leaves of absence: navigating the fmla & ada webinar

Leaves of Absence:Navigating the FMLA and ADA

11/9/2015

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LEAVES OF ABSENCE:

NAVIGATING THE FMLA & ADA

Presented by Jenny Arthur, SPHR, SHRM-SCP

Agenda

• What is FMLA?

• What is the ADA?

• Differences and Overlap

• Administering Leaves


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What is the FMLA?

• Clinton Era - 1993

• “Balancing the demands of the workplace with the needs of families”

• Allows employees to take leave for certain protected reasons

• Up to 12 weeks of leave for most purposes

• Provides job restoration and benefit continuation rights

Definition

• 50+ employees within 75 miles

• All public agencies

• Worked for employer for one or more year (and

at least 1,250 hours in the last year)

Eligibility


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• Serious health condition

• Serious health condition of a family member

• Caring for a new child

• Military family exigency

• Military family caregiver (up to 26 weeks)

Reasons for Leave

• Incapacity or treatment involving in-patient

care, or requiring an absence more than 3

days under supervision of medical provider.

• Absences due to Pregnancy/Prenatal Care

• Absences due to Chronic Serious Health

Condition (Asthma, Diabetes, Epilepsy, etc.)

Reasons for Leave 1: Serious Health Condition

• Long term periods of incapacity, even if

treatments are not effective (Alzheimer’s,

Stroke, Terminal Illnesses, etc.)

• Intermittent absences for multiple treatments

& recovery time for conditions that would

most likely result in absences of more than 3

days if left untreated . (Chemo, Physical

Therapy, Dialysis, etc.)

Reasons for Leave 1: Serious Health Condition


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• Same definition of serious health condition

• Family members are:

• Spouses (including legal same-sex marriages),

children (biological, adoptive, foster or step-

child), and parents (biological, adoptive, step,

foster or “in loco parentis”)

• Family members are not:

• In-Laws, siblings, or grandparents

Reasons for Leave 2: Family Member Care

• AKA Baby Bonding leave

• Covers birth, adoption placement, and foster

placement

• Must be taken within 12 months of birth or

placement

• Available to both parents

Reasons for Leave 3: Caring for a New Child

• Employee’s spouse, child, or parent is on active duty or

called to active duty

• Includes items such as:

• Attending military events

• Arranging child care

• Addressing financial arrangements

• Attending counseling sessions

• Attending post-deployment activities

Reasons for Leave 4: Military Family Exigency


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• Spouse, child, parent, next of kin of service

member or veteran

• Serious injury or illness was duty-related

• Up to 26 weeks of leave during one 12 month

period

Reasons for Leave 5: Military Family Caregiver

• Unpaid

• Employee may use accrued paid time off

• Temporary Disability Insurance May Apply

(State or Private Plans)

Pay During Leave

• Employee may be required to remit payment for his/her portion of benefits

• Employer may cover benefits and require the employee to reimburse the

employer upon return

• Not COBRA qualifying event unless employee resigns or fails to return

• See Benefits Continuation Letter

Benefits During Leave


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• Complete and absolute job restoration required in most cases

• Same or equivalent position

• Exceptions:

• Key employees

• Employee would have been terminated or laid-off regardless of leave

• Shift eliminated

Job Restoration Following Leave

• Request Form

• Certification Forms (WH 380-E, 380-F, 384, 385, 385-V)

• FMLA GINA Safe Harbor Form

• Notification of Eligibility, Rights and Responsibilities

(WHD-381)**- within 5 days

• Designation Notice (WHD-382)**

• Benefits Continuation Letter

FMLA Paperwork

What is the ADA?


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• Prohibits discrimination in all employment

practices, including job application procedures,

hiring, discipline, firing, advancement,

compensation, training, and other terms,

conditions, and privileges of employment

• Requires reasonable accommodation (leave is just

one type of accommodation)

Definition

A covered individual is one who:

• Has a physical or mental impairment that

substantially limits one or more major life

activities,

• Has a history or record of such an impairment, or

• Is perceived by others as having such an

impairment.

ADA Disability Defined

• 15 or more employees

• No length of service requirement

• Employee has a disability or perceived

disability

• Employer may require certification (ADA

Medical Inquiry Form)

Eligibility


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• Undue Hardship: "action requiring significant difficulty or expense“

• Many factors taken into account

• Case-by-case determination

• Employee does not get to pick most desired accommodation

• Leave is just one possible accommodation

Reasonable Accommodations

• Defined: balancing of employee’s needs vs. employer’s needs

• In practice:

• Meeting to discuss doctor’s recommendations, employee’s suggestions, and

employer’s suggestions

• Letter stating which accommodations have been approved/denied

ADA Interactive Process

• Pay is not required during leave as an ADA accommodation.

• Employer may require the employee to remit payment for both employee and

employer portion of benefits.

• Job Restoration required unless “undue hardship.”

Pay, Benefits, & Job Restoration


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• ADA Medical Inquiry Form

• Other Notes from Treating Physician

regarding Required Accommodations

• Accommodation Letter – Approving or

Denying Accommodation Request(s)

following Interactive Process Meeting

ADA Paperwork

Differences & Overlap

• Eligibility requirements and covered conditions (some will trigger both)

• Definitions in general (make sure you are using the correct one!)

• ADA affects non-leave and accommodation issues (hiring, harassment, etc.)

• Overall, ADA affects more areas of the employee lifecycle but the FMLA grants

leave for a broader range of things

Major Differences


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Serious Health Condition (FMLA) Disability (ADA)

DefinitionSerious Health Condition (Broader Definition than Disability)

Impairment that substantially limits a major life activity

Examples Appendicitis, Normal Pregnancy, Minor Broken Bone

Visual Impairment, ADHD(Any condition for which no leave is

required by treating physician.)

Examples of Both Heart Disease, Cancer, Serious Strokes, Transplant, Back Surgery, Lupus, etc.

Examples of Neither

Cold, Flu, Stomach Virus, Routine Dental or Orthodontia Problems, Headaches (other than Migraine), etc.

Serious Health Condition vs. Disability

• Will also overlap with ADA and FMLA

• Generally cover same issues as FMLA but are sometimes more generous

• Size of covered employer

• Length of employment before eligibility

• Covered conditions and family member definition

• Always apply rules most beneficial to the employee

Don’t Forget State Specific Leaves!

Administering Leave


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• Determine if it is an ADA request, an FMLA

request, or both

• When both apply, FMLA should be exhausted

and then the ADA Interactive Process should

begin regarding further leave as an ADA

accommodation.

Requests for Leave

• Track leave taken

• Continuation of benefits

• Stay in contact with employee

• Certifications as allowed by law

During Leave

• Communicate expected return

• Determine if any other leave may apply

• Require Medical Certification prior to

Restoration

• Reinstate employee to same or an equivalent

job

Returning from Leave


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• When FMLA eligibility begins during leave being

taken under ADA (or a state leave)

• When FMLA leave is exhausted but leave under

the ADA may still be a reasonable

accommodation

• “I want to save my FMLA.”

Tricky Situations

Case Scenario 1

A salaried manager has a heart attack which requires eight weeks off work entirely

and another four months of half days only according to his doctor’s

recommendations for recovery.

• Is this FMLA, ADA or both?

• How would pay work?

• How would benefits work?

Case Scenario 2

A new hourly customer service representative misses work frequently. The manager

has been tracking her attendance and call-in reasons and they look as follows:

7/1 Date of hire 8/12 Absent, grandmother’s funeral

7/6 Absent 4 hours, car wouldn’t start 8/13 Late 2 hours, travel home from funeral

7/10 Late 30 minutes, traffic 8/24 Late 1 hour, overslept

7/16 Absent, daughter has stomach flu 9/4 Absent, not feeling good/cough

7/17 Absent, daughter has stomach flu 9/5 Absent, still coughing and tired

7/18 Absent, now both have stomach flu 9/6 Left early, coughing and tired

7/19 Absent, still recovering from stomach flu 9/17 Late, pulled muscle in back at gym

Can the company terminate her due to her attendance?


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• Escriba v. Foster Poultry Farms, Inc. (2014)

• Can an employee refuse FMLA and still enjoy job protection?

• Vess v. Select Medical Corp. (2013)

• Can you ask an employee to perform some work while on FMLA?

• Attiobge-Tay v. Southeast Rolling Hills LLC (2013)

• What is undue hardship?

Recent Court Decisions

THANK YOU!

Jenny Arthur, SPHR, SHRM-SCP

HR Consultant

Jenny has had a distinguished career in the Human Resources

Consulting field. Jenny's work has focused primarily on small to mid-

sized businesses in a variety of industries to reduce exposure to

employment-related liability and assist clients with employee

relationship issues. Jenny holds a Bachelors of Business Administration

(BBA) degree majoring in Human Resources Management and a

Masters of Business Administration (MBA) degree with a

concentration in Human Resources Management. She is certified as a

SPHR (Senior Professional in Human Resources) through the Human

Resource Certification Institute. Jenny resides in Georgia with her

husband and two children.

Thank You!

Get in touch with us.

[email protected]

leaves of absence: navigating the fmla & ada webinar

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