MANAGING EMPLOYEES WITH MEDICAL CONDITIONS

Presented by: Alexis C. Knapp, SPHR, MS-HRM, JD Littler Mendelson, PC Houston

October 17, 2012

Plans for Today Employees with Medical Conditions:

Recent Attention

FMLA Reminders

ADA Reminders

Extended Leaves and the EEOC’s Recent Agenda

Overlapping Issues: FMLA, ADA and Beyond

Front and Center: Employees with Medical Conditions

Recent changes to the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and various state laws

Recent activity by Congress, the DOL and the EEOC

EEOC FY 2011 Statistics – 32% increase in disability related charges (more

than ¼ of all charges received) – 53% increase in monetary recovery by the EEOC – Most popular impairments: orthopedic,

depression/anxiety disorders, catastrophic illness

Reminder: even the frivolous allegations must be answered

EEOC Allegation Trends

4

Basis of Charge Filing FY 2006 FY 2008 FY 2011

RETALIATION 22,555 32,690 37,334 RACE 27,238 33,937 35,395 SEX/GENDER 23,247 28,372 28,534 AGE 16,548 24,582 23,465 DISABILITY 15,575 19,453 25,742 NATIONAL ORIGIN 8,327 10,601 11,833 RELIGION 2,541 3,273 4,151 TOTAL CHARGES 75,768 95,402 99,947

70000

76000

82000

88000

94000

100000

2003 2004 2005 2006 2007 2008 2009 2010 2011

www.eeoc.gov

2011: 99,947 Highest Total Ever

2006: 75,768

EEOC Charges Soar 32% Increase Since 2006

The Rising Tide

The EEOC finds merit in charges 300% more often than it did 10 years ago EEOC Enforcement Statistics, EEOC.gov

Employees with Medical Conditions: Protections Under the FMLA and ADA

Family and Medical Leave Act (FMLA)

– Unpaid, job-protected leaves of absence

– 12 months of employment before eligible

– Reinstate/do not retaliate

Americans with Disabilities Act and its Amendments (ADA or ADAAA)

– Do not discriminate/retaliate

– Reasonably accommodate unless undue hardship

– Takes effect before employment even begins

Employee Medical Conditions Step 1—FMLA May Apply

Employee Medical Conditions May Trigger UHS’s FMLA Obligations

An employee’s own disability or serious health condition is one basis for leave under the FMLA*

*Our focus in this webinar is employees and their own serious health conditions, so we do not address leave for birth or placement, family care leave, military exigency leave, or military caregiver leave here.

What the FMLA Provides: Time

Unpaid leave

Job protection/ restoration (not an absolute right in every circumstance)

Benefits continuation

Who Can Take FMLA*

Employees who experience a qualifying reason for leave (overlaps with WC, ADA, STD, etc.)

Employees who work for a covered employer (50+ employees total)

12 months of service/1,250 hours

Employees who work at a jobsite with 50+ employees within a 75-mile radius

*ineligibility for FMLA may not = ineligibility for medical leave

Identifying the Need for Leave

Employer’s burden

– Listen for cues

– Notify HR or Aon Hewitt

Employee notice obligations

No magic words

Non-FMLA absences are free! (for the employee)

Retroactive designations

What About Compensation?

FMLA leave is unpaid leave

Substitution of paid time off

Coordination with other payments

Deductions from exempt employee salaries

What About Benefits?

UHS contributions to employee health benefits remain unchanged as if the employee was actively working

Employees must continue to pay their share of premiums (via deduction or separate payment)

Failure to do so could result in termination of benefits until they return

Employees have an absolute right to reinstatement of benefits upon return if they lost coverage while on leave

What Happens to their Jobs?

Reinstatement

– To the same or “equivalent position”

– Limitations (position elimination,

layoff, termination for misconduct,

Key Employee status)

No such thing as “undue hardship”

Transfers for planned medical treatment—proceed with caution

So you like the temp better?

– the discovery of performance issues

Certification The Magic Numbers for Both Sides

UHS (or Aon Hewitt) has five (5) business days to begin the process (send the WH-381 and WH-380)

Employee has 15 calendar days to provide certification (WH-380)

Seven (7) day cure period

Contacting the doctor

– Authentication and clarification

Designating the leave and any fitness-for-duty obligations within five (5) business days (WH-382, 384, 385)

Recertification rules

Changes to the FMLA The 2008-2009 Amendments

The “New” FMLA Regulations: A Quick Recap

Effective January 2009

The Short Story

– Administrative clean-up and clarification

– Two new qualifying events (“the military amendments”)

– Employers gained some administrative ground

– Employees gained some new rights

FMLA: Miscellaneous Reminders & Tough Issues If the supervisor knows, or if Aon Hewitt knows,

HR knows, the CEO knows—everybody technically knows

Death of an immediate family member and moving from one type of leave to another

Non-FMLA leave is free leave, and doesn’t take away from the 12 workweek entitlement

Employees may become eligible after requesting leave

Calculating intermittent leave for exempt employees

Confidentiality issues

FMLA: Miscellaneous Reminders & Tough Issues (cont’d)

There is no such thing as a second or third opinion on fitness-for-duty information under the FMLA

Moonlighting: the tricky issue of outside employment

Watch those e-mails: confidential does NOT = privileged

The ADA and beyond—

– Life after the FMLA—“12 workweeks” is not the absolute end to job protection

– Life without the FMLA—when the employee doesn’t qualify

– Handle subsequent terminations very cautiously

Employee Medical Conditions Reasonable Accommodation Under the ADA

ADA 101: A 30,000 Foot View of Employer Obligations

Don’t let the picture on the left fool you—physical or mental, seen or unseen

No discrimination because of a disability—applicants or employees

Reasonable accommodation – What “accommodation” looks like (initial or

additional leaves of absence, modified schedules, modified duties, devices and more)

– The interactive dialogue—and documenting it

– An individualized analysis

– Showing undue hardship

Confidentiality and recordkeeping

Amending the ADA

The ADA Amendments Act (“ADAAA”)

Effective January 1, 2009

Congress’ purpose to restore the broad intent/coverage of the ADA

Net result: much more likely that employees qualify as “disabled” and that UHS has obligations to them under the Act

Defining “Disability”

A physical or mental impairment that substantially limits one or more

major life activities.

“Major Life Activities” Broadened: Participatory Activities

Caring for oneself

Performing manual tasks

Seeing

Hearing

Speaking

Eating

Sleeping

Breathing

Walking

Standing

Sitting

Reaching

Lifting

Bending

Learning

Reading

Concentrating

Thinking

Communicating

Interacting with others

Working

or even just pain/ fatigue/slowness in doing any of these

Major Life Activities Now Also Include Operation of Major Bodily Functions

– Functions of immune system – Special sense organs and skin – Normal cell growth – Digestive functions – Bladder, bowel, and urinary functions – Neurological and brain functions – Respiratory functions – Circulatory and cardiovascular functions – Endocrine functions – Hemic functions – Lymphatic functions – Musculoskeletal functions – Reproductive functions

Is There a List of Disabilities? (Yes and No)

Autism

Cancer

Cerebral Palsy

Diabetes

Epilepsy

HIV/AIDS

Major Depression

Multiple Sclerosis

Muscular Dystrophy

Bipolar Disorder

PTSD

Obsessive Compulsive Disorder

Schizophrenia

What this Means for Management

We are out of the medical diagnosis business—much less emphasis on the specific condition the employee has

We will move almost directly to the interactive process—in other words, an extremely individualized analysis—it’s all about accommodation

BUT: Negotiation and pushback may be an option (unlike FMLA)

We have to know the UHS Accommodation Requests Policy and Process—generously give out the Form to start the dialogue

We will spend more time and energy on EEOC charges and lawsuits than before

We must very cautiously rely on prior ADA authority (case law, web articles, research, seminars)

Things to Never, Ever, Ever Say in the Accommodation Dialogue

“He didn’t actually ask for an accommodation”

“She said she was sick, but she never said she was disabled.”

“You can come back to work once you have a full release.”

“He’s got [insert medical condition here]. There’s no way he can do this job.”

Things to Never, Ever, Ever Say in the Accommodation Dialogue (cont’d)

“We aren’t terminating you, we’re filling your job”

“We need to know all of the prescription medications you are taking.”

“We only offer light duty [or other accommodations] for employees on workers’ compensation.”

“We don’t do that here.”

“That’s our policy.”

What Do Your Policies Say Happens When FMLA is Unavailable?

The EEOC has long maintained—and is now aggressively enforcing—that you may have leave obligations to your

employees regardless of whether you or any of your employees is covered by/eligible for FMLA, and regardless of

what your policies say or what you practices are.

What We’ve Learned About Leave Obligations under the ADA

Medical leave—a little, or a lot—may be a reasonable accommodation

Inflexible leave policies—neutral absence control, no-fault type policies ILLEGAL under the ADA

Restrictive light duty policies could also create problems

Attendance policies are on the EEOC’s radar

Managing Extended Leaves

Revise policies to include flexible, cross-referencing language

Communicate with employees before, during and after their medical leaves

Conduct and individualized analysis—that you can document

Any final decision should be a shared decision—involve HR and legal

Your first line supervisors MUST know about this

But it isn’t QUITE that simple...

Navigating the Maze of FMLA, ADA and Other Legal Obligations for Employees on Leave

Medical expenses and wage replacement

Concurrent leave

Time spent on workers’ compensation leave counts toward the 12 months of service

Light duty issues

Overlapping medical information

Leave Issues and Workers’ Compensation Laws/Programs

Counting the 1,250 hours/12 months of service

How much intermittent leave is available?

– Individualized

– Non-exempt

– Exempt

Deductions from the pay of exempt employees for time off of work while on FMLA

Nursing mothers and “reasonable” break times

Leave Issues and the Fair Labor Standards Act (FLSA)

ERISA – Benefit plan documents – When does coverage end? – STD/LTD

COBRA – Continuation of coverage – What events trigger COBRA? – Post-FMLA reinstatement

HIPAA – Portability/privacy – Contacting the doctor – Releases for PHI – Confidential recordkeeping

Examples of Issues Arising Under ERISA, COBRA and HIPAA

Genetic Information Nondiscrimination Act (GINA)

– Collection and storage of medical information

Pregnancy Discrimination Act (PDA) – Treatment of pregnant employees seeking

leave or accommodations Collective Bargaining Agreements

– Periods of paid leave – Extended leave beyond FMLA – Light duty – Accrual/use of, and bidding for, paid time off

Employer policies and collective bargaining agreements

State laws

Overlapping Protections, cont’d

Medical Leave at the State Level

California

Connecticut

Washington DC

Hawaii

Illinois

Kentucky

Maine

Maryland

Massachusetts

Minnesota

Montana

New Jersey

Ohio

Oregon

Rhode Island

Tennessee

Vermont

Washington

Wisconsin

Questions?

Alexis C. Knapp, SPHR, MS-HRM, JD Littler Mendelson, PC