The Eternal Challenge of Employee Leave Presented by Pierce Atwoods - - PowerPoint PPT Presentation

The Eternal Challenge of Employee Leave

March 10, 2016

Presented by Pierce Atwood’s Employment Group

How Do I Leave Thee? Let Me Count The Ways

Presented by: Jim Erwin Pierce Atwood LLP (207) 791-1237 jerwin@pierceatwood.com

HOW DO I LEAVE THEE? LET ME COUNT THE WAYS

How do I leave thee? Let me count the ways. I leave thee to the depth and breadth and height My job can reach, when being out of sight Sick, well, here, there, now, then, without trace. I leave thee with the weight of every day’s Most pressing need, by sun and candle-light. I leave thee freely, full within my right. I leave thee puzzled, trapped within a maze. I leave thee marching, nursing, voting. Use Still not made of all the ways: my faith. I leave thee daily, weekly, naught to lose With my lost time. I leave thee with the breath, Smiles, tears, of all my work; and, if I choose, I shall but leave thee even after death.

With apologies to Elizabeth Barrett Browning 3

FEDERAL LEAVE LAWS:

4

FMLA 29 USC § 2601 et seq. ADA 42 USC § 12010 USERRA 38 USC § 4301 et seq. Pregnancy Discrimination Act 42 USC § 2000e et seq. Federal Employee Family Friendly Leave Act 5 USC § 6307

MAINE LEAVE LAWS

FMLRA 26 MRS §§ 843 et seq. MHRA 5 MRS § 4551 et seq. Military Leave 26 MRS §§ 811 - 813 Family Military Leave 26 MRS § 814 Leave for Victims of Violence 26 MRS § 850 Family Sick Leave 26 MRS § 636 Caregivers Affected by Extreme Public Health Emergency 26 MRS § 875 Legislators 26 MRS §§ 821 et seq. Volunteer Firefighter 26 MRS § 809 Jury Service 14 MRS § 1218 Lactation Break 26 MRS § 604 Workers Compensation Act 39-A MRS § 101 et seq. Rest Breaks 26 MRS § 601

5

The Trinity: Workers’ Comp, FMLA and ADA

Presented by: Allan Muir Pierce Atwood LLP (207) 791-1365 amuir@pierceatwood.com

LEAVE AND WORKERS’ COMPENSATION

Juggling Three Legal Balls at Once

• Leave as a reasonable accommodation under the

ADA

• Leave under the WCA
• Leave under the FMLA

7

HOW TO END WCA LEAVE

8

• Document: job description,

medical restrictions, and ability to perform

• The offer to return to work
• You can offer “favored work”
• The perils of refusal to the

employee

HYPOTHETICAL SITUATION

Bob has been out of work for two months. His PCP wrote “no work” for one month and then “work QOD at home if necessary” until next follow-up in March. You put him on

• FMLA. Your workers’ comp loss control audit

is next week. What do you do?

9

Here Today, Gone Tomorrow: The Challenges Of Intermittent Leave

Presented by: Suzanne King Pierce Atwood LLP (617) 488-8159 sking@pierceatwood.com

FMLA LEAVE MAY BE TAKEN INTERMITTENTLY OR ON A REDUCED LEAVE SCHEDULE

Intermittent

• Separate blocks of

time due to single qualifying reason Reduced Leave Schedule

• Change in

employee’s schedule for a period of time, normally from full- time to part-time

11

REASONS FOR LEAVE

• Employee’s or family member’s serious

health condition

• Qualifying exigency
• Military caregiver
• Provide care or psychological comfort to

covered family member with serious health condition

• NOTE: available after healthy birth or

adoption of a child only with employer’s approval

12

REQUIREMENTS

Medical need

Medical need is best accommodated by intermittent or reduced leave schedule If planned medical treatment, employee must make reasonable effort to schedule so as not to disrupt operations

13

TRANSFER TO ALTERNATIVE POSITION

• Employer may require employee

to transfer temporarily to an available position for which the employee is qualified and which better accommodates recurring periods of leave

• New position must have equivalent

pay and benefits (but not equivalent duties)

14

TRANSFER CAN’T DISCOURAGE EMPLOYEE OR IMPOSE HARDSHIP

Violation

White collar employee Laborer

Violation

Day shift Night shift

Violation

Work at headquarters Move to branch a significant distance away

15

CALCULATING LEAVE

• One hour (or shorter if employer

accounts for leave on shorter basis)

• Actual workweek is basis of leave

schedule (i.e., may not be 40 hours)

• Employee can’t be required to take

more leave than is medically necessary

• Overtime hours may be counted

against 12 weeks

16

CALCULATING LEAVE (cont’d)

Employee usually scheduled to work 48 hours/week can only work 40 8/48 = 1/6 week Employee usually scheduled to work 40 hours/week takes one day off each week 8/40 = 1/5 week Employee usually scheduled to work 40 hours/week can only work 4 hours/day 20/40 = ½ week Employee usually scheduled to work 30 hours/week can only work 20 hours 10/30 = 1/3 week

17

PAYING EXEMPT EMPLOYEES

• FMLA leave is unpaid
• Permissible to deduct from salary

for any hours taken as intermittent

• r reduced leave schedule
• Deductions do not compromise the

exempt status

18

TRACKING INTERMITTENT LEAVE

• Carefully review Certification of Health

Care Provider

• Ensure actual use of leave is consistent with

projected need

• If not, follow up with health care provider
• Employee should report when absence is

for FMLA reason

• If fraud, can discipline
• Generally, HR should track rather than

supervisor if possible

19

FMLA and the Goldilocks Principle

Presented by: Katy Rand Pierce Atwood LLP (207) 791-1267 krand@pierceatwood.com

FMLA QUANDARIES

• Too much time
• Too little notice
• Too little information
• Too many questions about whether your

employee is taking time off for the reasons represented

Solution: Use the tools you are given

22

LIMIT TIME AVAILABLE

• Use rolling 12-month leave year

measurement

• Require concurrent

use of paid time off

23

ENFORCE NOTIFICATION REQUIREMENTS

• Regulations require 30 days’ notice where

foreseeable (as soon as practicable where not)

• Insist on an explanation when adequate

notice isn’t given.

• Establish clear notification requirements,

and enforce them.

24

INSIST ON INFORMATION

• While ability to obtain information is limited,

there is information to which you’re entitled.

• Who is filling it out
• When SHC started and how long it’s expected to

last

• Facts necessary to ascertain SHC
• For intermittent leave

– information to establish medical necessity – Estimate of the dates and duration of anticipated incapacity or treatment

25

INSIST ON INFORMATION (cont’d)

• Require employee to cure insufficient or

incomplete certification

• Tell them what is missing
• Give them 7 days to fix the problem
• Request authentication or clarification
• EE Health or HR, never supervisor
• Authentication = requesting verification

certification is legitimate

• Clarification = clearing up questions about

handwriting or meaning

26

DON’T IGNORE SIGNS OF FMLA ABUSE

• Employee missing work more often than

described in certification

• Employer receives information that casts

doubt on employee’s stated reason for absences

27

RECERTIFICATION

• No more often than once every 30 days, in connection

with an absence

• BUT, if the certification indicates that the condition will

last more than 30 days, must wait until minimum duration expires unless

• The employee requests a leave extension
• Circumstances described in the certification have

significantly changed (e.g. employee missing more work, nature or severity of the illness)

• Employer receives information that casts doubt upon the

employee’s stated reason for the absence or the continuing validity of the certification

• When duration “indefinite,” every 6 months

28

INVESTIGATION

• Send provider a copy of the certification with a

letter describing employee’s pattern and inquire

• Interview witnesses, gather evidence
• Respect privacy – provide due process
• Surveillance? Only after reasonable

suspicion

• Prepare investigation report. Privilege?
• Analyze evidence and reach good faith

conclusions

29

Leave and STD are not the Same

Presented by: Joanne Pearson Pierce Atwood LLP (207) 791-1308 jpearson@pierceatwood.com

HYPO

Joe has been with the Company for 9

• months. He falls off a ladder at home.

He applies for and receives STD. His STD is terminated four months later. He then applies for FMLA leave.

31

SOME OF THEM BELONG TOGETHER

32

HOW ARE THEY ALIKE?

Employee is

• ut on leave

Can Run Concurrently with FMLA if Eligible

33

HOW ARE THEY DIFFERENT STD is Paid Waiting Period Return to Work Requirements Definition of “disability” v. “serious health condition” Job Protection Use of accrued paid leave

34

WHAT ABOUT JOE?

• Deny the request?
• Not eligible due to hours
• Not a serious health condition
• Request Joe fill out FMLA paperwork?
• Reach out to the STD provider and
• btain a copy of Joe’s file?

35

POTENTIAL PITFALLS

• Pay close attention to eligibility
• If denied STD, does not mean the employee

does not have a serious health condition or a disability as defined under federal/state law

• Relying on the STD certification to

grant/deny leave

• Are you getting too much information?
• Are you waiting too long?
• Need to keep information separate

36

POTENTIAL PITFALLS (cont’d)

• Don’t assume
• If the employee is on STD the employee is

automatically entitled to leave

• If the STD is denied/exhausted that the

employee is not entitled to leave under the ADA/FMLA

37

Limits of Leave as a Reasonable Accommodation

Presented by: Michelle Bush Pierce Atwood LLP (207) 791-1102 mbush@pierceatwood.com

DUTY OF REASONABLE ACCOMMODATION An employer’s failure to make “reasonable accommodations” to the known physical or mental limitations

• f an otherwise “qualified individual

with a disability” constitutes discrimination, unless the accommodation would impose an “undue hardship” on the business.

42 U.S.C. § 12112(b)(5)(a)

39

Tip 1

There is no probationary or qualification period under ADA

40

EEOC v. Ezeflow (WD Pa. 2014)

• Former marine with PTSD; had seizure 10

weeks after started; wanted 6 weeks off

• Had used up sick time; still on probation
• Generous leave policy for non-

probationary employees (26 weeks paid)

• Leave request denied
• Settled soon after EEOC sued for $65,000

41

Tip 2

Avoid inflexible leave policies

42

AUTOMATIC LEAVE CUT OFFS AND 100% CURED POLICIES

EEOC v. UPS, Inc., (N.D. IL February 12, 2014)

• UPS policy that separation of employment after 12

months of leave. Individuals could not return to work until 100% healed, even if could perform essential functions with reasonable accommodation.

• Court denied UPS motion to dismiss class action.

Acknowledging that although regular job attendance can be an essential job requirement, plaintiffs’ claims were not premised on attendance, but rather on UPS’s imposition of a 100% healed requirement on those seeking to return.

43

Hwang v. Kansas State University,

(10th Circuit May 29, 2014)

44

Hwang Court: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.” “Unsurprisingly?”

Tip 3

Dialogue with employee

45

INTERACTIVE DIALOGUE

• Whether Employee is Disabled
• Caution: definition is broad
• Whether employee can perform essential

functions of the job, with or without accommodation

• Duty to dialogue goes both ways

46

Tip 4

Can you articulate specific undue hardship?

47

SHOWING UNDUE HARDSHIP

• Coworkers neglect certain responsibilities

to cover absent employee duties

• Additional costs of temporary employees
• r use of overtime
• Company product/services suffer
• Other business needs: i.e. key project

requiring dedicated employee

48

Tip 5

Leave for indefinite period is likely not a reasonable accommodation

49

Henry v. United Bank (1st Cir. 2012)

• Cervical Myelopathy; exhausted FMLA
• Told she had to return to work for

legitimate business reasons

• Right before RTW, plaintiff submitted

doctor’s note that out of work “until further notice”

• Told employer that she had scheduled

surgery for 1 month from then

• Terminated

50

Henry v. United Bank, (cont’d)

• No time frame for when or even if she

would return

• Scheduled surgery date not enough –

needed info about expected recovery

• “Such an open-ended request for

additional leave is just the type of wait- and-see approach that has been rejected”

• Here, there likely was undue burden; but

court said that was not the analysis

51

EVALUATING LEAVE AS ACCOMMODATION

• Is leave necessary or are there other

accommodations?

• How long is it expected to last?
• How will job be covered during leave?
• Will leave likely facilitate return to work?
• Is there an undue hardship?

52

Medical Exams – Who, What, When, Where, How

Presented by: Joanne Pearson Pierce Atwood LLP (207) 791-1308 jpearson@pierceatwood.com

MEDICAL EXAMINATIONS

• Why do you want an exam?
• Need to look at various legal constraints
• ADA/State laws
• FMLA
• Drug testing
• Wellness
• State recreational use laws
• Rules are different depending on whether

an applicant or an employee

54

MEDICAL EXAMINATIONS - ADA

• Applicants:
• Cannot do pre-offer
• Post-offer need to perform for everyone

entering the job category

• Employees: job related and consistent

with business necessity

• Unable to preform job because of medical

condition

• Direct threat
• Employee has requested an accommodation

55

MEDICAL EXAMINATIONS - FMLA

• Model form for requesting certification of

health condition

• Can require fitness for duty
• Designation
• Can request recertification in certain situations
• Allowed to follow procedures of other laws,

such as ADA or workers’ compensation, and can use that information to determine eligibility for leave

WHO PERFORMS THE EXAM?

• Employee’s own physician
• Outside third-party chosen by the

employer?

• RISK: Relying too heavily on the

physician

57

WHAT CAN/SHOULD YOU LEARN?

• Diagnosis?
• Restrictions?
• Family history?
• Be careful what you learn from your
• wn health department

58

WHAT CAN/SHOULD YOU LEARN?

• Diagnosis?
• Restrictions?
• Family history?
• Be careful what you learn from your
• wn health department

59

What Can You Disclose? To Whom?

• Increasing area of litigation
• Take care in emails, discussions etc.
• Obtain authorization from employee

before disclosing medical issues

60

ADA/MHRA CONFIDENTIALITY

• Keep “medical condition or history”

confidential and “on separate forms and in separate files”

• Limited exceptions for disclosure:
• Supervisors and managers may be informed

regarding necessary restrictions and accommodations;

• First aid and safety personnel may be informed if

the disability might require emergency treatment; and

• Government officials investigating compliance

with ADA shall be provided relevant information

• n request

61

FMLA CONFIDENTIALITY

• Records and documents relating to certifications,

recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files, and if the ADA is also applicable, such records shall be maintained in conformance with ADA confidentiality requirements except that:

• Supervisors and managers may be informed regarding

necessary restrictions on the work or duties of an employee and necessary accommodations

• First aid and safety personnel may be informed (when

appropriate) if the employee's physical or medical condition might require emergency treatment; and

• Government officials investigating compliance with FMLA (or
• ther pertinent law) shall be provided relevant information

upon request

62

Attendance Policies You Can Safely Enforce

Presented by: Suzanne King Pierce Atwood LLP (617) 488-8159 sking@pierceatwood.com

ATTENDANCE POLICY

Report to work regularly and on time Requirements regarding absence reporting Address tardiness and early quit Prohibit (and define) excessive absence

64

Include:

ATTENDANCE POLICY Is unpaid time off available? Only after paid time is used? No call/no show (but be careful with state leave laws) Address work from home – is it allowed? With approval only?

65

Include:

IMPORTANT REMINDERS

• FMLA, leave as accommodation under

ADA, state leave laws . . .

• CANNOT COUNT AGAINST AN EMPLOYEE

UNDER AN ATTENDANCE POLICY

• Supervisors/managers may benefit from

training on this

• Notice requirements may have to be

modified for state leave laws

• Supervisors/managers should not pry into

details!

66

Impact of Leave on Benefits Administration

Presented by: David Coolidge Pierce Atwood LLP (207) 791-1135 dcoolidge@pierceatwood.com

BENEFIT PLANS WITH LEAVE CONSIDERATIONS

• Welfare Benefit Plans
• Health, dental, vision, flexible spending

accounts, life insurance, short-term and long-term disability, severance plans

• Pension Benefit and Related Plans
• Defined contribution, defined benefit, bonus

and incentive, non-qualified deferred compensation plans

68

BENEFIT PLAN REVIEW

• Locate plan documents
• Includes plan & summary plan description

– Most current version? – Are there changes or amendments?

• Includes plan notices, forms

– Online forms – Paper/PDF documents

• Decide what to look for in which plans

69

HEALTH, DENTAL & VISION

70

• Confirm health benefits maintained during

employee’s FMLA leave

• Determine how employees pay premiums
• Deduction from STD/by check on COBRA

schedule

• Prepayment / catch-up payment after return
• Determine procedure to terminate

coverage on leave or if employee does not return and when qualifying event

• ccurs for COBRA

FLEXIBLE SPENDING ACCOUNTS

71

• Ensure participants are given option to

continue participating in health FSA during leave & how premiums are paid

• Ensure dependent care FSA claims are

allowed only for up to two weeks of leave

• Determine how participants contribute to

HSA during leave

LIFE INSURANCE

72

• Determine whether policy/plan requires

employee to be “actively at work” to remain eligible for coverage

• Determine what happens if employee

does/does not return from leave

• Employer may need to pay if insurer

refuses because policy/plan terms differ

SHORT-TERM DISABILITY

73

• Review policy/plan for leaves continuing

longer than FMLA period

• Does employer have “no fault” policy

setting specific duration for leave

• Is process “interactive” for determining if

inability to return to work is “disability” for which longer leave may be “reasonable accommodation”

LONG-TERM DISABILITY

74

• If employer has LTD and defined benefit

pension plan, determine if design is coordinated with LTD benefits

• Does pension plan offer disability benefit?
• When does LTD cease & does pension offset?
• On what date does employee terminate?
• Does pension “compensation” include LTD?

SPECIAL ISSUE: HEALTH COVERAGE DURING LEAVE

75

• Must coverage continue during leave?
• Review terms of group health plan/policy
• To avoid ACA play-or-pay penalty, “stability

period” rule (lookback or monthly) applies

• Full-time: 30 hours week/130 hours month
• Are health benefits nondiscriminatory?
• Highly-paid employees cannot receive better

coverage during leave or after termination

SPECIAL ISSUE: FURLOUGHS

76

• Which employees affected and how?
• Employment classifications/work status

change

• Life, AD&D and Disability Plans
• Coverage ends…when? Actively-at-work rule
• Covered earnings during leave are…?
• If coverage is lost, we then…? Review policy

for conversion/portability provisions.

• On return to work, reinstate…when? Waiting

period, evidence of insurability

SPECIAL ISSUE: FURLOUGHS (cont’d)

77

• Group Health Plans
• If insured, carrier approval for continued

coverage if policy eligibility is lost

• If self-insured, employer can amend to

continue coverage, but is stop loss carrier approval required?

• Flexible Spending Accounts
• Pension & 401(k) Plans
• No contributions/no distributions allowed
• Loan repayments/loan default concerns

TAKEAWAYS

• Review leave policies in affected benefit

plans and identify gaps in coverage, law

• Tell employees how leave affects benefits
• Be sure leave administrators know how

plans work & plan administrators know how leave procedures work

• Revise plan forms so consistent with

leave

78

Military Leave

Presented by: Charlie Einsiedler, Jr. Pierce Atwood LLP (207) 791-1388 ceinsiedler@pierceatwood.com

INTRODUCTION TO USERRA

• Detailed Regulations
• All Employers and all Employees Are

Covered By USERRA

• Floor Not a Ceiling of Benefits
• States May Provide Additional Benefits (and

Maine has)

• Some Familiar and Some Different Concepts

80

BASIC LEAVE RULES

• Absence Must be Necessitated by Reason
• f Service
• Service Need Not be Sole Reason for

Absence

• Leave Encompasses Reasonable Time to

Travel to Uniform Service Site

81

BASIC LEAVE RULES

• Absence Must be Necessitated by Reason
• f Service
• Service Need Not be Sole Reason for

Absence

• Leave Encompasses Reasonable Time to

Travel to Uniform Service Site

82

BASIC LEAVE RULES (cont’d)

Notice Requirements:

• Employee Required to Give Advance Notice of

Need for Leave

• Notice May be Verbal or Written
• No Specific Time Frame, “As Far In Advance

As Is Reasonable Under the Circumstances”

• DOD “Strongly Recommends” Employees

Give 30 Days Notice

83

REEMPLOYMENT RIGHTS

• 5 Year Limit on Period of Service
• Includes Only Time Spent in ACTUAL

Service

• Several (over 12) Exceptions Apply to 5

Year Rule (captive, mission critical)

• No Requirement to Accommodate Employer

Needs as to Timing, Frequency or Duration

• f Leave (Employer May Make Request of

Military Authorities)

84

REEMPLOYMENT RIGHTS (cont’d)

Time For Reporting To Work

• Sliding Scale
• Less Than 31 Days of Service:
• Next Full Day Following Travel
• More Than 30; Less Than 180:
• Must Apply Within 14 Days of Completing Service
• More Than 180 Days:
• Must Apply Within 90 Days of Completing Service
• Exceptions to Rules
• Employer May Require Documentation of

Service

85

RIGHTS, BENEFITS & OBLIGATIONS WHILE ON LEAVE

• Employee Deemed to be on Furlough or Leave
• f Absence
• May Use Accrued Vacation While on Military

Leave

• May Use Sick Leave if Other Employees Who

Are On Leave (other than sick leave) Are Allowed to Use Sick Leave

• Entitled To All Benefits Provided to Other

Employees Who Are On Leave: (vacation accrual, paid holidays, etc., if provided to any employee on any other leave)

86

RIGHTS, BENEFITS & OBLIGATIONS WHILE ON LEAVE (cont’d)

• Entitled to Maintain Health Plan Coverage For 24

Months

• Employee Cannot be Charged More Than

Employee Regular Share if Service is Less Than 31 Days

• If Service is for 31 or More Days, Employee May

be Required to Pay 102% of Employee Premium

• Employer Must Reinstate Employee to Health Plan

Upon Reemployment

• Issues Regarding Service Related Illnesses or

Injuries Dealt With In Regulations

87

RIGHTS UPON REEMPLOYMENT

• Escalator Principle
• Entitled to Raises, Promotions and Seniority

Accruals as if Continuously Employed

• “Reasonable Efforts”, Including Training Must

Be Provided to Allow Employee to Move to Escalator Position

• Employers Required to Fund Pension and

401(k) Contributions

88

PENSION ISSUES / CONTRIBUTION

• General Rule Make-Up Required
• Not Required to Make Contributions Until

Employee is Reemployed

• Time In Military Service Treated as

Continuous Service (including convalescent time not exceeding two years)

• Employee Allowed Time to Make Elective

Contributions

• No Losses or Gains Attributed

89

NON-DISCRIMINATION AND NON- RETALIATION

• Discrimination in Employment, Re-Employment,

Retention or Benefits Prohibited

• Hostile Work Environment Actionable
• Retaliation for Exercising Rights Under USERRA

Prohibited

• Light Burden of Proof:
• Need Only Show Uniformed Service was “One of the

Reasons” the Employer Took Adverse Action

• Eichaker v. Village of Vicksburg (6th Cir., 2015) “It would

be hard” to have Eichaker as Chief if “called away” or “deployed”

90

PROTECTION AGAINST DISCHARGE

• Not “At-Will” Following Reemployment
• Protected From Discharge Except for Cause
• Length of Protection Varies:
• 180 Day Protection for Service of More Than 30 Days and

Less Than 181 Days

• One Year Protection for Service of More Than 180 Days
• Cause “Defined” as Reasonable to Discharge

Employee for the Conduct in Question and Employee Had Notice That Conduct Could Lead to Discharge

• Jury question whether failure to sign non-competition and

Confidentiality Agreement was “cause”

• Legitimate Job Elimination or Layoff is Permissible

91

FEDERAL FAMILY MILITARY LEAVE

Qualifying Exigency Leave

• Up to 12 Weeks of Leave
• Triggered by Call or Order to Duty
• Nine (9) Broad Categories of Qualifying Exigencies
• Issues Due to Short Notice (Less than 7 days)
• Attend Military Events or Activities
• Deal with Child Care Issues or School Enrollment
• Care for Military Member’s Parent
• Making or Updating Financial and Legal Arrangements Addressing

Military Member’s Absence

• Attending Counseling for Employee, the Military Member, or Child
• Up to 15 Calendar Days to Spend time with Military Member

During Short Term R & R

92

MILITARY CARE GIVER LEAVE

• Employee Must be Spouse, Son, Daughter,

Parent or “Next of Kin” of Military Member

• Up to 26 Weeks of Unpaid Leave in Single 12

Month Period

• “Serious Injury or Illness is a Defined Term”
• Condition caused a VA disability rating of 50% or

greater; or

• Condition substantially impairs veteran’s ability to

work; or

• Veteran enrolls in VA Program of Comprehensive

Assistance for Family Caregivers

• Condition must be caused or aggravated in the line of

active duty

93

MAINE FAMILY MILITARY LEAVE LAW

• Applies to Employers Larger Than 15
• Provides 15 Days of Leave for Spouse,

Domestic Partner or Parent

• Leave May be Taken Within 15 Days

Immediately Prior to Deployment; 15 Days Immediately Following Return; or During Deployment If On Leave

• Advance Notice Required; 14 Days if Leave is

Greater Than 5 Days; “As Soon As Practicable” For Leave of Less Than 5 Days

94

Pregnancy After Young V. UPS

Presented by: Michelle Bush Pierce Atwood LLP (207) 791-1102 mbush@pierceatwood.com

ACCOMMODATING PREGNANT EMPLOYEES

96

FMLA?

PREGNANCY DISCRIMINATION ACT

• Title VII prohibition on discrimination on

basis of sex includes on basis of pregnancy, childbirth, or related medical conditions

“Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as

• ther persons not so affected but similar in their

ability or inability to work . . . .”

97

Young v. UPS (4th Cir. 2013)

• Young was UPS delivery driver. Became pregnant and doctor

imposed 20 pound lift restriction. Job required 70 lb lift

• UPS refused to accommodate and she stayed home without

pay for her pregnancy and eventually lost her medical coverage

• UPS provided temporary alternative work assignments to

those injured on the job, to disabled employees, and to drivers who lost DOT certification

• Fourth Circuit Court of Appeals held that (1) pregnancy is

not a disability under the ADA and (2) Pregnancy Discrimination Act (PDA) requires only that employers treat employees with temporary, non-work related impairments the same as employees with temporary restrictions due to

• pregnancy. UPS policy does not violate PDA

98

SCOTUS VACATES

99

Denial of accommodation may be unlawful under PDA if Plaintiff shows:

• She belonged to protected class;
• She sought accommodation;
• Employer did not accommodate her; and
• Employer did accommodate others “similar in

their ability or inability to work.”

LEGITIMATE NONDISCRIMINATORY REASON

100

Employer may justify refusal to accommodate with “legitimate, nondiscriminatory” reasons But, “that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates.”

PRETEXT

101

Plaintiff may show that employer’s proffered reasons are in fact pretextual:

• That policies impose significant burden on

pregnant workers

• That “legitimate, nondiscriminatory”

reasons are not sufficiently strong to justify the burden

• Reasons considered with burden give rise to

inference of intentional discrimination

WHO IS “SIMILAR”?

102

• Worker’s comp injuries with temporary

restrictions?

• Disabled employees with ADA protection?
• Other non-disabled but injured employees?
• Dispute as to whether UPS provided more

favorable treatment to at least some

• employees whose situation cannot

reasonably be distinguished from Young’s

HOW DOES THIS APPLY TO LEAVE?

• What do your leave policies provide?
• Are you already providing leave to non-

pregnant employees with similar ability to work?

• What would the burden be of also

providing it to pregnant employees?

• What justification is there for treating

pregnant employees differently?

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PREGNANCY AS de facto DISABILITY?

“We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. … As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. …We express no view on these statutory and regulatory changes.”

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Risks and Benefits of Use of Third Party Administrators

Presented by: Katy Rand Pierce Atwood LLP (207) 791-1267 krand@pierceatwood.com

TPA Offerings

Answer questions about FMLA Apply your FMLA and other leave policies Send required notices and forms to employees Qualify and document leaves Track leave (including intermittent leave) Process fit for duty paperwork

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POTENTIAL BENEFITS

• Reduction in administrative burden
• Integration of FMLA with STD administration
• Consistent tracking of intermittent leave
• Decline in leave events and abuse
• Accurate record keeping
• Non-biased administration
• Provision of training

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POTENTIAL RISKS

• FMLA cases filed in federal courts have more

than tripled recently (1181 cases in 2015 compared to 291 in 2012)

• EEOC increasingly is focused on leave as a

reasonable accommodation

• You likely are on the hook for the missteps of

your TPA

• Indemnification agreements, while

important, may not protect you

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ERRORS & MISCOMMUNICATIONS

• Conflicting information provided by

supervisor and TPA

• Overly rigid application of deadlines (e.g.

for return of certification) with inadequate consideration of mitigating factors

• Misunderstandings about employer’s

leave policies

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Whether or not you choose to

• utsource, it is

not possible to wipe your hands clean of FMLA administration altogether.

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SAFEGUARDS

• Insist on well trained representatives
• Audit TPA’s practices and procedures
• Will employee be assigned one representative?
• Timing of notices
• Steps taken to review medical certifications
• Steps taken when cert is insufficient or not forthcoming
• Method of tracking time off
• Intervals for requesting recertification
• Analyze the actions a TPA is taking in the fact of

difficult FMLA scenarios

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Leave in the Real World – Break Out Session

The Eternal Challenge of Employee Leave

Scenario #1 Dottie works in a warehouse. She injures her shoulder playing softball and provides a doctor's certification that indicates she must immobilize her arm. She is

• ut of work for l0 weeks. Dottie then reports that she

is ready to come back to work, and produces a doctor's note that says she cannot lift with her right

• arm. Dottie tells her supervisor that, despite the

note, she can use her right arm and is ready to do her job as usual. The company is worried that Dottie will injure herself if she tries to do her job. What should the company do?

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The Eternal Challenge of Employee Leave

Scenario #2 A supervisor just called to tell you that a production employee, Leo, has been leaving work early and missing work due to migraines. The supervisor is very frustrated because these attendance problems are unpredictable and create more work for other

• employees. With only 40 employees, they don’t have

enough people to cover when someone is absent without notice. The supervisor has already disciplined Leo for violating the attendance policy, but wants to know what else he can do. In the course

• f the conversation, the supervisor mentions that Leo

does not wear his hard hat because it hurts his head. What should the company do?

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The Eternal Challenge of Employee Leave Scenario #3

Jack works for a financial services company with 52 employees. He works in accounting, handling sensitive financial information. He has always been a solid performer and rarely misses work. In early September, Jack calls in to report that he doesn’t feel well and needs to see a doctor. He calls back the next day and says he will be out for a few days or a week at most. The next week, Jack calls again and says he might need a medical leave because he still doesn’t feel well and the doctor is not sure what is going on. The company has had a few employees who have needed medical leave in the past and has generally continued full salary for 8 weeks. In early December, Jack is still not back at work and Jack’s manager is frustrated because Jack hasn’t shared any of the details of his illness and is generally not communicative about his plans. Eventually, Jack starts to sign on to the system from home and tells his manager that he will just work from home a few hours per day for a while. Working from home is generally not permitted, especially for employees in the accounting department, given the sensitive financial information involved as well as the collaborative culture that requires employees to work together on projects. What should the company do?

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The Eternal Challenge of Employee Leave Scenario #4

Jan, an exempt employee who started working for a large employer 6 months ago, is a transgender female who is going through a gender reassignment process. She has requested to leave 3 hours early every Tuesday for laser hair removal treatments. She has also given notice that she will need to be out of the office for 4 weeks later in the year when she has surgery. Finally, Jan has a weekly medical appointment that can only be scheduled at noon. She has asked if there is a particular day that is convenient for the company for her to be out of work for an hour or two in the middle of the day. Jan is eligible for short term disability, so her manager approved her request for leave for her surgery. Jan’s co-workers are very uncomfortable with Jan and have complained to the manager, Kim. Kim would like to deny the requests for leave for the weekly appointments because, taken together, these absences are very

• disruptive. Kim is also secretly hoping that by making this difficult

for Jan, Jan will decide to leave the company. Does the company have to permit Jan to take this much time off?

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The Eternal Challenge of Employee Leave Scenario #5

Elena has been employed at a large hospital for 10

• years. She was deployed to Afghanistan in January

2015 but returned to work in late December 2015. The hospital was short-staffed during her deployment and everyone is glad she finally came back to work. She just announced to HR that she is 5 months pregnant and is planning to take 8 weeks off after the baby is born. Her due date is June 15. She knows that the FMLA provides 12 weeks of leave and she would like to take the last 4 weeks off by working 3 days per week, rather than 5 days per week, for 10 weeks. Is Elena eligible for FMLA leave? If so, can she use the FMLA leave this way?

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Several members of Pierce Atwood’s employment law group presented this program. For more information on the group, its attorneys, and future programs visit www.pierceatwood.com/employment-law.