EMPLOYEES WITH EDICAL CONDITIONS - Littler...
Transcript of EMPLOYEES WITH EDICAL CONDITIONS - Littler...
MANAGING EMPLOYEES WITH MEDICAL CONDITIONS
Presented by: Alexis C. Knapp, SPHR, MS-HRM, JD Littler Mendelson, PC Houston
October 17, 2012
Plans for Today Employees with Medical Conditions:
Recent Attention
FMLA Reminders
ADA Reminders
Extended Leaves and the EEOC’s Recent Agenda
Overlapping Issues: FMLA, ADA and Beyond
Front and Center: Employees with Medical Conditions
Recent changes to the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and various state laws
Recent activity by Congress, the DOL and the EEOC
EEOC FY 2011 Statistics – 32% increase in disability related charges (more
than ¼ of all charges received) – 53% increase in monetary recovery by the EEOC – Most popular impairments: orthopedic,
depression/anxiety disorders, catastrophic illness
Reminder: even the frivolous allegations must be answered
EEOC Allegation Trends
4
Basis of Charge Filing FY 2006 FY 2008 FY 2011
RETALIATION 22,555 32,690 37,334 RACE 27,238 33,937 35,395 SEX/GENDER 23,247 28,372 28,534 AGE 16,548 24,582 23,465 DISABILITY 15,575 19,453 25,742 NATIONAL ORIGIN 8,327 10,601 11,833 RELIGION 2,541 3,273 4,151 TOTAL CHARGES 75,768 95,402 99,947
70000
76000
82000
88000
94000
100000
2003 2004 2005 2006 2007 2008 2009 2010 2011
www.eeoc.gov
2011: 99,947 Highest Total Ever
2006: 75,768
EEOC Charges Soar 32% Increase Since 2006
The Rising Tide
The EEOC finds merit in charges 300% more often than it did 10 years ago EEOC Enforcement Statistics, EEOC.gov
Employees with Medical Conditions: Protections Under the FMLA and ADA
Family and Medical Leave Act (FMLA)
– Unpaid, job-protected leaves of absence
– 12 months of employment before eligible
– Reinstate/do not retaliate
Americans with Disabilities Act and its Amendments (ADA or ADAAA)
– Do not discriminate/retaliate
– Reasonably accommodate unless undue hardship
– Takes effect before employment even begins
Employee Medical Conditions Step 1—FMLA May Apply
Employee Medical Conditions May Trigger UHS’s FMLA Obligations
An employee’s own disability or serious health condition is one basis for leave under the FMLA*
*Our focus in this webinar is employees and their own serious health conditions, so we do not address leave for birth or placement, family care leave, military exigency leave, or military caregiver leave here.
What the FMLA Provides: Time
Unpaid leave
Job protection/ restoration (not an absolute right in every circumstance)
Benefits continuation
Who Can Take FMLA*
Employees who experience a qualifying reason for leave (overlaps with WC, ADA, STD, etc.)
Employees who work for a covered employer (50+ employees total)
12 months of service/1,250 hours
Employees who work at a jobsite with 50+ employees within a 75-mile radius
*ineligibility for FMLA may not = ineligibility for medical leave
Identifying the Need for Leave
Employer’s burden
– Listen for cues
– Notify HR or Aon Hewitt
Employee notice obligations
No magic words
Non-FMLA absences are free! (for the employee)
Retroactive designations
What About Compensation?
FMLA leave is unpaid leave
Substitution of paid time off
Coordination with other payments
Deductions from exempt employee salaries
What About Benefits?
UHS contributions to employee health benefits remain unchanged as if the employee was actively working
Employees must continue to pay their share of premiums (via deduction or separate payment)
Failure to do so could result in termination of benefits until they return
Employees have an absolute right to reinstatement of benefits upon return if they lost coverage while on leave
What Happens to their Jobs?
Reinstatement
– To the same or “equivalent position”
– Limitations (position elimination,
layoff, termination for misconduct,
Key Employee status)
No such thing as “undue hardship”
Transfers for planned medical treatment—proceed with caution
So you like the temp better?
– the discovery of performance issues
Certification The Magic Numbers for Both Sides
UHS (or Aon Hewitt) has five (5) business days to begin the process (send the WH-381 and WH-380)
Employee has 15 calendar days to provide certification (WH-380)
Seven (7) day cure period
Contacting the doctor
– Authentication and clarification
Designating the leave and any fitness-for-duty obligations within five (5) business days (WH-382, 384, 385)
Recertification rules
Changes to the FMLA The 2008-2009 Amendments
The “New” FMLA Regulations: A Quick Recap
Effective January 2009
The Short Story
– Administrative clean-up and clarification
– Two new qualifying events (“the military amendments”)
– Employers gained some administrative ground
– Employees gained some new rights
FMLA: Miscellaneous Reminders & Tough Issues If the supervisor knows, or if Aon Hewitt knows,
HR knows, the CEO knows—everybody technically knows
Death of an immediate family member and moving from one type of leave to another
Non-FMLA leave is free leave, and doesn’t take away from the 12 workweek entitlement
Employees may become eligible after requesting leave
Calculating intermittent leave for exempt employees
Confidentiality issues
FMLA: Miscellaneous Reminders & Tough Issues (cont’d)
There is no such thing as a second or third opinion on fitness-for-duty information under the FMLA
Moonlighting: the tricky issue of outside employment
Watch those e-mails: confidential does NOT = privileged
The ADA and beyond—
– Life after the FMLA—“12 workweeks” is not the absolute end to job protection
– Life without the FMLA—when the employee doesn’t qualify
– Handle subsequent terminations very cautiously
Employee Medical Conditions Reasonable Accommodation Under the ADA
ADA 101: A 30,000 Foot View of Employer Obligations
Don’t let the picture on the left fool you—physical or mental, seen or unseen
No discrimination because of a disability—applicants or employees
Reasonable accommodation – What “accommodation” looks like (initial or
additional leaves of absence, modified schedules, modified duties, devices and more)
– The interactive dialogue—and documenting it
– An individualized analysis
– Showing undue hardship
Confidentiality and recordkeeping
Amending the ADA
The ADA Amendments Act (“ADAAA”)
Effective January 1, 2009
Congress’ purpose to restore the broad intent/coverage of the ADA
Net result: much more likely that employees qualify as “disabled” and that UHS has obligations to them under the Act
Defining “Disability”
A physical or mental impairment that substantially limits one or more
major life activities.
“Major Life Activities” Broadened: Participatory Activities
Caring for oneself
Performing manual tasks
Seeing
Hearing
Speaking
Eating
Sleeping
Breathing
Walking
Standing
Sitting
Reaching
Lifting
Bending
Learning
Reading
Concentrating
Thinking
Communicating
Interacting with others
Working
or even just pain/ fatigue/slowness in doing any of these
Major Life Activities Now Also Include Operation of Major Bodily Functions
– Functions of immune system – Special sense organs and skin – Normal cell growth – Digestive functions – Bladder, bowel, and urinary functions – Neurological and brain functions – Respiratory functions – Circulatory and cardiovascular functions – Endocrine functions – Hemic functions – Lymphatic functions – Musculoskeletal functions – Reproductive functions
Is There a List of Disabilities? (Yes and No)
Autism
Cancer
Cerebral Palsy
Diabetes
Epilepsy
HIV/AIDS
Major Depression
Multiple Sclerosis
Muscular Dystrophy
Bipolar Disorder
PTSD
Obsessive Compulsive Disorder
Schizophrenia
What this Means for Management
We are out of the medical diagnosis business—much less emphasis on the specific condition the employee has
We will move almost directly to the interactive process—in other words, an extremely individualized analysis—it’s all about accommodation
BUT: Negotiation and pushback may be an option (unlike FMLA)
We have to know the UHS Accommodation Requests Policy and Process—generously give out the Form to start the dialogue
We will spend more time and energy on EEOC charges and lawsuits than before
We must very cautiously rely on prior ADA authority (case law, web articles, research, seminars)
Things to Never, Ever, Ever Say in the Accommodation Dialogue
“He didn’t actually ask for an accommodation”
“She said she was sick, but she never said she was disabled.”
“You can come back to work once you have a full release.”
“He’s got [insert medical condition here]. There’s no way he can do this job.”
Things to Never, Ever, Ever Say in the Accommodation Dialogue (cont’d)
“We aren’t terminating you, we’re filling your job”
“We need to know all of the prescription medications you are taking.”
“We only offer light duty [or other accommodations] for employees on workers’ compensation.”
“We don’t do that here.”
“That’s our policy.”
What Do Your Policies Say Happens When FMLA is Unavailable?
The EEOC has long maintained—and is now aggressively enforcing—that you may have leave obligations to your
employees regardless of whether you or any of your employees is covered by/eligible for FMLA, and regardless of
what your policies say or what you practices are.
What We’ve Learned About Leave Obligations under the ADA
Medical leave—a little, or a lot—may be a reasonable accommodation
Inflexible leave policies—neutral absence control, no-fault type policies ILLEGAL under the ADA
Restrictive light duty policies could also create problems
Attendance policies are on the EEOC’s radar
Managing Extended Leaves
Revise policies to include flexible, cross-referencing language
Communicate with employees before, during and after their medical leaves
Conduct and individualized analysis—that you can document
Any final decision should be a shared decision—involve HR and legal
Your first line supervisors MUST know about this
But it isn’t QUITE that simple...
Navigating the Maze of FMLA, ADA and Other Legal Obligations for Employees on Leave
Medical expenses and wage replacement
Concurrent leave
Time spent on workers’ compensation leave counts toward the 12 months of service
Light duty issues
Overlapping medical information
Leave Issues and Workers’ Compensation Laws/Programs
Counting the 1,250 hours/12 months of service
How much intermittent leave is available?
– Individualized
– Non-exempt
– Exempt
Deductions from the pay of exempt employees for time off of work while on FMLA
Nursing mothers and “reasonable” break times
Leave Issues and the Fair Labor Standards Act (FLSA)
ERISA – Benefit plan documents – When does coverage end? – STD/LTD
COBRA – Continuation of coverage – What events trigger COBRA? – Post-FMLA reinstatement
HIPAA – Portability/privacy – Contacting the doctor – Releases for PHI – Confidential recordkeeping
Examples of Issues Arising Under ERISA, COBRA and HIPAA
Genetic Information Nondiscrimination Act (GINA)
– Collection and storage of medical information
Pregnancy Discrimination Act (PDA) – Treatment of pregnant employees seeking
leave or accommodations Collective Bargaining Agreements
– Periods of paid leave – Extended leave beyond FMLA – Light duty – Accrual/use of, and bidding for, paid time off
Employer policies and collective bargaining agreements
State laws
Overlapping Protections, cont’d
Medical Leave at the State Level
California
Connecticut
Washington DC
Hawaii
Illinois
Kentucky
Maine
Maryland
Massachusetts
Minnesota
Montana
New Jersey
Ohio
Oregon
Rhode Island
Tennessee
Vermont
Washington
Wisconsin
Questions?
Alexis C. Knapp, SPHR, MS-HRM, JD Littler Mendelson, PC