A NOTHER D IMENSION OF S IGHT , S OUND , AND M IND : T HE B ERMUDA T - - PDF document

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ANOTHER DIMENSION OF SIGHT, SOUND, AND MIND: THE BERMUDA TRIANGLE OF FAMILY LEAVE, REASONABLE ACCOMMODATIONS,

AND WORKERS' COMPENSATION

Michael Porter, Michelle Smigel, P.K. Runkles-Pearson, Cody Elliott Madeline Engel, Kellen Norwood, Tara O'Hanlon I. INTRODUCTION. Many laws grant employees the right to be absent from work because of their own personal or a family member's medical condition or the arrival of a new child.1 Those laws include:

• The Federal Family and Medical Leave Act ("FMLA");
• The Oregon Family Leave Act ("OFLA"); and
• The Washington Family Leave Act ("WFLA").

Additionally:

• An employer may be required to provide leave to a disabled employee

as a form of reasonable accommodation for a disability under the Americans With Disabilities Act (the "ADA") and state disability laws; and

• Workers' compensation laws provide certain rights (including the right

to reinstatement or reemployment) for workers who are injured on the job. These statutes can vary significantly in the way they address employee coverage, eligibility, length of leave, use of paid time off, benefits continuation, and job restoration. And

• ften there is some overlap because multiple laws may apply to a single leave of absence. What's

an employer to do? This article provides a general overview of potential pitfalls by describing how the statutes may operate differently in similar situations. Whenever an employer is evaluating its leave obligations, the following strategies can be helpful:

1 These laws may also provide leave for other purposes, such as preparing for military service. And other laws may

cover other types of leave, such as leave for domestic violence survivors. Those types of leave are beyond the scope

• f this article, which addresses leave for the employee's own medical condition.

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• First, identify all applicable laws. An employer must review

eligibility requirements applicable to a given employee's situation.

• FMLA. (1) The employee must have worked for a total of at least

12 months (not necessarily consecutively); (2) the employee must have worked for at least 1,250 hours during the 12-month period immediately preceding the leave; and (3) the employer must have 50 or more employees within 75 miles of the employee's worksite.

• OFLA. The employee must have (1) worked for a period of

180 calendar days immediately preceding the date on which leave begins, and (2) worked an average of 25 hours per week during the 180-day period (unless leave is for care of a newborn child or adoptive child).

• WFLA. Eligibility requirements are the same as under FMLA, except

in cases involving domestic partners and pregnant employees, for whom WFLA grants greater leave entitlement than FMLA.

• ADA. The ADA covers employees with disabilities, as do related state

disability laws.2

• Workers' compensation. Workers' compensation is generally a matter
• f state law, and it usually benefits injured workers who are employees

and not independent contractors. In some cases, however, independent contractors may be covered. The definition is technical; the employer should check with its workers' compensation carrier, its claims administrator (if the business is self-insured), or an attorney before determining that an employee is ineligible. There is no waiting period for eligibility, although there may be a waiting period after an injury before benefits begin.

• Second, evaluate what each law requires. Generally, if FMLA

applies, an employer will start by complying with FMLA as its baseline and then consider whether other family leave laws provide the employee with greater rights. The ADA and workers' compensation may provide additional benefits.

• Third, separate leave issues from pay issues. An employer must

decide how much unpaid leave is required and then consider whether any portion of the leave may be converted to a paid leave either by the employer or by the employee.

• Finally, separate leave issues from performance issues. An

employer must consider each leave request as if the request were made

2 State disability laws may vary in some respects from the ADA. This article focuses on the ADA.

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by the company's most outstanding employee, and performance concerns must not taint the analysis of leave rights. An employer must comply with all applicable laws. So whichever law is the most advantageous to the employee in any given situation is what the employer should follow. II. HOW DOES AN EMPLOYEE PROPERLY REQUEST LEAVE FOR MEDICAL REASONS? A. FMLA. If leave is foreseeable, an employee must provide 30 days' written notice. If the leave is unforeseeable, the employee must comply with the employer's customary notice and procedural requirements for requesting leave, unless there are "unusual circumstances," such as a medical emergency. The employee need not necessarily specifically request leave under FMLA, although the employee must give the employer sufficient information to allow the employer to determine whether FMLA applies to the leave request. For example, the employee could tell the employer that she is unable to perform her job functions, is pregnant, or has been hospitalized

• vernight. Merely calling in sick is insufficient.

B. OFLA. An employee must generally provide 30 days' written notice of the request for leave, including an explanation of the need for leave, but need not specify that he or she is taking OFLA leave. When an employee is unable to give the employer 30 days' notice but has some advance notice of the need for leave, the employee must give the employer as much advance notice as is practicable. In emergencies, the employee needs to provide only 24 hours' oral notice before

• r after starting leave. That notice can be provided by another person on behalf of the employee.

The employer can then require that he or she provide written notice within three days of returning to work. C. WFLA. An employee must provide 30 days' written notice, except in an emergency, in which case the employee must provide notice as soon as is practicable. D. ADA. Under the ADA, leave may be a reasonable accommodation in some

• circumstances. An employer's obligation to engage in the interactive process and provide

reasonable accommodations (including leave) arises when an employer has notice that accommodations are needed. But an employee need not use "magic words" to request accommodations, and courts will liberally construe when an employer is on notice.

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E. Workers' compensation. A worker who has been injured or contracted an occupational disease on the job invokes the workers' compensation system by filing a timely claim indicating that the injury or

• ccupational disease is work-related.

III. WHAT INFORMATION SHOULD BE PROVIDED ON THE MEDICAL CERTIFICATION FOR FAMILY LEAVE? A. FMLA. The medical certification should include the name, address, and contact information of the healthcare provider, as well as the provider's type of medical practice or

• specialization. The certification may also include the approximate date on which the serious

medical condition began and its probable duration. The certification must include a description of medical facts sufficient to support the need for leave. When the employee is the patient, the certification should include information sufficient to establish that the employee cannot perform the job's essential functions. In cases of intermittent leave or when the employee requests a reduced schedule, the certification should include information sufficient to establish the medical necessity of the leave as well as the expected frequency and duration of the leave. B. OFLA. OFLA regulations allow an employer to require an employee to provide medical verification of the need for leave (other than for parental or bereavement leave) but do not specifically provide guidance about what information should be included for the verification to be complete and sufficient. C. WFLA. The medical certification should include the date when the serious condition started, how long it is expected to last, any relevant medical facts known by the healthcare provider, and a statement that the employee cannot perform his or her job functions. When an employee asks for a reduced leave schedule or intermittent leave, the certification should include verification that the proposed schedule is medically necessary, the dates on which treatment will be given if they are known, and the expected duration of the reduced leave schedule or intermittent leave. IV. WHEN CAN AN EMPLOYER ASK FOR MORE INFORMATION? A. FMLA. If the certification is incomplete or insufficient, the employer can make a written request for additional information by specifying what information is needed to make the certification complete. In most circumstances, the employee has seven days to cure the deficiency.

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Once an employee has submitted a complete and sufficient certification signed by the healthcare provider, the employer may contact the provider for clarification and authentication

• f the certification. The employer cannot, however, request "additional" information. Contact by

the employer with the provider is limited. Human resources professionals are among a select group of employer representatives who may contact the provider. Under no circumstances may the employee's direct supervisor contact the provider. B. OFLA. If the employee submits sufficient medical verification signed by a healthcare provider, the employer generally cannot request additional information from either the employee

• r the medical provider. If an employer determines that a medical verification provided by an

employee is incomplete or insufficient, the employer must provide written notice to the employee stating that the verification is incomplete or insufficient and the additional information needed to make it complete or sufficient. The employer may not, however, directly contact the employee

• r employee's family member's healthcare provider to request additional information. If the

employee gives permission, a healthcare provider representing the employer can contact the employee's healthcare provider to clarify or authenticate the medical verification. C. WFLA. WFLA does not address the extent to which an employer may ask for more information except that it allows an employer to seek a second opinion when it has reason to doubt the validity of the information included in the certification. Generally, however, Washington law follows the federal law. D. ADA. An employer may ask an existing employee for further information when the information is job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. According to the EEOC, this may occur under the following circumstances:

• An employer has a reasonable belief, based on objective evidence, that

an employee's ability to perform essential job functions will be impaired by a medical condition; or

• An employer has a reasonable belief, based on objective evidence, that

an employee will pose a direct threat because of a medical condition; or

• An employee asks for a reasonable accommodation and the employee's

disability or need for accommodation is not known or obvious; or

• An employee's position affects public safety, such as a police officer or

firefighter.

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An employer should beware of asking for broad-reaching information about a disability when an employee has family medical leave available and has not requested any accommodation other than leave. In that circumstance, the employer should comply with the requirements for certifying family medical leave and wait until the family medical leave entitlement is exhausted before inquiring further. E. Workers' compensation. As part of the administration of a workers' compensation claim, an employee is expected to provide substantial information, including submitting to interviews and medical

• examinations. This is because the purpose of the information is more complex than determining

whether leave or other accommodations are necessary. Instead, the information provided in a workers' compensation claim determines whether the injury or occupational disease was work-

• related. It also determines the nature and extent of the injury for compensation purposes. An

employee who does not cooperate in providing information may forfeit benefits. V. CAN THE EMPLOYER ASK FOR A SECOND OR THIRD OPINION? A. FMLA. The employer can ask for a second opinion when there is reason to doubt the validity of medical certification. If the first and second opinions differ, the employer may request a third opinion. The employer must cover the costs of obtaining the second and third

• pinions.

The employer may designate which healthcare provider provides the second

• pinion, so long as the healthcare provider is not regularly employed by the employer. Both the

employee and employer must jointly approve the third healthcare provider, and the third opinion is final and binding. B. OFLA. For leave related to a serious health condition, an employer may ask for a second

• pinion and designate the healthcare provider. If the second opinion conflicts with the first, the

employer may request that the first and second healthcare providers choose a third provider. The third opinion is final and binding. The employer must pay for both the second and third

• pinions.

An employer generally may not request subsequent medical verifications more

• ften than every 30 days. And even then, they can be requested in connection with an

employee's absence only when the circumstances described by the previous medical verification have significantly changed (for example, the duration or frequency of absences) or the employer receives information that casts doubt on the employee's stated reason for the absence. C. WFLA. If the employer has reason to doubt the validity of the first medical certification, the employer can require, at the employer's own expense, that the employee get a second

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• pinion. The employer can choose the second healthcare provider, as long as that healthcare

provider does not regularly work for the employer. An employer may also request certification

• f a medical condition by a third healthcare provider on a "reasonable basis." The third medical
• pinion is binding.

D. ADA. The touchstone for all post-employment medical inquiries under the ADA is that the inquiry must be "job related and consistent with business necessity." In general, this means that an employer may request a second opinion if the first opinion does not provide all the information necessary to determine the nature of the disability and the functional limitations that may require accommodation, if there are reasons to believe that the medical professional giving the opinion is not qualified, or if there are indicia that the opinion is somehow fraudulent. Generally, the employer should first notify the employee about the missing information and give the employee the opportunity to provide the information from the employee's own doctor. E. Workers' compensation. Workers' compensation claims processing often involves several different

• pinions regarding an employee's condition and its cause. In Oregon, the insurer may require the

employee to attend up to three independent medical examinations. VI. WHAT CAN THE EMPLOYER DO WITH THE POSITION WHILE A PERSON IS OUT? A. FMLA. The employer is free to fill or eliminate the position while an employee is on FMLA leave as long as the employee returns to the same or an equivalent position having the same pay, seniority, terms, and conditions. There are special provisions for highly compensated "key employees." B. OFLA. An employer must restore an employee returning from OFLA leave to the employee's former position if the job still exists. During an employee's leave, the employer can hold the position open or fill it with a replacement worker. If the position is eliminated during the employee's leave, he or she must be returned to any available equivalent position. An equivalent position is one that has the same benefits, pay, and terms of employment. If the employer cannot provide an equivalent position at the employee's former jobsite, the employer can provide an equivalent position within 20 miles of the former jobsite. C. WFLA. The employer can hold or fill the position, so long as the employee's position or equivalent is restored. The employer complies with WFLA by returning the employee to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment if the workplace is within 20 miles of the employee's workplace at the time the

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employee began his or her WFLA leave. As with federal law, there are special provisions for "key employees" who are highly compensated. D. ADA. Under the ADA, the employee is entitled to return to the same job unless the employer demonstrates that holding the job open (or filling it with a temporary worker) would impose an undue hardship. E. Workers' compensation. In Oregon, in many cases, workers' compensation laws may require the employer to reinstate the employee to the same position or reemploy the employee in a different position if the employee is unable to perform the work. In some cases, an employee may have waived a right to reinstatement or reemployment. And in some cases, collective bargaining agreements may affect reinstatement or reemployment. In Washington, there is no requirement that an employer reinstate or reemploy an injured worker, but the workers' compensation system provides subsidies that give employers an incentive to continue employing injured workers. Note: Both Oregon and Washington strongly encourage employers to provide "light-duty" work for injured workers who are not fully released to regular duty. This can be beneficial to both the employer and the employee, if the light-duty work is fulfilling and

• productive. But employers must always treat this work as temporary in nature and beware of

calling the work a "light-duty position" or otherwise creating a new position for the light-duty

• work. This could expose the employer to arguments that an employee with a disability should be

entitled to occupy the position on a long-term basis. In ADA terms, instead of being an accommodation, the light duty could become a new position with a smaller set of "essential job functions." VII. CAN THE EMPLOYER CONTACT THE EMPLOYEE TO FIND OUT WHEN HE OR SHE IS COMING BACK? Yes, in general an employer may periodically contact employees on leave for updates on the employee's status and whether and when he or she intends to return to work.

• VIII. WHAT IF THERE IS A REDUCTION IN FORCE WHILE THE EMPLOYEE IS

ON LEAVE? A. FMLA. The employee has no greater rights than he or she would have had if he or she had not taken any leave. If the employee would have been laid off even if he or she had not taken leave, then the employer does not have to reinstate the employee at the end of the leave period. The employer's obligation to reinstate the employee and to continue group health benefits ends as soon as the layoff occurs. But the employer must be able to prove that selecting the employee's position for layoff was unrelated to the employee's leave.

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B. OFLA. Similar to federal law, unless a collective bargaining agreement or other agreement or policy provides otherwise, employees on OFLA leave are subject to layoff the same as other employees not taking leave. If an employee would have been "bumped" regardless

• f whether leave was taken, the employer does not need to reinstate the employee.

C. WFLA. Washington law is substantially the same as federal law. D. ADA. The ADA does not prevent an employer from laying off an employee with a disability who is on leave, if the layoff is unrelated to the disability. E. Workers' compensation. Workers' compensation law does not prevent an employer from laying off an injured worker if the layoff would have occurred if the injury had not happened. IX. WHAT IF AN EMPLOYEE'S FAMILY MEDICAL LEAVE ENTITLEMENT RUNS OUT BEFORE HE OR SHE RETURNS TO WORK? A. FMLA. If the employee exhausts his or her FMLA leave entitlement and still cannot return to work, the employer has no further obligations under FMLA. But this requires that the employee give "unequivocal notice of intent not to return to work." A failure to return to work without any communication to the employer may be sufficient to constitute unequivocal notice

• f intent not to return. Brown v. J.C. Penney Corp., 924 F. Supp. 1158 (S.D. Fla. 1996).

If the employee wishes to return to work but is unable to do so because of his or her health condition, this does not necessarily end the employer's obligations. The employer must consider whether other laws apply (including the ADA, workers' compensation, or state law). For example, the employee's health condition may qualify as a disability under the ADA. ADA disabilities can include physical, mental, and even temporary impairments. If the employee's health condition qualifies as a disability, the ADA may require the employer to make a "reasonable accommodation" for that disability by providing additional leave. If an employee is away from work for a qualifying work-related injury, the time

• ff may be designated as FMLA leave and run concurrently with any leave provided by state

workers' compensation laws or regulations if the injury is a "serious health condition" covered by

• FMLA. This can be done at the employer's or the employee's request.

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B. OFLA. Similar to federal law, when an employee exhausts his or her leave entitlement, the employer must consider whether other laws or policies may require the employer to allow additional leave. In Oregon, the employer may not designate any time away from work because

• f a qualifying work-related injury as OFLA leave unless the employee refuses an offer of light-

duty or modified employment. C. WFLA. Generally, once an employee has completely exhausted his or her leave entitlement, the employer has no obligation under WFLA to provide additional leave. Pregnancy, however, is

• ne circumstance in which an employee may have additional leave under WFLA. A Washington

Human Rights Commission regulation allows an employee as much leave as necessary for a pregnancy- or childbirth-related disability. This leave for pregnancy- or childbirth-related disability runs concurrently with FMLA, but not with WFLA. As a result, there could be circumstances under which an employee returns from FMLA/pregnancy-disability leave but still has a remaining entitlement to WFLA leave (e.g., for the care of a newborn child). Unlike in Oregon, a Washington employer may designate time off that is due to a work-related injury as WFLA leave. X. WHAT OBLIGATIONS DOES AN EMPLOYER HAVE REGARDING BENEFITS WHILE THE EMPLOYEE IS ON LEAVE? A. FMLA. The employer must continue to provide medical coverage to the employee and his

• r her covered family members if the employee is part of a group health plan. A group health

plan is "a plan of, or contributed by, an employer (including a self-insured plan) to provide healthcare" to an employee. The employer may require the employee to continue paying any premiums that he or she would normally pay, as if there were no leave. This requires advance written notice. The employer may recover its share of health premium costs from the employee if the employee fails to return to work at the end of the FMLA leave period for reasons other than a continuation or onset of a serious health condition or other circumstances beyond the employee's control. Nonhealthcare benefits are determined by the employer's general leave policy. Some employers, however, prefer to maintain all benefits during leave because an employer must provide equivalent benefits when the employee returns to work, and a lapse in coverage could preclude the employer from doing so. B. OFLA. Any benefits that the employee was entitled to before starting OFLA leave must be restored in full upon the employee's return to work. If benefits have been eliminated or changed for other similarly situated employees while the employee was on leave, however, the benefits do not have to be restored to the previous levels—they must be restored at the level now available to those other similarly situated employees.

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Effective January 1, 2016, if the employee is provided with group health insurance, the employee is entitled to the continuation of group health insurance coverage during the period of family leave on the same terms as if the employee had continued to work. If family-member coverage is provided to the employee, family-member coverage must be maintained during the period of family leave. The employee must continue to make any regular contributions to the cost of the health insurance premiums. An employer can elect to continue disability, life, or other insurance benefits for an employee but may require only that the employee pay the same share of the health or benefit premium as the employee paid before taking leave. If the employee will not pay those premium costs, the employer may elect to discontinue benefit coverage unless doing so would make the employer unable to restore the employee to full benefit coverage upon the employee's return to

• work. Also, if the employer pays the premium cost (or a portion of the cost) for employees on
• ther types of leave, the employer must pay that portion during the employee's OFLA leave.

C. WFLA. Under WFLA, if an employer policy or collective bargaining agreement requires the continuation of medical or dental benefits during WFLA-covered leave, then the employer must continue the contributions for those benefits. If no policy or union contract requires such a contribution, the employer must give the employee the option of maintaining medical and dental benefits during the 12-week leave period at the employee's own expense. Generally, Washington law places no obligation on employers with regard to

• ther types of benefits. But there are exceptions. Vacation time, sick leave, and retirement

benefits do not continue to accrue during an employee's leave, but an employer cannot deny or eliminate employment benefits that had already accrued before the employee took WFLA leave. D. ADA. There is no obligation to continue health coverage while an employee is on leave purely for ADA purposes. If that leave is also designated as family leave, the health-coverage entitlement follows the designated family leave. E. Workers' compensation. In Oregon, public employers must continue to pay health coverage for injured

• workers. Private employers must continue to pay health coverage if they would do so for other

similarly situated employees. XI. WHEN THE EMPLOYEE COMES BACK, WHAT CAN THE EMPLOYER DO WITH THE PERSON WHO WAS HIRED TO FILL THE POSITION WHILE THE EMPLOYEE ON LEAVE WAS OUT? While family leave, ADA, and workers' compensation laws may provide specific protection for the returning employee, they provide no similar protection for the employee who has been "filling in" during the absence. Assuming that the "fill-in" employee is employed at

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will and the employer otherwise complies with applicable law, the employer may terminate the employment of that employee. XII. MUST THE EMPLOYEE BE GIVEN RAISES AND BONUSES THAT HE OR SHE WOULD HAVE GOTTEN IF NOT FOR THE LEAVE? In general, no, as long as the employer treats others the same. Nonetheless, certain types of bonuses may have to be paid, such as those given for performance incentives and not simply for cumulative hours worked. In Oregon, bonuses based on attendance cannot be denied because the employee took OFLA leave.

• XIII. WHAT DOCUMENTATION CAN THE EMPLOYER REQUIRE BEFORE THE

EMPLOYEE COMES BACK TO MAKE SURE THAT HE OR SHE IS ABLE TO PERFORM THE JOB? A. FMLA. The employer may require a fitness-for-duty certification when an employee returns from FMLA leave. But the certification is limited to addressing the particular health condition that caused the employee's need for FMLA leave. The employer may require that the certification address the employee's ability to perform the essential functions of the job. B. OFLA. If OFLA leave was taken for an employee's own serious health condition, the employer may require the employee to present verification from the employee's healthcare provider that the employee is able to resume work, if the requirement is applied under a uniformly applied practice or policy of the employer, before restoring the employee to work. C. WFLA. The employer may require a medical certification if leave has been taken under WFLA and the employer has a uniform policy requiring returning employees to provide this

• certification. This may change, however, if a local law or collective bargaining agreement

provides otherwise. As with federal law, if leave has been provided as a reasonable accommodation, employers should be aware that they may be limited in their ability to request this type of examination. D. ADA. As with other post-employment medical inquiries under the ADA, an employer may request information if the inquiry is "job related and consistent with business necessity." This will depend on the individual circumstances. If an employer has a reasonable belief that an employee will be impaired in performing essential job functions or that the employee poses a direct threat because of a medical condition, the employer may ask questions or require a medical examination. But any inquiries or examination must be limited to assessing the employee's ability to work. This will usually relate only to the reasons for the employee's leave.

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In many cases, inquiries under the ADA will be functionally similar to inquiries related to return from family leave. E. Workers' compensation. In general, an injured worker on time loss returns to work after a physician certifies the return to work.

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