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Presenting a live 90-minute webinar with interactive Q&A

Performance and Termination

Decisions Under the FMLA and ADA Avoiding Retaliation Claims and Litigation When

Disciplining or Discharging Employees on Protected Leave

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, JANUARY 13, 2016

Evan H. Pontz, Partner, Troutman Sanders, Atlanta

Johanna T. Wise, Seyfarth Shaw, Atlanta

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Performance and

Termination Decisions

Under the FMLA and ADA

January 13, 2016

Johanna T. Wise Evan H. Pontz

Seyfarth Shaw LLP Troutman Sanders LLP

jwise@seyfarth.com evan.pontz@troutmansanders.com

404-881-5448 404-885-3518

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AMERICANS WITH DISABILITIES ACT

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American’s with Disabilities Act (1990)

An employer may not discriminate against an employee with a disability in any aspect of employment

Employers must reasonably accommodate employees with disabilities to allow them to perform the essential functions of their jobs

The ADA protects applicants, new employees, and existing employees

The ADA protects individuals with a disability, with a record of a disability, or who are regarded as disabled

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• EEOC regulations became final in May 2011

Much broader universe of covered individuals

If disability is in question, individual is likely disabled (de facto presumption)

More requests for accommodation (beware of retaliation)

More internal complaints (beware of retaliation)

More EEOC charges

More federal court lawsuits

More ADA suits filed by EEOC

Litigation focus shifts to qualifications and reasonable accommodation

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◦ A covered disability is a physical or mental impairment which substantially limits an individual’s ability to perform a major life activity

Before: substantially limits = “significantly restricts” and many cases were dismissed for failure to show disability

Now: substantially limits “should not demand extensive analysis” and “usually will not require scientific, medical or statistical analysis”

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◦ Mitigating Measures must be set aside in analyzing whether someone is disabled

◦ Temporary Impairments lasting fewer than 6 months can be substantially limiting

◦ Episodic Impairments or conditions in remission are covered if they would substantially limit major life activity when active

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Major Life Activities:

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Specifically listed conditions that are covered in “virtually all” cases:

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All persons must be able to perform essential functions of the job with or without reasonable accommodation ◦ Essential Functions - Does the individual meet the

basic qualifications of the job? tasks fundamental to the job

not marginal tasks that can easily be distributed to others

job descriptions

◦ Must provide reasonable accommodation absent undue hardship Significant difficulty or expense

Based on several factors

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Making existing

facilities more

accessible

Reassignment of

non-essential job

functions

Part-time or

modified work

schedules,

including unpaid

leave

Reassignment to

a vacant position

Providing or

modifying

equipment or

devices

Modifications of

examinations,

training materials

or policies

Providing

qualified readers

or interpreters

Telecommuting

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Employee’s preferred accommodation when Employer has offered an alternative, effective accommodation

Eliminating or reallocating essential functions

Creating a job where none exists

Eliminating qualification requirements

Lowering quality or production standards

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Must engage in an interactive process

Case by case analysis

When do you need to engage in the interactive process?

An applicant or employee requests an accommodation (no magic words required); or

An employer:

(i) knows that the employee has a disability, and (ii) knows, or has reason to know, that the employee is having difficulty performing job functions because of an impairment

The safest approach is to consider any notification that a job modification is needed because of a medical condition as a request for reasonable accommodation

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FAMILY AND MEDICAL LEAVE ACT

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◦ An absolute entitlement to a certain amount of job protected leave in a defined period of time 12 weeks (26 weeks to care for injured service member) Employed for 12 months Worked 1,250 hours in previous 12 months 50+ employees within 75 miles

◦ FMLA leave can be taken in a block of time, intermittently, or on a reduced schedule and can be taken in weeks, days, hours, or minutes

◦ Right to reinstatement to the same job

◦ Right to have health benefits continued as if still working the same regular schedule

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Employee Medical: Employee’s own serious health condition that makes employee unable to perform one or more of the employee’s essential job functions

Family Care: Care for a family member (parent, spouse or child) with a serious health condition

Birth/Placement: Birth of employee’s child or placement of a child with the employee for adoption or foster care

Qualifying Exigency: in connection with a covered family member’s military service

Injured Service member: Care for injured service member with serious illness or injury who is employee’s parent, spouse, child, or for whom employee is next of kin

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Employee needs to give notice of leave

Proper notice for leave depends on the following: If need for leave is foreseeable – at least 30 days

If need is not foreseeable – as soon as practicable

If leave is for planned medical treatments, the employee must provide as much notice as possible and attempt to schedule leave so that there is no disruption to business

Once the Employer is on notice that an Employee may need FMLA leave, the Employer needs to provide the Employee with certain written information (Notice of Eligibility and Rights and Responsibilities)

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Thorny Issues For Employers Under The ADA & FMLA

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• Sometimes a diagnosis appears to be in response to discipline or a bad performance evaluation

• Accommodation requests may appear to be excuses to avoid the bad or hard parts of the job

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What should an Employer do if an Employee requests leave or an accommodation for the first time in response to counseling? The Employer may address the performance issues

BUT: If an accommodation is requested, begin the “interactive

process” by discussing how the disability may be affecting performance and what accommodations may be needed

Poor performance does not impact an Employee’s right to take FMLA leave

NOTE: Do not counsel an Employee for performance issues that are caused by the FMLA absences (e.g., Employee isn’t getting his/her work done because of taking intermittent leave)

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Abby does not disclose her learning disability, even when she begins having performance problems that she believes are disability-related. Her supervisor notices the performance problems and counsels Abby about them. At this point, Abby discloses her disability and asks for a reasonable accommodation. The supervisor denies the request immediately, explaining, “You should not have waited until problems developed to tell me about your disability.” Is the supervisor’s response okay?

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May an Employer ask an individual for documentation when the individual requests an accommodation? Yes. When the disability and/or the need for

accommodation is not obvious, the Employer may ask the individual for reasonable documentation about the disability and functional limitations.

Reasonable documentation means that the Employer may require only the documentation that is needed to establish that a person has a disability and requires a reasonable accommodation

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• To ensure FMLA leave is proper in the first instance, an Employer may seek to have a second or third opinion

• This must be done BEFORE leave is designated as FMLA

• For the second opinion, the Employer selects the physician

• For the third opinion, the Employer and Employee jointly select the physician

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Can an Employer apply the same standards of production or sales goals to an Employee with a disability?

Yes. An Employee with a disability must meet the same production or sales standards. However, a reasonable accommodation may be required to assist an employee in meeting a specific standard.

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Robert is a sales associate for an office supply company. His territory covers a 3-state region and he must travel to each state three times a year. Due to staff cutbacks, the company is increasing the number of states for each salesperson from 3 to 5. Robert explains to his manager that due to his disability he cannot handle the extra two states and the increased traveling, and he asks that he be allowed to have responsibility only for his original 3 states.

What should the company do?

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Dwight is a sales representative who has recently found it difficult to achieve job standards because of pain in his hands. He goes to the doctor’s office and is diagnosed with Parkinson’s Disease. When he returns to work, he requests a modified work station to ease his pain and allow him to once again meet his job duties.

Should the company grant his request?

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After the company grants Dwight’s request and offers him a modified work station, Dwight still cannot meet his sales goals. Dwight asks if his goals can be adjusted downward, an accommodation he believes will allow him to be on an equal playing field with his coworkers.

Should the company grant his request?

Can the company address performance problems?

Should the company allow Dwight to continue to work?

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Retaliation occurs when an employee experiences an “adverse employment action” because he/she engaged in protected activity such as: Requesting a reasonable accommodation or

taking FMLA leave

Complaining about an alleged violation of the ADA or FMLA

Participating in an investigation relating to protected activity

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Make sure that the Employee continues to be treated like any other Employee

Supervisors should contact HR before disciplining or changing job duties

Any information regarding a complaint or an Employee’s exercise of rights under these statutes should only be shared on a “need to know” basis – and co-workers almost never need to know

Remember: FMLA and ADA absences cannot be counted against an Employee under attendance policies, performance reviews, or in rankings or layoffs

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Jill has been a solid performer for several years until recently being diagnosed with cancer and taking intermittent leave. Jill is unable to do the job without making lots of mistakes due to the side effects of her medication.

Jack is difficult to get along with and has frequent arguments with co-workers. After he is put on a performance plan, he requests FMLA for work-related stress.

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May an Employer use the same evaluation criteria for both Employees with and without disabilities without disabilities?

Yes. An Employer should evaluate the job performance of an Employee with a disability the same way it evaluates other Employees’ performance.

Example: Last year Nicole received an “above average” review in her performance evaluation. During the current year Nicole dealt with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did the prior year. She did not request a reasonable accommodation (i.e., inform the employer that she required an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. How should Nicole be rated?

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Does the ADA require that Employers exempt an Employee with a disability from time and attendance requirements? Although the ADA may require an Employer to

modify its time and attendance requirements as a reasonable accommodation, Employers generally do not need to completely exempt an Employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the Employee’s disability necessitates), or accept irregular, unreliable attendance.

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Does an Employer have to grant a reasonable accommodation to an Employee with a disability who waited until after attendance problems developed to request it?

Maybe. An Employer may impose disciplinary action, consistent with its policies. However, if the Employee’s infraction does not merit termination and the Employee requests reasonable accommodation, the Employer must consider the request.

Example: Brian, who has diabetes, is given a written warning for excessive absenteeism. After receiving the warning, Brian notifies his employer that his absences were related to his diabetes, which is not well controlled. Brian asks that the warning be withdrawn and that he be given leave when needed due to his diabetes.

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Jane has had absence and tardiness problems for years. She has been on the verge of termination several times. Before you get to termination, she brings in FMLA papers and requests intermittent leave.

When put on final warning under your attendance program Mary reveals she has cancer and states her supervisor knew all along she was off for treatment and she should not have been disciplined.

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Maximum leave policies not sufficient to satisfy Employer’s duty of reasonable accommodation

Policies must incorporate case-by-case assessment and Employer’s duty for reasonable accommodation

• Challenges to automatic termination policies:

$6.2 million settlement

$3.2 million settlement

• Challenges to “no fault” attendance policies:

$20 million settlement

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If you believe an Employee’s absences are not consistent with his or her FMLA leave, review the medical certification to see if it exceeded the duration and/or frequency of the approved leave.

If there is a suspicious pattern of absence, the Employer can request recertification which includes asking the healthcare provider if the condition and need for leave is consistent with the actual absence pattern.

Review medical certification

Review FMLA tracking resources

Is there a clear pattern?

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What should you do if an Employee seeks FMLA leave under suspicious circumstances (e.g., right after vacation request is denied)? Considerations

Employee or family member serious health condition?

What does the medical certification say?

Proof?

FMLA available?

Second opinion?

Recertification?

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Tina provides a medical certification indicating that she needs intermittent, unplanned leave for a back condition. You have evidence that she is seen around town at Starbucks, grocery shopping, carrying heavy items, and mowing the law on days she is off for “FMLA.” What do you do?

Fred is certified for intermittent FMLA leave and unquestionably is ill. However, nearly every time a performance issue is pointed out or there is a deadline, he take off for “FMLA.”

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Judy is approved for intermittent FMLA leave to care for her mother in connection with hospitalizations. She requested vacation from August 1-4 for annual family vacation with her mother. Her vacation request was denied. Judy then seeks FMLA leave from August 1-4. What should you do?

Becky submits certification in support of continuous leave that states that she is unable to work at her job. Becky is observed working at her family’s restaurant during leave. What should you do?

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Betsy, a production worker, has two active counseling notices for performance issues. She is eligible for FMLA leave, however, she does not currently have FMLA paperwork on file, nor is she working with an accommodation. She calls out sick on October 7-9. She is off on October 10. While she is gone, her supervisor discovers 2 production report discrepancies that could result in 2 separate counselings and begins to investigate them. On October 11, Betsy calls in and says she has broken her collar bone and will need to be out for four weeks. On October 15, the decision is made to issue the 2 counseling notices and terminate Betsy.

What should the Company do?

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10. Automatically terminating an employee under a maximum leave policy without engaging in an interactive process

9. Denying an employee leave or an accommodation because of performance issues

8. Requiring employees on reduced work schedule/intermittent leave to produce the same amount of work as if full-time

7. Supervisors not recognizing when an employee is giving them notice of the need for leave or an accommodation

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6. Supervisors not remembering/not having a protocol for documenting reasons for absences

5. Terminating an employee on leave after reorganizing her department when the reorganization is triggered by her going on leave

4. Waiting until an employee is on leave or requests accommodation to address prior performance problems

3. Refusing to engage in the interactive process because an employee only has a “temporary impairment”

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2. Denying FMLA leave because the employee’s absence creates an undue hardship

1. Making biased comments:

• “You’re going on leave at the worst possible time.”

• “She’s always absent.”

• “Joe is off again, this time he’s probably in the psych ward.”

• “I wouldn’t recommend her for a promotion – we’ve had to spend so much money adjusting her workspace.”

• “She’s a troublemaker.”

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For Additional Information:

Evan H. Pontz

404-885-3518 evan.pontz@troutmansanders.com

Johanna T. Wise

404-881-5448 jwise@seyfarth.com

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