MLA
AND THE
ADA P
IECING
T
OGETHER
O
BLIGATIONS
U
NDER
THE
L
AW
Robert J. Simandl, Esq. Simandl Law Group, S.C. 20975 Swenson Drive, Suite 250 Waukesha, WI 53186 (262) 923-8651 rsimandl@simandlhrlaw.com
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The FMLA Process
• FMLA Policy
• Eligibility for FMLA Leave
• Employees’ FMLA Leave Entitlements • Notice Obligations for FMLA Leave • Health Care Provider Certification • Leave Options
• Returning to Work
• Employer’s Liability for Noncompliance
Who is Eligible for FMLA Leave?
•
Eligibility Requirements
–Federal Law
•At least 12 months of employment
•Worked at least 1,250 hours in the last 12 months –Wisconsin Law
•52 consecutive weeks of employment
•Paid for at least 1,000 hours of work in the last 12 months
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How Much Leave Is an Employee
Entitled to Take?
•
Federal Law
–12 workweeks total
–Birth, adoption or foster care placement of child or to care for child after birth
–To care for a parent, spouse, or child with a serious health condition
–Own serious health condition
–To address qualifying exigencies related to a covered service member’s call to active duty
•member of the reserve or regular component of the armed forces
–26 weeks of leave (in total) to care for an ill or injured covered service member
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How Much Leave Is an Employee
Entitled to Take?
•
Wisconsin Law
–6 workweeks to care for a child after birth or adoption –2 workweeks to care for a parent, spouse, child or
domestic partner with a serious health condition –2 workweeks to care for the Employee’s own serious
health condition
These may be in addition to federal leave.
What is a “Serious Health Condition”?
•
Illness, injury, impairment, or physical or
mental condition that involves:
–
Inpatient care in a hospital, hospice, or
residential medical care facility; or
–
Outpatient care for a disabling condition which
includes continuing treatment by a health care
provider
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Serious Health Condition Elements
• Physical or mental illness, injury, impairment; • Requiring treatment by a health care provider; • Period of incapacity;
• The incapacity is for more than three consecutive calendar days and/or requires subsequent treatment; and • Involves treatment two or more times by a health care
provider (within 30 days), or at least one occasion that results in a regimen of continuing treatment
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Is and Is Not a Serious Health Condition?
• Covered – Cancer – AIDS – Heart Conditions – Migraines – Pregnancy – Alzheimer’s – Stroke – Epilepsy
– Severe High Blood Pressure – Pneumonia – Severe Arthritis
– Back conditions Requiring Surgery or Therapy
– Emphysema
– Severe Psychological or Nervous Disorders • Not Covered – Ear Infection – Common Cold – Sore Throat – Flu – Headache
– Orthodontia Work/Routine Dental – Upper Respiratory Infection – Death of Parent – Food Poisoning – Minor Ulcer • Maybe – Chicken Pox – Asthma – Morning Sickness – Concussion – Broken leg/Sprained Ankle – Appendicitis – Injuries from Accidents – Surgical Procedure
Other Important Definitions
for FMLA Purposes
•
Parent: Biological parent of the Employee or
individual who stands or stood in loco
parentis to the Employee.
–
Examples:
» adoptive parent; » foster parent; » stepparent; » guardian;
» maternal or paternal grandparents; brother or sister.
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Other Important Definitions
for FMLA Purposes
• Son/Daughter – child under 18 years of age or child 18 years of age or older incapable of self care (disabled within meaning of ADA). – Examples: » biological child; » adopted child; » foster child; » stepchild; » legal ward;
» a child of a person standing in loco parentis (i.e., a person with day-to-day responsibility to care for and financially support a child, even if no biological or legal relationship exists).
• Spouse – husband or wife as defined by state law for marriage purposes.
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Employer Notice Obligations
•
General Notice of Rights and Obligations
–
Include in the Employee Handbook
–
Include in some other written guidance (if
relevant)
–
By distributing a copy to each Employee upon
hire
–
Notice may be posted electronically
•Provided that all applicants and employees haveaccess to electronic information
Employer Notice Obligations
•
Designation Notice
–
Must inform Employee whether leave is FMLA
designated within 5 business days of receiving
information sufficient to make decision
–
Where possible, inform Employee of the number
of hours, days, or weeks to be designated
–
Eligibility and designation notice may be given
simultaneously if Employer has sufficient
information
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How Much Notice is required?
•
Employers have the right to advance notice in
accordance with the Company’s written
policy
–
10 days before leave is to begin
–
As soon as practicable (Employee shall make
reasonable effort not to unduly disrupt
operations)
–
For unplanned or unforeseeable leave, at least 2
days notice must be given after start of leave
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When Notice is Received
•
“Calling-In”
–
A simple statement that the Employee is “sick”
without more is not enough to trigger FMLA
obligations
–
Notice of the need for leave must be sufficient
for the Employer to understand the need for
FMLA-protected leave
•However, a change in behavior may be enough to put Employer on notice
Health Care Provider Certification
•
If Employee takes leave for a serious health
condition
•
Timely return of certification
•
Right to Clarification for incomplete
certifications
–
Return within 7 days
–
Company may contact HCP to get required
information
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What Are an Employee’s Leave Options?
•
Intermittent/Reduced Leave
–Intermittent Leave-Leave taken in separate blocks of time due to a single illness or injury
–Reduced Leave-Leave schedules that reduce usual number of working hours per workweek or hours per workday
–Permitted for serious health condition when medically necessary. Not allowed for care of newborn unless Employer agrees
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What Are an Employee’s Leave Options?
•
Substitution
–Employers may require, or Employee may elect, substitution of any accrued paid vacation, personal or family leave for birth/placement or serious health condition of child, spouse or parent
–Employer may require, or Employee may elect, substitution of any accrued paid vacation, personal or medical or sick leave for any serious health condition leaves
–Other paid leave for disability periods where less than 100% of pay is received by Employee
Key Concepts Under the ADA
ADA makes it unlawful for an employer to
discriminate against a “qualified individual
with a disability”
WFEA and the ADA
•
The WFEA and the ADA both protect disabled
individuals from workplace discrimination. The
WFEA’s definition of disability is similar, but not
identical, to the ADA’s definition.
•
The definition of disability under federal law is
intended to be inclusive.
•
Under both State and Federal law, the focus will
be on accommodations.
•
Burden of Proof for Qualification Purposes Retained:
Employee has burden of proving that s/he is a “qualified
individual with a disability.”
•
ADAAA broadened definition of “disability”
•
Technical definition remains the same:
1. A physical or mental impairment that substantially
limits one or more major life activities; or
2. A record of such a physical or mental impairment; or
3. Being regarded as having such a physical or mental
impairment.
ADA Amendments Act
ADA Amendments Act:
Major Life Activities
HOWEVER, recall “disability” definition….
“physical or mental impairment that substantially
limits one or more major life activities…”
Old Definition
New Definition
Major life activities include, but were not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
Major life activities also include operation of major bodily functions, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Major Life Activities
Major Life Activities
• The ADAAA’s non-exhaustive list identifies:
–Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The regulations add:
“Interacting with others.”
• The House Report also lists:
– Writing, engaging in sexual activities, drinking, chewing, swallowing, reaching and fine motor coordination.
Expanded Definition of Physical
Impairment
•
Any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss
affecting one or more body systems, such as
neurological, musculoskeletal, special sense
organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic,
lymphatic, skin and endocrine.
“Substantially Limits”:
•
An impairment is a disability only if it
substantially limits a major life activity.
•
Now under the ADAAA a “substantial
limitation” of a MLA is:
–
Less than “severe” or “significant” but
–
Greater than “moderate.”
“Virtually Always” Disabilities
The regulations state that the following conditions will virtually always meet the definition of “disability”:•Deafness • Epilepsy • Blindness • HIV infection • Intellectual disability • Multiple sclerosis • Missing limbs and mobility/wheelchair • Muscular dystrophy
use • Major depressive disorder • Autism • Bipolar disorder
• Cancer • PTSD
• Cerebral palsy • OCD • Diabetes • Schizophrenia
Although not required by law, these conditions should be considered “per se” disabilities.
ADA Amendments Act: Just Tell Me
What Qualifies as a Disability?
ADA Amendments list specific types of physical and
mental impairments that will “consistently” qualify as
disabilities under the ADA, including: deafness,
blindness, missing limbs, cancer, cerebral palsy,
epilepsy, HIV-AIDS, bipolar disorder, schizophrenia
ADA Amendments Act: Just Tell Me
What Qualifies as a Disability?
•
Episodic Impairment: an impairment that is
episodic or in remission. An “episodic
impairment” is a disability if it would
substantially limit a major life activity when
active.
•
Examples: depression, bipolar disorder,
Post-Traumatic Stress Disorder, other psychiatric
conditions, epilepsy, cancer
ADA Amendments Act: Just Tell Me
What Qualifies as a Disability?
Illnesses/ injuries likely to be ADA disabilities:
•
Diabetes
•
Hypertension
•
Heart disease
•
Cancer
•
Depression
•
Back impairments
•
Carpal tunnel
Accommodation
Under the ADA an employer must provide
“reasonable accommodation” to qualified individuals
with disabilities who are employees or applicants for
employment unless providing an accommodation
would cause the employer “undue hardship.”
Accommodation
•
Accommodation: “generally any change in the
work environment or in the way things are
customarily done that enables an individual with a
disability to enjoy equal employment
opportunities.” 29 C.F.R. Section 1610.2(o).
•
Accommodation: “A reasonable accommodation
is a modification or adjustment to a job, the work
environment, or the way things are usually done
that enables a qualified individual with a disability
to enjoy equal employment opportunity.”
Accommodation: Requests for
Accommodation
•
An employee may use “plain English” and need
not mention the ADA or use the phrase
“reasonable accommodation” when requesting an
accommodation.
•
Any time an employee indicates s/he is having a
problem at work and the problem is related to a
medical condition, consider whether the
employee is making a request for
accommodation.
Requests for accommodation?
Example 1: Employee tells supervisor, “I’m having trouble
getting to work at my scheduled starting time because of
medical treatments.”
Example 2: Employee tells supervisor, “I need six weeks
off to get treatment for my back problem.”
Example 3: A new employee, who uses a wheelchair,
informs the employer that her wheelchair cannot fit
under the desk in her office.
Request for accommodation?
Example 4: An employee tells supervisor, “I would like a
new chair because my chair is not comfortable.”
Example 5: An employee who has been out for six
months with a workers’ compensation injury. The
employee’s doctor sends employer a letter stating that
the employee is released to return to work, but for light
duty only.
Accommodation
Accommodation:
Interactive Process
• Generally, employee must come forward and notify employer that s/he has a disability (BUT employer’s knowledge can be constructive).
• Employer must engage in an interactive dialogue with employee to identify an accommodation to provide (unless accommodation would result in an undue hardship to employer).
• Employer can only refuse to accommodate an employee when “each available alternative” has been explored and cannot be done.
• Employer does not have to provide employee with the accommodation favored by the employee, only has to provide a “reasonable accommodation.”
–
Employee requests a change at work due to a medical
condition (i.e., notice).
–
Employer obtains permitted medical documentation
about the condition.
–
Employer evaluates whether employee is a qualified
individual with a disability.
–
Employer meets with the employee to:
a. Identify/verify the need for accommodation
b. Identify possible accommodations
c. Evaluate the identified accommodation
possibilities
Accommodation:
Interactive Process
Accommodation:
Interactive Process
•
Meeting should include HR and Operations personnel
•
Questions to clarify accommodation requested:
–
What specific accommodation are you requesting?
–
If you are not sure what accommodation is needed, do
you have any suggestions about what options we can
explore?
–
Is your accommodation request time sensitive?
Accommodation:
Interactive Process
• Questions to document the reason for accommodation request:
–What, if any, job function are you having difficulty performing? –What, if any, employee benefit are you having difficulty accessing? –What limitation is interfering with your ability to perform your job
or access an employment benefit?
–Have you had an accommodations in the past for this same limitation?
–If yes, what were they and how effective were they? –If employee is requesting a specific accommodation- how will
that accommodation assist you?
• Catchall question: Can you provide any additional information that
might be useful in processing your accommodation request?
What is NOT a “reasonable” accommodation?
•
Employer does not have to eliminate an essential
function of the position. (i.e. fundamental duty
of the position). This is because a person with a
disability who is unable to perform the essential
functions with or without a reasonable
accommodation is not a “qualified individual”
within the meaning of the ADA.
•
Employer does not have to lower production
standard standards that are applied uniformly to
Workplace Accommodation Obligations
Arose Under:
•
Federal and Wisconsin FMLA
•
Workers Compensation Laws
•
Americans with Disabilities Act, as amended
(ADA)
•
Wisconsin Disability Law
Also need to consider the Genetic Information
Nondisclosure Act (GINA)
Accommodation Issues under
ADA and FMLA
•
ADA:
–
Requires reasonable accommodation.
FMLA:
Requires 12 weeks leave;
Cannot compel employee to return via
implementation of reasonable accommodation; and
Must return employee to same job.
•
Workers’ Compensation Leave:
–
Reemployment Right, including alternative positions.
FMLA Obligations
•
Scenarios:
–
Personal Illness or Injury
–
Work-related Illness or Injury
–
Intermittent/Reduced Leave For Either
–
8/40 Restrictions
–
Collectively Bargained Employee – CBA Interface
•Equalization of OT •Seniority •Absence restrictions •“scheduled” work hours
FMLA Obligations
•
Accommodations for Absence – Employee
–
Full-time Leave
–
Intermittent Leave
–
Reduced Leave Schedule
•
Where do 100% healed rules fit?
•
Call-in obligations
•
Administration period
• ADA has no set rules or standards regarding length of leave. • ADA does not say that you must hold a job open while
employee is on leave. EEOC thinks you should hold position open unless it constitutes an “undue hardship.”
• EEOC is pursuing companies that have inflexible rules about length of leave.
• Many courts have held that indefinite leave is not “reasonable accommodation,” so no duty to provide. • Employers should make a “reasonable determination” on
the amount of leave to be provided- consider importance of position, job duties, etc.
Accommodation:
Leaves Of Absence- How Long?
Leave of Absence Factors
• Has the Company fully complied with FMLA? • Does the company have a non-FMLA LWOP policy? • How much leave has the employee already taken? • Is the request for a specific amount of time, open-ended, orsomewhere in between?
• How is the job being performed now? Is that less or more expensive than if the employee were working?
• Is there anything on the business’s operational calendar impacting the ability to grant leave?
• What other employees have been granted leave in this department in the last few years?
Accommodations
•
Is an accommodation possible?
•
Does the accommodation create an undue
hardship?
•
Employers must show undue hardship even if
employee’s requested accommodation is a
leave of absence above and beyond FMLA.
•
Wisconsin and federal analysis is the same.
ADA Obligations
•
Wisconsin Disability Law
–
Individual who has physical or mental
impairment that makes achievement unusually
difficult or limits the capacity to work;
–
has a record of such an impairment; or
–
is perceived as having such an impairment.
ADA Accommodation Issues
•
Conduct the FMLA analysis first, if eligible.
–FMLA will usually be more generous regarding intermittent leave and reinstatement rights.
•
When accrued leave and any FMLA rights are
exhausted, if the employee wants/needs more leave,
you need to do an ADA analysis.
–If an impairment goes more than 12 weeks (or not?), it may well be “substantially limiting” under the ADAAA.
