Industry Serves New York, Crain s New York Business (January 23, 2014) Speaker, Hotel & Lodging Legal Summit 2013, Georgetown Law CLE and American Hospitality and Lodging Association (October 24-25, 2013) Panelist, The Business of Dining: Operating NYC Restaurants, New York, NY (October 24, 2013) Speaker, How To Handle a Wage and Hour Case, New York County Lawyers Association (October 15, 2013)

14 Glenn S. Grindlinger Partner New York, NY p f ggrindlinger@foxrothschild.com Glenn represents management in the full spectrum of labor and employment law matters. He regularly defends clients in single plaintiff cases and class actions involving claims of Fair Labor Standards Act (FLSA) and state wage and hour law violations. He also routinely represents clients in federal and state courts and arbitration for and before government agencies in cases alleging breach of contract and breach of restrictive covenant as well as age, race, national origin, gender, disability, sexual orientation and religious discrimination, harassment and retaliation. Additionally, he defends employers in a variety of labor disputes before the National Labor Relations Board (NLRB). Glenn's practice is also preventative in nature. He counsels clients on day-to-day employment, wage and hour, labor relations and contractual matters as well as the employment law issues that arise in connection with mergers and acquisitions. He also negotiates, drafts and revises collective bargaining agreements, employment contracts and severance agreements, employment law provisions to purchase sale agreements, restrictive covenants and noncompete agreements as well as drafts employee handbooks and training materials. In addition, he regularly conducts wage and hour audits for Fortune 1000 companies and nonprofits. Practice Areas Labor & Employment Education J.D., New York University School of Law, 1999 B.S., Cornell University, 1996 University of Sydney, Australia, Study Abroad, 1995 Bar Admissions New York Court Admissions U.S. District Court, Southern District of New York U.S. District Court, Eastern District of New York Memberships American Bar Association New York State Bar Association Cornell University School of Industrial and Labor Relations Alumni Association Australian-American Association Before Fox Rothschild Prior to joining the firm, Glenn was a senior associate with Paul, Hastings, Janofsky & Walker, LLP. Glenn was also previously an associate with Kelley, Drye & Warren, LLP. Beyond Fox Rothschild Glenn is a frequent writer and speaker on labor and employment issues. He has written articles that appeared in numerous publications including the New York Law Journal and The International Lawyer. Glenn was selected to be a participant on the 2014 Employment Editorial Advisory Board for Law360.

15 Honors and Awards Selected to Law360 s Employment Editorial Advisory Board (2014) Selected to a list of Super Lawyers (2013) Listed among Super Lawyers Rising Stars (2012) In the News Featured, Law360 Employment Editorial Advisory Board, Law360 (February 21, 2014) Quoted, Domino s Deal Heralds FLSA Woes for Fast-Food Chains, Law360 (February 4, 2014) Quoted, "Both Sides of NBA Labor Negotiations Prepare for Legal War," CBS Sports.com (July 29, 2011) Articles / Publications Co-author, Connecticut Hospitality Employers Tipped Minimum Wage To Remain the Same in 2014, Labor & Employment Alert (December 30, 2013) Co-author, Updated: New York Employers Minimum Wage Increases and Other Reminders for the New Year, Labor & Employment Alert (December 17, 2013) Author, Second Circuit Permits Low Level Supervisors To Participate In Tip Sharing, Hospitality Alert (November 2013) Co-author, Despite the Rise in Minimum Wage Rates, Employers in the Hospitality Industry Will Not Be Required To Pay Additional Direct Wages to Food Service Workers or Service Employees, Hospitality Alert (October 23, 2013) New York Department of Labor Issues Final Regulations on Wage Deductions, Hospitality Alert (October 2013) Changes To New York Unemployment Insurance Law, Hospitality Alert (September 2013) United States Supreme Court Sets Forth New Standards in Harassment and Retaliation Suits Under Title VII, Labor & Employment Alert (June 2013) United States Supreme Court Enforces Class Arbitration Waiver in a Commercial Agreement, Labor & Employment Alert (June 2013) New York Requires Employers To Provide Paid Sick Days An Update, Labor & Employment Alert (May 2013) New York State Raises its Minimum Wage and New York City Will Require Employers to Provide Employees With Paid Sick Days, Labor & Employment Alert (April 2013) New York Federal Court Clarifies Issues Concerning Employee Uniforms and Internet Delivery Service Fees, NYC Hospitality Alliance Alert (February 2013) New York Employers Don t Forget Notice of Pay Forms This January, Labor & Employment Alert (December 2012) Second Circuit Refuses to Endorse Longstanding New York Rule That Service Employees With Minor Supervisory Authority Can Share in Tips, Hospitality Alert (October 2012)

16 Reminder to Provide Termination Letters When New York Employees Leave Employment, Labor & Employment Alert (June 2012) Co-author, Changing the Game, New Jersey Labor and Employment Law Quarterly (Summer 2011) Co-author, "New York Enacts Law Increasing Penalties for Wage and Hour Violations," Labor & Employment Department Alert (December 2010) Co-author, "Developments in Employment Law in 2009," The International Lawyer (Spring 2010) Co-author, "Workplace Restructuring: Managing the Pain," New York Law Journal (May 26, 2009) Co-author, "Wage and Hour Actions Continue to Surge," New York Law Journal (February 17, 2009) Co-author, "Developments in Employment Law in 2008," The International Lawyer (January 2009) Co-author, "Developments in Employment Law Around the World in 2007," The International Lawyer (Summer 2008) Co-author, "Wage and Hour Claims: The New Wave," New York Law Journal (February 19, 2008) Co-author, "Settling High Stakes Wage & Hour Litigation via CAFA," New York Law Journal (April 11, 2007) Speaking Engagements Presenter, Sick Pay and Pregnancy Accommodation Requirements for New York City, The New York Hospitality Alliance (February 24, 2014) Speaker, An In-depth Look at the Sick Leave Act and Its Impact on Your Business, New York, NY (May 9, 2013)