BEST PRACTICES IN FMLA & ADA MANAGEMENT Presented to DMEC Ohio Chapter by Todd F. Palmer, Esq. September 2016

FMLA SERIOUS HEALTH CONDITION Inpatient Care Period of Incapacity lasting more than 3 consecutive days if: Two or more visits to a health care provider; visit 1 within 7 days of first day of incapacity, and visit 2 within 30 days of first day of incapacity; OR Treatment by a health care provider on one occasion that results in a regimen of continuing treatment under the supervision of the health care provider; visit 1 within 7 days of first day of incapacity © Calfee, Halter & Griswold LLP 2010

FMLA SERIOUS HEALTH CONDITION Any period of incapacity due to pregnancy or for prenatal care Chronic Serious Health Condition Requires periodic visits to health care provider (2/yr); Continues over an extended period of time May be episodic rather than continuing © Calfee, Halter & Griswold LLP 2010

FMLA SERIOUS HEALTH CONDITION Any period of incapacity which is permanent or long term for which treatment may not be effective To receive multiple treatments for a condition that if left untreated would result in incapacity of more than 3 days © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 ADA DISABILITY A physical or mental impairment that substantially limits one or more major life activities; or having a record of such impairment; or being regarded as having such impairment 2008 Amendments (ADAAA): core definition of disability remains same; but interpretation of key elements expanded Disability to be construed broadly © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 ADA DISABILITY Major Life Activities: basic activities and major bodily functions which most people can perform ADAAA expands list of basic activities, and adds new category of major bodily functions Result: expand class of persons with disabilities Impairment = Disability © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 ADA DISABILITY Substantially limits: revised to expand coverage of disability An impairment is a disability if it substantially limits a person’s ability to perform a major life activity as compared to most people © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 ADA DISABILITY Impairment need not prevent or severely restrict the person from performing a major life activity Mitigating measures no longer considered in assessing “substantially limits” Impairment need not be “constant” to substantially limit Episodic/in remission conditions count © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 ADA DISABILITY Substantially limited in major life activity of working: concept expanded by ADAAA An impairment substantially limits the major life activity of working if it substantially limits the person’s ability to perform “the type of work at issue” Type of work at issue = the person’s job © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 ADA DISABILITY “Scheduled list” of impairments which consistently meet definition of disability: deafness, blindness, intellectual disability, missing limbs, mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, MS, MD, depression, bi-polar, PTSD © Calfee, Halter & Griswold LLP 2010

ADA QUALIFIED INDIVIDUAL WITH A DISABILITY An individual who: satisfies the requisite skill, experience, education and other job-related requirements of the position; and who, with or without accommodation, can perform the essential functions of the position This is the threshold for ADA protection © Calfee, Halter & Griswold LLP 2010

ADA REASONABLE ACCOMMODATION Modifications or adjustments to the work environment, or to the manner or circumstances under which the position is customarily performed, that enable a QIWD to perform the essential functions of the position © Calfee, Halter & Griswold LLP 2010

WHO IS A COVERED EMPLOYER? FMLA: 50 or more employees in 20 or more workweeks in current or preceding calendar year ADA: 15 or more employees in 20 or more workweeks in current or preceding calendar year © Calfee, Halter & Griswold LLP 2010

WHO IS A COVERED EMPLOYEE? FMLA: employee who has worked for 12 months, and worked 1250 hours in 12 months preceding start of FMLA leave ADA: applicants and employees, if a QIWD © Calfee, Halter & Griswold LLP 2010

WHAT EVENT TRIGGERS THE PROTECTION OF THE LAW? FMLA: serious health condition of employee or family member; birth/adoption of a child; Military caregiver ADA: disability, and being a QIWD © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 HOW MUCH LEAVE? FMLA: 12 weeks per year ADA: ongoing, if reasonable accommodation; limited by concept of undue hardship; perpetual leave is not r.a. © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 PAY & BENEFITS FMLA: unpaid leave (unless paid leave is substituted); health insurance continued during leave ADA: unpaid; COBRA rights © Calfee, Halter & Griswold LLP 2010

LIMITATIONS ON DISCHARGE FMLA: no discharge of employee during leave (with exceptions); no discrimination or retaliation against employee who uses FMLA leave ADA: employer obligated to make reasonable accommodation, subject to undue hardship limitation; failure to accommodate and discrimination claims © Calfee, Halter & Griswold LLP 2010

© Calfee, Halter & Griswold LLP 2010 LIGHT DUTY FMLA: employee on light duty not on FMLA leave; cannot require employee to accept a light duty position and give up FMLA leave ADA: can be a reasonable accommodation © Calfee, Halter & Griswold LLP 2010

WHAT HEALTH-RELATED INQUIRIES ARE ALLOWED? FMLA: medical certification; employer (but not direct supervisor) can contact health care provider to clarify the certification ADA: allowed as to current employees, but must be job-related and consistent with business necessity; keep confidential © Calfee, Halter & Griswold LLP 2010

Employer Tools for Managing FMLA Limit FMLA Only to "Eligible Employees" Use "Rolling" 12 Month Period for Calculating Entitlement Require Employees to Use Paid Leave for FMLA Leave © Calfee, Halter & Griswold LLP 2014

Employer Tools for Managing FMLA Learn What Constitutes "Serious Illness" Under FMLA MLOA > 3 days "chronic conditions" "Intermittent" and "Reduced Schedule" Only for Illness-Related FMLA Leave © Calfee, Halter & Griswold LLP 2014

Employer Tools for Managing FMLA "Conditionally Designate" FMLA within 5 Business Days Insist on Timely Medical Certification and Recertifications © Calfee, Halter & Griswold LLP 2014

Employer Tools for Managing FMLA Discipline Consistently for Failure Timely To Provide Certification or Recertification Must provide at least 15 days "Final Warning" (?) © Calfee, Halter & Griswold LLP 2014

Employer Tools for Managing FMLA Insist on Employee Making Contributions to Health Insurance While on FMLA Recover Employer Share of Benefits Premium Payments from Non-Returning Employees. © Calfee, Halter & Griswold LLP 2014

Employer Tools for Managing FMLA Require "Fitness For Duty" Certificate to Return to Work Terminate for Fraudulently Obtaining FMLA Leave © Calfee, Halter & Griswold LLP 2014

Employer Tools for Managing FMLA Don't Penalize Employees For Taking FMLA Leave Attendance Discipline Performance Reviews Develop Bonus Programs Based on "Performance" not "Absence of Occurrence" © Calfee, Halter & Griswold LLP 2014

Evaluating ADA request Is the employee disabled? Is there an impairment? Does it impact a major life activity? Is that major life activity substantially limited? © Calfee, Halter & Griswold LLP 2008

Evaluating ADA request Is the employee a qualified individual? Does the employee have the skills and experience required? What are the employee’s essential job functions? Can the employee perform those functions, with or without a reasonable accommodation? © Calfee, Halter & Griswold LLP 2008

Evaluating ADA request Is the employee entitled to a reasonable accommodation? What has the employee requested? Is the accommodation reasonable? Does the accommodation create an undue hardship? 03943271.pptx