managing leaves of absence & accommodation

Managing Leaves of Absence

& Accommodation webinar

© 1989, 2011 by Fair Measures, Inc.

All rights reserved. No part of this manual may be reproduced in any form or by any means,

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employer's policies and procedures may differ with this advice and still be consistent with good legal

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LoAA- 1 Managing Within the Law I I- Part icipant Guide

Leaves of Absence & Accommodation


Take care of our people - prevent workplace injuries - accommodate people with disabilities - grant leaves to people with injuries or who are ill or pregnant Costs to society: workplace injuries and illnesses eat up nearly 3 percent of gross domestic product Costs to company: An injury resulting in $1,000 in Workers' Compensation benefits also has $5,000 in indirect costs Costs of accommodating disabilities—in one study: - 46%, no cost - 45%, average one-time cost of $500 Managers and employer have legal responsibilities and financial liability Failure to comply could lead to jail time for responsible manager


LoAA - 2 Managing Within the Law I I - Part icipant Guide

Handling Medical Issues - Overview of FMLA, ADA and Workers' Compensation

Common legal requirements: - no discrimination - allow leaves - accommodate restrictions - doctor must certify Fairness principle: treat employees returning from leave as if they had never left.

How Definitions of Disability Overlap

law coverage leave duration paid?

Family &Medical Leave Act birth/serious health condition/

military exigency 12 weeks/year N*

military injury 26 weeks/year N*

Calif. Pregnancy Law disability due to pregnancy/birth 4 months (+12 wks CFRA) N*

Americans Disabilities Act permanent disabilities reasonable time/policy N*

Workers' Compensation work-related injuries return to work/policy Y

* employees may be able to use vacation, sick time and disability insurance; if employee is working

part-time, must be paid part-time.

Some state laws provide broader coverage than the ADA —

check with HR.

ADA

Workers' Compensation

FMLA



Accommodation Requirements accommodation WC ADA FMLA

restructure current job Y Y Y (1)

buy equipment Y Y N

offer part-time Y Y Y (1)

transfer to equivalent job Y Y Y

transfer to lesser job Y (3) Y (3) N

create a new job N (2) N N

train for new job Y Y (3) N

(1) only for serious health condition, not birth

(2) some states encourage through tax credit

(3) only if employee can no longer perform former job



This case study is based on a video showing a discussion between a manager and an employee at an off-site retreat. The employee is one of several workers being considered for a promotion. (See page LoAA-37 through 43) (1) Why is the manager saying this to the employee? (2) What assumptions is the manager making in this conversat ion about the employee? (3) How would this same conversat ion be interpreted by the employee if - the manager will be making the promotional decision? - the manager has no input in the decision? - the employee and the manager are peers? (4) What should the manager say to mentor the employee without making discriminatory comments? (5) The employee informs management that she can travel no more than one week per month due to lack of child care. The job requires two one-month travel assignments per year. Legally, can she be denied the promotion? (6) How have you seen pregnant employees and employees with newborns accommodated in the workplace? (7) The employee's "baby" is now in school, and starring on the school soccer team. The employee wants to take t ime off to go to a game two hours a week. Are you required by the law of your state to allow this? (LoAA-43 through 46) What is your organizat ion's policy or practice in these situations?

Case A

After you finish this case, go on to the next one.



For four years, Sue has been an excellent performer, working 50 hours a week, of which 15 is spent on the keyboard. In her spare t ime, she has started an internet business which she tells you involves 20 hours a week of keyboarding. (a) One day, she comes to work wearing a wrist brace. You ask, "Are you all right?" She says yes, it 's no big deal, she just feels more comfortable at the keyboard with the brace on. She says she bought it at the local drugstore. She doesn't say anything about seeing a doctor, and you don't ask. (b) For the next two months, her performance and output remain steady. Then one day you notice her rubbing her wrist for a long t ime. You finally ask and she says she has been thinking of going to a doctor. (1) What should you say, ask or do at this point? (c) The next day, she tells you she has a doctor's appointment for the following day, and will miss half a day. (d) A week later, you receive a note from the doctor saying she has severe limitat ions and should not keyboard more than 10 hours a week. (2) As the manager, what should you have done to minimize the likelihood of this injury occurring(pages LoAA-14 through 20)? (3) Is this injury covered by Workers' Compensation (pages LoAA-12 through 13)? (4) At what point above (paragraph a, b, c or d) should you give Sue a report of injury form for Workers' Compensation? (5) How do you accommodate the doctor's restrict ion? (6) To what extent, if any, should you consider Sue's needs to keyboard in her own business?

Case B

Continued on next page.



Sue is now fully accommodated, but she waited so long to get treatment that her pain and st iffness have not gone away. Her doctor hopes she can avoid surgery by undergoing physical therapy. Sue is now leaving work 3 hours early 3 days a week. As a result , her output is 20% lower than before, and the lowest in the group. Refer to pages LoAA-38 through 40 to answer quest ions 7 through 10. (7) Is she eligible for Family and Medical Leave for these appointments? Why or why not? (8) Assuming she is missing 9 hours of work a week, when will she run out of her 12 weeks of yearly Family and Medical Leave? (This is a math quest ion) (9) If you discover that the physical therapist has night and weekend hours, can you require Sue to make appointments for non-work hours? (10) From the fairness perspective, how should her reduced output be considered at the t ime of her performance review? After six months of physical therapy, Sue's doctor decides to operate. She is out of work for one week. The surgery is only part ially successful. Sue is able to keyboard 25 hours per week. She is able to do her job, but since she can't keyboard 40 hours, she is excluded from some jobs in the economy, so she is cert ified permanently, part ially disabled by Workers' Compensation. Even though she is present 50 hours a week, her output is now 20% below department standard and is 30% lower than anyone else in the group. (11) Do you think Sue has a substantial limitat ion to a major life function, such that she is covered by the Americans with Disabilit ies Act (ADA) (pages LoAA -25 through 29)? Why or why not? (12) If she were covered by the ADA, what should you do about her poor performance in the future (pages LoAA-33 through 34)?

Case B continued

After you finish this case, go on to the next one.



David has been employed for just over a year, and has been an okay performer, not great but not bad. One day at work he blows up and starts yelling wildly, "I can't take it !" He stomps out of the work area and is not seen again at work that day. The next day, several people tell you that they saw David drunk at Joe's Bar late last night. After lunch, you hear he was seen drunk at Joe's at noon. The following day, David returns to work with bloodshot eyes and an unshaven beard. He apologizes for stomping out of work and for not calling in. He returns to his cubicle and appears to be working as normal. (1) What should you say, ask or do at this point? (2) Do you think David has a permanent impairment of a major life function, such that he is covered by the Americans with Disabilit ies Act (ADA) (pages LoAA -24 through 26)? The next day, David calls and tells you he is an alcoholic, that everything just came crashing down on him, and that he realizes he has a problem. He has checked himself in to a rehabilitat ion program. (3) What should you say, ask or do at this point? A week later, David returns to work with a doctor's note stat ing that he will be attending rehab meetings night ly, and therefore request ing that he be allowed to leave work not later than 5 p.m. Typically, David and everyone works unt il 6:00. However, you realize your duty to accommodate and allow him to leave early. This continues for four weeks. Then you receive notice from the doctor that David has completed rehab, and he returns to his regular work schedule. A couple of months later, David again calls in from a rehab center where he has checked himself in. This t ime he is gone for two weeks, and leaves early for four weeks. Again he is cert ified as completing rehab. A couple of months later, he checks into rehab a third t ime, and is gone for two weeks. This t ime the doctor asks that he be allowed to leave work early indefinitely. Throughout this t ime, David's output is marginal when he is sober and working full-t ime. When he is working fewer hours, his output is sub-standard. As near as you can tell, he has never come to work under the influence.

Case C




It is now t ime for David's annual review. In looking over his performance compared with others, you see that he clearly is the lowest performer, in your mind significantly lower than the others, and if you had your way you would fire him. But you have never put him on a performance improvement plan. (4) Do you think David has a substantial limitat ion to a major life function, such that he is covered by the Americans with Disabilit ies Act (ADA) (pages LoAA -24 through 28)? (5) Is David eligible for Family and Medical Leave for alcohol rehab meetings (pages LoAA-40 through 41)? Why or why not? (6) Assuming he is missing 5 hours of work a week for meetings, plus the five weeks he was out of work completely, when will he run out of his 12 weeks of yearly Family Medical Leave? (This is a math quest ion) (7) Assume he takes more than 5 hours a week and runs out of Family Medical Leave. The Americans with Disabilit ies Act st ill requires reasonable accommodation if it does not create an undue hardship on the employer. Would it create an undue hardship (as defined, page LoAA-33) in your department to allow someone to leave an hour early every day indefinitely? (8) If you discover the rehab center has late evening hours, can you require David to make appointments for non-work hours? (9) Under fairness principles, how should his reduced output be considered at the t ime of his performance review? (Page LoAA-41) (10) What should you do in the future about his poor performance? (11) There is a party at the office and management brings in beer, wine and non-alcoholic refreshments. You notice David has a beer. He does not act out in any way. What should you do about the fact that he is drinking?

Case C continued



Matt, your employee, and Allen are a gay couple. When Allen’s sister died in 1999, her 9-year-old son, Peter, came to live with Matt and Allen. From then on, Matt and Allen acted as Peter’s guardians and supported him financially, but they never formally adopted him. Peter has just been sent back to the U.S. from a tour of duty in Iraq because he needs surgery for an injury suffered in combat. The surgery will require a week’s stay in the hospital, after which, according to his doctor, he will need to recuperate at home for a couple of weeks. Peter is expected to recover fully, but is depressed because he has been told that he will never be able to fulfill his dream of competing in the Olympic pentathlon. Matt has asked for a three-week leave of absence so he can stay with Peter in the hospital and take care of him at home after the surgery. 1. Is Matt and Allen’s status as a gay couple relevant to Matt’s FMLA rights?

2. Is Matt’s request sufficient to put you on notice of the need for FMLA leave? (pages LoAA-38 through40)

3. Does Peter have a “serious health condit ion”?

Case D




4. Does Peter have a disability under the ADA? (pages LoAA -24 through 28)

5. Is Peter Matt’s child under the FMLA?

6. Is Matt needed to care for Peter? Does it make a difference that Allen is also taking FMLA leave from his job to take care of Peter in the hospital and at home?

7. What should you do about Matt’s request for leave?

Peter fully recovers after the operation, and is ordered to active duty in Afghanistan. Matt now asks for a day off so he can go with Peter and Allen to a lawyer’s office to get a power of attorney and will drawn up for Peter. You are annoyed that Matt did not take care of this while he was on leave for three weeks, since there is a major deadline facing your department, and if Matt takes the day off, you will have to ask others to work overt ime. (pages LoAA-38 through 39)

8. Would denying Matt’s request violate your values? Company policy? The law?

Case D continued



Workplace Safety Laws

OSHA = Occupational Safety & Health Act/Agency OSHA sets minimum standards - specific regulations on chemicals, mining, etc. - general duty rule: prov ide workplace as safe as possible - no retaliation against workers reporting unsafe conditions Illness & injury prevention plan - standard operating procedures for prevention/response to all safety hazards - plan may provide managers are primarily responsible for safety Criminal liability - "be a manager, go to jail" if you know of a health hazard and conceal it or fail to report it and an employee is seriously injured



Workers' Compensation

Benefits for employees injured at work: lost pay, medical bills, job retraining - may be supplemented by disability insurance No-fault system - even if employee is negligent, employee gets benefits Exclusive remedy rule - Workers' Compensation is the exclusive remedy for compensation of workplace injuries - even if employer is negligent, employer can't be sued in court No discrimination = once returned to work, treat employees as if they never left



For Disabilities "caused by work"

Workers' Compensation is for disabilities caused by work

- employee does not have to be 100% disabled - injury does not have to be 100% caused by job Injuries at work - give employee a "report of injury" form within

24 hours of notice - have it sent if they call in sick and say it is work-related Illnesses caused by work - may be more difficult to prove caused by work

(e.g. cancer, asbestosis, etc.) Off-site injuries - telecommuting: covered for injuries directly

related to work - business trips covered door to door for

reasonably foreseeable accidents (unless due to personal frolic)

- regular commuting not covered - side trips for employer are covered Sports injuries - covered only if participation in sport is

mandatory Alcohol at work - co-workers covered if injured by drunk

employee - third party may sue for personal injury in court if injured by drunk employee coming from work-related function - drunk employee covered for injuring self if drunkenness caused by involuntary intoxication



Your Responsibility as a Manager

Prevent injuries & illness - train employees within 24 hours of new

assignments - ensure compliance with safety rules - inspect work area routinely - look at work area from different perspectives;

delegate responsibility for inspection to employees on rotating basis

- assume the worst may occur - use problems, incidents and close calls as

learning opportunities - address unsafe behaviors as well as conditions - develop action plan to address deficiencies Reward & discipline for health & safety compliance Report problems - take employee reports seriously - build trust - "If my management doesn't help me

on the little stuff, how can I trust them on the big things?"

- partner with Safety and Security Be prepared - know who to call - practice emergency procedures Document accidents and reported injuries - contact Human Resources - ensure employee receives report within 24 hours - get names of witnesses - don't spoil the ev idence



Musculoskeletal Disorders (MSDs)

MSDs result from repetitive strain, e.g. back pulls, carpal tunnel syndrome, tendonitis MSDs are most prevalent complaint in office env ironment (30% of all lost work days) 317,440 reported MSDs in 2008, requiring a median of 9 days away from work Be aware of MSD issues with - using laptops - working at home Warning signs of MSDs: - numbness in fingers - tingling in hand, wrist - pain shooting up arm - pain or stiffness in neck, shoulder - reduced range of motion in neck, shoulder - back "locks up” - burning sensation, swelling, inflamation - fingers turning white - any pain or stiffness that worsens while working



Computers and Workstations may Contribute to MSDs

Correct ergonomics prevent MSDs - see next page Exercise 3 minutes for every 40 minutes of keyboarding Eye strain can be prevented: - look 30 feet away 5 minutes every hour - look up every 10 minutes to deep blink - place monitor 20-26 inches away - adjust contrast and brightness - reduce glare

- switch to 14-18 point font Radiation danger is debatable



16-22 inches

Ergonomics

Source: San Jose Physical Therapy and Sports Injury Center; "Computer Comfort," by Melissa Mayfield Reprint by permission: San Jose Mercury News

Fitting humans into a computer world

Since the introduction of the video display terminal in the workplace, writer's cramp has been replaced by painful wrists,

eyes, necks and backs. Some of these aches can be relieved or eliminated with a properly adjusted work station that

provides the operator with a comfortable sitting position - sufficiently flexible to reach, use and observe the screen,

keyboard and documents.

ARMS:

When the operator's hands are resting on the keyboard, the

upper arm and forearm should form a right angle. Hands

should be in a reasonably straight line with the forearm. If

hands are angled upwards from the wrist during work, try

using a wrist-supporting pad attached to the front of the

keyboard. Optional arm rests should be adjustable so arms and

shoulders can rest at normal positions.

POSTURE:

Sit all the way back into the

chair for proper back support.

Back and neck should be as

comfortably straight as

possible. Look straight ahead

at work. Knees should be

slightly lower than hips. Do

not cross legs or shift weight

to one side. Give joints and

muscles a chance to relax.

Periodically, get up and walk

around.

BACKREST:

Easily adjustable

for occasional

variations in the

sitting position.

Shape should

match contour of

lower back,

providing even

pressure and

support.

SEAT:

Adjustable height and angle.

Cushions should be firm. A

waterfall front helps

circulation to the legs.

FEET:

Entire sole should rest

comfortably on floor or

foot rest.

DESK/TABLE TOP:

Thin work surface to

allow leg room and

posture adjustments.

Adjustable surface

height is preferable.

Table should be large

enough for reference

books, files and

telephone while

permitting different

positions of the

screen, keyboard and

mouse pad.

TELEPHONE:

Cradling a telephone receiver

between the head and shoulder

while working can cause

muscle strain. A headset

allows head and neck to remain

straight while keeping hands

free to work.

DOCUMENT

HOLDER:

Same height and

distance from the user

as the screen, so eyes

can remain focused as

they look from one to

the other.

SCREEN:

Eyes should be

about level with

top of screen.

Screen should

swivel

horizontally and

tilt or elevate

vertically to

create optimum

viewing angle.

KEYBOARD:

Positioned to

allow hands

and forearms

to remain

straight and

level.



Exercises: Do these for 3 minutes after 40 minutes of work.

Source: San Jose Physical Therapy and Sports Injury Center; "Computer Comfort," by Melissa Mayfield

Reprint by permission: San Jose Mercury News

1. A) Hands at

your front,

stretch your

fingers...

B) ...and

rotate your

hands...

C) ...while

closing them...

D) ... into a

tight fist.

2. Hands at your sides, shake them

for 5-10 seconds.

3. Stretch each hand gently, two times.

Support the elbows.

5. Stand and stretch

your body with both

arms raised overhead.

6. Stand, interlace

fingers together behind

back, with elbows

straight. Keeping chin

tucked and body erect,

lift hands away from

body. Hold final

position for 15 seconds.

10. SHOULDER SHRUGS: From a relaxed

position, with arms at your side, shrug shoulders

completely up towards ears, then back, then down

and relax. Repeat 10 times per hour.

8. ARM PULLS: Gently

pull your elbow across your

chest toward your opposite

shoulder. Hold five seconds.

Repeat five times. Repeat

entire exercise, pulling other

arm.

7. NECK STRETCH: Hold

right arm behind your back.

Tilt your head forward and to

the opposite shoulder. Hold

five seconds. Repeat three

times. Repeat entire exercise

for left arm.

4. Repeat step 2. 9. CHIN TUCKS: Keeping your chin level, pull

your head and neck backward as if you are making a

double chin. Hold two seconds. Relax, returning to

a normal position. Repeat 10 times per hour.



Break These 10 Bad Computer Habits

Leaning wrists on wrist rest Slouching Keeping your neck bent Twisting Overreaching Banging on the keyboard Working on high surface Cradling the phone on shoulder Over-gripping the mouse Skipping task breaks



Manager's Responsibilities to Prevent MSDs

Recognize MSD risk factors and symptoms Evaluate the work area Eliminate or reduce risk factors Educate employees about MSDs and how to reduce/avoid Encourage early reporting and treatment Participate in injury/illness investigation Model exercise/break routines



Environmental Illnesses

Sick building syndrome is temporary - symptoms: nausea, dizziness, headaches Building related illness is permanent - examples: Legionnnaire's Disease, tuberculosis Multiple Chemical Sensitiv ity is a claimed allergic reaction to perfumes, dry cleaning fluids, formaldehyde (in particle board) and other substances Hypersensitive people are covered if diagnosed disabled by doctor



Stress Claims

Workers' Compensation may cover if stress is disabling and 50% of stress caused by work (not if stress "caused" by indiv idual manager) Constructive discharge: claim that work was so stressful a reasonable person would be forced to quit - to be actionable, stress must be caused by behavior that is outrageous, intentional and otherwise illegal (e.g. sexual harassment, discriminatory treatment) Encourage/model stress reduction: - take breaks - exercise - avoid stress enhancing foods - give employees the feeling of having personal control Do's and Don'ts: - if employee claims stress, do call HR - don't ignore, belittle, or minimize stress claims - if employee claims stress in performance management discussion, do continue to focus on job performance - don't yell, snipe, or be sarcastic - do encourage stress reduction



Manager's Responsibility for Safety

What cultural and environmental factors here contribute to the incidence of (st ress) or (musculoskeletal disorders)?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

What can we, as managers, do to influence these factors and reduce the incidence of this type of injury?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________



Americans with Disabilities Act

Prohibits discrimination against qualified people with disabilities and requires reasonable accommodation Applies to employees who - are disabled at time of hire - become disabled away from work while employed - have been disabled by work and are returning from Workers' Compensation leave - have a history of disability in the past Qualified = able to perform essential functions of job, with or without reasonable accommodation. In 2008, more than 19% of employers had at least one disabled employee - at large employers (250+ workers) 53% had at

least one disabled worker



Disability = Physical or Mental Impairment that Limits One or More Major Life Functions

ADA requires “substantial” limitation - “substantial limitation” = as compared to general population - California and other states do not require “substantial” l imitation - New Jersey and New York and other states do not require any limitation Major life functions: walking, speaking, seeing, hearing, breathing, learning, sitting, standing, lifting, reading, performing manual tasks, caring for oneself, working, and major body functions, such as cell growth, immune system, digestion and elimination, respiration, circulation, reproduction, endocrine system, and brain function. Not minor Not transitory (minimum several months’ duration) Impairment must be considered without effect of corrective measures (medication, prostheses, etc.), except glasses or contact lenses.



Examples of Impairments

Physical - limitations in mobility, sight, hearing, back ailments Medical conditions - cancer, HIV/AIDS, tuberculosis, epilepsy, diabetes, obesity Mental illness - schizophrenia, manic depression, clinical depression, anxiety disorder, phobias Developmentally disabled - low IQ, dyslexia, Down's Syndrome Alcoholics Rehabilitated drug addicts Employees covered if they put you on notice of disability by informing you - if employee conduct raises questions of disability, call HR (don't ask employee about disability)



People Not Currently Disabled Sometimes Protected by Law

People with a history of disability - illness cured or in remission People perceived as disabled - Never ask employees or applicants if they are disabled - Never assume anyone is disabled - Don't make comments or notes about perceived disabilities - "that person is crazy" - "that person is an alcoholic” - Don’t force employees into EAP People who give care to or are related to people with disabilities



What is NOT Covered?

Pedophilia, exhibitionism, voyeurism Current use of illegal drugs Under influence of alcohol or drugs while working Frequent drinking not diagnosed as alcoholism Normal pregnancy Food handling by people with communicable diseases Gambling, kleptomania, pyromania Disabilities uncontrollable by medication Impairment or behavior that poses a danger to others or is likely to cause injury to impaired worker



Don't Discriminate

Don't make assumptions, ASK Must hire if - most qualified AND - can do "essential functions" Essential functions = high percentage of tasks or the purpose of job Marginal functions = other work tasks done occasionally – inability to do marginal functions cannot be considered Disabled employees can and should be held to the same performance standards as others - quality always counts



Before Hiring, Write Job Description

Decisions based on essential job functions contained in written job descriptions are presumed legal Be specific. Don't say "attend meetings," instead "must fly and drive to out of state meetings once per week" Even if a function is essential, if an employee or applicant with a disability can't do it, the employer still must look at reasonable accommodation. If accommodation enables person to perform essential functions, then he/she is qualified.



Permission is hereby granted by Fair Measures to copy this one page for any use.

Illegal Disability Questions Legal If All Applicants Asked • How did you become disabled? • Are you able to perform the essential

• How long have you been disabled? functions of the job with or without a • Do you have any medical problems? reasonable accommodation? • Do you need reasonable • Please describe or demonstrate how accommodation for the job? you would perform this essential function of the job. • How many sick days did you take • Can you meet the attendance last year? requirements of this job? • How often will you need t ime off for t reatment of your disability? • Have you ever filed for Workers’ Compensation?

Illegal Genetic Questions Legal If All Applicants Asked • Is there any history of cancer in your • How are you today? family? • Have you ever received genetic test ing or counseling?



Make Reasonable Accommodation

Reasonable accommodation is making a change to the job to enable the person to work Buy equipment Modify desk, equipment Restructure jobs Telework Part-time work schedules Rewrite tests Prov ide readers and interpreters Reassign to vacant position, but only if no other reasonable accommodation will permit employee to stay in current job. Grant extra leave time As employee condition changes, re-evaluate whether accommodation is still effective, and adjust as needed. Resource for ideas: Job Accommodation Network 1-800-526-7234 http://www.askjan.org



Accommodation NOT Required when:

Undue hardship to company site (not to department) - excessively costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business Employee refuses accommodation. If employer's proposed accommodation is reasonable, employee's preference does not control. Employee/applicant is not qualified for the job. Employer is not required to hold open job indefinitely (only for a reasonable time) Employer is not required to create a new position, but must offer open positions. Working at home is not reasonable if employee requires supervision or if worker’s presence is essential to work team. When in doubt, call HR.



Working With People With Disabilities

Recognize history and culture around disability Respect their right to privacy Avoid concentrating on disability Establish common ground Acknowledge their expertise and reality Allow them the normal v icissitudes of life Coach, counsel, plan and manage like everybody else



Suggestions from People with Disabilities

Visual Impairments 1) When escorting a person who is blind, ask if he or she would like

assistance. If the answer is yes, offer your arm. 2) Don't play with a guide dog or try to get its attention without its

owner’s permission. 3) Don't avoid using phrases like "Do you 'see' what I mean?" 4) Review emergency evacuation procedures. Hearing Impairments 1) Look directly at people while speaking with them. Avoid chewing

gum or other activ ities that obscure lip-reading. 2) Speak slowly and clearly. 3) Make sure that you have the person's attention before you begin

speaking. 4) Use facial expressions and pantomime to facilitate spoken

language. 5) Maintain eye contact with the person who is deaf, even if an

interpreter is present. 6) Try to rephrase a thought rather than repeating it in the same words. 7) Use paper and pencil in person; use e-mail otherwise. 8) Find out how the employee prefers to communicate. 9) Introduce the worker to others indiv idually rather than in a group. 10)Make every attempt to have an interpreter available at group

meetings. 11) Review emergency evacuation procedures. Substance Addiction 1) Do not pass judgment when you learn that an employee has a

problem. 2) Ask the person if he or she is currently getting support through some

kind of program, once he or she has opened the subject for discussion.

3) Tell your employees about any employee assistance programs available through the company.

4) Remain objective. Your job as a supervisor is to set the levels of expected performance on the job. If an employee fails to meet these standards, take action based on non-performance.



More Suggestions

Mobility Impairments 1) Ask the person if he or she has any suggestions about the

accessibility of the workspace or the demands of the job. 2) Bring work materials close to the workspace to avoid unnecessary

traveling and carrying whenever practical. 3) Be flexible. Sit when speaking to a person in a wheelchair. 4) Review emergency evacuation procedures. Developmental Disabilities 1) Break each job to be done into its basic components. 2) Give verbal instructions while simultaneously demonstrating the task. 3) Be prepared to encounter some resistance when the work schedule

or tasks change. Structure and routine are very important to people who have difficulty mastering new things.

4) Review emergency evacuation procedures. Emotional Disorders 1) Avoid losing your temper and yelling when talking with someone

who has an emotional disability (or anyone else). 2) Be prepared to repeat your instructions and policies often during the

first days of employment. 3) Help new employees become integrated into the social structure on

the job. 4) Avoid degrading terminology about emotional disorders (e.g.,

"crazy," "loony") 5) Don't speak in a patronizing way. 6) Make clear your job and performance expectations. 7) Don't lower your standards. Chronic Illness 1) Base productivity evaluations on outcomes that are scheduled and

planned in advance. Avoid basing evaluations on the number of hours involved.

2) Negotiate timelines to avoid excessive pressure and tension whenever possible.

3) Set a flexible work schedule to accommodate the times when the worker is ill.

4) Honor confidentiality.



Pregnancy Discrimination Act

Applies to employees who are pregnant, give birth or have related medical conditions Prohibits discrimination - treat pregnancy leaves the same as other medical leaves - treat absences due to pregnancy consistently with other disability absences - must apply standards consistently, whether they include or exclude pregnant employees and applicants



Family and Medical Leave Act (FMLA)

12 weeks leave per year for: -Birth, adoption or placement of foster child - leave must be taken within one year of birth or placement - employer may require leave to be taken as one continuous period - if both parents are employed here, total combined leave can be limited to 12 weeks - Serious health condition of employee or employee's parent, child or spouse - can be taken in any increment medically necessary: - one+ hours a day, one day a week, one week a month, or intermittently as needed - Exigency arising out of spouse, child or parent being called to active duty in a foreign country 26 weeks leave per year to care for spouse, parent or child recovering from serious illness or injury sustained in line of active duty - includes injured veterans for first five years after military discharge - military caregiver is entitled to combined 26 weeks total FMLA Child= biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis(in the place of a parent) - child over 18 covered only if disabled or for military exigency/military caregiver leave.



FMLA Continued

Exigency equals: - short-notice deployment - attend military events - arrange child care and school activ ities - make financial and legal arrangements - counseling - 5 days with a serv ice member who is on short- term R&R leave 12 weeks is calculated based on the number of hours per week employee usually works (e.g. 40 hrs/week = 480 hours of FMLA, 50 hrs/week = 600 hours) FMLA sets minimum standards for granting leaves - employer policy or practice may be more generous About 10% of eligible workers take FMLA leave each year. Most common reasons: - own health (52%) - new baby (18.5%) - ill parent (13%)



What is a serious health condition?

Physical or mental illness, injury, impairment, or condition that involves inpatient care, pregnancy or chronic serious health condition (e.g. asthma, migraine headaches) OR A period of incapacity lasting more than three consecutive, full calendar days, that also involves treatment two+ times by health care prov ider or one treatment plus a regimen of continuing treatment. Specifically excluded in the regulations: cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental, physicals, eye exams UNLESS condition meets above requirements.



Pay, Benefits, Raises, Bonuses and Reviews

Pay - leave time not required to be paid by law - employer can require employee to use paid

sick leave and vacation days, so yearly time away from work is no more than 12 weeks

Benefits - employer must continue to pay for group health

benefits during leave - employee on FMLA entitled to same non-health

benefits as other employees on non-FMLA unpaid leaves

Raises - if employer ties merit increases to anniversary

dates, such increases must be given to FMLA employees

- if employer ties merit increases to "12 months completed serv ice" increase can be delayed by FMLA leave time

Bonuses - criteria for awarding bonuses should be clearly

stated and consistently applied - best practice: bonuses for contributions, not

attendance Rev iews - base productivity evaluations on outcomes

that are scheduled and planned in advance. Avoid basing evaluations on the number of hours involved.

When in doubt, call the experts.



Rights of Nursing Mothers

Under federal law, employers must prov ide: - reasonable unpaid breaks for an employee to

express breast milk for her nursing child - for 1 year after the child's birth - each time such employee has need to express

the milk - a place, other than bathroom, that is shielded

from v iew and free from intrusion from coworkers and the public.

State laws may require more - New York

- minimum break= 20 minutes - at least once every 3 hours - employer can delay break for up to ½

hour due to business needs



Replacement, Reinstatement & Layoffs

While on leave - temporary replacements allowed - permanent replacements not allowed unless employee is top 10% earner in 75 mile radius Employee must be returned to same or equivalent position, with equivalent benefits, pay and other terms and conditions of employment. If position eliminated in legitimate reduction, employee may be denied reinstatement, but FMLA leave time cannot be considered in determining whether an employee should be picked for layoff.



State Family Laws

California - 4 months leave for disability due to pregnancy,

childbirth or related medical conditions - may take in any increment that is medically

necessary - allow part-time work schedule - guaranteed same or similar job upon return - in addition to FMLA - 40 hours off per year for children's school activ ities - unpaid, but can be required to use vacation

and PTO - limited to 8 hours in a month - Unlimited time off for the parent of a suspended

pupil to meet with school officials Massachusetts - 24 hours off per year for children's school

activ ities, or to accompany child or elderly relative to routine medical or dental v isits

Family Military Leave - In addition to federal FMLA leave for military

caregivers, six states now prov ide serv ice members’ parents, children, spouses, and in some states, siblings, domestic partners, and civ il union partners, with limited unpaid, job-protected leave

- Depending on the state, from 10 – 15 days leave during periods leading up to and following deployment, and during the serv ice members’ leave still on active duty

- As of 6-15-10, California, Illinois, Indiana, Maine, Minnesota, Nebraska, New York, Oregon, Washington



State Family Medical Family Parental School Military Alaska S1 S Arizona S S P2 Arkansas S S S California 2 wks/ 12 wks/12 mos6; 10 days/yr S 8 hrs/mo; 12 mos 16 wks3 40 hrs/ yr 6 wks paid CA Kin-Care - use ½ of sick leave to care for sick child or other family member Colorado S S Adoptive parents 6 hrs/mo; entitled to same 18 hrs/yr leave as biological; reasonable unpaid breaks to express milk Connecticut 16 wks/ All employers: 26 wks/ Milk expression and/ 2 yrs4 bone/organ 12 mos. for or breast-feeding donor; S4 caregiving allowed during breaks Delaware S DC 16 wks/ 16 wks/24 mos 24 hrs/yr 24 mos Florida S 3 days/12 mos S S domestic violence victims Georgia Reasonable unpaid breaks to express milk Hawaii 4 wks/yr 5 or 30 days, for Milk expression and/ S victims of domestic, or breast-feeding violence depending allowed during breaks on employer size Indiana S S 10 days/yr Reasonable unpaid breaks to express milk Illinois S5 S; for all employers6, Reasonable unpaid 4 hrs/yr; 8 hrs/yr bone marrow, blood breaks to express milk donation Iowa S 8 wks3

S: bone marrow and organ donors Kansas S S Kentucky S S 6 wks. for adoption Louisiana 16 wks.3 16 hrs/12 mos bone marrow donors7 Maine 10 wks/ Same7 15 days/yr 2 yrs Maryland S8 S Adoptive parents entitled to same leave as biological Massachusetts 8 wks 24 hrs/12 mos9 Minnesota 6 wks for Bone marrow 10 days/yr Reasonable unpaid 16 hrs/12 mos birth/ donors :all breaks for nursing adoption employers6 mothers to express milk; adoptive parents entitled to same leave as biological Mississippi S S Montana S S: all pregnant women allowed reasonable leave Nebraska S 15 days/yr Adoptive parents entitled to same leave as biological Nevada S S 4 hrs./yr New Hampshire



State Family Medical Family Parental School Military New Jersey 12 wks/ 24 mos15 New Mexico New York Blood donations; 10 days/yr Adoptive parents 3 days, bone entitled to same leave marrow donors11 as biological; reasonable unpaid leave to express milk No. Carolina S S 4 hrs/yr North Dakota S Ohio Pregnant women S allowed reasonable leave Oklahoma S S Oregon 12 wks/yr11 12 wks/yr12 bone 14 days/ Reasonable unpaid marrow and organ deployment leave to express milk donors

Rhode Island 13 wks/2 yrs 13 wks/2 yrs6 10 hrs/12 mos So. Carolina S Bone marrow donors13 Pregnant women S allowed reasonable leave South Dakota S S Tennessee 16 wks 16 wks3 S; for all employers S birth/ reasonable unpaid adoption breaks to express only milk Texas S: bone, blood S S and organ donors Utah S S Vermont 12 wks/yr 12 wks/yr 4 hrs/30 days; 24 hrs/ 12 mos14 Washington 12 wks/ 15 days/ 24 mos deployment West Virginia S Wisconsin 6 wks birth 2 wks/yr or adoption 2 wks/yr other

* “Family” includes domestic partner or civil union partner

1 S = state employees only.

2 P = public employees only.

3 For pregnancy, childbirth and related conditions.

4 State employees are entitled to 24 weeks of leave in a 2-year period.

5 Includes “family responsibility” leave to attend to settling estate, respond to natural disaster, etc.

6 Victims of domestic violence are also entitled to take unpaid leave to seek medical attention or

counseling.

7 Paid leave is required, but no time period is set.

8 For all employers, use paid leave time to care for ill family member.

9 Also can be used for taking child or elderly relative to medical appointments.

10 State employees get 7 days paid leave if bone marrow donor, and 30 days paid leave for

organ donation.

11 Parents caring for sick children may get 24 weeks, under some circumstances.

12 Pregnant women may get 36 weeks, under some circumstances.

13 May be paid; no time period specified.

14 Also available for child’s medical appointments, or spouse’s educational, professional

development or medical appointments.

15 As of 7/2009, 6 weeks paid leave.



Reference materials

For reference materials for this Leaves of Absence and Accommodation section, please download at: http://www.fairmeasures.com/manuals/

managing leaves of absence & accommodation

Documents