TMHRA
July 31, 2013
Oh! The Tangled
Web We Weave Managing Employee Leave
(ADA, FMLA)
Presented by:
Brian J. Begle
Americans with Disabilities Act of 1990;
ADAAA of 2008
• Prohibits discrimination
against employees or
applicants on the basis of a
known or perceived
disability
Americans with Disabilities Act of 1990;
ADAAA of 2008
• “No covered entity shall discriminate
against a qualified individual with a
disability because of the disability of
such individual in regard to job
application procedures, the hiring,
advancement, or discharge of
employees, employee compensation,
job training, and other terms, conditions,
and privileges of employment.”
Americans with Disabilities Act of 1990;
ADAAA of 2008
• Failing to make a “reasonable
accommodation” to the known
physical or mental limitations of
someone who is an “otherwise
qualified individual with a disability”
– Unless the employer can demonstrate
that the accommodation would impose
an undue hardship on the operation of
the business.
Definitions
Qualified Individual:
– can perform the essential functions of the job
– with or without reasonable accommodation
Americans with Disabilities Act of 1990;
ADAAA of 2008
Definitions
Old law – Disability:
• a physical or mental impairment
that substantially limits one or
more major life activities
• a record of such an impairment
• or being regarded as having
such an impairment
Americans with Disabilities Act of 1990;
ADAAA of 2008
Definitions:
New law – Disability:
• Much broader
• The ADAAA rejected a strict
interpretation
• prohibiting consideration of almost
all mitigating measures
• excluding from protection only
those impairments that are
transitory and minor
Americans with Disabilities Act of 1990;
ADAAA of 2008
Americans with Disabilities Act of 1990;
ADAAA of 2008
New Direction for
Employers
• Concentration on
reasonableness of potential
accommodations
• Dialogue required
• Size of employer, cost, and
effect upon business
Americans with Disabilities Act of 1990;
ADAAA of 2008
Managing Leave
• Meaningful dialogue and employer flexibility is essential
• Accommodation, creativity, and following the law
• A request for indefinite leave is not a reasonable accommodation
• Intermittent leave may be reasonable
Americans with Disabilities Act of 1990;
ADAAA of 2008
Managing Leave
• Reasonableness is based upon the
individual circumstances
• Association with disabled individual
may be protected
• Neutral absenteeism policies need
to be revised
• Previous tolerance may not be
evidence that duties are nonessential
Family and Medical Leave Act (FMLA)
“To balance the demands of
the workplace with the needs
of families, to promote the
stability and economic security
of families, and to promote
national interests in preserving
family integrity”
Family and Medical Leave Act (FMLA)
Definitions
• 50 or more employees
• Employed at least 12 months
and for at least 1,250 hours of
service during the previous
12-month period
• “1,250 hours of service” means
actually worked
Family and Medical Leave Act (FMLA)
Definitions Serious health condition:
• illness, injury, impairment, or
physical or mental condition
• EITHER inpatient care
• OR continuing treatment
– Unable to work three consecutive
days, AND
– Seen by a doctor twice, OR
– Seen by a doctor once and given a
prescription
Family and Medical Leave Act (FMLA)
Eligible employees are entitled to a total of 12 workweeks of leave
during any 12-month period for one or more of the following:
• Birth of a child and in order to care
for the child
• Placement of a child for adoption or
foster care
• To care for the spouse, child, or
parent of the employee if they have
a serious health condition
Family and Medical Leave Act (FMLA)
Eligible employees are entitled to a total of 12 workweeks of leave
during any 12-month period for one or more of the following:
• Serious health condition that makes
the employee unable to perform
• Intermittent or reduced leave
• Spouse, parent, child or next of kin
eligible for up to 26 weeks in any 12
month period to care for injured
serviceman
Family and Medical Leave Act (FMLA)
Relationship to Paid Leave
• Employer does NOT have to
provide paid leave
• Employee may elect or
employer may require
employee to take available paid
leave
• After leave, restored to with
equivalent benefits, pay, and
other terms
Family and Medical Leave Act (FMLA)
Relationship to Paid Leave
• Employer has to keep providing
benefits
• If the employee is not receiving a
paycheck, you must still pay
portion of any insurance premiums
• If the employee doesn’t come back
to work THEN the employer may
recover premiums paid
Family and Medical Leave Act (FMLA)
Notice to Employer and
Burden on Employer to Investigate
• Foreseeable leave - employee to give no
less than 30 days notice
• Unforeseeable leave - “notice as is
practicable”
• Employee doesn’t have to use magic words
Family and Medical Leave Act (FMLA)
Certification Requirement
• Employer may require
employee to provide a
certification from the doctor.
– sufficient if it states the date the
serious health condition started,
probable duration, appropriate
medical facts
– must include a statement that they
are unable to perform the
functions of his job
Family and Medical Leave Act (FMLA)
Certification Requirement
• If employer has reason to doubt, can
require employee to get second
opinion
– Employer pays
• If a conflict exists employer may
require, at its expense, a third doctor
to settle the conflict
– The third opinion is final
• Employer may require
recertification on a reasonable basis.
Family and Medical Leave Act (FMLA)
Enforcement
• DOL enforcement power
– Shall receive, investigate,
and attempt to resolve
– DOL may sue the employer
for violations
Family and Medical Leave Act (FMLA)
Enforcement
• Employee enforcement power
– Statute of limitation
• 2 years after date of last event
• 3 years if willful violation
– Damages.
• Wages, salary, benefits, or
• Actual losses sustained
• Plus interest
• Plus liquidated damages
• Plus appropriate equitable relief
• Plus attorney’s fees, and other costs
Family and Medical Leave Act (FMLA)
Managing Leave
• Designating all time that is
appropriate
• You can and should be adamant
about proper documentation
• You can take action for employee’s
failure to adhere to requirements
• Understand the Interaction between
ADAAA and FMLA
Family and Medical Leave Act (FMLA)
Managing Leave
• Employees taking intermittent leave
now required to make a reasonable
effort to schedule time off as to not
unduly disrupt operations
• Light duty does not count against
FMLA leave time
• Employers can request that employees
schedule appointments/treatment at the
employer’s convenience if reasonable
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