FAMILY MEDICAL FAMILY MEDICAL LEAVE ACTLEAVE ACT

(FMLA)(FMLA)AND AND

AMERICANS WITH AMERICANS WITH DISABILITIES ACTDISABILITIES ACT

(ADA)(ADA)

What is theWhat is theFamily Medical Leave Act?Family Medical Leave Act?

Provides certain employees with up to 12 weeks of unpaid, Provides certain employees with up to 12 weeks of unpaid, job-protected leave per year for a qualifying event. It also job-protected leave per year for a qualifying event. It also requires that their group health benefits be maintained requires that their group health benefits be maintained during the leave.during the leave.

It also provides certain employees with up to 26 weeks of It also provides certain employees with up to 26 weeks of unpaid, job-protected leave per year to care for an injured unpaid, job-protected leave per year to care for an injured or ill member of the Armed Forces and permits an or ill member of the Armed Forces and permits an employee to take FMLA leave for “any qualifying exigency.”employee to take FMLA leave for “any qualifying exigency.”

FMLA is designed to help employees balance their work FMLA is designed to help employees balance their work and family responsibilities by allowing them to take and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment interests of employers and promote equal employment opportunity for men and women. opportunity for men and women.

To be eligible for FMLA benefits, an employee To be eligible for FMLA benefits, an employee mustmust::

work for a covered employerwork for a covered employer

have worked for the employer for a total of 12 months; have worked for the employer for a total of 12 months;

have worked at least 1,250 hours over the previous 12 have worked at least 1,250 hours over the previous 12 months; and months; and

have a qualifying event.have a qualifying event.

While the 12 months of employment need not be consecutive, employment periods prior to While the 12 months of employment need not be consecutive, employment periods prior to a break in service of a break in service of sevenseven years or more need not be counted unless the break is years or more need not be counted unless the break is occasioned by the employee’s fulfillment of his or her National Guard or Reserve military occasioned by the employee’s fulfillment of his or her National Guard or Reserve military obligation (as protected under the Uniformed Services Employment and Reemployment obligation (as protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA)), or a written agreement, including a collective bargaining Rights Act (USERRA)), or a written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the agreement, exists concerning the employer’s intention to rehire the employee after the break in service. break in service. 

FMLA EligibilityFMLA Eligibility

for the birth and care of a newborn child of the employee; for the birth and care of a newborn child of the employee;

for placement with the employee of a son or daughter for for placement with the employee of a son or daughter for adoption or foster care; adoption or foster care;

to care for a spouse, son, daughter, or parent with a to care for a spouse, son, daughter, or parent with a serious health condition; serious health condition;

to take medical leave when the employee is unable to to take medical leave when the employee is unable to work because of a serious health condition; work because of a serious health condition; oror

for qualifying exigencies arising out of the fact that the for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation. Guard or Reserves in support of a contingency operation.

WHAT IS A QUALIFYING EVENT?WHAT IS A QUALIFYING EVENT?

When is FMLA paid?When is FMLA paid?

FMLA is unpaid leave UNLESS the employee FMLA is unpaid leave UNLESS the employee uses their sick or vacation leave accruals.uses their sick or vacation leave accruals.

Does your County have a policy regarding Does your County have a policy regarding FMLA and other Leaves of Absence?FMLA and other Leaves of Absence?

Dallas County will not place an employee on Unpaid Dallas County will not place an employee on Unpaid status until they have exhausted all accruals.status until they have exhausted all accruals.

FORMSFORMS

Request for FMLA

This form is the

employee’s formal

request for FMLA.

FORMSFORMS

Certification of Health Care

Provider

This form is completed by

the employee’s health care provider.

FORMSFORMSDesignation

Notice

This form notifies the

employee of their approval or non-approval of

FMLA and of their

responsibilities while out and returning to

work

FORMSFORMSNotice of

Eligibility and Rights and

Responsibilities

This form notifies the employee, after

you receive their request, of their

eligibility and additional

information that may be required from them to gain

approval.

FORMSFORMS

The US Department of Labor has The US Department of Labor has available on their website the various available on their website the various forms your office needs to meet the forms your office needs to meet the requirements of the FMLA.requirements of the FMLA.

http://www.dol.gov/whd/fmla/index.htmhttp://www.dol.gov/whd/fmla/index.htm

What about record keeping?What about record keeping? Create a separate filing system for you FMLA files. Do not Create a separate filing system for you FMLA files. Do not

keep health information in the “official” personnel file.keep health information in the “official” personnel file. WHY??? Because of HIPAA – Health Information WHY??? Because of HIPAA – Health Information

Portability and Accountability Act is a federal law that Portability and Accountability Act is a federal law that requires employers and health care providers to protect requires employers and health care providers to protect medical records as confidential, separate and apart from medical records as confidential, separate and apart from other business records. That means we may no longer other business records. That means we may no longer retain medical information in a personnel file. Here are retain medical information in a personnel file. Here are some examples of information you should extract from some examples of information you should extract from your personnel files and place in separately protected files your personnel files and place in separately protected files as medical information: as medical information:

Health insurance application form Health insurance application form Life insurance application form Life insurance application form Request for medical leave of absence regardless of reason Request for medical leave of absence regardless of reason Personal accident reports Personal accident reports Workers' compensation report of injury or illness Workers' compensation report of injury or illness OSHA injury and illness reports OSHA injury and illness reports Any other form or document which contains private medical Any other form or document which contains private medical

information for a specific employee.information for a specific employee.

Is she eligible?Is she eligible?

Suzy Creamcheese comes in to the office and Suzy Creamcheese comes in to the office and states she needs to take FMLA to care for her states she needs to take FMLA to care for her mother, who is having her right leg amputated mother, who is having her right leg amputated due to complications of diabetes. You give her due to complications of diabetes. You give her the paperwork and when she returns the the paperwork and when she returns the medical certification, you learn while talking to medical certification, you learn while talking to her that her “mother” is actually her mother-in-her that her “mother” is actually her mother-in-law. Suzy has worked for the office since law. Suzy has worked for the office since 7/20/2000, and in her 10 plus years with the 7/20/2000, and in her 10 plus years with the office has called in sick only twice and has over office has called in sick only twice and has over 1,000 “Sick” hours accrued. Is she eligible for 1,000 “Sick” hours accrued. Is she eligible for FMLA?FMLA?

SUZY CREAMCHEESESUZY CREAMCHEESE Yes, she works for a covered employer.Yes, she works for a covered employer.

Yes, she has worked for the employer for 12 Yes, she has worked for the employer for 12 months.months.

Yes, she has worked at least 1,250 hours over Yes, she has worked at least 1,250 hours over the previous 12 months.the previous 12 months.

NO… she does not have a qualifying event. NO… she does not have a qualifying event. IN-Laws are NOT eligible family members.IN-Laws are NOT eligible family members.

What are Suzy’s options?What are Suzy’s options?

Is he eligible?Is he eligible?

Darryl Dinglehopper is recently divorced, single Darryl Dinglehopper is recently divorced, single father. In the past three (3) weeks, he has had father. In the past three (3) weeks, he has had to leave work four (4) times, and has called in to leave work four (4) times, and has called in twice, missing a total of 32 hours of work. twice, missing a total of 32 hours of work. When you bring it to his attention, he mentions When you bring it to his attention, he mentions his son has severe asthma and has to receive his son has severe asthma and has to receive breathing treatments at the doctor’s office breathing treatments at the doctor’s office when the rag weed count is up. He started when the rag weed count is up. He started working for the office as a part time clerk working for the office as a part time clerk January 23, 2010; promoted to full time May January 23, 2010; promoted to full time May 20, 2010. Is he eligible for FMLA?20, 2010. Is he eligible for FMLA?

DARRYL DINGLEHOPPERDARRYL DINGLEHOPPER

Yes, he works for a covered employer.Yes, he works for a covered employer.

Yes, he has worked for the employer for 12 months. Yes, he has worked for the employer for 12 months. Part Time work DOES count toward FMLA.Part Time work DOES count toward FMLA.

Yes, he has worked over 1,250 hours the past 12 Yes, he has worked over 1,250 hours the past 12 months.months.

YES, he has a qualifying event. His son’s chronic YES, he has a qualifying event. His son’s chronic medical condition, when certified by a physician, is a medical condition, when certified by a physician, is a qualifying event. Time missed due to his son’s illness qualifying event. Time missed due to his son’s illness should be “charged” to FMLA and should not be used should be “charged” to FMLA and should not be used against him should your office have a sick time usage against him should your office have a sick time usage policy.policy.

Is he eligible?Is he eligible?

Bart was raised by his aunts because his parents died Bart was raised by his aunts because his parents died when he was very young. Bart’s aunt suffers from lung when he was very young. Bart’s aunt suffers from lung cancer which requires constant treatment by a nurse. cancer which requires constant treatment by a nurse. The nurse who cares for the Bart’s aunt has a sick The nurse who cares for the Bart’s aunt has a sick child and has sporadic absences several times a child and has sporadic absences several times a month. On days that the nurse is not available, Bart month. On days that the nurse is not available, Bart cares for his aunt. Bart provides a note from his aunt's cares for his aunt. Bart provides a note from his aunt's physician to his supervisor stating that his aunt suffers physician to his supervisor stating that his aunt suffers from lung cancer and needs full-time attendance. Bart from lung cancer and needs full-time attendance. Bart includes a handwritten statement that he will substitute includes a handwritten statement that he will substitute for the nurse on days that the nurse is not available. for the nurse on days that the nurse is not available.

BART SIMPSONBART SIMPSON Yes, he works for a covered employer.Yes, he works for a covered employer.

Yes, he has worked for the employer for 12 months.Yes, he has worked for the employer for 12 months.

Yes, he has worked at least 1,250 hours over the previous Yes, he has worked at least 1,250 hours over the previous 12 months.12 months.

Yes, his aunt meets the definition of parent under FMLA as Yes, his aunt meets the definition of parent under FMLA as parent is defined as biological parent or individual who parent is defined as biological parent or individual who stands in loco parentis. stands in loco parentis.

Yes, Bart’s aunt's cancer is specifically identified in the Yes, Bart’s aunt's cancer is specifically identified in the FMLA regulations as a "serious health condition.,' In FMLA regulations as a "serious health condition.,' In addition, his aunt is under continuing care and is covered addition, his aunt is under continuing care and is covered by FMLA. Bart’s supervisor should request medical by FMLA. Bart’s supervisor should request medical certification to the facts.certification to the facts.

Performance AppraisalsPerformance Appraisals

It is performance appraisal time! Bobby It is performance appraisal time! Bobby has been on FMLA leave for a "serious has been on FMLA leave for a "serious medical condition" for three weeks. Can medical condition" for three weeks. Can his supervisor take his use of leave as an his supervisor take his use of leave as an occurrence for attendance purposes? occurrence for attendance purposes?

Can you do that?Can you do that?

The employee’s supervisor is prohibited by The employee’s supervisor is prohibited by FMLA from taking into consideration the FMLA from taking into consideration the employee’s use of FMLA leave as a negative employee’s use of FMLA leave as a negative factor in any employment action. Whether the factor in any employment action. Whether the employee’s leave is paid or unpaid, it cannot employee’s leave is paid or unpaid, it cannot be counted as an "occurrence" under any be counted as an "occurrence" under any applicable attendance policy. Any other applicable attendance policy. Any other interpretation would represent discrimination interpretation would represent discrimination on the basis of FMLA use. on the basis of FMLA use.

Misuse of FMLAMisuse of FMLA Ima Hogg is on intermittent FMLA, taking turns with her Ima Hogg is on intermittent FMLA, taking turns with her

sister, Ura, in caring for their sick father, Jim, who has sister, Ura, in caring for their sick father, Jim, who has pancreatic cancer. She has reported that on Mondays, pancreatic cancer. She has reported that on Mondays, Wednesdays and Fridays, she will be taking her father to his Wednesdays and Fridays, she will be taking her father to his radiation treatments at the hospital in Garland, Texas. radiation treatments at the hospital in Garland, Texas.

One of your employees, Wyatt Earp, comes to your office One of your employees, Wyatt Earp, comes to your office Monday morning and casually mentions he ran in to Ima Monday morning and casually mentions he ran in to Ima twice at Schlitterbahn in New Braunfels on Wednesday and twice at Schlitterbahn in New Braunfels on Wednesday and Friday morning of last week. They even took pictures Friday morning of last week. They even took pictures together at the river. Wyatt was on scheduled vacation with together at the river. Wyatt was on scheduled vacation with his gang when he saw her there.his gang when he saw her there.

You know Ima called in last Thursday morning to report that You know Ima called in last Thursday morning to report that she was sick and would not be coming in to work.she was sick and would not be coming in to work.

What, if anything, can you do?What, if anything, can you do?

What can you do?What can you do? Ask Wyatt for a written statement.Ask Wyatt for a written statement.

Confront Ima with the allegations against her. Confront Ima with the allegations against her.

If she denies the allegations, you may ask her for If she denies the allegations, you may ask her for documentation from the medical facility that treats her documentation from the medical facility that treats her father.father.

Be careful! You can only truly ask for documentation if Be careful! You can only truly ask for documentation if you have substantial proof of misuse. If you don’t have you have substantial proof of misuse. If you don’t have proof, but wish to challenge whether or not there is a true proof, but wish to challenge whether or not there is a true need for the intermittent FMLA or FMLA, you can ask the need for the intermittent FMLA or FMLA, you can ask the employee for recertification only every 30 days.employee for recertification only every 30 days.

What is the AMERICANS What is the AMERICANS WITH DISABILITIES ACT?WITH DISABILITIES ACT?

The ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress

Who is protected?Who is protected? To be protected by the ADA, one must have a disability or

have a relationship or association with an individual with a disability.

An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

The ADA does not specifically name all of the impairments that are covered.

What is a major life activity?What is a major life activity? Under the ADA, you have a disability if you have a

physical or mental impairment that substantially limits a major life activity such as: Hearing Seeing Speaking Thinking Walking Breathing Performing manual tasks.

You must also be able to do the job you want or were hired to do, with or without reasonable accommodation.

What is a “reasonable What is a “reasonable accommodation?”accommodation?” A reasonable accommodation is any change or adjustment

to a job, the work environment, or the way things usually are done that would allow you to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace. Some of the most common types of accommodations include: physical changes, such as installing a ramp or modifying a

workspace or restroom; sign language interpreters for people who are deaf or readers for

people who are blind; providing a quieter workspace or making other changes to reduce

noisy distractions for someone with a mental disability; training and other written materials in an accessible format, such

as in Braille, on audio tape, or on computer disk; TTYs for use with telephones by people who are deaf, and

hardware and software that make computers accessible to people with vision impairments or who have difficulty using their hands; and

time off for someone who needs treatment for a disability.

How to request an How to request an accommodation…accommodation…

When an individual decides to request accommodation, When an individual decides to request accommodation, the individual or his/her representative must let the the individual or his/her representative must let the employer know that s/he needs an adjustment or employer know that s/he needs an adjustment or change at work for a reason related to a medical change at work for a reason related to a medical condition. To request accommodation, an individual condition. To request accommodation, an individual may use "plain English" and need not mention the ADA may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation or use the phrase "reasonable accommodation

A request for an accommodation does not need to be A request for an accommodation does not need to be in writing! An employee may request accommodations in writing! An employee may request accommodations in conversation or may use any other mode of in conversation or may use any other mode of communication.communication.

Case Study….Case Study…. Joe Black is a gay, HIV positive male that recently transferred to Joe Black is a gay, HIV positive male that recently transferred to

your family courts division from the criminal division as a your family courts division from the criminal division as a second clerk. He has been placed on the 4second clerk. He has been placed on the 4 thth floor in your “Diva” floor in your “Diva” pod. Your “Divas” are women that have worked for your office pod. Your “Divas” are women that have worked for your office for an average of 15 plus years. for an average of 15 plus years.

Joe is very outspoken and does not keep his opinions to Joe is very outspoken and does not keep his opinions to himself. Joe has started questioning the Lead, tenured clerks in himself. Joe has started questioning the Lead, tenured clerks in the pod regarding processing the mail, a job he feels is beneath the pod regarding processing the mail, a job he feels is beneath him. This has caused him to become crossways with some of him. This has caused him to become crossways with some of your experienced clerks.your experienced clerks.

He comes to you, requesting an accommodation to be moved He comes to you, requesting an accommodation to be moved from the 4from the 4thth floor pod, basing his request on his HIV status and floor pod, basing his request on his HIV status and that it is dangerous to his health to be working on a floor where that it is dangerous to his health to be working on a floor where “snotty nosed kids” come in to the building for hearings with “snotty nosed kids” come in to the building for hearings with their parents. He produces a letter from his physician their parents. He produces a letter from his physician supporting his request.supporting his request.

Step by step guide:Step by step guide:

Gather facts from the employee: Gather facts from the employee: Meet with the employee and gather Meet with the employee and gather information from them regarding their request. Ask them to identify both information from them regarding their request. Ask them to identify both the work limitations and a range of various accommodations the the work limitations and a range of various accommodations the employee believes would address those limitations. If input from a employee believes would address those limitations. If input from a physician is necessary, ask the employee to provide that documentation physician is necessary, ask the employee to provide that documentation as well.as well.

Identify potential accommodations: Identify potential accommodations: Armed with the employee’s Armed with the employee’s specific request and any additional information needed from treating specific request and any additional information needed from treating physicians, the employer should then independently – and outside the physicians, the employer should then independently – and outside the presence of the employee – identify what you believe are potential presence of the employee – identify what you believe are potential accommodations that would address the employee’s limitations. Your list accommodations that would address the employee’s limitations. Your list of potential accommodations need not be limited to those proposed by the of potential accommodations need not be limited to those proposed by the employee. Indeed, it should encompass the whole universe of options. To employee. Indeed, it should encompass the whole universe of options. To identify possible accommodations, you should review the essential job identify possible accommodations, you should review the essential job functions of the employee’s current position to determine how and functions of the employee’s current position to determine how and whether the employee may continue to perform those functionswhether the employee may continue to perform those functions..

Step by step…Step by step… Determine the reasonableness of potential accommodationsDetermine the reasonableness of potential accommodations. Once . Once

all of the potential accommodations are identified, review each for its all of the potential accommodations are identified, review each for its reasonableness. According to the ADA, an accommodation is reasonableness. According to the ADA, an accommodation is reasonable if it does not “fundamentally alter the nature of the goods, reasonable if it does not “fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations” of the services, facilities, privileges, advantages or accommodations” of the employer’s business.employer’s business.

An accommodation that would cause an “undue hardship” to the An accommodation that would cause an “undue hardship” to the employer is not a reasonable one. However, an “undue hardship” is not employer is not a reasonable one. However, an “undue hardship” is not simply a generalized conclusion that an accommodation would cost too simply a generalized conclusion that an accommodation would cost too much. much.

A determination of undue hardship should be based not only on the A determination of undue hardship should be based not only on the cost of the accommodation, but also on the overall financial resources cost of the accommodation, but also on the overall financial resources and size of the business, the type of business, and the specific impact and size of the business, the type of business, and the specific impact of the accommodation on business operations. The ADA requires an of the accommodation on business operations. The ADA requires an employer to consider all possible sources of outside funding when employer to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly.assessing whether a particular accommodation would be too costly.

Step by step…Step by step…

Communicate the decision to the employeeCommunicate the decision to the employee. . An employer is not required to provide the An employer is not required to provide the accommodation requested by the employee. If accommodation requested by the employee. If the employee specifically asks for an the employee specifically asks for an accommodation that either cannot be provided accommodation that either cannot be provided (or the employer decides not to provide), the (or the employer decides not to provide), the employer should explain in detail why the employer should explain in detail why the accommodation requested by the employee accommodation requested by the employee was not selected. was not selected.

And most importantly…And most importantly…

Document the processDocument the process. You should draft and . You should draft and retain a confidential, internal file memorandum retain a confidential, internal file memorandum documenting the above-outlined interactive documenting the above-outlined interactive process, regardless of whether the employee process, regardless of whether the employee agrees to the accommodation(s) offered. agrees to the accommodation(s) offered. The memorandum should identify the dates of each The memorandum should identify the dates of each

meeting with the employee, the accommodations and meeting with the employee, the accommodations and limitations identified by the employee, and your own limitations identified by the employee, and your own efforts to identify and assess the reasonableness of efforts to identify and assess the reasonableness of accommodations. The memorandum will memorialize accommodations. The memorandum will memorialize your efforts and be important in the event the employee your efforts and be important in the event the employee files an ADA claim against the you! files an ADA claim against the you!

Responding to the request…Responding to the request…

Write up your findings and present them Write up your findings and present them to him in memo form so that you have a to him in memo form so that you have a clear record of your due diligence.clear record of your due diligence.

Back to Joe Black … Is the Back to Joe Black … Is the request “reasonable?”request “reasonable?” The first question to ask is … is his request valid? Can you The first question to ask is … is his request valid? Can you

do anything to help him avoid the “dangers” to his health? do anything to help him avoid the “dangers” to his health?

Moving him to a different floor or division will not remove Moving him to a different floor or division will not remove him from the “dangers” he faces. He works in a County him from the “dangers” he faces. He works in a County courthouse. He will still have to push the same elevator courthouse. He will still have to push the same elevator buttons, touch door handles, and be around people who buttons, touch door handles, and be around people who may be sick but have come to the Courthouse for their may be sick but have come to the Courthouse for their hearings. hearings.

Unless you can provide him with a “boy in the bubble” work Unless you can provide him with a “boy in the bubble” work environment, his accommodation is not reasonable.environment, his accommodation is not reasonable.

So now what? Draft a letter to him, responding to his So now what? Draft a letter to him, responding to his request and outline the specific reasons he cannot be request and outline the specific reasons he cannot be accommodated.accommodated.

Questions…Questions…

Why the picture Why the picture of the three of the three cute redheaded cute redheaded girls? girls?

My boss said it My boss said it would be a would be a great ending! great ending!