I NTERPLAY OF FMLA, ADA, D ISABILITY , W ORKERS ' C OMPENSATION , P - - PowerPoint PPT Presentation

INTERPLAY OF FMLA, ADA, DISABILITY, WORKERS' COMPENSATION, PREGNANCY, ADOPTION, OTHER STATE LEAVE, GINA AND BUS DRIVING IN N.C. PUBLIC SCHOOLS

Under the ADA, the interactive process is the

• pening dialogue between the employer and

the employee regarding issues related to the employee's alleged disability and the possible need for reasonable accommodations.

The Interactive Process

According to the ADA Regulations, when an employee requests reasonable accommoda- tions, "it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that overcome those limitations."

Bottom-line: In order to determine if an accommodation and/or leave from work is mandatory, necessary, reasonable or even possible you must have a conversation with the employee and seek medical information when necessary.

Dear ____________: {Insert introductory facts re: employee 1) claim of disability or 2) request for accommodation.} Please be advised that the {employer} does not regard you as disabled based upon {facts known or claims made by employee}. Therefore, in order for the school system to evaluate any request we must have the following information1 from your medical provider(s) as soon as possible: An explanation of the nature, severity and duration of any impairment; 1) A description of the activity or activities limited by the impairment, and the extent to which such activity(ies) are limited; and 2) A description of any and all measures suggested as reasonable accommodation for the __________ school year. For your convenience I have included a copy of your job description which should be shared with any medical professionals providing this information and/or conducting an evaluation. Unless you qualify to be absent from work pursuant to law or policy, and until this information is received, your obligation to {current job assuming no doctor's note or injury} will continue. Please provide the information requested above to me within fifteen (15) calendar days if you wish to pursue any request for accommodation. Sincerely,

1The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities

covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical

• information. "Genetic information," as defined by GINA, includes an individual's family medical history,

the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Available Leave Balances

Sick Leave

Temporary illness or disability.

• 60 day waiting period for STD
• Worker’s Compensation leave to maintain 100%

salary

• to care for a child placed with the employee for

adoption (up to 30 days)

• illness in the immediate family including medical

appointments

• pregnancy, miscarriage, abortion, childbirth, or

postnatal recovery same as other short-term disability

Sick Leave

Superintendent may require a statement from a medical doctor or other acceptable proof that the employee was unable to work

Annual Leave

• instructional personnel who require

substitutes for their own catastrophic illness

• "new parents" can use their vacation leave for

consecutive workdays to care for a newborn

• r adopted/foster child placed with the

employee(s) during the first 12 months after the birth or placement

Extended Sick Leave

• classroom teachers and media coordinators

who require substitutes

• personal illness or injury in excess of available

sick leave and vacation leave

Episode of Violence Leave

• Permanent full-time employees
• Injured or disabled while engaged in course of

employment

• Full salary for one year, the continuation of the

disability, or the time during which the employee is unable to engage in his or her employment because

• f injury, whichever is shortest
• Employee cannot be forced to use any other paid

leave

Contagious Disease Leave

• an employee may be placed on paid leave if

the director of the county health department

• rders the employee to leave work to avoid

the spread of contagious disease and/or protect the health of the employee. Other leave cannot be charged against the employee

Parental Leave without Pay

Employee

• May take up to one calendar year from the date
• f birth or adoption to care for a newborn or

newly adopted child.

• The employee can elect to take leave without pay

rather than using available sick or annual leave.

• While on leave without pay, the employee must

pay the employer’s portion of health coverage

Leave Without Pay

• Subject to Superintendent discretion and

Board policy.

• Set the beginning and end date after

consideration of the welfare of students and the need for continuity of service.

• Employee must pay the employer’s portion of

health coverage.

Voluntary Shared Leave

• Purpose is to provide economic relief for employees who

are likely to suffer financial hardship due to a prolonged absence or frequent short-term absences caused by a serious medical condition

• Full-time and part-time permanent employees
• Requires that ALL leave be exhausted
• Cannot be used if employee is eligible for STD or LTD

benefits

• Can be used for serious medical condition of self or

immediate family member

• Superintendent must approve
• Limits on who can donate and how much.

Scenario #1: Employee is Permanently Unavailable to Work

• Not entitled to FMLA or other leave if the

employee gives an unequivocal statement regarding their intent not to return NOTE: Allowing FMLA to be exhausted before making any dismissal decisions is the safest course

• f action.
• Can be terminated without an ADA violation;
• May be eligible for Workers’ Compensation or

state disability

Scenario #2: Employee is Temporarily Unavailable to Work

If the Employee is still unable to return to work after FMLA leave has been exhausted, the Employee can

• continue on Workers’ Compensation leave;
• continue on other applicable paid leave;
• be granted leave without pay; or
• continue on, or move to, state disability.

• The Employer should hold the job position

(workers' comp. or ADA) or an equivalent position (FMLA or state disability) while the Employee is on approved leave or disability.

• Unless the Employer can demonstrate an

undue hardship, the EEOC takes the position that unpaid leave is a reasonable accommodation.

• After accrued paid leave is used up employee

may either

• i. return to work;
• ii. be given unpaid leave; or
• iii. Be terminated due to “undue hardship”

Scenario #3: Employee is Temporarily Unavailable for an Indefinite Period

• If temporary disability prevents a return to work

and the prognosis is uncertain, employee may be terminated due to unavailability of an indefinite duration or the Employee may be granted leave without pay. The safest course is to allow the Employee to exhaust FMLA and all applicable accrued leave prior to any determination.

• Employee remains eligible for Workers’

Compensation or state disability

Failure to Report to Work after the End of Approved Leave

• Subject to certain due process protections,

Employee's failure to return to work is an act

• f insubordination and grounds for

termination.

Adverse Employment Action Unrelated to Disability

• Employee may be disciplined or terminated

for misconduct or other factors (e.g. reduction-in-force) unrelated to their disability even if the misconduct is discovered after the employee asserts their disability rights.

GINA

• Title II of GINA prohibits employers from

discriminating in hiring, firing and other employment actions based upon the use of genetic information (i.e. “family medical history”).

• "GINA" - "safe harbor" language

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Bus Driving Duty and Disability

• Bordonaro v. Johnston County Board of Education
• a prima facie showing of wrongful discharge

1) she is within the ADA’s protected class; 2) she was discharged; 3) at the time of discharge, she was performing her job at a level that met her employer’s legitimate expectations; and 4) her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination.

Court Cited the Following Factors

• Plaintiff was only asked to drive 2 times

in 2 years.

• Plaintiff received "meets or exceeds" on

all evaluations as a TA.

• Plaintiff’s glaucoma and vision loss

brought her within the ADA protected class of individuals with disabilities.

• Plaintiff was excused from bus driving

and told to seek short-term disability. Thus, "regarded as being disabled".

• Plaintiff plead "bus driving" was not an

essential element of her employment.

• Plaintiff plead allowing her to be a bus

monitor would have served as a reasonable accommodation.

Johnston County Schools administrative procedure

"After examining the number of bus drivers needed in relation to the number of routes required, the superintendent will exempt additional classified employment positions from the duty to drive a bus, provided such exemptions are consistent with the current needs of the school system to assure a sufficient number of drivers to transport students to and from school."

Post Script: Gina never reported her income from the lawsuit and is now serving hard time for tax evasion.

Christopher Z. Campbell Campbell Shatley, PLLC 674 Merrimon Ave., Suite 210 Asheville, NC 28804 (828) 378-0064