FMLA/ADA/WC Patrick Lail Elarbee Thompson The Approach FMLA - - PowerPoint PPT Presentation

GMA Webinar Series

FMLA/ADA/WC

Patrick Lail Elarbee Thompson

The Approach

• FMLA – leave is an entitlement
• ADA – reasonable accommodation, including

possible additional leave

• WC – light duty may look slightly different than

reasonable accommodation under the ADA

• Communication, communication, communication!!!

Topic Overview for FMLA

• Eligibility
• Serious Health Condition
• Intermittent Leave
• Medical Certification
• Hypotheticals

FMLA Eligibility

• 12 months of employment (which can include a

previous period of employment within the past seven years)

• 1250 hours worked in previous 12 month period
• At worksite with 50 or more employees in 75 miles

FMLA Coverage

• Grants 12 weeks of leave in a 12 month period for a

qualifying reason:

– For the birth of a child (bonding time); – For the adoption of a child or the placement of a foster child; – To care for a spouse, child, or parent with a serious health condition; – Due to the employee’s own serious health condition; – Military Exigency; or – To care for an injured Servicemember.

Intermittent Leave

• Intermittent or reduced schedule leave for

the birth of a child or placement of a child for adoption or foster care can only be taken with the employer’s agreement.

–BUT, a pregnant employee may take intermittent leave for prenatal examinations or severe morning sickness.

• Intermittent or reduced schedule leave for

the employee’s or a covered family member’s serious health condition must be certified as medically necessary.

Intermittent Leave

• Medical necessity for intermittent or reduced

schedule leave means that (1) there must be a medical need for the leave (as distinguished from voluntary treatments), and (2) the medical need can best be accommodated through an intermittent or reduced leave schedule.

• Employees must attempt to schedule their

intermittent or reduced schedule leave so as not to disrupt the employer’s operation.

Medical Certification

• Asks about the expected duration of leave.
• Asks about follow-up treatments and other

scheduling issues.

• Has space for additional medical information

(symptoms, diagnosis).

• Does NOT call for disclosure of actual medical

records.

FMLA Restoration Rights

Individuals returning from FMLA leave are entitled to be restored to the same or an equivalent job with:

• Equivalent Pay
• Equivalent Benefits
• Equivalent Terms and Conditions of Employment

(similar duties, responsibilities, privileges, and status as original position).

Hypotheticals

Davis has not been meeting expectations for some

• time. His manager has talked with him, but nothing

has been put in writing. The manager tells Davis they will have a meeting with HR the next day to discuss his

• performance. Davis calls in the next day requesting

FMLA leave due to stress. What do you do?

Evaluation Practices

• Give them sooner than one year for new employees.
• Be even-handed.
• Include things the employee does well, with

examples.

• Address areas for improvement, with examples.
• Keep a log throughout the year.

Hypotheticals

Gerardo has a minor child who is undergoing

• chemotherapy. The medical certification form says

that Gerardo is needed to transport and comfort his child at chemotherapy treatments three times a week. What do you do?

Hypotheticals

Missy has a medical certification for intermittent leave that indicates she will need to be absent 1 to 2 days per month for episodic migraines. Over the past three months, she has missed at least 5 days per month – usually Monday

• r Friday.

What are your options?

Hypotheticals

Nellita has been on leave for seven weeks and has not provided medical information to support her absence. She has received no written communications from the City since she began leave. Curiously, the department is functioning better without her there. What do you do?

Topic Overview for ADA

• Special Exams
• Practical Pointers
• Hypotheticals

Special Exams

1. Fitness for Duty

• You have some basis to question the ability of the

employee to perform the job.

• Write a physician with an explanation of the job

and the basis for your concern.

• The physician writes a report opining on whether

the employee can perform the job.

Special Exams

• 2. Direct Threat
• You question whether the employee can safely

perform the job.

• Write a physician with an explanation of the job

and your concern, including safety of the employee and/or others.

• The physician writes a report opining on whether

the employee presents a safety threat in performing the job.

Practical Pointers

To be “qualified,” an individual must:

• meet basic qualification standards - skills,

experience, education;

• be able to perform the essential functions of the job.

What are the functions of the job? (Distinguish what is done from how it is done.) What are “essential” functions versus marginal functions?

Practical Pointers

Reasonable Accommodation

Did the individual ask for an accommodation? What accommodation was requested? What accommodations are possible?

– Job restructuring – Reallocation of non-essential functions – Assistance with non-essential functions – Reassignment of employee to a vacant position for which employee is qualified – Unpaid leave – Working from home??

Practical Pointers

An employer’s obligation is to provide a reasonable accommodation that helps the employee perform the job –

Not necessarily the requested accommodation; Not necessarily the “coolest” accommodation.

Practical Pointers

DOCUMENT your interactive process with the employee about accommodations:

• What you suggest
• What the employee may suggest
• The determination on whether each suggestion is a possible

reasonable accommodation

• The final approach agreed to

Hypotheticals

Lakshmi works an 8-hour shift in the office. She is returning from FMLA leave for back surgery. Her physician has requested that she be able to lie down for one hour in the middle of the workday for the first two weeks back to work. What do you do?

Hypotheticals

Sam is a utility superintendent who drives in a large

• territory. His manager has noticed that Sam sometimes

falls asleep in meetings. A co-worker has just reported that Sam confessed to falling asleep on the way home

• ne night and ending up in a field.

What are the considerations?

Hypotheticals

Carol needs to miss work occasionally due to episodic flare-ups of her multiple sclerosis. She is not FMLA

• eligible. Carol is key to smooth flow of work in the
• ffice.

How do you respond?

WC Overview

• Medical Benefits (for treatment by a panel physician
• nly)
• Income Replacement Benefits
• Light Duty

Hypothetical

Greg hurts his ankle at work. He misses a week to recuperate and then his WC doctor releases him to return to work with limited walking for three weeks.

• FMLA considerations?
• WC considerations?
• ADA considerations?

Hypothetical

Wilda complains that the stress of working in the office and her office chair have caused a stiff neck and

• anxiety. She brings a note from her Family Practice

physician for a no-stress environment and a new chair.

• FMLA considerations?
• WC considerations?
• ADA considerations?

Questions and Answers

• For questions about the HR Express

Program, contact:

Alan Dickerson Director of Local Government Services and Training (678)-686-6213

• For questions relating to this webinar,

contact:

Elarbee Thompson’s Public Sector Group (404) 659-6700 www.PublicEmploymentLaw.com