Performance and Termination Decisions Under the FMLA and ADA - - PowerPoint PPT Presentation

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Presenting a live 90-minute webinar with interactive Q&A

Performance and Termination Decisions Under the FMLA and ADA

Avoiding Retaliation Claims and Litigation When Disciplining or Discharging Employees on Protected Leave

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, JANUARY 13, 2016

Evan H. Pontz, Partner, Troutman Sanders, Atlanta Johanna T . Wise, Seyfarth Shaw, Atlanta

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Performa formance nce and nd Termination mination Decisions sions Under r th the FMLA and ADA

January 13, 2016

Johanna T. Wise Evan H. Pontz Seyfarth Shaw LLP Troutman Sanders LLP jwise@seyfarth.com evan.pontz@troutmansanders.com 404-881-5448 404-885-3518

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AMERICANS WITH DISABILITIES ACT

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American’s with Disabilities Act (1990)

 An employer may not discriminate against an

employee with a disability in any aspect of employment

 Employers must reasonably accommodate

employees with disabilities to allow them to perform the essential functions of their jobs

 The ADA protects applicants, new employees,

and existing employees

 The ADA protects individuals with a disability,

with a record of a disability, or who are regarded as disabled

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• EEOC regulations became final in May 2011

Much broader universe of covered individuals If disability is in question, individual is likely disabled (de facto presumption) More requests for accommodation (beware of retaliation) More internal complaints (beware of retaliation) More EEOC charges More federal court lawsuits More ADA suits filed by EEOC Litiga igati tion focus us shifts s to quali lifi ficat ation ions and reasonabl

• nable

e acc ccom

• mmodat

datio ion

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• A covered disability is a physical or mental impairment

which substantially limits an individual’s ability to perform a major life activity

• Before: substantially limits = “significantly restricts” and

many cases were dismissed for failure to show disability

• Now: substantially limits “should not demand extensive

analysis” and “usually will not require scientific, medical or statistical analysis”

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• Mitigating Measures must be set aside in analyzing

whether someone is disabled

• Temporary Impairments lasting fewer than 6 months

can be substantially limiting

• Episodic Impairments or conditions in remission are

covered if they would substantially limit major life activity when active

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 Major Life Activities:

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 Specifically listed conditions that are

covered in “virtually all” cases:

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 All persons must be able to perform essenti

ential al func ncti tions

• ns of the job with or without rea

easonabl sonable e accommodati

• dation
• n
• Essential Functions - Does the individual meet the

basic qualifications of the job?

tasks fundamental to the job not marginal tasks that can easily be distributed to others job descriptions

• Must provide reasonable accommodation absent

undue hardship

Significant difficulty or expense Based on several factors

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Making existing facilities more accessible Reassignment of non-essential job functions Part-time or modified work schedules, including unpaid leave Reassignment to a vacant position Providing or modifying equipment or devices Modifications of examinations, training materials

• r policies

Providing qualified readers

• r interpreters

Telecommuting

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 Employee’s preferred accommodation when

Employer has offered an alternative, effective accommodation

 Eliminating or reallocating essential

functions

 Creating a job where none exists  Eliminating qualification requirements  Lowering quality or production standards

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 Must engage in an interactive process

• Case by case analysis

 When do you need to engage in the interactive

process?

An applicant or employee requests an accommodation (no magic words required); or An employer: (i) knows that the employee has a disability, and (ii) knows, or has reason to know, that the employee is having difficulty performing job functions because of an impairment

• The safest approach is to consider any notification that

a job modification is needed because of a medical condition as a request for reasonable accommodation

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FAMILY AND MEDICAL LEAVE ACT

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• An absolute entitlement to a certain amount of job

protected leave in a defined period of time

 12 weeks (26 weeks to care for injured service member)  Employed for 12 months  Worked 1,250 hours in previous 12 months  50+ employees within 75 miles

• FMLA leave can be taken in a block of time, intermittently, or
• n a reduced schedule and can be taken in weeks, days, hours,
• r minutes
• Right to reinstatement to the same job
• Right to have health benefits continued as if still working

the same regular schedule

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 Emplo

ployee yee Medical ical: Employee’s own serious health condition that makes employee unable to perform one or more of the employee’s essential job functions

 Famil

amily Care: Care for a family member (parent, spouse or child) with a serious health condition

 Birth/Plac

th/Placem emen ent: Birth of employee’s child or placement of a child with the employee for adoption or foster care

 Quali

ualifyin ing g Exigen ency: in connection with a covered family member’s military service

 Injured

jured Servic vice e member mber: Care for injured service member with serious illness or injury who is employee’s parent, spouse, child, or for whom employee is next of kin

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 Employee needs to give notice of leave  Proper notice for leave depends on the following:

 If need for leave is foreseeable – at least 30 days  If need is not foreseeable – as soon as practicable  If leave is for planned medical treatments, the employee must provide as much notice as possible and attempt to schedule leave so that there is no disruption to business

 Once the Employer is on notice that an Employee

may need FMLA leave, the Employer needs to provide the Employee with certain written information (Notice of Eligibility and Rights and Responsibilities)

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Thorn rny y Issues ues For r Em Emplo loyers rs Under er The ADA DA & FMLA

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• Sometimes a diagnosis appears to be in

response to discipline or a bad performance evaluation

• Accommodation requests may appear to

be excuses to avoid the bad or hard parts

• f the job

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 What should an Employer do if an Employee

requests leave or an accommodation for the first time in response to counseling?

• The Employer may address the performance issues

BUT:

If an accommodation is requested, begin the “interactive process” by discussing how the disability may be affecting performance and what accommodations may be needed Poor performance does not impact an Employee’s right to take FMLA leave

• NOTE: Do not counsel an Employee for performance

issues that are caused by the FMLA absences (e.g., Employee isn’t getting his/her work done because of taking intermittent leave)

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 Abby does not disclose her learning

disability, even when she begins having performance problems that she believes are disability-related. Her supervisor notices the performance problems and counsels Abby about them. At this point, Abby discloses her disability and asks for a reasonable

• accommodation. The supervisor denies the

request immediately, explaining, “You should not have waited until problems developed to tell me about your disability.”

• Is the supervisor’s response okay?

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 May an Employer ask an individual for

documentation when the individual requests an accommodation?

• Yes. When the disability and/or the need for

accommodation is not obvious, the Employer may ask the individual for reasonable documentation about the disability and functional limitations.

 Reasonable documentation means that the Employer

may require only the documentation that is needed to establish that a person has a disability and requires a reasonable accommodation

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• To ensure FMLA leave

is proper in the first instance, an Employer may seek to have a second or third opinion

• This must be done

BEFORE leave is designated as FMLA

• For the second opinion,

the Employer selects the physician

• For the third opinion,

the Employer and Employee jointly select the physician

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 Can an Employer apply the same standards of

production or sales goals to an Employee with a disability?

• Yes. An Employee with a disability must meet the

same production or sales standards. However, a reasonable accommodation may be required to assist an employee in meeting a specific standard.

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 Robert is a sales associate for an office supply

• company. His territory covers a 3-state region and he

must travel to each state three times a year. Due to staff cutbacks, the company is increasing the number

• f states for each salesperson from 3 to 5. Robert

explains to his manager that due to his disability he cannot handle the extra two states and the increased traveling, and he asks that he be allowed to have responsibility only for his original 3 states.

 What should the company do?

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 Dwight is a sales representative who has recently

found it difficult to achieve job standards because of pain in his hands. He goes to the doctor’s office and is diagnosed with Parkinson’s Disease. When he returns to work, he requests a modified work station to ease his pain and allow him to once again meet his job duties.

• Should the company grant his request?

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 After the company grants Dwight’s request and

• ffers him a modified work station, Dwight still

cannot meet his sales goals. Dwight asks if his goals can be adjusted downward, an accommodation he believes will allow him to be on an equal playing field with his coworkers.

• Should the company grant his request?
• Can the company address performance problems?
• Should the company allow Dwight to continue to

work?

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 Retaliation occurs when an employee

experiences an “adverse employment action” because he/she engaged in protected activity such as:

• Requesting a reasonable accommodation or

taking FMLA leave

• Complaining about an alleged violation of the

ADA or FMLA

• Participating in an investigation relating to

protected activity

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 Make sure that the Employee continues to be treated

like any other Employee

 Supervisors should contact HR before disciplining or

changing job duties

 Any information regarding a complaint or an

Employee’s exercise of rights under these statutes should only be shared on a “need to know” basis – and co-workers almost never need to know Re Remember mber: : FMLA A and ADA absences ces ca cannot

• t be

co counted nted against st an Employe

• yee under attendance

ndance policie cies, , perform

• rmance

ance review ews, s, or in rankings ngs or layoffs fs

32

 Jill has been a solid performer

for several years until recently being diagnosed with cancer and taking intermittent leave. Jill is unable to do the job without making lots of mistakes due to the side effects of her medication.

 Jack is difficult to get along

with and has frequent arguments with co-workers. After he is put on a performance plan, he requests FMLA for work-related stress.

33

 May an Employer use the same evaluation criteria for both

Employees with and without disabilities without disabilities?

• Yes. An Employer should evaluate the job performance of an

Employee with a disability the same way it evaluates other Employees’ performance.  Example: Last year Nicole received an “above average” review in her performance evaluation. During the current year Nicole dealt with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did the prior year. She did not request a reasonable accommodation (i.e., inform the employer that she required an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. How should Nicole be rated?

34

 Does the ADA require that Employers exempt

an Employee with a disability from time and attendance requirements?

• Although the ADA may require an Employer to

modify its time and attendance requirements as a reasonable accommodation, Employers generally do not need to completely exempt an Employee from time and attendance requirements, grant open- ended schedules (e.g., the ability to arrive or leave whenever the Employee’s disability necessitates), or accept irregular, unreliable attendance.

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 Does an Employer have to grant a reasonable

accommodation to an Employee with a disability who waited until after attendance problems developed to request it?

• Maybe. An Employer may impose disciplinary action,

consistent with its policies. However, if the Employee’s infraction does not merit termination and the Employee requests reasonable accommodation, the Employer must consider the request.

 Example: Brian, who has diabetes, is given a written warning for excessive absenteeism. After receiving the warning, Brian notifies his employer that his absences were related to his diabetes, which is not well controlled. Brian asks that the warning be withdrawn and that he be given leave when needed due to his diabetes.

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 Jane has had absence and tardiness problems

for years. She has been on the verge of termination several times. Before you get to termination, she brings in FMLA papers and requests intermittent leave.

 When put on final warning under your

attendance program Mary reveals she has cancer and states her supervisor knew all along she was off for treatment and she should not have been disciplined.

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 Maximum leave policies not sufficient to satisfy

Employer’s duty of reasonable accommodation

 Policies must incorporate case-by-case assessment

and Employer’s duty for reasonable accommodation

• Challenges to automatic termination policies:

$6.2 million settlement

$3.2 million settlement

• Challenges to “no fault” attendance policies:

$20 million settlement

|

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 If you believe an Employee’s absences are not consistent

with his or her FMLA leave, review the medical certification to see if it exceeded the duration and/or frequency of the approved leave.

 If there is a suspicious pattern of absence, the Employer

can request recertification which includes asking the healthcare provider if the condition and need for leave is consistent with the actual absence pattern.

Review medical certification Review FMLA tracking resources Is there a clear pattern?

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 What should you do if an Employee seeks

FMLA leave under suspicious circumstances (e.g., right after vacation request is denied)?

• Considerations

Employee or family member serious health condition? What does the medical certification say? Proof? FMLA available? Second opinion? Recertification?

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 Tina provides a medical certification indicating that

she needs intermittent, unplanned leave for a back

• condition. You have evidence that she is seen

around town at Starbucks, grocery shopping, carrying heavy items, and mowing the law on days she is off for “FMLA.” What do you do?

 Fred is certified for intermittent FMLA leave and

unquestionably is ill. However, nearly every time a performance issue is pointed out or there is a deadline, he take off for “FMLA.”

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 Judy is approved for intermittent

FMLA leave to care for her mother in connection with hospitalizations. She requested vacation from August 1-4 for annual family vacation with her mother. Her vacation request was denied. Judy then seeks FMLA leave from August 1-4. What should you do?

 Becky submits certification in

support of continuous leave that states that she is unable to work at her job. Becky is observed working at her family’s restaurant during

• leave. What should you do?

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 Betsy, a production worker, has two active counseling

notices for performance issues. She is eligible for FMLA leave, however, she does not currently have FMLA paperwork on file, nor is she working with an

• accommodation. She calls out sick on October 7-9. She

is off on October 10. While she is gone, her supervisor discovers 2 production report discrepancies that could result in 2 separate counselings and begins to investigate them. On October 11, Betsy calls in and says she has broken her collar bone and will need to be out for four weeks. On October 15, the decision is made to issue the 2 counseling notices and terminate Betsy.

 What should the Company do?

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• 10. Automatically terminating an employee under a

maximum leave policy without engaging in an interactive process

• 9. Denying an employee leave or an accommodation

because of performance issues

• 8. Requiring employees on reduced work

schedule/intermittent leave to produce the same amount of work as if full-time

• 7. Supervisors not recognizing when an employee is

giving them notice of the need for leave or an accommodation

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• 6. Supervisors not remembering/not having a

protocol for documenting reasons for absences

• 5. Terminating an employee on leave after

reorganizing her department when the reorganization is triggered by her going on leave

• 4. Waiting until an employee is on leave or requests

accommodation to address prior performance problems

• 3. Refusing to engage in the interactive process

because an employee only has a “temporary impairment”

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• 2. Denying FMLA leave because the employee’s

absence creates an undue hardship

• 1. Making biased comments:
• “You’re going on leave at the worst possible time.”
• “She’s always absent.”
• “Joe is off again, this time he’s probably in the psych

ward.”

• “I wouldn’t recommend her for a promotion – we’ve

had to spend so much money adjusting her workspace.”

• “She’s a troublemaker.”

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For Ad Additi tional

• nal Information:
• rmation:

Eva van n H.

• H. Po

Pontz 404-885-3518

evan.pontz@troutmansanders.com

Johan anna na T. Wi Wise 404-881-5448

jwise@seyfarth.com

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