advanced leave & accommodation management: …...fmla & worker’s comp overlap •can’t...

ADVANCED LEAVE & ACCOMMODATION MANAGEMENT:

Navigating the legal maze

Kandis Sells, Vigilant

March 31, 2017

The information presented here is not intended to be legal advice

Today ’s Presenter

KANDIS SELLS

Employment Attorney

Kandis is a member of the Washington State Bar

We counsel companies across the west coast on complex employment-related issues.

• 3 life-like employee scenarios:

Imogene

Jack

Zara

• Analyze overlap of

FMLA WFLA ADA WLAD

PDA Worker’s Comp

Agenda

1. View leave of absence situations broadly

2. Avoid tunnel vision

3. Avoid common missteps

Goals

Employee Scenario 1 – Imogene

Imogene

Imogene has been on a leave of absence for 14 weeks. Her FMLA ran out last week but she hasn’t reported for work or responded to any of your attempts to contact her. Her manager is asking if you can fire her.

Do you have any legal obligations now that her FMLA is exhausted?

Imogene

What else do you want to know about this?

•Why was she on leave?

•Who made what attempts to contact her and when? Documented?

•What instructions did you give her about calling in or keeping in touch while she’s on leave?

•What does your policy say on that?

Best way to handle this situation is to prevent it in the first place, so…

Wait a minute…

Imogene 2.0 – Phase 1

Imogene tells her manager that she’s been really overwhelmed with life lately and needs to take a few days off to get a handle on her stress and anxiety. Her manager says, “Sure, take a few days off and get some rest.”

Manage your

Managers

Take Note:

Manage your managers…

ASK these 3 Questions:

1. What is the reason for your absence?

2. When do you expect to return?

3. How can we contact you?

THEN pass the answers to HR,

HR will take it from there!

Imogene 2.0 – Phase 2

Imogene’s manager tells you she has been off work for 5 days because of stress and has been using her PTO to cover the time off. He’s starting to get questions from the rest of the work unit and wants to know how much more time he should let her take.

What laws are implicated here?

Imogene 2.0

When analyzing leave rights & obligations, separate analysis into these 3 steps:

1. What time off is EE entitled to?

2. What pay is EE entitled to/available?

3. When does EE lose eligibility for health insurance?

Imogene 2.0

Analyze for FMLA

• Written notice form out within 5 days

• Cover letter with tentative designation

– Include warning that failure to return completed Certification form by due date may result in termination

– Explain leave will count as WFLA leave also

• Certification of Health Care Provider

• Written designation form

Any other laws implicated?

Imogene 2.0

Set Leave of Absence expectations with EE:

• Copy of attendance policy

• Call-in / contact instructions

• Single point of contact at Company, if possible

Imogene 2.0

What are the Company’s objectives in this situation?

• Start with the end in mind – keep sight of the goal

• Allow Imogene time & assistance needed to heal

• Get Imogene back to work as soon as possible in a healthy manner

• Ultimate objective:

Fully functional Imogene

Imogene 2.0 – Phase 3

Imogene has been on approved FMLA leave for 10 weeks. She has checked in with you a couple of times as directed, but it’s not clear whether she’ll be ready to return to work when her FMLA leave expires.

What are your next steps?

Imogene 2.0

Send a letter to Imogene explaining:

• When her FMLA leave will expire

• Day/time you expect her to report for work

• What happens to her employment and health insurance if she doesn’t return to work

• What to do next if she’s not released to return to work, or needs reasonable accommodation (hint: call you ASAP)

Imogene 2.0

ADA/WLAD interactive dialogue starts here

• Don’t wait until FMLA leave expires

– Unnecessarily extends amount of EE leave time

– May create gap in EE pay or benefits, which adds stress

– Allows EE to address ADA paperwork with Dr. in same visit as final FMLA paperwork

Employee Scenario 2 – Jack

Jack

Jack twisted his knee and tore several ligaments when he stumbled over a cord in the warehouse last week. He tells you that he needs surgery, which is scheduled in 3 weeks, and until then he can’t work.

Jack

What legal obligations are implicated here?

• Just worker’s comp?

• Avoiding tunnel vision is key!

• Also consider

– FMLA

– ADA/WLAD

Jack

Worker’s Comp

• Time-loss, KOS, light duty?

– What does Dr. say? Is light duty an option prior to surgery?

– Does it make sense to keep Jack on salary (KOS)?

• Consider potential impact on FMLA rights/ benefits/obligations

Jack

FMLA

• On-the-job injuries aren’t excluded from FMLA requirements

• EE still entitled to FMLA benefits, including continued health insurance coverage

• When rights/benefits overlap, EE must be notified of all options and allowed to choose

Jack

FMLA – continued

• If Jack is eligible for FMLA, consider sending Notice & Designation forms together

– Certification probably isn’t needed because Dr. has provided information for Worker’s Comp purposes

• If Jack isn’t eligible for FMLA, send written designation form with at least one reason (e.g. hasn’t worked 12 months)

Jack

FMLA & Worker’s Comp OVERLAP

• Can’t mandate exhaustion of PTO/paid leave if EE is on time-loss or KOS

• OK to let EE use PTO to make up difference between time-loss and full pay

• If EE accepts light duty in lieu of FMLA leave, EE still has FMLA right to reinstatement

Jack

ADA/WLAD

• Is this a disability under ADA? WLAD?

• At this point, analysis and discussion of worker’s comp options and related actions also satisfy ADA/WLAD obligations

Jack – Act 2

Jack has been on approved FMLA and Kept-On-Salary (KOS) for 7 weeks for knee surgery and recovery. His doctor has just released him to return to work with standing and walking restrictions, and he will need 3 months of physical therapy twice a week.

How do you handle his return to work & intermittent leave?

Jack – Act 2

What do you do about the work restrictions?

• FMLA requires reinstatement

• ADA/WLAD require reasonable accommodation

• Worker’s Comp costs necessitate return to work

All of these overlap in our efforts to return Jack to work

Jack – Act 2

Remember Company’s objectives:

• Allow Jack time & assistance needed to heal

• Get Jack back to work as soon as possible in a healthy manner

• Fully functional Jack

Jack – Act 2

ADA/WLAD analysis:

• Is this a disability?

• Is there a reasonable accommodation that would allow Jack to return to work?

• Allowed to seek accommodation ideas from EE’s doctor, but

• Worker’s Comp/APF from doctor may provide enough information

Jack – Act 2

Can Jack’s medical restrictions be reasonably accommodated in his job of injury?

• YES – Jack can return to work with reasonable notice

• NO – assess whether light duty position can be made available that doctor will approve

Jack – Act 2

If Jack can’t return to job of injury:

• Find something for him to do as light duty – important to get him back into workplace

• Continue interactive dialogue – ask Jack if he has any proposed accommodations or alternatives

• Continue dialogue with him if light duty job doesn’t seem to be working

Jack – Act 2

• If Jack can’t be accommodated and no light duty, is he entitled to additional FMLA leave?

– Yes – 5 weeks left of his 12-week entitlement

– Still has serious health condition if he hasn’t been released to return to full duty without restriction

Jack – Act 2

What do you do about time off for physical therapy appointments?

• Update FMLA notice to approve intermittent leave for next 3 months

• Provide detailed instructions to Jack about his use of intermittent FMLA

– What notice is required & to whom

– Use of PTO for appointments

– Scheduling appointments when least disruptive

– Consequences if he doesn’t comply

Employee Scenario 3 – Zara

Zara

Zara discloses to you that she is 10 weeks into her first pregnancy, and wants to know how leave and benefits work when she has her baby.

What laws are implicated here?

Zara

Disability, maternity, parental leave – Oh My!

• PDA

• WA Pregnancy Disability Leave

• FMLA

• WFLA

• Leave policies

Zara

Remember to separate analysis into 3 steps:

1. What time off is EE entitled to?

2. What pay is EE entitled to / available?

3. When does EE lose eligibility for health insurance?

Zara

Federal Pregnancy Discrimination Act of 1978

• Prohibits discrimination on basis of pregnancy, childbirth, or related medical conditions

• Pregnancy disability entitled to same time off, pay, benefits, and accommodation as other temporary disabilities

• No length of service requirement

Zara

Washington Pregnancy Disability Leave

• Employee entitled to leave for any/all time sick or temporarily disabled due to pregnancy/childbirth

• Doesn’t require pay or benefits

• Can run concurrently with FMLA, but not WFLA

• Applies to all employers regardless of size

• No length of service requirement

Zara

FMLA & WFLA

• Leave for pregnancy disability doesn’t count against 12 weeks of WFLA for bonding with baby

• FMLA can run concurrently with other types of leave

• WFLA doesn’t require pay or benefits

• Best Practice: designate FMLA at start of leave, but beware of impact on health insurance

• Designate WFLA entitlement & time counted in writing

Zara

Washington Parental Leave

• Maternity/paternity leave policies must apply equally to fathers, adoptive parents, and stepparents

• Additional time off for maternity leave must be tied to pregnancy disability

• Best Practice: verify the medical need for disability leave

• Applies to all employers regardless of size

Zara

What do your leave policies say?

• Paid maternity leave during disability period?

• Paid parental leave for newborn care & bonding?

• Required to exhaust sick/vacation/PTO?

• How will EE pay her share of health care benefits normally deducted from her pay?

Zara – Part 2

• Duty to reasonably accommodate symptoms of pregnancy

• BUT, violating wage & hour laws is never a reasonable accommodation

• Interactive dialogue required – Unpaid leave is form of reasonable accommodation

What if her supervisor thinks she’s “milking it”?

Zara – Part 3

Zara develops gestational diabetes 28 weeks into her pregnancy and her doctor places her on bed rest.

Now what?

Zara – Part 3

• FMLA Certification of Health Care Provider

• Designate FMLA

• Provide Zara with updated information about leave time available, any paid leave options, & status of health insurance

• Can’t count bed rest as WFLA

WRAP UP

Please, I beg of you…

Don’t make these common mistakes!

• DON’T WAIT for the no call/no show at end of leave

– Court expects Employer to reach out & direct EE to return

• DON’T DELAY: “When EE runs out of FMLA, then I…”

– Don’t wait! Time is of the essence here

• DON’T ASSUME the Company has the option to keep EE on health care benefits

– Unless EE is on designated FMLA leave, terms of health insurance plan may not allow continued coverage

– See Flowchart Handout

Handout

QUESTIONS? Kandis Sells

KandisS@vigilant.org (425) 349-4477