Terri C. Davis tcd@shuttleworthlaw.com Handling Leave Issues Terri C. Davis tcd@shuttleworthlaw.com

Types of Leave Sick Leave/PTO FMLA Workers’ Compensation Short Term/Long Term Disability ADA Accommodation Military Leave

Workers Compensation Types of Temporary Leave TTD – temporary total disability Receives full benefit TPD – partial or light duty Receives partial benefit

Workers Compensation Temporary Partial Disability Reduced hours Limited duty – i.e., “Light Duty” Fewer hours or Lower pay as a result Paid, based upon reduction in earnings

Light Duty Issues Optional, not required to be offered If offered, communicate clearly, and in writing if possible Make sure you have current restrictions from doctor And follow them! If refuse, no benefits during refusal Not required to create a new position

Return to Work from Work Comp Must have doctor release – so you know what restrictions if any Can’t have blanket 100% requirement (ADA) Must abide by restrictions NO retaliation – demotion, cut hours, firing – for filing claim

Failed Return to Work Sometimes not ready yet Ask for doctor release Offer light duty if available Maybe 4 hours instead of 8 for a short period Same protections from retaliation if failed attempt

Leave for appointments Must pay regular pay if doctor, PT, etc. during normal working hours Can’t require employee to schedule outside working hours

FMLA Leave Issues Eligibility Employer – 50 or more employees within 75 miles By road, as the rationale is whether the employer can easily get someone there to cover it In 20 or more weeks in the preceding year-time Must count all employees on the roster of employees, including part-time, seasonal, temp

FMLA Leave Employee eligibility 1. work for a covered employer 2. have worked for an employer for a total of 12 months(NOT in the last yr) 3. 1250 hrs in the previous 12 months

FMLA Leave Up to 12 workweeks in 12 month period UNPAID

FMLA Reasons Birth or Adoption To care for a spouse, child or parent with a serious medical condition Employee’s own serious health condition Qualifying exigency related to military service of employee or family member (12 weeks)

FMLA Notice What notice is required to Employer? 30 day notice if foreseeable Or as soon as practicable if not Can require employee to comply with other employer policies while on leave – i.e., call-in policies

FMLA Notice Employee does not need to use magic words – Must train supervisors/managers to recognize potential FMLA situations and refer employees to HR when appropriate If employee has told you of a serious health condition, and is missing work, or having difficulty working . . .

FMLA Notice What notice is required to Employee? Posters, policies, training Advising may be eligible if know of serious health condition and need for leave Must tell employee if it is being treated as FMLA leave

Serious Health Condition Very specific requirements Inpatient Care Continuing treatment Period of incapacity >3 days with subsequent treatment Incapacity related to pregnancy Incapacity or treatment for chronic serious health condition

Certification of Health Care Provider To be completed by employee’s doctor Employer can get 2nd or 3rd opinion at employer’s expense Can require periodic recertification Can get clarification from doctor, but it must be someone other than employee’s direct supervisor

FMLA Leave Must maintain health benefits while on leave Can require them to pay their portion of premium Must restore to equivalent job when employee returns

Intermittent Leave Perhaps the single biggest issue for many employers Can be taken in increments as small as you allow pay to be broken down If for planned medical treatment, employee has duty to schedule so as to limit disruption to employer

FMLA Leave Employer CAN require the employee to use paid leave while on FMLA Sick leave, vacation But must inform the employee of this policy

USERRA Military Leave Military deployment can’t destroy FMLA eligibility Entitled to 26 weeks to care for injured family member with a serious injury or illness Entitled to same benefits as if had been continuously employed

USERRA Covered Servicemember = current member of the armed forces, including national guard and reserves Who is undergoing treatment for a serious injury or illness Defined as injury or illness incurred in the line of duty while on active duty that leaves him unfit to perform duties

How is Exigency leave different? Arises out of fact that family member is on active duty, or is being called up to active duty in support of a contingency operation Does not apply to family members of military members in the regular armed forces, only guard and reserve

After FMLA/Work Comp Leave Released but has permanent restrictionse Return to prior job? Have other positions within restrictions? Can I terminate? Can it be accommodated?

What are essential Functions? Job Description is helpful, but not the final determinator How often is it done? Is it part of the main purpose of the job, or incidental?

ADA Employer may require an employee who requests accommodation (including leave) to provide medical documentation Nature Severity Duration, and Extent of impairment

ADA No documentation? No accommodation required Reasonable time to provide

ADA Employer’s obligation is to engage in interactive process to determine if there are any reasonable accommodations that will allow the employee to perform essential functions Again – employee need not use magic words

ADA If employer has enough information to identify disability as an issue, it has an obligation to inquire further How can we help you do your job?

ADA Obligations What accommodations are reasonable? reduced work schedule Regular time off for treatment Flexible start time Leave of absence for a definite period, if leave will allow employee to return to work and perform essential functions

ADA What accommodations are unreasonable? Eliminating essential functions Irregular, erratic, unreliable attendance – if regular attendance is an essential function Leave of absence for an indefinite period of time Anything that would create so severe an economic hardship as to threaten continued viability of company – don’t count on this one

FMLA/ADA Interaction FMLA applies if covered entity and eligible employee ADA if not a covered entity, before employee become eligible for FMLA leave or after employee exhausts FMLA leave Must always consider which statute applies

DECISION POINTS Employee reports injury/illness Employee requests leave – FMLA/ADA Employee requests extension of leave Employee wants light duty work Employee wants to return to work Employee has permanent restrictions/limitations

Employee Reports Injury or Illness If claim is accepted – leave is allowed Weekly benefits are paid Cannot require employee to use PTO If claim is denied – Don’t have to pay benefits, BUT Does leave qualify for FMLA? Is ADA implicated?

Requests Leave, Not Work Related FMLA – Suggest applying for FMLA leave if the employee is eligible Assist with paperwork Intermittent or Full time leave? STD/LTD benefits available? Promptly process the FMLA Certification of Health Care provider and notify employee if FMLA is granted

Requests Leave, Not Work Related Can require recertification during leave Have written policies regarding call-in, recertification requirements Make sure benefits are continued

Requests Extension of Leave If FMLA, can have up to 12 weeks total per 12 months You can offer extension, but clearly state that employee might not be returned to same/equivalent job – loses that protection after 12 weeks – must be consistent You can require additional medical documentation

Requests Extension of Leave STD or LTD to offer at this point? May be required to discuss additional leave as a reasonable accommodation under ADA No longer can quibble over whether it is really a “disability” Assume it is if they have been unable to work, and engage in the dialogue

Wants to Return Light Duty If workers’ compensation injury, then encourage light duty – get release from doctor with clear restrictions Can be modified duties or hours – be creative It is to your benefit to have employee back to work, even at light duty

Wants to Return Light Duty If not workers’ compensation FMLA does not require the employer to offer a light duty option, and employer cannot penalize employee for refusing light duty option Q: Would it benefit the employer to have employee working in some modified capacity?

Full Return to Work Do you want a fitness for duty evaluation? Cannot require 100%, no restrictions Are there issues about the employee’s or other employees’ safety? If FMLA, must be same or equivalent position

Full Return to Work What if the position is no longer available? What is considered equivalent? Same pay Same level of responsibility Same opportunities for advancement Different shift? Different department?

Employee Has Permanent Restrictions If workers’ compensation – can you accommodate the restrictions in the position, or modify the position? – do it if you can If not workers’ compensation – probably need to engage in dialoueg about reasonable accommodations under ADA

Scenario 2 Ready to come back to work full time, but still has some restrictions Can the position accommodate the restrictions? (don’t need to create new job) Do the permanent restrictions constitute a disability? Need to accommodate by adjusting job duties, help lifting, etc?

Scenario 2 Would an additional leave allow him to return to work and perform the essential functions? Have any FMLA leave left? Remember: can’t have blanket policy requiring release of 100%, no restrictions

Questions? tcd@shuttleworthlaw.com