FMLA & ADA TRAINING Presented by: The Office of the State Employer Toni McFarland Employee Health Management & Cheryl Schmittdiel Contract Negotiations.

FMLA & ADA TRAINING

Presented by: The Office of the State Employer

Toni McFarland

Employee Health Management

&

Cheryl Schmittdiel

Contract Negotiations & Administration

DisclaimerThe material contained in this power point training is intended for training purposes only and should be used as a guide for implementing the FMLA & ADA and does not constitute legal advice with respect to factual circumstances.

Test Your Knowledge of the FMLA & the ADA!

1. Kim has worked for the SOM for 12 months and has always worked 20 hours per week. Based on the length of service and hours worked, Kim is eligible for FMLA leave.True

False

True is incorrect!

False is correct!Kim will not be able to satisfy the 1,250 hour requirement working only 20 hours per week.

2. FMLA allows employees to take time off to care for the following family members with a serious health condition:

a. child, spouse, grandparent

b. spouse, grandparent, sibling, child

c. child, spouse, parent

"a" is incorrect!

"b" is incorrect!

"c" is correct!FMLA allows employees to take time off to care for a child, spouse, or parent.

3. Kim had minor surgery and was required to stay in the hospital overnight. This condition caused Kim to miss one day of work. Since Kim was back to work the following day and required no more subsequent doctor's visits, Kim's leave should be documented as FMLA leave.

True

False

True is correct!Any length of stay in a hospital should be handled as FMLA leave.

False is incorrect!

4. The ADA requires that all printed material and publications that the SOM produces for employees or the public also be distributed in Braille.

True

False

True is incorrect!

False is correct!The ADA requires that all printed material for SOM employees or the public be available in an alternate/accessible format, if requested. Braille is only one of the accessible formats.

5. The ADA, Title I, requires extensive renovation of all SOM buildings to make them accessible.

True

False

True is incorrect!False is correct!As an employer, the SOM is responsible under Title I of the ADA for making facilities accessible to qualified applicants and employees with disabilities as a reasonable accommodation, unless this would cause undue hardship. Accessibility must be provided to enable a qualified applicant to participate in the application process, to enable a qualified individual to perform essential job functions and to enable an employee with a disability to enjoy benefits and privileges available to other employees.

6. The ADA, Title II, requires extensive renovation of all SOM buildings to make them accessible.

True

False

True is incorrect!

False is correct!The ADA requires SOM programs, not all SOM buildings, to be accessible. "Program accessibility" is a very flexible requirement and does not require the SOM to do anything that would result in an undue financial or administrative burden. Not every building, nor each part of every building needs to be accessible. Structural modifications are required only when there is no alternative available for providing program access.

7. SOM Employees must have at least 12 months of prior state service and must have worked a minimum of 1,250 hours during the previous 12 months to be considered eligible for FMLA leave.

True

False

True is correct!Please note that all that is required is total SOM service and not a specific department.

False is incorrect!12 months of prior SOM service and 1,250 hours worked during the previous 12 months are the only two requirements for FMLA eligibility.

8. FMLA leave must be taken in one lump sum period of 12 weeks.

True

False

True is incorrect!

False is correct!FMLA leave may be taken intermittently.

9. Kim has a certified chronic medical condition that will require being off work for treatments one day per week for the next two months. How should the leave be documented regarding FMLA?

a. Kim will not miss more than three consecutive days from work; therefore, the absences for the treatments should not be counted as FMLA leave.

b.Although Kim will not miss more than three consecutive days from work, the condition is chronic. The absence should be handled as FMLA leave.

"a" is incorrect!

"b" is correct!Chronic conditions such as this may be applied to FMLA leave. Kim's condition was certified; the absence for treatments of the chronic condition in this case may be applied to FMLA leave.

10.FMLA law requires the SOM to return an employee to the exact same position held prior to taking FMLA leave.

True

False

True is incorrect!

False is correct!FMLA law states that an employee may be returned to the same or an equivalent position.

11.FMLA leave, with the SOM, begins when the employee’s accrued leave expires.

True

False

True is incorrect!

False is correct!FMLA leave starts when the employee begins missing time due to an FMLA-related condition. The employee’s accrued leave will run concurrently with any FMLA leave.

12. The employee would be required to pay their normal monthly premium to maintain their health, dental & vision coverage if they are on unpaid FMLA leave for an entire pay period.

True

False

True is correct!The employee will still be required to pay their monthly premiums if they are on unpaid FMLA leave for an entire pay period. The employee would not, however, be required to pay the SOM share of the premiums.

False is incorrect!

13.A full-time SOM employee is entitled to how many hours of FMLA leave?

a. 340 hours

b. 480 hours

c. 600 hours

d. 1200 hours

"a" is incorrect!

"b" is correct!12 weeks X 40 hours/week = 480 hour

"c" is incorrect!

"d" is incorrect!

14. If an employee is on workers’ comp and has an FMLA qualifying absence at the same time, and a light duty assignment is identified and available, the dept may offer the light-duty assignment , but they may not require the employee to take it.

True

False

True is correct!The employee is able to turn down favored work or light-duty while on workers’ comp and FMLA. The employee’s workers’ comp benefit will be stopped and the employee will be required to use sick leave, but may substitute annual leave, to continue on payroll. The employee will not be allow to buy back their leave credits in these circumstances. False is incorrect!

15. An employee can no longer perform their original position because of a work related injury. The ADA requires the dept to create a new position or “bump” another employee from their position as a reasonable accommodation.

True

False

True is incorrect!

False is correct!The ADA does not require an employer to create a new position or to “bump” another employee from their position in order to reassign an employee who can no longer perform the essential functions of their original position, with or without a reasonable accommodation.

16. An FMLA “serious health condition” is the same as an ADA “disability”.

True

False

True is incorrect!

False is correct!An FMLA “serious health condition” is not necessarily an ADA “disability.” An ADA disability is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Some FMLA “serious health conditions” may be ADA “disabilities”, i.e., cancers and serious strokes, and some ADA disabilities, i.e., diabetes and being HIV positive, may be serious health conditions.

Scenarios

InstructionsWhat do you need to take into consideration to answer these Scenarios? With those sitting near you put together a response to the following scenarios. If there are questions you need to have answered, write them down and hand to Toni or Cheryl.You will be given approximately 5 minutes to brainstorm. Then we will discuss the Scenario.

Scenario 1Jane Doe has been a model employee for the SOM for 10 years. She is well liked by co-workers, she is friendly and easy going. Jane recently missed 3 days of work because she was “sick”. When she returned to work she requested 2 weeks off. Telling her supervisor that she is “tired and anxious”.

Questions?

Is this a request for FMLA leave?

Is an employee obligated under FMLA to specifically state a request for FMLA leave?

What would you do in this situation?

Things to Remember

The ER needs to make further inquiries and give the EE the CS1789 and CS1790 to complete.

An EE must simply request leave and link that leave to an illness. Jane is “tired and anxious”. Anxiety can be a mental health illness.

Scenario 2After Jane has been on FMLA for 2 weeks, she calls and requests additional leave of 3 weeks. Meanwhile rumors are going around at work that Jane is fine and that her second cousin is her doctor. A second rumor that she is in jail is also circulating.

Questions?Can the dept request re-certification of Jane’s request with another doctor?

Should the employer send Jane a letter saying the “rumor” is that you are in jail, so we are stopping your FMLA?

If an employee is incarcerated can they still be on FMLA?

Things to RememberRequests for re-certification can be made every 30 days but only in connection with an absence. However, with the request for an extension and the reason to doubt the first certification, the dept can request recertification from a doctor that it chooses at the ER’s expense.If the second certification conflicts with the first the ER may require a third opinion which will be binding on both the EE and the ER.“Rumors” are not enough to stop an FMLA leave approval.

Scenario 3Jane returns to work following her FMLA leave and does her job satisfactorily for a couple of weeks. However, her supervisor is informed that Jane is having conversations with herself in the break room after work hours and is easily agitated. Jane is yelling at co-workers and starts calling in sick or just not showing up for work. This has been going on for about a week. Jane requests more time off.

QUESTIONCan the dept deny the request and terminate Jane for her behavior?

Should the department send Jane out for a fitness for duty?

Should the dept confront her on her behavior with a disciplinary action and hope she reveals to them what is going on?

Things to RememberJust because an employee is using FMLA does not prohibit you from disciplining them for work rule violations or inappropriate behavior at work.

The dept should proceed the way they would for any employee that commits a work rule violation.

Scenario 4

While Jane is out on FMLA leave, her spouse calls and requests that she be allowed to work a reduced work schedule or take intermittent FMLA leave. During the conversation, he informs Jane’s supervisor that Jane is suffering from post-traumatic stress disorder caused by her service in the military.

Questions?

Is there an ADA situation that should be taken into consideration?

Is the request covered by FMLA?

How much time is Jane entitled to?

Things to RememberIntermittent leave or a reduced work schedule may be a reasonable accommodation, if the employee has a disability under the ADA, if the employee is able to do the essential functions of the job. A reduced schedule or intermittent leave on a permanent basis may be an “undue hardship” depending on where the employee works. The request may be covered by FMLA if the EE has not exhausted their leave entitlement and they have provide medical certification of a serious health condition.

Scenario 5The dept has just finished interviewing a great candidate for their open position and on the way out of the interview the candidate says to the interview panel “I have a disability under the ADA.”

The panel has given every candidate a copy of the PD and ask them if they can do the “essential functions” of the job with or without and accommodation.

Questions?

Should the panel disregard the statement and make a job offer?

Should the panel decide not to offer the candidate a position?

Should the panel send the candidate out for a medical exam to see if they can do the job?

Things to Remember

An employee or applicant for a position has to be a “qualified person” for the position and has to be able to do the “essential functions” of the job with or without a reasonable accommodation.Once a conditional job offer is made, the employer may ask disability- related questions and require medical examinations as long as this is done for all entering employees in that job category.

Scenario 6The candidate has been made a job offer and accepted the position. The candidate shows up at work with a list of all the things they are going to need on the job and the name and phone number of the advocacy group for their disability. They tell the supervisor that they must have everything on the list before they start and until then they want to work from home because they have to drive more than an hour each way to work.

Questions?What are some of the issues in this scenario?

What should the supervisor tell the new employee?

Does the new employee qualify for FMLA, why or why not?

Is the new employee protected by the ADA, why or why not?

Things to RememberThe dept should always enter into the “interactive process” with the employee to ascertain what the parameters or needs are of the employee and their need for an accommodation.The ability to drive is not a major life activity. Additionally, it is noted that driving differs from the major life activities that are covered under the ADA, it would be an oddity for a major life activity to be regulated by the state. Driving is important in our society, the inability to drive could not sensibly be compared to the inability to see or to hear.

Scenario 7John was allowed to work a reduced schedule upon his return from FMLA leave. After two weeks of work, John became angry with a co-worker & told the co-worker that he was going to “get him.” Several co-workers overheard the comment and reported what was said to the supervisor. The co-workers all stated they think John is crazy. John denies threatening the co-worker.

Questions?

Can an employee on a reduced work schedule for FMLA purposes be terminated for violating SOM policy?Can an employee, with a disability, on a reduced work schedule as a reasonable accommodation be terminated for violating a SOM policy?Could John file a FMLA retaliation claim?

Things to RememberUnder the FMLA there is no prohibition on terminating an employee for threatening other employees or otherwise violating company policy.Under the ADA, John may be terminated if he presents a direct threat to himself or others. A direct threat is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures or by the provision of auxiliary aids or services” (42U.S.C. 12182(b)(3)).

Scenario 8Jane has been on and off work for over 20 years. In Feb she misses work a few days then is off for a couple of weeks. She gives her supervisor a note that says she was off for mental health reasons and her supervisor accepts it. Two months later she stops coming to work or calling in. The dept sends the police to her house to check on her. Then the dept sends a “no call no show” letter and terminates her employment. The dept does not file for LTD but the employee does and is told she does not qualify because she was terminated from work.

Questions?Should the dept have sent the EE the CS-1789 & CS 1790 FMLA forms?Should the dept call Jane’s doctor and see why she hasn’t been at work?Should the dept have sent the police out to check on Jane? Why or why not?Was Jane eligible for LTD?

Things to RememberWhen and EE has a history of on-going mental health issues and has missed work for these issues recently the dept should send the EE the FMLA forms giving the EE the opportunity to fill out and request a leave of absence. Under the FMLA there can be no contact between the dept and the EE’s doctor.If the dept is unable to contact the EE and is concerned about the EE’s welfare they should request the police to check on the EE.Jane may be eligible for LTD if she had coverage and she can show she was disabled before she was terminated.

Scenario 9

Jane has been given a reduced work schedule as an accommodation under the ADA. Now her co-workers believe she is receiving special treatment. The other employees want to know what is going on and if they can also work a reduced schedule.

Questions?Can the supervisor tell the other employees that this is being done as a reasonable accommodation under the ADA?

How do you address the perceived special treatment that the employee is getting?

Can the supervisor ask the accommodated employee to tell the co-workers that they are receiving an accommodation?

Things to RememberDisclosing that an employee is receiving a reasonable accommodation is the same as disclosing that an employee has a disability which is prohibited under the ADA.

It is helpful to provide all employees with information about various laws (ADA & FMLA) that protect the rights of employees to confidentiality.

An employee with a disability may voluntarily chose to disclose to co-workers but should not be coerced into disclosing their disability to co-workers.

Scenario 10John has requested FMLA leave and the dept has given him both the CS 1789 “Medical Certification “ form and the CS1790 “Employee Request & Employer Response” form giving John 15 days to return the medical cert to the dept. John submits the Request form but does not turn in the Medical Certification form until the 25th day.

Questions?Has the employee been given “301 notification” under the FMLA. What is “301 notification?” Who requires this type of notification? (Hint it’s not Toni.) What type of approval should be given while waiting for the medical certification?What is the employees status until the medical is received?Should the dept send a second notice telling the employee to have the medical in and giving them a ten day grace period to get the medical in by?

Things to Remember The CS-1790 form fulfills the FMLA requirement of “301 notification.”

Provisional approval should be given employees that do not yet have the medical documentation to support their need for FMLA.

It is not necessary to give the EE a second notice or a grace period to provide medical certification. This may appear to extend the time for submitting the required documentation. If the EE does not submit the medical certification they are not protected by the FMLA.

Scenario11April 18 suffered knee injury after work

April 19 went to work told their supervisor had a “twisted knee” went to Employer’s medical department for evaluation:

sprain/strain did not request leave and did not obtain leave of

absence forms from medical department went back to work later that day told supervisor had scheduled doctor

appointment and was released went to own doctor who gave note to stay off work until

evaluated by orthopedic surgeon con’t

April 20 called security office: visited doctor, told to stay

off work until April 24th security enters “sick” on Absence Call-In Log

Sheet

April 24orthopedic surgeon diagnosed torn superficial

medial collateral ligament disabled until May 28

April 25 called security office: visited doctor, told to stay

off work for 4 weeksecurity enters “sick” with expected return date

of May 28 con’t

April 27Employer sends letter by certified mail: 5

business days to contact LR or be terminated (5-day quit letter)

April 30 notified of certified letter

May 4 Employer notified Union employee terminated:

no evidence of qualified leave from April 20 to May 4 and no response to 5 day letter

May 8 picked up certified letter (same day received

notification?) con’t

May 9 called LR, delivered medical notes to Union and

given medical leave form, took form to personal physician

May 15 notified form ready to be picked up from

physician’s office

May 16 picked up medical leave form, delivered to

Employer

Questions?Did the Employee provide adequate notice of intent to take leave for an FMLA-qualifying injury? Why or why not?Did the Employer interfere with the Employee’s rights under FMLA by refusing to recognize the absence from April 20 to May 4 as FMLA-qualifying leave? Why or why not?What must the Employee demonstrate in order to prevail on an FMLA-interference claim?Why is the outcome of this case different than that in Cavin v Honda of America Manufacturing, Inc., 346 F3d 713 (6th Cir. 2003)?

Things to RememberThis is an actual case decided by the U. S. Court of Appeals for the Sixth Circuit, Walton v Ford Motor Company; Visteon Corporation. The Court found that no reasonable jury could conclude that the Employee provided the Employer with adequate notice of the intent to take leave for an FMLA-qualifying injury because:Told supervisor had “twisted knee”At medical department did not say needed time

off and did not request FMLA formsReturned to work con’t

• Did not request leave from supervisor• Never made any attempt to contact supervisor,

labor relations or medical department from April 19 to May 9

• Only called Security on April 20 and 25• Specifically told Security to list as “sick” on

April 20• Failed to respond to 5-day quit letter• Did not submit any medical documentation

until nearly 2 weeks after termination

con’t

The Court found the Employer did not interfere with the Employee’s rights under FMLA by refusing to recognize the absence from April 20 to May 4 as FMLA-qualifying leave because:• The Employer complied with FMLA regulations

”to obtain any additional required information through informal means” by sending 5-day quit letter on April 27 (29 CFR 825.303b)

• The letter specifically provided, “If you are unable to work because of illness or injury, and so report to the Employment Office within the time stated above, you will be granted a sick leave of absence to cover the period of your disability upon presenting satisfactory evidence thereof.” con’t

• Employee received notice of certified letter on April 30 but did not pick up until after terminated on May 4

• “The regulation requires that an employer may sometimes need to seek additional information concerning an absent employee’s condition; it does not seek to punish the employer when the employee fails to respond to such an inquiry.”

con’t

To succeed on an FMLA-interference claim, the U. S. Court of Appeals for the Sixth Circuit ruled the employee must demonstrate that:1) they are an eligible employee under the

FMLA;2) the Employer was an “employer” as

defined under FMLA; 3) the employee was entitled to leave under

the FMLA;4) the employee gave the employer notice of

intention to take FMLA leave; and,5) the Employer denied the employee FMLA

benefits to which the employee was entitled. con’t

This outcome differs from Cavin because the Employer’s policies differed in one very important respect: Visteon had explicitly informed employees, “Do not request FMLA through security”, in part because the security guards at Visteon were not Visteon employees, but independent contractors. The Court found that, clearly, the Employee never informed his employer of the reason for his absence until after his employment had already been terminated.

Questions & Answers

THANK YOU!!!!See You Soon. . .