navigating return to work and fitness for duty...
TRANSCRIPT
Navigating Return to Work and Fitness for Duty
Certification Challenges Under the FMLA and ADA Complying With Notice, Reasonable Accommodation and Other Legal
Requirements; Minimizing Interference and Retaliation Claims
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TUESDAY, NOVEMBER 22, 2016
Presenting a live 90-minute webinar with interactive Q&A
L. Eric Dowell, Shareholder, Ogletree Deakins Nash Smoak & Stewart, Phoenix
Ramsay C. McCullough, Esq., Jackson Lewis, Norfolk, Va.
Jonathan R. Mook, Partner, DiMuroGinsberg, Alexandria, Va.
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FOR LIVE EVENT ONLY
Title of Presentation
Navigating Return to Work and
Fitness for Duty Certification
Challenges Under the FMLA and ADA Presented by: L. Eric Dowell (Phoenix)
602-778-3718
© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
The FMLA Is…
Law granting an employee the
right to take leave for qualifying
conditions without the leave
counting against them
Law granting an employee the
right to leave counting against
them.
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FMLA??? How much do we need to know?
No undue hardship defense
No accommodation requirement
6
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FMLA
Local offices
cannot
outsource:
Notice
No
Interference
Retaliation
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Basic FMLA Right The right to:
- Take leave for qualifying conditions
- Without having the employer count the
leave against the employee for any
employment decision
• No RETALIATION against an employee
who takes FMLAT right to:
–Take leave for qualifying conditions
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INTERFERENCE Return to work cert.:
Requiring when not allowed
Call-in policies Requiring call-ins when not
permitted
Terminating to avoid giving the
leave
Changing hours or essential
functions to force the employee to
work
Chilling (threats)
“If you take that leave, I’ll
count it against you”
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Looks Suspicious
“I need FMLA”
“I forgot to tell
you; you’re fired!”
Everything is Hunky-Dory 11
Terminations UNRELATED to the leave
Permissible, as long as you can prove the termination had nothing to do with the leave….
McDonnell Douglas - Prima Facie Case
• Protected individual • Adverse employment Action • Some evidence of a causal connection (usually
timing)
- Legitimate Business Reason
- Pretext • there is evidence that the stated reason
is not the real reasonu can prove the
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Inconsistent Statements are a Killer
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A reminder from the New FMLA Regs
Documentation of every
conversation with employees about
whether something is covered or not
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Letting the Supervisor in the Loop
Confidential Medical
Information
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Sick Leave Policies
Stay in town
If you leave your house, call us
Call us every day
Proof of need statements
RTW statements
FMLA rule (no more than once per condition,
unless safety issues – then every 30 days)
But, Employer may enforce a more stringent
policy if tied to “sick leave”
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Call-Out Policies WHO -- the employee should call
NO MOTHERS PLEASE!!! WHAT -- reason for absence and expected
length of absence
ADA? WHEN
As soon as practicable and possible WHERE – Where must the employee report?
SUPERVISORS ONLY HOW
Verbal
NO TEXTS!!!! WHY -- Consequences
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Other Prophylactic Measures
FMLA specific
policies/practices - “But I don’t want to
use my FMLA”
- Frequency and
duration issues
- Interrogation methods
pecifiFrequency and”
Frequency and duration 18
Interrogation Methods
Can require health care provider to certify the “medical necessity”
Can ask questions of the employee: Whether Intermittent leave is “necessary”
Whether better notice is possible
Get a schedule of treatments
Can require employee to work with you on dates of treatment (but doctor’s orders ultimately control)
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Navigating Return to Work and Fitness for Duty Certification
Challenges Under the FMLA and ADA
FMLA-ADA Interplay for Employees Returning
From FMLA Leave
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Jonathan R. Mook, Esq. DiMuroGinsberg, P.C. 1101 King Street, Suite 610 Alexandria, Virginia 22314 (703) 684-4333 [email protected]
Return to Work After Leave FMLA Requirements
• Must return the employee to the same position he had or to an equivalent position, with equivalent pay, benefits, shift, geographical worksite, and other terms of conditions of employment.
• The employee must be given benefits in the same manner and levels as when the leave began, and cannot be required to re-qualify for any benefits.
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Return to Work After Leave FMLA Requirements
• Exceptions to reinstatement requirement include: – If the employee would have been terminated irrespective
of the FMLA leave (as in a reduction in force);
– If he is a “key employee” (among highest paid 10% of all employees) and return to position would cause “substantial and grievous economic injury,” then the employee does not have to be returned to the same position (designation must be made at beginning of leave);
– Failure to provide fitness for duty certification (notification of requirement must be made at beginning of leave);
– Inability to perform the job upon return. (If employee also disabled, need to reasonably accommodate).
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Return to Work After Leave ADA Requirements
• Must return to SAME position.
• If the employee’s illness or injury rises to the level of a disability, then you may have to provide reasonable accommodations to assist the employee in performing his job.
• This can be a great variety of options, depending on employee’s injury/illness and the needs of/burdens upon you.
• The employer has “the ultimate discretion to choose between effective accommodations.” 29 C.F.R. pt. 1630, App. (interpretation of 29 C.F.R. § 1630.9).
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The Steps of Reasonable Accommodation
1. Additional Leave – If it will enable employee to obtain additional medical treatment to return to work.
2. Workplace Accommodations - Accommodations to enable employee to perform essential job functions.
3. Reassignment - Vacant Positions
4. If 1-3 unsuccessful, terminate.
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Additional Leave • Totality of Circumstances Analysis = Length as
compared to the level of confidence of the treating physician that employee can return to work to perform essential job functions.
• EEOC Position on Leave as Accommodation:
– Maximum leave policies, e.g., 12 mos., violate ADA.
– Employer must provide continued leave until “undue hardship” measured by the impact on the employer or other employees. See EEOC publication on Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016).
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Additional Leave • Undue Hardship = action requiring “significant
difficulty or expense.” Not just costs. 29 C.F.R. § 1630.2(p). An accommodation can be
– Unduly extensive,
– Unduly substantial,
– Unduly disruptive, or
– Fundamentally alter the nature or operation of the business.
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Additional Leave Recent EEOC Lawsuits
• EEOC v. Greek Town Casino, LLC, C.A. No. 2:16-cv-1350 (E.D. Mich., filed Oct. 4, 2016) – EEOC alleges that employer violated ADA by refusing employee’s requested extension of leave where employee was hospitalized in Feb., 2012 for a stress anxiety disorder and requested a leave extension until April 30, 2012.
• EEOC v. Harrison Poultry, Inc., C.A. No. 2:14-cv-0227 (N.D. Ga., filed Oct. 4, 2016) – EEOC alleges that employer violated ADA when it failed to provide a manager a requested 7-day extension of his previously approved vacation leave to comply with his doctor’s orders restricting him from work during that time.
• EEOC v. Emory Healthcare, Inc., C.A. No. 1:15-cv-03407 (N.D. Ga. Oct. 3, 2016) – EEOC alleges that employer violated ADA by denying employee accommodation of unpaid medical leave so he could complete his medical treatment, which required employee to undergo emergency surgery, and then return to his job.
• EEOC v. Brown-Thompson General Partnership DBA 7-11 Stores, Case No. 5:16-cv-01142 (W.D. Ok., filed Sept. 30, 2016) – EEOC alleges that employer failed to provide reasonable accommodations to workers who were on medical restrictions and by terminating employees who missed more than 3 days of work if they were not eligible for FMLA leave, rather than granting leave as an accommodation.
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Additional Leave
Court Decisions • Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998) – Four week additional
leave of absence beyond a one year leave period to accommodate the mental breakdown of an employee was reasonable; however, employer need not grant employee an indefinite period of leave as an accommodation and any leave need be on only an unpaid basis.
• Garcia-Ayala v. Lederle Parenterals, Inc., 2012 F.3d 638 (1st Cir. 2000) – Two month extension of medical leave may be reasonable accommodation for employee with cancer who had taken fifteen months of leave.
• Cehrs v. Northeast Ohio Alzheimers Research Center, 155 F.3d 775 (6th Cir. 1998) - Genuine issue of fact as to whether an eight week leave of absence followed by a request for an additional one-month leave was a reasonable accommodation under ADA.
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Additional Leave
Court Decisions • Walsh v. United Parcel Service, 201 F.3d 718 (6th Cir. 2000) - Affirming award of
summary judgment in favor of employer that terminated employee who had been on a one year paid disability leave of absence and an additional six months of unpaid leave and could not state when he could return to work because employee had “no clear prospects for recovery.”
• Cleveland v. Federal Express Corp., 2003 WL 22905314, at *4 (6th Cir. Nov. 28, 2003) – “Unpaid leave of an indefinite duration (or a very lengthy period, such as one year)” may qualify as a reasonable accommodation under the ADA, depending on the circumstances.
• Cf. Hwang v. Kansas State Univ., 753 F.3d 1159 (10th Cir. 2014) - Paid leave of absence for six months, during which employee would not perform any type of work, would be inconsistent with performing the essential functions of most any job in the national economy.
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Additional Leave Court Decisions
But, indefinite leave not required.
• Minter v. District of Columbia, 809 F.3d 66 (D.C. Cir. 2015) - Employer did not violate ADA by terminating employee with sarcoidosis and related sarcoid arthritis, where employee failed to report to work for almost five months and who presented employer with physician’s certificate stating that she had been totally disabled during that time and would be so “indefinitely.”
• Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003) - “[Plaintiff] was requesting an accommodation of indefinite leaves of absence so that he could work at some uncertain point in the future. [Plaintiff’s] requested accommodation was not reasonable.”
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Additional Leave Court Decisions
• Silva v. City of Hidalgo, 575 Fed. Appx. 419 (5th Cir. 2014) - Plaintiff’s claim that her employer “was under an obligation to keep her position open for an unspecified amount of time until she was able to return (which turned out to be at least five months after her FMLA leave expired) … simply cannot be squared with the statute’s entitlement to a ‘reasonable accommodation.’ ”
• Henry v. United Bank, 686 F.3d 50, 60 (1st Cir. 2012) - Employee’s request for open ended additional leave following exhaustion of FMLA leave was not a reasonable accommodation.
• Peyton v. Fred’s Stores of Ark., Inc., 561 F.3d 900, 903 (8th Cir. 2009) - Employer did not violate the ADA by failing to provide a leave of absence as a reasonable accommodation where the employee had been hospitalized for cancer and had “no idea when, if ever, she would be able to return” to work. Although employee said that employer “should have waited indefinitely to determine the full extent of her diagnosis, treatment and recovery,” the appeals court rejected this argument because “employers should not be burdened with guess work requiring employees return to work after an illness.”
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Workplace Accommodations
• Examples of Reasonable Accommodation – Making facilities accessible (a ramp)
– Modified work schedule (put feet up every two hours)
– Time off from work
– Modifying equipment (a hoist)
– Restructuring a job
– Providing a reader
42 U.S.C. § 12111(9).
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Reassignment – Vacant Positions • If you cannot provide any reasonable accommodations, then you must consider transfer to
an available position for which he/she is qualified
– It is not a reasonable accommodation to displace another employee
– If the only available position is one that has lower pay or benefits, you may offer that position as an accommodation.
– You do not have to offer the position that would be a promotion, unless you make similar reassignments to non-disabled employees.
• Courts are split as to whether qualified disabled employee has preference over better qualified non-disabled employee.
– Employers must place the employee in a vacant position for which the employee qualified without requiring competition with other applicants. See e.g., EEOC v. United Airlines Inc., 693 F.3d 760 (7th Cir. 2012); Duvall v. Georgia-Pacific Consumer Products LP, 607 F.3d 1255 (10th Cir. 2010); Huber v. Wal-Mart Stores Inc., 486 F.3d 480 (8th Cir. 2007).
– Employers can choose best qualified candidate for vacant job. See Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007).
• In reassigning disabled employee, employer need not contravene established seniority system – U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
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Process for Reasonable Accommodation
• Process is IMPORTANT
– Request is made
– Management gathers information from employee (incl. employee’s doctor) and considers
request • Amount of leave
• Likelihood of returning
• Post return restrictions
• Outside assistance
– Occupational analysis
– Medical experts
– Keep all medical information confidential
• Employee and management engage in INTERACTIVE PROCESS
• Management decides:
– Grant requested accommodation
– Propose alternative accommodation
– Deny requested accommodation
• Document everything 34
Don’t Forget Workers’ Comp Requirements
• State specific. • Some states do not allow termination during period of TTD
(temporary total disability). • Some states have specific requirements like FMLA re:
returning employees. • All states prohibit termination that is in retaliation for
having filed WC claim. • Keep in touch with employee about condition and
intention/ability to return to work. • If employee has lingering, permanent problems, may need
to initiate ADA interactive process. • If some lingering problems, continuing rehabilitation, etc.,
may have FMLA issues. 35
Fitness for Duty Requirements Under the FMLA
• Employer must: – Have a uniform policy or practice of requiring
fitness-for-duty certifications for: • Similarly situated employees; and
• Same types of serious health conditions.
– Provide notice of FFD requirement with the Rights and Responsibilities Notice.
– Provide the employee with a list of the essential functions of the employee’s job; ask that the certification address the employee’s ability to perform those functions.
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Fitness for Duty Requirements Under the FMLA
• Certification requirement must:
– Be job related and consistent with business necessity (same as under ADA);
– Relate only to the serious health condition for which the employee was taking leave.
• If employee’s doctor says employee can return to work, then employer must reinstate employee.
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Fitness for Duty Requirements Under the ADA
• Once reinstated, employers may ask employee to undergo a fitness-for-duty examination if objective reasons to question whether: – The employee can perform the essential functions of the
job; or
– The employee poses a direct threat to himself or others.
• Exam must be job-related and consistent with business necessity. See Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1312–13 (11th Cir. 2013) – Court affirms employer's right to require a medical examination from an employee returning from leave after he made threatening comments in a meeting with his supervisor.
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Mr. Mook is a nationally recognized practitioner in employment law and has written two treatises on the Americans with Disabilities Act, Americans with Disabilities Act: Employee Rights and Employer Obligations and Americans with Disabilities Act: Public Accommodations and Commercial Facilities, both published by LexisNexis. He represents employers and businesses on matters relating to employment law, business torts and business disputes.
Mr. Mook frequently counsels employers on issues involving compliance with the ADA and accommodating disabled employees, as well as other employment related matters. He is a co-editor of the Virginia Employment Law Letter and is a regular contributor to several legal publications, including Bender’s Labor & Employment Bulletin. He is included in Best Lawyers in America (2016 ed.) for employment law.
Mr. Mook is a member of the Virginia and District of Columbia Bars, and is a member of the Labor & Employment Law Section of the District of Columbia Bar and has been a member of the Alexandria Commission on Persons with Disabilities. Mr. Mook earned his Juris Doctor from Yale Law School.
Jonathan R. Mook DiMuroGinsberg, P.C.
1101 King Street, Suite 610 Alexandria, Virginia 22314-2956
(703) 684-4333 (703) 548-3181 (fax) [email protected]
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Ramsay C. McCullough, Esq.
Jackson Lewis PC
500 E. Main St., Ste. 800
Norfolk, VA 23510
Best Practices for
Avoiding Claims under
FMLA and ADA
Give required notices and recognizing employee notices
o Byron v. St. Mary’s Medical Center, 2012 U.S. Dist. LEXIS
129058 ( E.D. Mich. Sept. 11, 2012)
Employer denied summary judgment because
employee submitted evidence that her actions indicated
FMLA-related reason could have been source of her
leave; employer thereby placed on notice
Employee simply said she was too sick to work and
was going to the Emergency Room
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Document decision to terminate employee prior to
employee’s request for FMLA leave.
Reinstate employee is same or equivalent position with
equal terms and conditions of employment
Do not count protected absences against attendance or
work record
42
Do not require the employee to be 100% fit for duty
Identify and document the essential job functions
Document performance or conduct deficiencies
Must engage in interactive process/individualized
assessment to determine if can provide reasonable
accommodation/modification
Consider reassignment or additional unpaid leave with
job restoration as a reasonable accommodation
43
Do not assume short-lived impairments cannot be
covered by the ADA
Can Impairments of Short Duration be Covered ADA
Disabilities?
o Absolutely “yes”
o Actual or “record of” disability prongs have no durational
requirement … must just prove impairment “substantially limits”
one or more “major life activities”
o Only the “regarded as” prong is limited by “transitory and minor”
exception
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Assuming after 12 weeks of FMLA, employment can be
terminated if employee cannot yet return to work
Must consider leave as a reasonable accommodation,
above and beyond 12 weeks of FMLA leave
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Cannot automatically terminate once FMLA is exhausted
Caveat: If employee tells employer he/she is not returning to
work
Look to other entitlements, if any (i.e., workers’
compensation)
Look to policy/practice
Engage in interactive process under the ADA
46
Assuming employee does not have a disability – on the
contrary, EEOC takes broad stance based on regarded
as claims, which do not require substantial limitation:
“You might not think you have a disability, but if you have
a medical condition and you feel you are discriminated
against based on that condition, then you are covered.”
- EEOC Commissioner Chai Feldblum
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IMPORTANT – It is a violation not to engage in the reasonable
accommodation process even if it would have been
unsuccessful
Meet with the employee
Request information about what limitations the employee may
have
Ask the employee what he or she specifically wants; Consider
the employee’s request
Recommend HR lead this process
48
Discuss available alternatives
HR should document entire process IN WRITING
Use legal terms sparingly – “disability,” “reasonable
accommodation,” and “disabled”
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Provide all leave entitlements
o FMLA
Provide all leave commitments in policy or practice
Provide leave as a reasonable accommodation under
the ADA
THE PROCESS IS AS IMPORTANT AS THE RESULT!
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Make sure written communications indicate a willingness
to consider providing leave as an accommodation
Remember to consider ADA obligations both before,
during and after FMLA eligibility
Confirm that protected absences are not counted against
employees in annual performance reviews, or
performance-based promotions or compensation
decisions
Make sure attendance programs and policies are
uniformly enforced
51
Workers’ compensation issues should not be addressed
when interacting under the ADA
o Why? Retaliation issues
o When drafting letters to employee about ADA accommodations
(leave or otherwise) workers’ compensation issues should not be
addressed
• “Dear Employee: The Company vehemently disputes your workers’
compensation claim and believes you to be a lazy malingerer.
However, under the ADA, the Company will provide you with
additional two weeks leave as a reasonable accommodation.”
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Untrained supervisors make assumptions
o E.g. Fibromyalgia is a “fake disease.”
o “Once a drunk, always a drunk.”
Untrained supervisors make “knee jerk” reactions
o E.g. Employee asks supervisor for a $2000 ergonomic chair for
his work desk due to his documented serious health condition.
Supervisor says “no way!” Employee in another division was just
given an ergonomic chair.
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Everybody who has an impairment should be presumed
to be protected by the ADA
Every adverse employment action related to an
individual’s physical or mental condition should be
presumed to be a potential ADA case
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