ADA and FMLA in the Staffing Industry

Which employers are covered under these acts? Preview What is ADA and FMLA? Which employers are covered under these acts? Which employees are covered under these acts? What do I have to do as an employer to comply with these acts? How can I get more information if I have a specific question concerning these acts?

What is ADA? ADA The Americans with Disabilities Act ensures equal opportunities for persons with disabilities. Title I of the ADA prohibits discrimination against persons with disabilities in employment. Title I of the ADA is enforced by the Equal Employment Opportunity Commission (EEOC). This presentation more specifically addresses Title I of the ADA. However, all businesses should keep in mind that Title III of the ADA prohibits discrimination against persons with disabilities in places of public accommodation and commercial facilities. You must be able to provide the same opportunity to apply for a job to someone with a disability as you would for anyone else. For instance, if an applicant is in a wheelchair and you don’t have a wheelchair ramp, you can bring an application to him to fill out in his car. You may have to use a telephone relay service to speak to an interested phone applicant who is deaf.

ADA Eligible Employers All employers must comply with Title III. (Susan – what is Title 3? Its not stated in here prior to this. Please distinguish between Titles 1 and 3 on a previous slide.) Businesses with 15 or more employees must comply with Title I. You must count all employees on your payroll, even if they perform their primary duties at a different worksite. Staffing agencies must count all temporary employees when determining if they are an eligible employer.

ADA Eligible Employees All persons with disabilities are covered under the ADA. You must also comply with ADA regulations during the application phase – BEFORE a person is considered an employee.

ADA – Steps for compliance Hang EEOC (including ADA) poster in an area visible to all applicants – all-in-one federal posters already include this. Take steps necessary to reasonably accommodate any telephone and walk-in applicants. Avoid asking any medical or disability related questions during an interview – you may only ask if the applicant can perform specific job functions before a conditional job offer is made. Placing an individual on a roster for possible consideration DOES NOT constitute a conditional job offer – you must offer an assignment with a particular client. After you determine that you are an eligible employer, here are some important steps to take in order to comply with the ADA

ADA – Steps for compliance After you’ve made a conditional job offer, you may address medical issues if the questions are job-related and consistent with business necessity. A covered employer is obligated to provide a reasonable accommodation, absent undue hardship, if it has notice of the need for the accommodation. Both the staffing firm and the client are responsible for making reasonable accommodations for a disabled employee once the employee begins working on a specific assignment. Clients who ask a staffing firm to screen out individuals solely on the basis of a disability are in direct violation of the ADA. The client becomes responsible as soon as they enter into an individual’s employment phase. This may be during the application phase if they normally send all individuals to the staffing firm for specific positions. Typically, a job offer has been made with a particular client before that client must share responsibility. The costs associated with this issue is sometimes addressed in a client agreement or contract. Reasonable accommodation is very broad – some examples include modifying equipment or work stations or modifying working hours.

What is FMLA? FMLA The Family and Medical Leave Act grants family and temporary medical leave under certain circumstances. FMLA is enforced by the Wage and Hour Division of the Department of Labor.

FMLA Eligible Employers An eligible employer employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. You must count all employees on your payroll, even if they perform their primary duties at a different worksite. Staffing agencies must count all temporary employees when determining if they are an eligible employer.

FMLA Eligible Employees An eligible employee is an employee for a covered employer who: has been employed by the employer for at least 12 months has been employed for at least 1250 hours within the year prior to FMLA leave is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite It’s important to note that many states have additional FMLA laws. As of January 1, 2007, the following states have adopted specific FMLA state laws: California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin and the District of Columbia.

FMLA – Reasons for Qualified Leave Limited to a total of 12 workweeks (continuously or intermittently) during any 12-month period for any one or more of the following reasons: The birth of an employee’s child and time to care for that newborn child The adoption of a child and time to care for the newly placed child To care for the employee’s spouse, child, or parent with a serious health condition Because of a serious health condition that makes the employee unable to perform the essential functions of his or her job

FMLA – Steps for compliance Hang FMLA poster in an area visible to all applicants – all-in-one federal posters already include this Choose a method for determining your 12 month period in which the 12 weeks of leave occurs and document the method to be used (stay consistent for every employee) Calendar A “fixed” year (such as fiscal, for example) A 12 month period measured forward from the date any employee’s first FMLA leave begins A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave FMLA compliance can be complex. You may want to establish policies and have them approved by an employment attorney to be sure that you are in compliance BEFORE any incident occurs.

FMLA – Steps for compliance Determine if FMLA will be paid or unpaid time and what benefits will be maintained (you MUST continue all group benefits that were paid in part or in full by the employer before the FMLA was taken). When an employee requests leave under FMLA, you may ask him or her to provide the request in writing along with any medical documentation necessary for determining eligibility (standard forms are available). Keep ANY medical information in a separate “need to know” file – do not keep these records in the personnel file. Group medical benefits must continue during FMLA leave.

FMLA – Steps for compliance You must keep standard records for 3 years for FMLA purposes, including general employee information and payroll records, as well as all records pertaining to any specific FMLA cases including the dates FMLA was taken by each employee – you may want to set up an FMLA log to help you to keep track. When an employee returns from FMLA, you must place him or her in the same position or an equivalent job in terms of pay, benefits and other terms and conditions. If you replace an employee at a client site during FMLA leave, you must try to place the employee in a position with similar job duties and benefits

ADA: - www.ada.gov FMLA: Helpful resources - www.eeoc.gov (specific to Title I) - Job Accommodation Network: 800-526-7234 - www.eeoc.gov/policy/docs/guidance-contingent.html (this page will answer questions specific to staffing services) FMLA: - www.dol.gov/esa/whd/fmla/ (this website provides standard request and response forms) - 1-866-487-9243 (you will be referred to a Wage and Hour Division office in your area)