ADA, FMLA, and WC When does the leave clock start to tick? - - PDF document
11/3/2019 ADA, FMLA, and WC When does the leave clock start to tick? Presented by Jill Fisher, Esq. 1 The Bermuda Triangle Area in the Atlantic Ocean Unusually high number of ships and planes have mysteriously disappeared 2 2 The
mysteriously disappeared
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ADA - prohibits discrimination against employees who are “qualified individuals with a disability.” FMLA - provides job protected leave to employees who need time off to care for themselves or their families. WC - provides insurance coverage that will compensate employees injured on the job for lost wages and medical care.
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Compliance checklist:
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ADA – No specific statutory limit. FMLA – 12 weeks in the designated 12 month period. WC – No specific statutory limit.
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The ADA requires employers to provide a “reasonable” accommodation to a qualified individual unless to do so would create an undue hardship.
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The ADA does not entitle an employee carte blanche to any accommodation he or she chooses.
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Employers must engage in the “interactive process.”
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Employers must make informed decisions.
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When it enables an employee to return to work following the period of leave.
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Employers must seriously explore leave requests even if the employer does not provide leave benefits
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Like FMLA, “reasonable” leave may even be intermittent.
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When it is of indefinite, or unknown, or open-ended duration.
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When there is a specific end date, but the request is deemed excessive for the circumstances.
3.
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Factory worker injured on 1/1/19 (1 broken arm and 1 broken leg requiring overnight stay in hospital, plus PT when casts are removed). Out of work since that date (1/1/19). Received FMLA Med Cert on 1/15/19: “must remain out
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weeks)
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MON 1/1 WC INJURY TUE 1/2 LEARN in hospital
paperwork; report to WC carrier WED 1/3 THU 1/4 FRI 1/5 SAT 1/6 SUN 1/7
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1/15/19 FMLA Med Cert said “must remain out of work through 3/1/19.” 2/26/19 WC carrier denied coverage.
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point
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MON 1/1 WC INJURY
DAY 1 FMLA
TUE 1/2 LEARN in hospital
paperwork; report to WC carrier WED 1/3 THU 1/4 FRI 1/5 SAT 1/6 SUN 1/7 END OF WEEK 1 OF FMLA 1/8 1/9 1/10 1/11 1/12 1/13 1/14 END WEEK 2 FMLA
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MON 1/15 RCV’D FMLA MED CERT
TUE 1/16 WED 1/17 THU 1/18 FRI 1/19 SAT 1/20 SUN 1/21 END WEEK 3 FMLA 1/22 1/23 1/24 1/25 1/26 1/27 1/28 END WEEK 4 FMLA
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1/15/19 FMLA Med Cert said “must remain out of work through 3/1/19.” 2/26/19 WC carrier denied coverage.
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MON 2/26 WC DENIED TUE 2/27 WED 2/27 THU 2/28 FRI 3/1
EXTEND LEAVE FOR ANOTHER 4 WEEKS SAT 3/2 SUN 3/3 END WEEK 9 FMLA
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FMLA - can request another DOL Medical Certification Form. ADA - can request a doctor’s note to determine employee’s ability to perform the job tasks and whether an accommodation is needed that would be effective. Let’s assume the employee’s doctor says he needs 4 weeks more of leave, after which he definitely can return to work, with no limitations.
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Do you grant the extended leave? Do you require a Fitness to RTW Certification? Do you reinstate the employee?
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ADA –Permitted as long as the medical examination and inquiry is job-related and necessary to determine whether the employee can perform the essential functions of the job. FMLA – Can only be required under a policy or practice that requires employees who have been on a similar type of leave of absence.
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ADA –Required reinstatement to previous job unless doing so would create an undue hardship on the employer. FMLA – Required reinstatement to the same or an equivalent job. NO undue hardship exception. Let’s assume you reinstated the employee to the same job.
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MON 3/18 TUE 3/19 WED 3/20 THU 3/21 FRI 3/22 SAT 3/23 SUN 3/24 END WEEK 12 FMLA 3/25 3/26 3/27 3/28 3/29 3/30 3/31 END OF EXTENDED LEAVE
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