FMLA/ADA Rundown: Everyday Challenges Supervisors Should Know How to Face Allison B. Moreman, Esquire 175 East Main Street, Suite 500, Lexington, Kentucky Phone: Fax:

w w w. j a c k s o n k e l l y. c o m 2 ADA – SCOPE AND COVERAGE 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, condition, and privileges of employment.

w w w. j a c k s o n k e l l y. c o m 3 Essential Elements of ADA Claim To prevail in an ADA action, the plaintiff must prove that he or she has: 1.A disability, 2.Is a qualified individual capable of performing the essential functions of the job either with or without reasonable accommodation, and 3.was unlawfully discriminated against because of his or her disability.

w w w. j a c k s o n k e l l y. c o m 4 ADA - BASIC DEFINITION OF DISABILITY (A) A physical or mental impairment that substantially limits one or more major life activities of such individual; (B) A record of such an impairment; or (C) Being regarded as having such an impairment.

w w w. j a c k s o n k e l l y. c o m 5 Actual Disability Physical or Mental Impairment Substantially Limits Major Life Activities and Major Bodily Functions

w w w. j a c k s o n k e l l y. c o m 6 Regarded as Having Such an Impairment Implementing regulations define "is regarded as having such an impairment" to mean any of the following: Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment Has none of the impairments defined in the regulation, but is treated by a covered entity as having a substantially limiting impairment

w w w. j a c k s o n k e l l y. c o m 7 ADA – ABILITY TO CORRECT CONDITION U.S. Supreme Court has held that applicants and employees who can correct their disability through medication or otherwise are not protected by the Americans with Disabilities Act.

w w w. j a c k s o n k e l l y. c o m 8 Examples not considered to be a disability: Carpal tunnel syndrome: U.S. Supreme Court held that employee with carpal tunnel syndrome was not protected by the ADA because in order to be protected by the ADA, the employee must be restricted from performing tasks that are of central importance to most people’s daily lives. Hypersensitivity to tobacco smoke: Court found that this sensitivity did not constitute a disability because her hypersensitivity would also preclude her from employment elsewhere. Alcoholism: Although alcoholism can be considered a disability if it meets the criteria, it does not render alcoholic employees immune from discipline or discharge. Courts have upheld the terminations of alcoholic employees who became intoxicated while on duty.

w w w. j a c k s o n k e l l y. c o m 9 Practice Pointer Permissible for employer to adopt or administer reasonable policies or procedures (including drug testing) designed to ensure that employees are no longer engaging in the illegal use of drugs.

w w w. j a c k s o n k e l l y. c o m 10 Who is Protected? Title I of the ADA applies to employees who are qualified individuals with a disability. A person is a qualified individual with a disability if he or she is able to perform the essential functions of a job with or without a reasonable accommodation

w w w. j a c k s o n k e l l y. c o m 11 Who is a Qualified Individual? An individual who, with or without reasonable accommodation, can perform the essential function of the employment position that such individual hold or desires

w w w. j a c k s o n k e l l y. c o m 12 Who May be Liable? -Covered Entity -Employer -Exceptions

w w w. j a c k s o n k e l l y. c o m 13 To establish a prima facie case of discrimination, a plaintiff must demonstrate that (i) plaintiff is disabled within the meaning of the ADA; (ii) plaintiff is a qualified individual able to perform the essential functions of the job; and (iii) the employer terminated or refused to rehire plaintiff because of his or her disability.

w w w. j a c k s o n k e l l y. c o m 14 Acts constituting “discrimination” The term “discriminate” includes (but is not limited to) the following: -Improper job classifications -Contractual relationships -Improper job standards -Job qualifications -Aptitude tests -Failure to accommodate disability

w w w. j a c k s o n k e l l y. c o m 15 -Relationship with disabled person -Improper pre-employment medical exams -Improper pre-employment inquiries -Adverse employment actions -Particular employer requirements

w w w. j a c k s o n k e l l y. c o m 16 DUTY OF REASONABLE ACCOMMODATION Employers have duty to make reasonable accommodation to known needs of qualified individuals with disabilities, so long as the accommodation would not impose an undue hardship on the employer.

w w w. j a c k s o n k e l l y. c o m 17 ADA - EXCLUSIONS The Act excludes from its definition disability because of status as: Transvestites, Transsexuals, Pedophiles, Exhibitionists, Voyeurists, Gender identity disorders not resulting from physical impairment, Sexual behavior disorders, Compulsive gamblers, Kleptomaniacs, Pyromaniacs, Illegal drug users. Marijuana is considered a Schedule 1 narcotic under federal law, it is illegal to use marijuana under federal law.

w w w. j a c k s o n k e l l y. c o m 18 Family and Medical Leave Act The purpose of the FMLA is to provide employees with specific rights to unpaid leave of absence for family or medical reasons, including medical leave when the employee is unable to work because of a “serious health condition. ”

w w w. j a c k s o n k e l l y. c o m 19 FMLA – Eligibility Requirements -The employer must employ 50 or more workers within 75 miles of the employer’s work site. -The employee must have been employed by the employer for at least 12 months. -Only employees who have been employed for at least 12 months and who have worked at least 1250 hours during the 12 months prior to the leave request are eligible.

w w w. j a c k s o n k e l l y. c o m 20 FMLA Leave of Absence -FMLA can be 12 weeks of continuous leave; or -FMLA may be taken on an intermittent or reduced hours schedule basis. An employee may elect a schedule of reduced hours.

w w w. j a c k s o n k e l l y. c o m 21 Circumstances Covered by FMLA The birth of a son or daughter, and to care for the newborn child; Placement with the employee of a son or daughter for adoption or foster care; Care for the employee’s spouse, son, daughter, or parent with a serious medical condition; Because of a serous medical condition that makes the employee unable to perform the functions of the employee’s job;

w w w. j a c k s o n k e l l y. c o m 22 Circumstance, continued Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty; and To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the covered service member.

w w w. j a c k s o n k e l l y. c o m 23 FMLA: Serious Health Condition The FMLA defines serious health condition broadly to include any “illness, injury, impairment, or physical or mental condition that involves” either inpatient care or continuing treatment by a health care provider.

w w w. j a c k s o n k e l l y. c o m 24 Reinstatement Rights Any eligible employee who takes FMLA leave is entitled, upon return from such leave, to be restored to employment in either the position of employment held by the employee when the leave commenced, or an “equivalent” position.

w w w. j a c k s o n k e l l y. c o m 25 Compensation and Benefits During FMLA Leave Employee’s health benefits are protected No loss of accrued seniority. Other group health benefits Substitution of Paid Leave for Unpaid Leave

w w w. j a c k s o n k e l l y. c o m 26 Prohibited Acts and Enforcement Mechanisms Unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided by the FMLA. An employer interferes with the exercise of an employee’s rights by refusing to authorize FMLA leave, as well as discouraging an employee from using FMLA leave.

w w w. j a c k s o n k e l l y. c o m 27 Overlap of ADA and FMLA

w w w. j a c k s o n k e l l y. c o m 28 Eligibility Comparison ADA: Employers with 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year are covered by the ADA. FMLA: The employer must employee 50 or more workers within 75 miles of the employer’s work site.

w w w. j a c k s o n k e l l y. c o m 29 Definition of “Disability” FMLA serious health condition is not the same as an ADA disability, but there may be some overlap. For example, cancer and serious strokes would likely qualify under both. However, pregnancy, hernia, broken leg would not qualify under ADA, but under FMLA.

w w w. j a c k s o n k e l l y. c o m 30 Additional distinctions Medical certifications, inquiries, and confidentiality Intermittent or occasional leave Reinstatement rights Leave of absence v. effective reasonable accommodation

w w w. j a c k s o n k e l l y. c o m 31 Questions?

w w w. j a c k s o n k e l l y. c o m 32 Confidentiality Note: This presentation from the law office of Jackson Kelly PLLC is for the sole use of the intended viewers and contains confidential and privileged information. Any unauthorized review, use, disclosure, distribution, or other dissemination of this presentation and/or the information contained herein is strictly prohibited.