FMLA, Worker s Compensation and ADA: Navigating Overlapping Rules. Presented by: Betty S.W. Graumlich, Esquire Michael D.

FMLA, Worker’s Compensation

and ADA:

Navigating Overlapping Rules

Presented by:

Betty S.W. Graumlich, Esquire Michael D. Jones, Esquire

Objectives



Identify recurring problem

areas



Update recent changes in law

or interpretation

Warning Signs that the

FMLA may apply



Requests for leave to Human

Resources



Extended absences



Poor attendance



Conversations with supervisor

(training required)

Initiation of FMLA Leave Analysis

Formal Request for Leave Employee on Workers’ Compensation Absence/Leave An Employee is on an extended period of sick leave An Employee is out intermittently and has

provided information that the absences are

caused by a medical condition Determine employee eligibility Absences of over three (3) days qualify as “serious health condition” Provide employee with DOL medical certification form and inform employee of procedures to request FMLA leave Determine if employee has indicated that he/she may have a serious health condition Determine employee eligibility Provide employee with DOL medical certification form and inform employee of procedures to request FMLA leave Determine employee eligibility Determine if reason for leave qualifies

Determining Employee Eligibility

Employed for at least 12 months (need not be 12 concurrent months)

Has worked 1,250 hours in preceding 12 months (excluding paid, unworked time)

Works at a work site with 50 Employees (within a 75 mile radius)

Determining if Reason for Leave Qualifies

Birth or Adoption To care for immediate family member or spouse with serious health condition Employee’s own serious health condition Within 12 months of birth or placement

For the care of a covered service

member or exigency

or

Determining if a medical condition is a

“Serious Health Condition”

Inpatient treatment

of any duration

Absences of more than three (3) days involving outpatient treatment which includes: Chronic medical conditions causing absences of any duration Two or more visits to a health care provider One visit to a health care provider followed by a prescription medication or other ongoing treatment (such as physical therapy)

Chronic, long term illness which cause episode absences Examples: migraine headaches, asthma, Alzheimer’s and other illness without definite duration Absences due to pregnancy or prenatal care of any duration

NJ Leave Act – Key Differences

 50 employees nationwide

 Employed 1 year

 Worked 1000 hours in prior 12 months

 12 weeks in 24 months

Paid NJ Family Leave

 Six weeks paid

 Child bonding leave during first 12 months

 Care for ill child, spouse or parent

 Domestic partners covered

Military Family Leave

 Military Caregiver Leave

 Eligible employees (spouse, son, daughter,

parent or next of kin) may take up to 26

workweeks of unpaid leave in a rolling 12-month period to care for a covered servicemember with a serious injury or illness

 Qualifying Exigency Leave

 Eligible employees may take up to 12 workweeks

of unpaid leave during the employer’s normal 12-month period for qualifying exigencies arising out of the fact that the employee’s spouse, son,

daughter, or parent is on active duty or has been notified of an impending call to active duty, in

Military Caregiver Leave

 Provides for a combined total of up to 26 workweeks

of unpaid leave in a 12-month period;

 Eligible Employee: a spouse, son, daughter, parent,

or next of kin of a covered servicemember with a serious injury or illness;

 “Covered service member” – current member of the

Armed Forces, including National Guard or

Reserves, who is undergoing medical treatment,

recuperation, or therapy, or is in outpatient status, or is on the temporary disability retired list, for a

Military Caregiver Leave

 “Serious injury or illness”

 incurred in the line of duty on active duty

and

 may render the servicemember medically

unfit to perform the duties of his or her office, grade, rank, or rating

Military Caregiver Leave

 “Single 12-month period”

 begins on the first day the employee takes

leave for this reason, regardless of the 12-month period established by employer for other types of FMLA leave

Qualified Individual

 Able to perform essential job functions with

or without reasonable accommodation

 Excludes marginal job functions

 Does not consider long term or degenerative

effects of a disability – but “regarded as” claims

 Does not permit cost-based disqualification

because of increased health insurance or Workers’ Compensation premiums

Physical Impairment

Mental

Impairment _{record of}Prior

a mental or physical impairment Regarded as having a physical or mental impairment or _{or or}

Substantially limits a major life activity

NEW DEFINITION OF DISABILITY

 When in doubt, it is now much safer to assume that a condition is a disability

than to rest your defense on the position it is not.

Major Life Activities

 Caring for oneself

 Manual tasks  Walking  Seeing  Hearing  Speaking  Breathing  Learning  Working  Eating  Sleeping  Standing  Lifting  Bending  Reading  Concentrating  Thinking  Communicating

 Using major bodily functions, including

functions of the immune system, normal cell growth, digestive, bladder, bowel, neurological, brain,

respiratory, circulatory,

endocrine, and reproductive functions.

“SUBSTANTIALLY LIMITED”

 Supreme Court held that a person was “substantially

limited” in a major life activity only if the impairment prevented or severely restricted the person from engaging in the activity.

 Congress has now rejected that interpretation.

 “Substantially limits” should be interpreted

consistently with the new amendments’ findings and purpose, which clearly rejected Court‘s “cramped” view.

“SUBSTANTIALLY LIMITED”

 Under amendments, if an impairment that is inactive or in

remission would substantially limit someone from engaging in a major life activity if it were active, it is a disability, even if it is not currently imposing any such limits.

 In major reversal of Supreme Court holdings, amendments say that whether an impairment substantially limits a major life

activity must be determined without taking into account the ameliorative effects of mitigating measures, such as:

 medication, medical supplies, equipment, or appliances,

prosthetics, hearing aids, mobility devices, or oxygen therapy (other than normal eyeglasses or contact lenses);

 assistive technology;

 reasonable accommodations or auxiliary aids or services; or

Interactive Process

The EEOC’s guidelines state that... “once a qualified individual with a disability has

requested a provision of a reasonable

accommodation, the employer must make a reasonable effort to determine the

appropriate accommodation. The

appropriate reasonable accommodation is best determined through a flexible,

interactive process that involves both the

employer and the [employee] with a disability.”

Interactive Process



To trigger employer’s obligation to

participate in interactive process



Employer must know of employee’s

disability; and



Employer must know that the

employee may need an

accommodation.

Employer’s Good Faith Effort

 Meeting with the employee

 Requesting information regarding employee’s condition and limitations

 Asking what accommodation the employee

wants

 Showing signs of having considered employee’s request

 Offering and discussing available alternatives if requested accommodation is too burdensome

MODIFYING POLICIES AS

REASONABLE ACCOMMODATION

 The employer may be required to make an exception to a neutral policy or practice.

 The Supreme Court has held that “the simple fact that an accommodation would provide a ‘preference’ – in the sense that it would permit the worker with a disability to violate a rule that others must obey – cannot, in and of itself,

automatically show that the accommodation is not

reasonable.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 398 (2002).

 An employer thus may be required to modify or make

exceptions to its existing neutral policies regarding leaves of absence, transfers, part-time work, and breaks.

 But courts have generally rejected claims that attendance policies must be modified as an accommodation.

 And most courts hold that an employer need not lower its quantitative or qualitative standards, including production standards, as a reasonable accommodation.

LEAVES OF ABSENCE AS

REASONABLE ACCOMMODATION

 The EEOC has recognized the following as examples of situations in which an employee may be entitled to time away from work as a reasonable accommodation:

 To obtain medical treatment, rehabilitation services, or occupational therapy

 To recuperate from an illness or an episodic manifestation of the disability

 To avoid temporary adverse conditions in the work environment (e.g., a breakdown in air conditioning that will aggravate a

respiratory disability)

 If the employee has paid leave available, the employer should allow its use before requiring unpaid leave. Otherwise, leave granted as an accommodation need not be paid.

 Indefinite leaves or with no proposed end date are generally unreasonable and need not be granted.

 How long a leave needs to be to be considered a “reasonable” accommodation generally depends on specific circumstances, such as whether the employee has already been given significant time off, whether the requested leave is of a substantial duration, and how likely it is that the employee will be able to return on the proposed end date.

Other Types of

Reasonable Accommodation

 Job restructuring

 Part-time/modified work schedules

 Reassignment to vacant positions

 Acquisition or modification of equipment

 Modification of policies

 Job coaches

 Readers, interpreters

ATTENDANCE POLICIES

 Policies under which all employees who have missed work for a specified period of time, regardless of the reason, will be terminated

 The EEOC says such blanket policies violate the ADA, and even when the deadline runs out, the employer must hold an employee’s position unless it can prove that doing so would impose an undue hardship.

 Courts have gone both ways.  Sporadic or unpredictable absences

 Most courts hold that an employer need not modify its

attendance or leave policies to tolerate such absences where it can show that regular and predictable attendance is an

essential function of the job.

 But the EEOC takes the opposite view, holding that attendance cannot be considered an essential job function, because the ADA itself recognizes that leaves of absence and modified work schedules are types of reasonable accommodation.

EMPLOYER CONSIDERATIONS

FOR JOB RESTRUCTURING

 Don’t have a blanket policy prohibiting all employees

from working unless they have no restrictions (a “full release”).

 Make an individualized assessment of an

employee’s restrictions and the job’s essential functions to determine whether you need to

eliminate an essential job function (which need not be done).

 Consider eliminating marginal job functions, shifting

non-essential functions among employees, and redesigning job procedures.

LIGHT DUTY JOBS

 An employer may choose to temporarily excuse an employee from performing one or more essential functions while placing the employee on “light duty,” but need not do so.

 Courts do not require employers to create a permanent light duty position as an accommodation where none otherwise exists. But if an appropriate light duty position exists and is vacant, assignment to that position may be a reasonable accommodation.

 Employers may choose to create light duty jobs only for employees who are injured on the job, and may limit such

positions to a specified period of time. Doing so avoids the risk that they will become permanently available as

accommodations, or that the employer will be viewed as having changed the essential functions of the job.

PART-TIME OR MODIFIED JOB

SCHEDULES

 Fact-specific determination.

 No obligation to create a part-time job as a

reasonable accommodation.

 The ADA does not require providing full-time

compensation or benefits to an employee who has been allowed to work part-time as an

accommodation.

 Working at home as a reasonable accommodation

 Generally not required unless other employees are allowed to work at home or being in the office is not an essential function of the job, in which case such an accommodation may be reasonable.

REASSIGNMENT TO A VACANT

POSITION

 For applicants, no obligation to determine whether he or she is qualified for any position other than the one being sought.

 Reassignment is an accommodation of last resort. In general, it should be used only when there is no reasonable

accommodation available that would allow the employee to perform the essential functions of his or her current job.

 No duty to create a new position or bump anyone out of a position.

 Reassignment is required only if a job is vacant when the

employee asks for accommodation or the employer knows that it will become vacant “within a reasonable period of time” (e.g., the employer has posted the position or placed an ad seeking applications, or knows the incumbent is about to move out of the position).

REASSIGNMENT TO A VACANT

POSITION (Cont.)

 EEOC regulations say that if reassignment is appropriate, the employee should be reassigned to “an equivalent position, in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time.”

 Employer need not promote an employee to accommodate.  If employee can no longer perform his or her current job,

demotion may be a reasonable accommodation. The

employee’s pay may be lowered if the new position pays less (unless the employer “red circles” non-disabled employees who are reassigned to lower positions).

 The employee must be qualified for the vacant position.

Courts generally hold that an employer is not obligated to train the employee.

REASSIGNMENT TO A VACANT

POSITION (Cont.)

 Does the disabled employee have preferential placement rights as compared with other applicants for the vacant job?

 EEOC says yes, and most courts generally agree – that ADA’s reference to “reassignment” as a possible reasonable

accommodation must mean more than just allowing someone to compete.

 But other courts say the ADA does not require preferential treatment, and that disabled employees must compete with non-disabled employees for vacant positions, if the employer’s consistent policy is to hire the best qualified applicant.

 An employer generally does not need to offer an

accommodation that would actually violate a collective bargaining agreement.

Undue Hardship Defense



Significant difficulty and expense



Factors include cost, financial

resources, size of employer, size

of the facility and impact on

business operations

Post-Offer Medical Exams

Under ADA

 Job-related and consistent with business necessity

 Authorizes IME’s under Workers’ Compensation

 Voluntary exams permissible (Wellness Programs)

Confidentiality



Separate files



Under lock and

key



Access limited to

those with a

“need to know”



Litigation

problem

No Fault System

 Compensation is

granted for such obscure injuries as an aggravation or recurrence or a pre-existing condition, as well as for

mental stress and psychological

Injury Must Occur in Course and

Scope of Employment

 Course and scope of employment, furthering the employer’s business

 On premises vs. off premises injuries

 Traveling to and from work

 Special missions

 Company sponsored events

 Recreational activities

 Injuries caused by acts of other due to personal disputes

 Drug usage or intoxication - injuries suffered while violating the law

Medical Examinations

Under WCA



IME



Panel

Physician - 90

days



Cannot be

used for FMLA

purposes

Interaction Between The FMLA, ADA

and WCA

 Employees may be

eligible for leave

under more than one statute.

 Employers must

determine which of the three statutes apply to a particular employee’s request for leave. More than one statute can

Medical Examinations/Evidence



FMLA

Employee’s Medical

Certification

2nd Opinion

3rd Opinion

Medical Examinations/Evidence



ADA

No challenge procedure

IME’s permitted if job-related

and consistent with business

necessity

Medical Examinations/Evidence



Workers’ Compensation

IME

Length and Type of Leave

FMLA ADA WCA

• Up to 12 weeks of unpaid leave (in 12 month period). • Reinstatement rights only to statutory 12 week period. • Does not require that employers grant any specific period of leave. • Only have to grant leave of absence if it is a"reasonable" accomodation. • Provides paid leave time for an indefinite period of time. • No right to reinstatement. • Retaliation protection

Light Duty Jobs Under WCA

 Many employers have established “light duty” positions to respond to medical restrictions on workers recovering from job-related injuries, in order to reduce workers’ compensation liability

 Such tasks may include answering the telephone and simple administrative work

 Useful for Workers Compensation, but create ADA risks.

 Cannot require light duty instead of leave under FMLA, but may affect WCA Compensation

Salary and Benefit Dilemma

FMLA

 FMLA leave can be

unpaid leave, but

employer must

provide employee with same level of

benefits as if

employee was still on the job. ADA  ADA permits an employer to reduce the benefits provided to the

employee when the employee’s reduced work schedule drops the employee’s hours below that required for the applicable benefit plan

Return to Work Issues

 The employer cannot refuse to let an individual with a disability return to work because the

worker is not fully recovered from an injury unless:

 Worker cannot perform essential functions of the job with or without an accommodation.

 Would pose a significant risk of substantial harm that could not be reduced to an

acceptable level with reasonable accommodation.

 Risk of future WCA claims not a permissible factor.

Sick Leave

 Employers may generally require employees to provide a doctor’s note:  Must be consistent with policy  FMLA intermittent leave exempted.

Case Study No. 1

Joe Smith is one of your company’s best new employees -- never misses a day and does great work.

After work one day, Joe decides to drive to the grocery store instead of going directly home. Leaving the store, Joe is involved in a car

accident. Although Joe only suffers a broken leg, a driver in one of the other cars is critically injured. He calls you the next day and tells

you he is supposed to be on bed rest for one week. What do you do?

Joe returns to work one week later.

He tells you that he can’t

comfortably get into and out of his

desk and can’t move around his

cubicle because of the crutches.

What do you do?

Since his return, Joe seems distracted. He begins to miss work one and sometimes two days a week and his performance declines. His supervisor asks if anything is wrong, but Joe consistently says “No.”

The following week, you receive a note from Joe’s doctor saying that he needs to be off from work indefinitely because he is suffering from severe depression resulting from his

involvement in the car accident. What do you do?

Three months pass and Joe has not yet

returned to work. You call him and Joe says that his doctor recommends that he work from home. What do you do?

Joe files a workers compensation claim,

stating that he was transporting files to work at home and visiting a client on his way home at the time of the accident. Is he covered?

Case Study No. 2

Jane Doe is one of your Company’s worst employees. She works in the accounting

department and is always missing deadlines and her work is often full of errors. Her

substandard work is exceeded only by her

miserable attitude, resulting in constant friction between her and her co-workers and her

Jane is one step away from termination under your no-fault attendance policy. When it seemed that you were finally going to be rid of Jane and her

lousy attitude, you receive a letter from her cousin, a personal injury lawyer whose TV commercials run constantly during episodes of Judge Judy.

The letter from Jane’s cousin says her absences are because of debilitating migraines and he is

going to sue you personally for millions of dollars if she is fired. What do you do?

When you speak to Jane’s supervisor, he says he does remember something about Jane

saying she couldn’t come to work because she had headaches on a few occasions when she called out, but he figured she was just hung over, so he never did anything about it.

Everyone knows she is a big partier. What do you do?

Now that you are convinced that Jane’s

supervisor is an idiot, you decide to eliminate the weak link in the chain and instruct Jane

that she must now call out only to you and that she must speak to you in person – no

voicemail. Grudgingly you also tell her you will clear her attendance record and giver her

Jane returns the FMLA certification, which

says she will need to miss work intermittently due to migraines. Soon summer arrives.

Almost immediately thereafter, Jane begins missing Fridays and Mondays almost every week. You also observe that Jane is very, very tan. You wonder if Jane is calling out to extend her weekends at the shore, what do you do?

You decide to confront Jane and she freely admits that she spends the weekend at the shore. She claims the salt air is good for her migraines. What do you do?

You have had it, you decide to catch Jane in the act. You follow her to the shore and stake out her house for the weekend. Sure enough, she calls out sick on Monday and you spot her sunning by the pool. What do you do?

You receive another letter from Jane’s cousin, saying that you are harassing her and violating her civil rights and that he will sue you

personally for millions of dollars. What do you do?

After Jane obtains a restraining order against you for stalking her on the weekends, you

decide to lay low for a while. The following Friday, you come in to work and Jane has left you a message saying she is out with a

migraine. You think to yourself, “I finally have her, I told her no voicemail, she has to talk to me in person!” Can you finally fire Jane?

Jane’s extended weekends at the shore soon deplete her available sick time. Her cousin sends you a letter indicating that you are

discriminating against Jane because you did not solicit employees to donate leave time on her behalf, like you did last year for the

employee in the sales department who was being treated for cancer. He threatens to sue you personally for millions of dollars, what do you do?

After you send out the memo soliciting

employees to donate sick leave on Jane’s behalf, you get no responses. That’s not

entirely true, you do get a few responses of a profane nature, expressing displeasure at

having to carry a heavier workload while Jane works on her tan. Recognizing that you have a serious morale problem, you decide to address the troops – what can you say?

Well, you guessed it, another letter from Jane’s cousin the lawyer threatening to sue you for

millions of dollars. This time, he says there is a hostile work environment and Jane is being harassed. He says that no one donated sick leave on Jane’s behalf and now none of her

co-workers will talk to her or invite her to lunch. This violates her constitutional rights and he

demands you eliminate this hostile

Jane comes to you a week later with an FMLA certification indicating she needs to take leave to care for her elderly mother who has

congestive heart failure. The next day, you learn from co-workers that her mother won an all expenses paid weekend in Las Vegas and Jane is taking the FMLA leave to go with her. Can you deny her leave?

Despite the fact you denied her leave, Jane goes AWOL. One of her co-workers forwards a picture from Facebook showing Jane and her mother posing in front of the slot machines at the Bellagio. You think to yourself, “not even my stupid lawyer can deny me now – she’s so fired!”

Two days after you send Jane’s termination

letter, you get served with a complaint. Jane’s cousin has sued you personally for millions of dollars. Irate, you call you lawyer demanding that we counter-sue Jane and her cousin.

Ballard v. Chicago Park District

(N.D. Illinois Sept. 29, 2012

“There is no statutory or regulating text stating something to the effect that “care” must involve some level of participation in the ongoing treatment of the family

member’s condition….”

(Ruling in favor of employee’s right to FMLA leave to accompany her mother to Vegas)