Using The FMLA, ADA And Company Policies To Manage Absenteeism And Disabilities

March 18, 2009 Presented by:

Wendy J. Mellk, Esq. Jackson Lewis LLP

58 South Service Rd., Ste. 410 Melville, NY 11747

(631) 247-0404 mellkw@jacksonlewis.com

Copyright 2009 Jackson Lewis LLP ©

THE MATERIALS CONTAINED IN THIS HANDOUT WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE ATTENDEES’ OWN REFERENCE IN CONNECTION WITH MANAGEMENT EDUCATION SEMINARS PRESENTED BY THE FIRM. SINCE THESE MATERIALS AND RELATED DISCUSSIONS ARE INFORMATIONAL AND EDUCATIONAL IN NATURE AND REPRESENT THE SPEAKER’S OWN VIEWS, ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE. PROFESSIONAL ADVICE SHOULD BE OBTAINED BEFORE ATTEMPTING TO ADDRESS ANY LEGAL SITUATION OR PROBLEM.

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THE BERMUDA TRIANGLE OF TIME AWAY FROM WORK

FMLA Job Protection

ADA Reasonable Accommodation

Workers Comp/ Disability Insurance

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AMERICANS WITH DISABILITIES ACT PURPOSE OF ADA

Prohibits discrimination against qualified individuals with disabilities who, with or

without reasonable accommodation, can perform the essential functions of the job

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DISABILITIES UNDER THE ADA

The term “disability” means, with respect to an individual—

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or (C) being regarded as having such an impairment.

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THE ADA AMENDMENTS ACT (ADAAA)

  Signed September 25, 2008   Effective January 1, 2009   Overturns Supreme Court decisions that

limited the ADA’s coverage   Broadens construction of the Act

 the term disability “shall be construed in favor of broad coverage of individuals”

 “substantially limits a major life activity” to be interpreted less stringently

  Directs EEOC to issue new regulations

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ADA Amendments Act (ADAAA)

Critical Changes for Employers   Expands Coverage of “Disability” Definition

 Existing interpretation of “substantially limits” sets too high a standard;

 Expectation is that regulations will be revised to define “substantially limits” as “significantly restrict”

 New York Employers: Not a major issue  “a physical, mental or medical impairment resulting from anatomical,

physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques”

  Expands the Definition of “Regarded As” Prong  Employer liable if individual can prove discrimination because of

an actual or perceived physical or mental impairment whether or not such impairment limits or is perceived to limit any major life activity 7

ADA Amendments Act (ADAAA) Critical Changes for Employers (Cont.)   Excludes Consideration of Mitigating Measures (e.g.,

medication or prosthesis)  ADAAA rejects the Supreme Court’s decision in Sutton that

a determination of disability requires consideration of the mitigating measures

 The determination “shall be made without regard to the ameliorative effects of mitigating measure”

 Exception made for eyeglasses or contact lenses   Inclusion of bodily functions as “major life activities”

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ADA Amendments Act (ADAAA) Implications for ADA Litigation   Currently, more than 90% of ADA lawsuits

have been won by employers, usually based on whether an employee had a “disability” under the ADA. Employers will now start litigating tougher ADA issues:  What is the scope and meaning of reasonable

accommodation, undue hardship, or essential job functions?

 What workplace standards are “job-related and consistent with business necessity”?

 What workplace risks rise to the level of “direct threats”?

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•  “QUALIFIED” INDIVIDUALS

•  “ESSENTIAL” FUNCTIONS

•  “REASONABLE” ACCOMMODATIONS – PHYSICAL MODIFICATIONS

– REASSIGNING TASKS

– SCHEDULE OR BREAK ADJUSTMENTS

•  “UNDUE HARDSHIP” 10

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1 . A person with a physical or mental impairment that substantially limits one or more major life activities

2 . A person who has a record of such impairment; or

3 . A person who is regarded as having such impairment.

It does not include:

• temporary disabilities

• environmental, cultural or economic disadvantages

• specified exceptions

FACTORS TO CONSIDER:

•  work experience of others •  information on job description •  amount of time spent performing function •  consequences of not requiring the employee to

perform function

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•  The ADA requires employers to reasonably accommodate an otherwise qualified individual with a disability

•  Reasonable accommodation is defined as a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity.

ADA: MEANING OF REASONABLE

ACCOMMODATION

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Accessible facilities

Job restructuring

Part-time or modified work schedules

Reassignment to a vacant position

Acquisition or modification of equipment or devices

Modification of examinations, training materials or policies

Providing qualified readers or interpreters

Providing leave for treatment of disabilities

Providing reserved parking spaces

Use of supported employment programs

ADA : REASONABLE ACCOMMODATION AND UNDUE

HARDSHIP Undue Hardship means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.

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REASONABLE ACCOMMODATION

FACTORS

1. Cost

2. Financial resources of company

3. Type of business

4. Impact on operation

ADA : REASONABLE ACCOMMODATION AND UNDUE

HARDSHIP

HYPOTHETICAL #1

A real estate agency requires all of its brokers to show 10 properties per day in addition to other responsibilities. Jody’s disability is worsening, causing her increased difficulty in completing the 10 showings while also completing paperwork and preparing advertising graphics for a local newspaper. Jody tells her supervisor about her disability and requests that she be allowed to eliminate the marginal functions of her job so that she can focus on showing apartments to clients.

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HYPOTHETICAL #1 (CONT.)

After determining that preparation of graphics is a marginal function for Jody and that no undue hardship exists, the agency reassigns Jody’s marginal function as a reasonable accommodation.

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HYPOTHETICAL #2 An employee has a learning disability. Because the employee had a bad experience at a prior job when he requested accommodation, he decides not to disclose his disability or ask for any accommodations during the application process or once he begins working. Performance problems soon arise, and the employee’s supervisor brings them to the employee’s attention. He tries to solve the problems on his own, but cannot. The company follows its policy on counseling and disciplining employees who are failing to meet minimum requirements, but these efforts are unsuccessful. When the supervisor meets with the employee to terminate his employment, the employee asks for a reasonable accommodation.

Does the employer need to grant it? 19

HYPOTHETICAL #2 (CONT.)

No, the employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them. This employee waited too long to request reasonable accommodation.

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NEW EEOC GUIDANCE (SEPTEMBER 2008)

•  In a new guide published on the EEOC’s website, the agency stated that employers can apply the same performance standards to all employees – including those with disabilities – and the ADA does not affect an employer’s right to hold all employees to basic standards of conduct. • However, employers are required to make reasonable accommodations to enable individuals with disabilities to meet the aforementioned standards.

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•  Employer entitled to medical documentation needed to evaluate ADA coverage, particularly the nature and degree of limitations and identification of possible reasonable accommodations;

•  May request only relevant, job-related medical information necessary to assess the ability of an individual to perform essential job functions or to be accommodated;

•  If insufficient information is provided, employer may request evaluation by a designated health professional of the employer's choice;

•  Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation;

•  The EEOC asserts that employers should first explain insufficiencies and allow an opportunity to provide the missing information ; and

•  CAUTION – employer’s requests for additional medical information may be deemed retaliatory

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•  Not identifying and documenting essential job functions.

•  Not documenting adequately performance or conduct deficiencies.

•  Not engaging in an interactive process to identify possible accommodation.

•  Incorrect or insufficient analysis of safety issues under the direct threat standard.

•  Not having a mechanism to adequately acquire and analyze medical information.

•  Not considering reassignment or additional unpaid leave with job restoration as a reasonable accommodation.

•  Making inappropriate written or verbal comments creating ADA “regarded as” disability status.

•  Not managing disability cases to set clear expectations and limits.

•  Providing unrestricted “light duty.” •  Not considering impact of ADA on disability

benefits. 23

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KEY: Engage in the interactive accommodation process –

NEVER knee-jerk a “no” response

THE FAMILY AND MEDICAL LEAVE ACT

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FMLA BASICS Who are Eligible Employees? Eligible Employees’ FMLA Rights

•  Unpaid leave for up to 12 work weeks in a 12-month period: –  for the birth, adoption, or foster care of a child; –  to care for a child, spouse, or parent with a serious health condition; or –  for the employee’s own serious health condition that renders the

employee unable to perform the functions of his or her job. –  due to any “qualifying exigency”

•  26 work weeks for an employee who is the spouse, parent, son, daughter or next of kin to care for an injured or ill servicemember

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HOW FMLA MAY BE TAKEN •  12 (or 26) work weeks of intermittent or reduced schedule

leave within a 12-month period when:

–  medically necessary for planned and/or unanticipated medical treatment of a related serious health condition by or under the supervision of a health care provider, or for recovery from treatment or recovery from a serious health condition; or

–  a serious health condition requires treatment by a health care provider periodically, rather than for one continuous period of time.

•  Continuation of health insurance coverage (but employee is potentially liable for health insurance premiums paid by the employer during leave if the employee fails to return to work following leave); 27

FAMILY AND MEDICAL LEAVE ACT

Overview of the Regulations

•  Revised regulations are over 750 pages •  They became effective on January 16, 2009 •  Provide employers new tools to administer FMLA

more efficiently

•  Overarching theme of the regulations is “shared responsibility”

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FAMILY AND MEDICAL LEAVE ACT

General Notice Obligations Enhanced •  Covered employers must post a general FMLA notice

even when they have no FMLA-eligible employees (DOL 1420 Form)

•  Each employee entitled to general FMLA notice unless employer publishes handbook or other summaries of leave rights

•  Posting requirements may now be satisfied through electronic posting

 Note: Preamble to Regulations state employees must have access to all FMLA electronic postings

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STEP #1 – EMPLOYEE NOTIFICATION

Changes to Employee Notice Requirements •  Employees must explain reasons for leave so as to allow

an employer to determine whether the leave qualifies under the Act

•  “Calling in sick” – Insufficient to trigger FMLA obligations

•  Leave may be denied if employee fails to adequately explain

•  For further FMLA leave, employees must specifically reference the qualifying reason or need for FMLA leave

•  Employees can be required to comply with customary notice and procedural requirements for requesting leave, absent unusual circumstances 30

STEP #2 – EMPLOYER NOTICE REQUIREMENTS

Once the employer is put on notice of FMLA-qualifying reason:

1) DOL WH-381: Eligibility/Rights & Responsibilities Form

•  Send within 5 business days, absent extenuating circumstances

•  Details specific expectations and obligations of employees, explaining consequences of failing to meet the obligations

•  Eliminates need to provide a “preliminary” designation of FMLA leave

•  Possible ambiguity in instances where “eligible employees” have previously exhausted all FMLA leave

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STEP #2 – EMPLOYER NOTICE REQUIREMENTS

2) DOL WH-380 (E-F): Certification of Health Care Provider Form •  Inclusion of essential job functions / job description for

employers •  Requires greater detail regarding nature and duration

of FMLA-qualifying illness/injury •  Requires specification on type of FMLA leave required

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STEP #3 - DESIGNATION

3) DOL WH-382 -- Designation Form •  Confirms employer’s leave determinations and

designated leave amount •  Due 5 business days after employer receives

satisfactory medical certification of need for leave

•  Retroactive notice is permissible if it does not cause employee harm or injury

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FAMILY AND MEDICAL LEAVE ACT

New Rules Governing All Medical Certifications •  “Incomplete” (blank) and “insufficient” (doesn’t answer question)

certifications defined

•  Employers “shall state in writing what additional information is necessary to make the certification complete and sufficient” (WH-382)

•  Employees have 7 calendar days to cure deficiencies

•  Clarification:

 Employers need not retain a health care provider to obtain clarification … but employee’s supervisor may not contact health care provider

•  Greater effort in administering FMLA leave 34

FAMILY AND MEDICAL LEAVE ACT

Changes: Fitness for Duty Certifications •  Employers may demand more than a “simple statement”

of the ability to return to work

•  Fitness for duty certifications for intermittent leave may be sought if reasonable safety concerns exist

•  No second or third opinions permitted

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•  Not giving required notices; •  Not giving FMLA notice to employees absent on workers’

compensation or STD leaves; •  Not stating that there is no job entitlement post FMLA12

weeks; •  Not controlling pay; •  Being too restrictive on determining what is a serious

health condition; •  Failure to terminate or document decision to terminate

employee prior to employee’s request for FMLA leave; •  Failure to reinstate employee in same or equivalent

position with equal terms and conditions of employment; •  Failure to designate the method of calculating the FMLA

12-month period; and •  Not considering reassignment to a vacant position as a

means of better meeting an employee’s needs when an employee is on interim or reduced leaves.

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•  Not creating integrated disability management policies.

•  Failure to consider possibility of ADA accommodation of additional unpaid leave beyond FMLA 12 weeks.

•  Failure to consider that ADA may have a more stringent job restoration right than the FMLA right to restoration to the same or an equivalent position.

•  Failure to consider that ADA may “trump” an employer’s right to reassign an employee on FMLA interim or reduced leave.

•  Failure to consider that an employee placed on a part-time schedule as an ADA reasonable accommodation may be entitled to continuation of group health benefits under the FMLA.

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•  Employer chooses physician (except in emergencies);

•  Employer permitted direct access to an employee’s treating physician; and

•  Treating physician must provide periodic work duty status reports and expected duration of each stage.

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PROCEED, BUT WITH CAUTION. . .

•  FMLA, ADA, and workers’ compensation laws do not prohibit disciplining and terminating employees for legitimate, non-discriminatory and non-retaliatory business reasons; BUT

•  Employers must be cautious to apply such policies uniformly to all employees;

•  Evaluate attendance issues carefully for employees covered by FMLA, ADA, or workers’ compensation.

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FMLA JOB RESTORATION GUARANTY

•  Restoration to same or equivalent position – Geographically proximate worksite with no significant

increase in commuting time or distance

•  Employer’s right to deny job restoration – Cannot perform essential functions of the job – Would not otherwise have been employed at the end

of the FMLA leave (i.e., layoff, job elimination, termination for misconduct)

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•  ADA does not require indefinite leave of absence as accommodation of employee with a prolonged illness

•  Leave is “reasonable” when it will allow employee to perform the essential functions of the job in the near future

•  The expected duration of the impairment, rather than the expected duration of the leave, is controlling

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•  Indefinite unpaid leave after holding job open 8 ½ months is not a reasonable accommodation, particularly in light of the employer’s small size (20 employees)

•  Where an employer’s leave policies are generous, some courts have ruled that leave up to and including a year is not unreasonable

•  Indefinite leave is not per se unreasonable in the case of: – a very large employer – high turnover – many fungible employees –  insignificant expense to maintain in employed status

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GUIDANCE FROM THE COURTS

AVOIDING RETALIATION CLAIMS •  Statutory protection against worker’s compensation

retaliation in many states •  Discharge or refusal to hire due to a claim for benefits

is prohibited •  Employees may be disciplined or terminated for

legitimate business reasons: – Unsatisfactory job performance – Violation of company policy –  Job elimination due to economic conditions

•  An adverse employment action may be deemed retaliatory depending on: – Motive – Timing in relation to injury or claim for benefits

•  Document reason for adverse action and consistently apply policies and practices

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