oh! the tangled web we weave - texas municipal human ... · web we weave managing employee leave...

TMHRA

July 31, 2013

Oh! The Tangled

Web We Weave Managing Employee Leave

(ADA, FMLA)

Presented by:

Brian J. Begle

Americans with Disabilities Act of 1990;

ADAAA of 2008

• Prohibits discrimination

against employees or

applicants on the basis of a

known or perceived

disability

Americans with Disabilities Act of 1990;

ADAAA of 2008

• “No covered entity shall discriminate

against a qualified individual with a

disability because of the disability of

such individual in regard to job

application procedures, the hiring,

advancement, or discharge of

employees, employee compensation,

job training, and other terms, conditions,

and privileges of employment.”

Americans with Disabilities Act of 1990;

ADAAA of 2008

• Failing to make a “reasonable

accommodation” to the known

physical or mental limitations of

someone who is an “otherwise

qualified individual with a disability”

– Unless the employer can demonstrate

that the accommodation would impose

an undue hardship on the operation of

the business.

Definitions

Qualified Individual:

– can perform the essential functions of the job

– with or without reasonable accommodation

Americans with Disabilities Act of 1990;

ADAAA of 2008

Definitions

Old law – Disability:

• a physical or mental impairment

that substantially limits one or

more major life activities

• a record of such an impairment

• or being regarded as having

such an impairment

Americans with Disabilities Act of 1990;

ADAAA of 2008

Definitions:

New law – Disability:

• Much broader

• The ADAAA rejected a strict

interpretation

• prohibiting consideration of almost

all mitigating measures

• excluding from protection only

those impairments that are

transitory and minor

Americans with Disabilities Act of 1990;

ADAAA of 2008

Americans with Disabilities Act of 1990;

ADAAA of 2008

New Direction for

Employers

• Concentration on

reasonableness of potential

accommodations

• Dialogue required

• Size of employer, cost, and

effect upon business

Americans with Disabilities Act of 1990;

ADAAA of 2008

Managing Leave

• Meaningful dialogue and employer flexibility is essential

• Accommodation, creativity, and following the law

• A request for indefinite leave is not a reasonable accommodation

• Intermittent leave may be reasonable

Americans with Disabilities Act of 1990;

ADAAA of 2008

Managing Leave

• Reasonableness is based upon the

individual circumstances

• Association with disabled individual

may be protected

• Neutral absenteeism policies need

to be revised

• Previous tolerance may not be

evidence that duties are nonessential

Family and Medical Leave Act (FMLA)

“To balance the demands of

the workplace with the needs

of families, to promote the

stability and economic security

of families, and to promote

national interests in preserving

family integrity”

Family and Medical Leave Act (FMLA)

Definitions

• 50 or more employees

• Employed at least 12 months

and for at least 1,250 hours of

service during the previous

12-month period

• “1,250 hours of service” means

actually worked

Family and Medical Leave Act (FMLA)

Definitions Serious health condition:

• illness, injury, impairment, or

physical or mental condition

• EITHER inpatient care

• OR continuing treatment

– Unable to work three consecutive

days, AND

– Seen by a doctor twice, OR

– Seen by a doctor once and given a

prescription

Family and Medical Leave Act (FMLA)

Eligible employees are entitled to a total of 12 workweeks of leave

during any 12-month period for one or more of the following:

• Birth of a child and in order to care

for the child

• Placement of a child for adoption or

foster care

• To care for the spouse, child, or

parent of the employee if they have

a serious health condition

Family and Medical Leave Act (FMLA)

Eligible employees are entitled to a total of 12 workweeks of leave

during any 12-month period for one or more of the following:

• Serious health condition that makes

the employee unable to perform

• Intermittent or reduced leave

• Spouse, parent, child or next of kin

eligible for up to 26 weeks in any 12

month period to care for injured

serviceman

Family and Medical Leave Act (FMLA)

Relationship to Paid Leave

• Employer does NOT have to

provide paid leave

• Employee may elect or

employer may require

employee to take available paid

leave

• After leave, restored to with

equivalent benefits, pay, and

other terms

Family and Medical Leave Act (FMLA)

Relationship to Paid Leave

• Employer has to keep providing

benefits

• If the employee is not receiving a

paycheck, you must still pay

portion of any insurance premiums

• If the employee doesn’t come back

to work THEN the employer may

recover premiums paid

Family and Medical Leave Act (FMLA)

Notice to Employer and

Burden on Employer to Investigate

• Foreseeable leave - employee to give no

less than 30 days notice

• Unforeseeable leave - “notice as is

practicable”

• Employee doesn’t have to use magic words

Family and Medical Leave Act (FMLA)

Certification Requirement

• Employer may require

employee to provide a

certification from the doctor.

– sufficient if it states the date the

serious health condition started,

probable duration, appropriate

medical facts

– must include a statement that they

are unable to perform the

functions of his job

Family and Medical Leave Act (FMLA)

Certification Requirement

• If employer has reason to doubt, can

require employee to get second

opinion

– Employer pays

• If a conflict exists employer may

require, at its expense, a third doctor

to settle the conflict

– The third opinion is final

• Employer may require

recertification on a reasonable basis.

Family and Medical Leave Act (FMLA)

Enforcement

• DOL enforcement power

– Shall receive, investigate,

and attempt to resolve

– DOL may sue the employer

for violations

Family and Medical Leave Act (FMLA)

Enforcement

• Employee enforcement power

– Statute of limitation

• 2 years after date of last event

• 3 years if willful violation

– Damages.

• Wages, salary, benefits, or

• Actual losses sustained

• Plus interest

• Plus liquidated damages

• Plus appropriate equitable relief

• Plus attorney’s fees, and other costs

Family and Medical Leave Act (FMLA)

Managing Leave

• Designating all time that is

appropriate

• You can and should be adamant

about proper documentation

• You can take action for employee’s

failure to adhere to requirements

• Understand the Interaction between

ADAAA and FMLA

Family and Medical Leave Act (FMLA)

Managing Leave

• Employees taking intermittent leave

now required to make a reasonable

effort to schedule time off as to not

unduly disrupt operations

• Light duty does not count against

FMLA leave time

• Employers can request that employees

schedule appointments/treatment at the

employer’s convenience if reasonable