managing leaves of absence: title goes here complex...
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Title Goes Here
Presented By:
Soña Ramírez210.277.3626
Adam D. Boland210.277.3611
Managing Leaves of Absence:Complex Compliance Issues
ADA Protection Coverage: Employers with 15 or more employees
Eligibility: Prohibits discrimination against a “qualified” individual with a disability
Disability is defined as:(1) an impairment that substantially limits a major life
activity, (2) having a record of such an impairment, or (3) being regarded as having such an impairment.
Exceptions: Undue hardship Direct threat of harm
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FMLA Protection
Coverage: 50+ employees working within a 75-mile radius
Employee who has worked for 12 months and 1,250 hours of service in the 12 months immediately preceding the leave
Serious health condition of employee or immediate family member – inpatient care or continuing treatment
12 weeks of leave in 12-month period (block, intermittent, reduced schedule) or 26 weeks for military caregivers
Workers’ Compensation Leave Coverage: Varies by state, but normally very
few employees necessary to trigger coverage
Eligibility: In most cases, immediately upon employment
Employee Protections: Texas prohibits retaliatory discharge.
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Overlap of ADA, FMLA and TWCA Notice Requirements
Medical Certifications
Requirements to Offer Leave
Length of Leave
Return to Work
Intermittent Leave/Reduced Work Schedules
Employee Notice RequirementsADA
Employer required to accommodate only known disabilities
Employee is expected to identify possible accommodations
FMLA Foreseeable leave – 30 days or ASAP Unforeseeable leave – ASAP Must comply with standard call-in procedures Information provided by employee must be sufficient to
reasonably apprise employer that time-off request may come under the FMLA
Workers’ Comp Notice of injury
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Medical Certification and Inquiries - ADA
ADA Employer must engage in interactive process to
determine whether an accommodation is possible
Employer may make inquiries into employee’s medical condition and functional limitations as long as it is job-related and consistent with business necessity
Employer may contact doctor for clarity regarding limitations to allow employer to “negotiate” a reasonable accommodation with employee
FMLA Employee must provide certification within 15
days of request
If employee provides inadequate or incomplete certification form, an HR employee or manager may contact health care provider for resolving ambiguity or completeness – NEVER supervisor
FMLA-related inquiries are limited only to the medical issue causing leave
Can ask only if employee can perform essential functions of job duties
Medical Certification and Inquiries - FMLA
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TWCA – insurance company can compel to verify eligibility
Medical Certification and Inquiries - TWCA
Requirement to Offer Leave Leave can be covered by both the ADA and the
FMLA, but the ADA can be more generous to the employee.
Compare:FMLA An eligible employee is entitled to a maximum of
12 weeks of leave per 12-month period.ADA Employer is not required to offer leave as a
reasonable accommodation if another effective accommodation is provided
However, the employee could be entitled to much more than 12 weeks of leave as a reasonable accommodation unless the employer can show undue hardship.
TWCA Subject to Neutral Leave of Absence Policy
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Neutral Leave of Absence Control Policy
Indefinite Leave Issues ADA does not require employer to give employee
indefinite leave
What is indefinite?
A neutral absence control policy may be used to terminate employees who fail to return after taking maximum amount of leave permitted under the employer’s policy. This trumped 451 workers compensation claims. 4.2 Million Dollar Settlement with Sears over Worker’s
Compensation Leave Policy.
Now, such policies are subject to ADA
Return-to-Work RightsADA
An employee is entitled to return to his same position unless the employer demonstrates that holding open the position would impose an undue hardship.
Under ADA, employer must offer a vacant lower level position to an employee returning from reasonable accommodation leave if previous or equivalent position not available due to undue hardship.
FMLA An employee has the right to return to the same position or
to an equivalent one as long as employee can perform essential functions of position.
If employee cannot perform essential functions of position, employer’s obligations end.
TWCA Typically no reinstatement rights apply independently of
federal law, but check the applicable state(s) to make sure. Reinstatement is a common remedy for retaliatory discharge.
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Return-to-Work: Light DutyADA
Do not have to create light duty position or convert temporary light duty to permanent.
FMLA Employee eligible for FMLA cannot be required to
return to work for light duty
TWCA Employer may require return to a light duty position;
medical exam is allowed as long as it complies with the ADA.
Intermittent or Reduced Hours Schedule
ADA If no other reasonable accommodation is available,
part-time or modified work schedule will be required under ADA if it allows the employee to perform the essential functions of the job and does not impose an undue hardship on the company.
FMLA Eligible employee is entitled to take leave
intermittently or on a part-time basis, when medically necessary, until he has used up the equivalent of 12 workweeks in a 12-month period – regardless of undue hardship.
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No-Fault Tardy/Absenteeism Policies Policies Accumulating Absences/Tardies to
Reach a Certain Number Generally Upheld.
Verizon Settlement In context of collective bargaining agreement,
Verizon maintained policy where “chargeable absences” collected to result in discipline and/or termination – “No Fault” System.
EEOC challenges such as being violation of reasonable accommodation obligation.
$20 Million Dollar Settlement with Verizon included Mandatory Changes to Absence/Tardiness Policy.
Best Practice for No-Fault Tardy/Absenteeism Policies
If point system, advise employees of ability to request excuse from assessment of point/penalty as reasonable accommodation.
Implement written form/request for employees requesting accommodation.
Engage in interactive process with employee to determine whether absence was disability related.
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Best Practices - Employee on Leave Covered by FMLA, ADA and/or Workers’ Comp Make sure leave policies are up to date
Document FMLA and medical leave Send out leave of absence application forms
and medical certifications in a timely manner. Make sure to have HIPAA compliant medical
authorization from employee
Review medical certifications Contact health provider for clarification on
any issues such as duration or restrictions
Best Practices - Employee on Leave Covered by FMLA, ADA and/or Workers’ Comp Send out letter to employee stating whether
leave is approved or denied. If approved, make sure to include: The length of leave Their reinstatement rights Their benefit obligations If workers comp or paid leave is being run
concurrently with the FMLA That medical certification may be needed, including a
fitness for duty certification at the end of the leave That if they need additional leave as a reasonable
accommodation, they must request it prior to their leave expiring.
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Best Practices (cont’d) Send letter advising employee of leave expiration date
and necessity of fitness-for-duty certification Do not rely solely on workers’ comp medical
certification forms
If employee calls in response to letter and indicates he/she needs a reasonable accommodation, including additional leave – engage in interactive process
Consider light duty or other modifications that could constitute a reasonable accommodation such that additional leave is not needed
Evaluate the impact on others and whether there is an undue hardship.
If employee does not call in response to letter, send follow-up letter that gives him/her second chance. If employee fails to respond, terminate position.
Jim
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Jim BigTrux has employed Jim as a full-time
dockworker since January 2004
While loading freight last week, Jim suffered a compound fracture to his leg that requires surgery and nine weeks of rest and recovery
After nine weeks of leave, Jim indicated that he is able to return to work with restrictions
Pop Quiz
a. BigTrux may provide Jim with light duty work pursuant to state workers’ compensation laws
b. BigTrux must accommodate Jim’s work restrictions under the ADA
c. BigTrux must provide Jim with Light-duty work pursuant to the FMLA
d. None of the above
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Maria
MariaMaria called in “sick” last Thursday and Friday. Pursuant to the No-Fault Attendance Policy, Maria must present a doctor’s note for the absences or she will be assessed points. On Monday when Maria’s supervisor asks her for her note, Maria says she “lost it” but that her doctor says that due to her PTSD symptoms she should only work part-time. Thereafter, Maria is assessed 2 attendance points for her absences.
Maria proceeds to miss one day each week for the next 6 weeks and eventually accrues 8 attendance points. Pursuant to the No Fault Attendance Policy, Maria is terminated.
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Pop Quiz
Was the Company on notice of a need for an accommodation?
Does the fact that Maria “lost” her doctor’s note affect the Company’s obligations under the ADA?
What, if any, impact does the Company’s No Fault Attendance policy have on the analysis?
Federal Cases – ADA
Feist v. Louisiana, 730 F.3d 450 (5th Cir. Sept. 17, 2013). Employee with osteoarthritis in knee requested
accommodation of on-site parking spot which employer denied.
Held: ADA does not require that an accommodation request must facilitate the performance of essential functions of a position.
Accommodation request need only allow the employee to “enjoy the benefits and privileges of the employment”
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Federal Cases – ADAEEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012), pet. denied United Airlines created a policy regarding job reassignment as
reasonable accommodation.
While providing many benefits, placement into vacant position was competitive.
EEOC files suit claiming ADA violated by not placing person in vacant position even if not most qualified.
On reconsideration, the Seventh Circuit overturns prior law and decides ADA requires mandatory preference on job reassignment, regardless of whether disabled individual is most qualified for job.
Petition for certiorari denied by U.S. Supreme Court on May 28, 2013; not the law in Texas.
Federal Cases – FMLA Ballard v. Chicago Park District, No. 13-1445 (7th
Cir. Jan. 28, 2014)
Issue: Whether employee who took FMLA leave to accompany her terminally-ill mother to Las Vegas was “caring for” a family member with a serious health condition.
Held: Yes. The court held that the need for care did not change because of the location of the individual. The court saw no difference between providing care at home and providing the same care during travel. The Court rejected the employer’s argument that the employee must be providing medical treatment to the family member. Contradicts holdings in other Circuit courts.
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Questions
Title Goes Here
Presented By:
Soña Ramírez210.277.3626
Adam D. Boland210.277.3611
Managing Leaves of Absence:Complex Compliance Issues