Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC What to Do When Your Own Employees are Sick Presented by: Clarence M. Belnavis Phone: (503) OCHIN Learning Forum, November 15-16, 2012

What laws affect employee attendance?

Laws Affecting Attendance ADAAA FMLA Worker’s Compensation State and local leave laws

Focus Of The ADA Emphasizes what employee can do Requires evaluating individual’s ability to perform May require a reasonable accommodation

Focus Of The FMLA Provide unpaid, job protected leave Protect from adverse treatment Prevent retaliation Maintain benefits

Focus Of Workers’ Compensation Emphasizes what employee cannot do Provides compensation for lost earning and medical expenses associated with work-related injury

Employee Eligibility ADA Employee has a “disability” –Physical or mental impairment that substantially limits a major life activity –History of impairment –Regarded as having impairment

Employee Eligibility FMLA Birth/adoption, prenatal care Care for the employee’s spouse, child, or parent with a “serious health condition” Employee’s own “serious health condition” Military related time away from work needed

Employee Eligibility Workers’ Compensation Workplace injury or illness

Areas Of Overlap Employee able to take full-time leave Employee right to reinstatement Opportunity for light or modified duty

Exclusively ADA Impairment not requiring on-going medical care or time away from work that is not a result of workplace injury or illness

Exclusively FMLA Leave for birth, adoption, or placement for foster care Leave to care for ill spouse or child with a “serious health condition”

Exclusively Workers’ Compensation Non-serious workplace accident –If serious, must also consider FMLA & ADA

ADA and FMLA A “serious health condition” that was non- work related but is of sufficient severity and duration to be considered a “disability” Serious, chronic conditions such as AIDS, emphysema, loss of limb

FMLA and Workers’ Compensation Work-related injury that keeps employee from working three or more days –Employers frequently forget to designate the leave as FMLA qualifying –Under OFLA, both cannot run concurrently

FMLA, ADA and Workers’ Comp. An FMLA covered employee who suffers from a “serious health condition;” Suffered the injury on the job; and The injury is serious enough to qualify as a “disability” under the ADA

Is Employee Eligible? ADA –Disability FMLA –1250 hours in most recent 12 months –12+ months in last 7 years Worker’s Compensation –Work related illness or injury

The ADAAA Protects significantly more employees Alters statutory interpretations of key terms Imposes less demanding standards Shifts focus to “did discrimination occur?”

What Changed? Definition of “Disability” “Substantially limits” no longer “severe” or “significant” –focus on qualifications, need and whether discrimination occurred “Impairment” can be “substantially limiting” even if episodic or in remission –impact WHEN ACTIVE Temporary condition can be “substantially limiting” Cannot consider positive effects of “mitigating measures” –(except eyeglasses or contacts) in determining disability Does not require medical or other scientific “evidence”

What Changed? “Regarded As” Subjected to action “because of” any actual or perceived physical or mental impairment No longer requires belief that impairment substantially limits a major life activity Still may defend based on legitimate non- discriminatory reason for action No reasonable accommodation required for this third (new) definition –emphasizes importance in non-accommodation cases

before denying an accommodation, or refusing to consider an accommodation

Managing FMLA Intermittent Leave Foreseeable: Require 30-days advance notice and, if not given –Require employee to explain why such notice could not be given –Absent unusual circumstances, employer may delay or deny FMLA leave if employee fails to follow employer’s call in policy Unforeseeable: Utilize notice requirements of attendance policy –“As soon as practicable” but... –Employee must comply with employer’s usual and customary call in procedure, absent unusual circumstances

Managing FMLA Intermittent Leave Require Leave Request form Designate FMLA absences to run clock Require complete certification forms –Information provided is vague, ambiguous or non- responsive –Must tell employee in writing why certification is incomplete or insufficient –7 calendar days to cure –If employee does not cure, may deny leave –Employee may allow employer to contact healthcare provider rather than cure (NOTE: Oregon does not have this provision) –If employee fails or refuses to cure deficiencies or does not grant permission to contact HCP, may deny leave Utilize frequency and duration from medical certification Require second opinion

Managing FMLA Intermittent Leave Attempt to require schedule that least disrupts operations Consider option of transferring employee if leave is foreseeable –Temporarily transfer to available alternate position if position better accommodates leave than the employee’s regular job –Equivalent job duties not required –Company must provide equivalent pay and benefits –Must comply with collective bargaining agreement, ADA, etc. Use substitution of paid leave policy to minimize small increments of leave –Inform employee that he or she must satisfy procedural requirements of the paid leave policy to be paid

Managing ADAAA Attendance ADA attendance or reduced schedule –Determine whether regular attendance is essential job function –Determine whether permitting absences is reasonable accommodation –Determine whether permitting absences will result in “undue hardship”

Managing ADAAA and FMLA Attendance Attendance Policies –If no fault, note absences exempt from policy, e.g., those covered by FMLA and the ADAAA –Reassess no fault attendance policy – are you better off returning to a fault-based system (excused versus unexcused) –Regardless, assess employee’s own health related absences not only under FMLA but the ADAAA

Managing ADAAA Attendance Can still require disabled employees to follow company procedures Assess whether absences are unreasonably unpredictable, repeated, frequent or chronic as such absences may render the employee unqualified or the absences are not reasonable but an undue hardship under the ADAAA

Managing FMLA and ADAAA Leaves FMLA –12 weeks unpaid leave (up to 36 weeks under OFLA) –Designate FMLA leave to run concurrently with other leaves (OFLA leave cannot run concurrently with injured worker leave) –Do not count absences against employee, even under no-fault attendance policy ADAAA –No set period of leave –Perform individualized assessment to determine how much leave is necessary and whether it would be an undue hardship to extend leave –No paperwork required – but suggested

Managing FMLA and ADAAA Leaves and Attendance Institute written accommodation policy Include accommodation language in other policies –FMLA policy if company does not have other leave policies, e.g., if not FMLA eligible or FMLA exhausted, you may be eligible for reasonable accommodation under ADAAA –Maximum leave polices: include language that company may extend maximum period as a reasonable accommodation under the ADA

Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC Presented by: Clarence M. Belnavis Phone: (503) Final Questions

Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC Presented by: Clarence M. Belnavis Phone: (503) Thank You