Let The Challenge Begin!

And the Secret Ingredient is …

PERSERVERENCE

Meet Scott, Head Chef

• During annual review, Scott claims migraines caused all ‘alleged’ problems

• Also tells you… – Onset unpredictable,

triggered by stress – Results in yelling and

rudeness– More likely at end of the

week– Duration varies, generally 6

hrs– Medication makes him

anxious and unpredictable

The Challenge is On …

• Mind racing, you search your memory for ‘buzz’ words & dig out your seminar notes– FMLA – Serious Health Condition (SHC)

• Chronic condition• Intermittent leave

– ADA – can he perform Essential Functions• Substantially limited in major life activity• Interactive process and realistic options• Direct threat

What Now?

• Is Scott covered by FMLA?– 12 months // 1250 hours

• If so, do we have notice?– Specific condition, chronic nature, current

problem, will cause need for leave when occurs• Within 5 business days of notification of need • Rights & Responsibilities and Eligibility Notice

(WH-381) and Medical Certification (WH-380-E)

15 Days Later …

3. …Is the employee unable to perform any of his job functions due to the condition: ____ No __x__ Yes. If so, identify the job functions the employee is unable to perform: Can’t work

7. Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions? ____ No

__x__ Yes.

15 Days Later …

(7)Is it medically necessary for the employee to be absent from work during the flare-ups? __x__ No __x__ Yes. If so, explain: Depends on severity.

(7)Based upon medical history and the medical condition, estimate frequency of flare-ups and duration of incapacity over the next 6 months: Frequency: _1_ times per _x_ week(s) month(s) _x_. Duration: _2-12_ hours or ___ day(s) per episode.

Notice of Deficiency• New tool – Insufficient or Incomplete

– 3: which job functions cannot be performed– 7: is time off medically necessary during flare-up*– 7: frequency unclear due to conflicting information

• Must provide written notice or use WH-382

• 7 calendar days to cure

• Leave can be denied if not cured

7 Days Later …

3. …If so, identify the job functions the employee is unable to perform: All

7. Is it medically necessary … absent from work during the flare-ups? __ No _x_ Yes. If so, explain: Severe migraines cause personality changes and medication causes drowsiness making it unsafe for Scott to work.

Based upon medical history and the medical condition, estimate frequency of flare-ups and duration of incapacity over the next 6 months: Frequency: _ times per _from 1 day per week(s) to once per month(s) __. Duration: _2-12_ hours or __ day(s) per episode.

Cross-Roads

• Deny certification as not supporting leave

• Second Notice of Deficiency

• Within 5 business days, accept Certification and designate leave (WH-382)

• Accept and initiate direct contact to HCP to authenticate and clarify

Second Opinion?

• Only opportunity to request (WH-382)

• Genuine concern about legitimacy?

• At employer cost

• If not, time to designate (WH-382)– Consider Fit for Duty due to safety concern

Fit for Duty Certification

• Every occurrence, unless less than 30 days from last one

• Significant safety risk– Doctor’s clarifying words – Scott’s statement during

review– Like ADA Direct Threat

standard

• Consider using form for physician and job description as tools

Fast Forward …• Scott misses 3 Friday & 4 Saturday shifts in

2 months

• Called right before, claiming he wants FML for his headache

• You scramble to find coverage and end

up cooking

• Rumor has it that Scott is also working

at another restaurant that pays more

What Questions Can We Ask

• Does Scott qualify for leave?– Which essential function can’t Scott perform

– Why does he needs entire shift off

– What is the medical necessity justifying absence

– Was notice given as soon as practicable

– How long will Scott be on leave

What Tools Can We Use

• Normal & Customary attendance procedure

– Call-In Policy: Who, How, When, What Shared Consequences for non-compliance

• FML may be denied for inadequate notice

• Disciplined for failure to follow policy

Periodic Reports

• Can require employee to initiate contact

• Purpose is to confirm …– Still has need for leave– Still has intent to return

• Reasonable intervals

Personal Certification Policy

I, _____, certify that my absence on ______ was due to the reason stated in the Medical Certification I submitted to the Company on ___ in connection with my Family Medical leave. I understand that absence taken due to the serious health condition set forth in the Certification will be counted against my leave entitlement under the FMLA and Company policies. I also understand that providing false or misleading information about my absence will result in disciplinary action, up to and including immediate termination.

Moonlighting Policy• Consider limited policy

focused on misuse of leave

• Be clear about prohibition against working second job while on FMLA leave

• Gather evidence of violation if taking disciplinary action - consider using 3rd party or photos, as standard is honest belief of misuse

Recertification• Every 6 months for continuing/open-ended

condition or sooner if duration finite

• Also available when information/events cast doubt on employee’s stated reason for leave– Pattern of absence– Working second job (if confirmed)

• Contact health care provider to describe possible inconsistent conduct concern

Bonus & Financial Motivators• If based on attendance goal and

consistent with all types of leave, counting permissible– OFLA counting is NOT permissible

• Can also focus on hitting key objective targets– Labor costs– Gross profit– Number of customers, positive reviews, etc.

Sick Leave Limitation

• Employer can require paid leave run concurrently

• Requiring use of vacation time/PTO is deterrent

• Narrow scope of sick leave to ‘employee only’

• Consider requiring employee to stay at home during sick leave unless otherwise approved

• Requiring medical support for sick leave pay– Beware of Doctor’s Excuses! or similar companies

1 Hour Minimum

• Regulations allow counting of leave in units up to 1 hour– Must use same unit for all leave programs

• Does not impact obligation to pay for time worked if less than 1 hour of leave used

Lessons Learned• Thoughtful Procedure is Key

– Review certification and identify deficiencies

– Consider clarification if questions still exist

– If question legitimacy, second opinion option

– In designation process, remember fit for duty

– Ensure employee’s notice fits certification

Lessons Learned

• Adopt Call-In Policy

• Require Reasonable, Periodic Reports

• Personal Certification Upon Return

• Recertification if Questionable Use

• Bonus Incentive – Attendance/Performance

• Consider Limited Sick Leave Benefit

• Count in 1 Hour Minimum Blocks

• Designate Every Time

Home Team – 1

Challenger – 0

About That Behavior Problem …• You pick up the paper

and see this picture on the front of the Food & Lifestyle Section

• Scott tracked down a food critic at home, and gave a review of his own

• Scott claims his migraine made him do it and it was off-work behavior

Do We Ignore or Discipline

• Can we discipline for off-duty conduct?

• Is there a policy that has been violated?

• Is Scott covered by the ADA?

• Do we need to ignore conduct as a reasonable accommodation?

Is Scott Disabled?

• Three pronged definition of disability:

– Physical / mental impairment (including episodic) that substantially limits 1 or more Major Life Activities*

– Record of such impairment

– Regarded as having such

Coverage Questions• Is Scott qualified individual …

– Can he meet the regular and dependable attendance standard that is an essential function

• What is/are the major life activities …– Working– Thinking– Interacting with others

• Is Scott substantially limited when condition active...– Maybe, No, Probably

Accommodation Steps

• Identify EJF that require accommodation

• Identify accommodations to reduce and/or remove barriers and increase productivity

• Determine cost and effectiveness of accommodations identified

• Implement accommodation that is most appropriate with least economic hardship

In the Case of Migraines• Reduce migraine triggers …

– Lighting changes– Noise reduction strategy– Fragrance elimination– Consistency

• Allow recovery from episode … – Time off or quiet, dark place to rest– Telework

• JAN is excellent source for exploring options

What is Not Required• Changes to Qualitative or Quantitative

Standards

• Elimination of Essential Functions

• Changes that Create Undue Hardship– Expensive– Disruptive– Eliminates reasonable conduct rules

The Choice• Reasonable

Options– Explore reducing

stress triggers

– Allow time off so long as call-in rules, etc. are followed

– Suspend some non-essential functions and re-evaluate periodically

• Unreasonable Options– Telework

– Allow any requested scheduling change without notice

– Eliminate Essential Functions or provide assistant

– Overlook rule violations

No Matter What, No More of This!

Documentation• Identify what assistance Scott may receive

• Clarify process for obtaining help or leave

• Document interactive process and Scott’s agreement to conclusion

• Confirm accuracy of current job description

• Obtain agreement to conduct and performance standards going forward, status of disciplinary process, and consequences for non-compliance

Lessons Learned• Ensure job descriptions have behavior- &

attendance-focused essential functions

• Provide clarity about quantitative and qualitative standards and expectations

• Identify appropriate accommodations to assist with removal of barriers

• Documents agreements, current status, and expectations going forward

Home Team – 2

Challenger – 0

Questions?

Tamsen Leachman | 503.417.5513 | tll@dunn-carney.com