Employee Leave Under FMLA, ADA and Workers' Comp: Navigating …media.straffordpub.com/products/employee-leave-under... · 2018-04-17 · •If employee with an ADA disability is

Employee Leave Under FMLA, ADA and Workers' Comp: Navigating Overlapping and Conflicting Leave LawsAvoiding Pitfalls With Accommodation, Retaliation/Discrimination; Handling Light Duty, Company Policy Violations and Discipline

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WEDNESDAY, APRIL 18, 2018

Presenting a live 90-minute webinar with interactive Q&A

Neil A. Capobianco, Partner, Dentons, New York

Matthew U. Scherer, Esq., Littler Mendelson, Portland, Ore.

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Employee Leave Under FMLA, ADA and

Workers' Comp: Navigating Overlapping

and Conflicting Leave LawsAvoiding Pitfalls With Accommodation, Retaliation/Discrimination; Handling Light Duty, Company Policy Violations and Discipline

Presenting a live 90-minute webinar with interactive Q&A

WEDNESDAY, APRIL 18, 2018

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

Today’s faculty features:

Neil A. Capobianco, Partner, Dentons US LLP, New York

Matthew U. Scherer, Esq., Littler Mendelson, Portland, Ore.

The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions

emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.

Neil A. Capobianco, Esq.

Dentons US LLP1221 Avenue of the AmericasNew York, New York 10020(212) [email protected]

Matthew U. SchererLittler Mendelson P.C.121 SW Morrison Street, Suite 900Portland, OR 97204 (503) [email protected]

Employee Leave Under the

FMLA, ADA and

Workers’ Compensation Law

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• Prohibits discrimination against a QID – “qualified individual with a

disability.”

• “Reasonable accommodation” may include:

• “other accommodations could include permitting the use of accrued paid leave

or providing additional unpaid leave for necessary treatment.” (EEOC

Interpretive Guidance to 29 C.F.R. § 1630.2(o)).

• Employer has obligation to engage in “interactive process” if it suspects that an

employee has a disability and may require a reasonable accommodation

• ADA prohibits both disability inquiry and medical exam unless inquiry or

exam “is shown to be job-related and consistent with business

necessity.” (29 U.S.C. § 12113(d)(4)(A), § 12112(d)(4)(A)).

• ADA prohibits retaliation against individual for requesting a reasonable

accommodation or complaining about discrimination.

American with Disabilities Act Overview

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• Covers all accidents and injuries that arise “out of” or “in the course of”

employment employee is entitled to any benefits to which eligible under state or

company’s short-term or long-term disability programs;

• Pays medical benefits and wage replacement benefits.

• Medical benefits continue as long as employee needs treatment arising out of

work-related injury.

• Wage replacement benefits continue as long as employee is unable to work.

• Employee loses wage replacement benefits if employer offers employee a

position (e.g. light duty).

• Employer entitled to medical records & can compel IME.

• All disputes/settlements require approval of specialized state agency.

• Retaliation against claimants is prohibited.

State Workers’ Compensation Law Overview

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• Applies to Employees with 12 months & 1,250 hours.

• Covers birth/adoption of child, employee’s own serious health condition, or

serious health condition of employee’s spouse, daughter, or parent.

• Entitles employee up to 12 weeks of leave for entire 12 weeks (birth/adoption)

or for duration of serious health condition.

• FMLA Certification only.

• Prohibits retaliation against any employee for:

• requesting or taking FMLA leave;

• opposing any unlawful FMLA practice;

• filing an FMLA complaint; or

• providing information or testimony in connection with any FMLA case (29

U.S.C. § 2615).

Family and Medical Leave Act Overview

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• If an employee is out for an FMLA-qualifying reason, the employer

should designate the time off as FMLA leave, including:

• worker’s compensation leave;

• disability leave; or

• time off for medical treatment.

• If employee is out of workers’ compensation, employer may:

• designate all time off as FMLA leave (assuming it constitutes a serious health

condition);

• inform employee that termination of employment will occur if employee is

unable to return to work by end of 12 weeks;

• offer employee a light duty position (within doctor’s restrictions) and if employee

refuses, stop wage-replacement benefits;

• if employee refuses light duty position, FMLA leaves continues for up to 12

weeks;

Interaction Between FMLA and Worker’s

Compensation

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• employer (or insurance carrier) is entitled to all relevant medical records, IME,

and doctor’s FMLA certification;

• if employee is unable to return at end of 12 weeks of FMLA leave, employer

may terminate employee’s employment:

• no right to reinstatement of employment (employee must re-apply for employment);

• ending employer-provided health coverage, unless employee elects COBRA at own expense.

• if employment is terminated at end of 12 weeks of FMLA leave:

• employee is entitled to worker’s compensation medical benefits and wage replacement benefit as

long as unable to work and ongoing treatment needed;

• all benefits and rights are governed by workers’ compensation law;

Interaction Between FMLA and Worker’s

Compensation

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• If employee with an ADA disability is out for an FMLA-qualifying reason,

the employer should designate the time off as FMLA leave.

• If employee is out in connection with an ADA disability, employer may:

• designate all time off as FMLA leave (assuming it constitutes a serious health

condition);

• inform employee that termination of employment will occur if employee is

unable to return to work by end of 12 weeks;

• no obligation to offer a light duty position (unless policy provides otherwise);

Interaction Between FMLA and ADA

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• Employer must consider possible reasonable accommodations,

including:

• additional leave (possibly even beyond 12-week FMLA limit);

• alterations to workspace;

• modified schedule;

• modified workplace policies;

• reassignment to a vacant position (only when accommodation to current

position would pose an undue hardship);

• Employer must engage in interactive process to determine what

accommodation(s) will allow employee to perform essential functions of

job

• If multiple accommodations would allow employee to perform essential

functions, employer may choose which accommodation to implement

Interaction Between FMLA and ADA

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• Employee may qualify for short-term disability or long-term disability

under Company programs if unable to work as long as disability

commenced at a time when employee was actively employed.

• Employer is not entitled to any information about the reasons for the

leave, except:

• Doctor’s FMLA certification;

• Additional information about the ADA disability if the employee requests a

reasonable accommodation.

• Employment termination may occur if:

• Employee is unable to return at end of 12 weeks of FMLA leave;

• Reasonable accommodation will not allow the employee to perform the

essential functions of positions; and

• Consideration is given to extending the employee’s leave for a reasonable

additional period of time.

Interaction Between FMLA and ADA

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• If employment is terminated at end of 12 weeks of FMLA leave:

• employee is entitled to any benefits to which eligible under state or company’s

short-term or long-term disability programs;

• employee has no right to reinstatement (must re-apply); and

• employer-provided health coverage and other benefits end, unless continuation

or conversion is offered and elected.

Interaction Between FMLA and ADA

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• Clearly written policy explaining who is eligible. Historically, only

employees out on workers’ compensation were eligible for light duty, but

US Supreme Court nixed that in Young v. UPS (2015).

• Emphasize that program is transitional – to help employee transition

back to former full-time position.

• Clear time limits establishing how long an employee can continue in a

light duty position.

• Place employees in useful light duty positions only and insist that the

functions of that position be performed.

• Communicate specific functions and expectations of light duty position

and maximum duration in writing to employee before the light duty

assignment begins.

Keys to a Successful Light Duty Program

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• Written policy with a bright light test establishing when termination occurs

that is consistently and uniformly applied.

• Cover letter to Employer’s Response to FMLA Request that clearly

explains that if employee is unable to return to work after exhausting 12

weeks of leave, employment will be terminated.

• Warning letter to employee 3-4 weeks before 12 weeks are exhausted

explaining the date by which employee must return to work or

employment will be terminated.

• Clearly written policy explaining what leave will be offered to employees

who do not satisfy 1 year and 1,250 hours requirement (e.g., prorate 12

weeks).

• Termination letter to employee upon exhaustion of 12 weeks should

explain that employee is eligible to re-apply for employment.

Keys to Successful FMLA Termination Program

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• Don’t forget about ADA compliance

• If employee’s SHC would qualify as a disability under the ADA, employer has

obligation to engage in interactive process to determine whether employee

could return to work with an accommodation—which may include additional

leave beyond 12-week FMLA limit

• Except for reasonable accommodation, do not make any exceptions to

policy because:

• employee is exceptional or long-term;

• employee’s reason for leave evokes sympathy;

• employee is high-ranking (key employee provisions may apply); and

• employee needs employer-provided health or other benefits.

Keys to Successful FMLA Termination Program

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• FMLA retaliation claim.

• ADA or ADA retaliation claim.

• Worker’s compensation retaliation claim.

• Federal or state discrimination claims.

What are the litigation risks?

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• Statewide laws passed in 11 states (AZ, CA, CT, DC, MA, MD, NJ, OR,

RI, VT, WA—HI also close to enacting one)

• Also ordinances in Austin, Chicago, Minneapolis/St. Paul, NYC, Philadelphia

• Collectively cover almost one-third of American workers, and rising each year

• Covered uses

• Medical: Diagnosis, treatment, or recovery from minor illnesses for EEs and

immediate family members; or preventative care

• “Safe time” for victims of domestic violence, sexual assault, or stalking

• Employers typically CANNOT require verification for employee

absences and CANNOT require advance notice/supervisory

approval

• Most laws only permit employers to ask for documentation if absence is 3+

consecutive workdays

Paid Sick Leave

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• Employers can roll sick time into broader Paid Time Off policies, but

structuring those policies to comply with all sick leave requirements can

be tricky

• Amount

• Typically 1 hour of sick time accrues per 30 hours worked

• Some states allow sick time to be “front-loaded” at beginning of each year

• Laws generally permit employers to cap accrual, carry-over, and/or use

• Accrual: Cap on total amount of sick time employees can have in leave bank

• Carry-over: Cap on how much unused PST can be carried over into next year

• Use: Cap on how much sick time an employee can use in one year

• Usually starts accruing immediately after employment begins, and must

be made available for use after 90 days of employment

Paid Sick Leave

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• Generally cannot require employees to use PST in increments greater

than 1hr

• Rate of pay is typically employee’s regular rate, but laws split on whether

supplemental sources of wage income (lost tips, commissions, etc) are

included

Paid Sick Leave

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California NYC Washington (State)

Employee Threshold 1 employee 5 employees (paid)

1 employee (unpaid)

1 employee

Accrual Rate Accrual: 1:30

Front-load: 3 days/24 hrs

Accrual: 1:30

Front-load: 40 hrs

Accrual: 1:40

Front-load: N/A

Annual Use Cap N/A 40 hours Not permitted

Annual Accrual Cap Greater of 3 days or 24 hrs 40 hours Not permitted

Maximum accrual cap Greater of 6 days or 48 hrs

(N/A if front-loading)

40 hours

(N/A if front-loading)

Not permitted

Carry-over Accrual: 6 days

Front-load: N/A

40 hours 5 days

New hires Accrual: Accrue immediately,

use after 90 days

Front-load: 120 days

Accrue immediately, use

after 120 days

Accrue immediately, use

after 90 days

Minimum increments 2 hours Lesser of 1 hour or smallest

increment for which pay is

tracked

Lesser of 1 hour or smallest

increment for which pay is

tracked

Paid Sick Leave

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United States

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