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2 Determining strategy can be challenging because: o Many federal and state laws must be considered o Multiple legal theories can be used under these statutes o The law is largely “undeveloped” or “under-developed” o Individualized assessment takes time which no one has o Systems often do not capture necessary information o Leave and paid time off benefits developed when few legal protections existed for absences Goals: reduce systemic exposures/win individual cases

3 FMLA, State Leave Entitlements Is the employee “entitled” to be absent with job protection? Evaluate policies and past practices (always provide what you say you will) Has Company “committed” to providing additional job-protected leave? Must consider impact of the ADA Amendments Act Many more people on STD and WC will receive leave as a reasonable accommodation Is additional leave required as a reasonable accommodation for employees with disabilities?

4 FMLA ADAAA WC State Laws Your Policies Jury Military Domestic Violence/ School/ Other Pregnancy

5 2 different questions: Is employee entitled to time away from work? Is employee entitled to pay during time away from work?

6  Worked for 12 months (non-consecutive) for a covered employer.  Worked at least 1,250 hours during 12-month period immediately preceding the leave.  Worked at a worksite in which employer has 50+ employees within a 75-mile radius.  If on non-FMLA leave when reaches 12-month threshold, pre-12 month leave does not count toward FMLA leave.

7 Eligible employees are entitled to up to 12 workweeks of unpaid leaved during any 12-month period due to: o Their own medical condition. o Birth of a child (includes leave for new fathers). o Adoption or foster care of a child. o A spouse, child or parent’s medical condition. o Specified military-related absences. Employee must be returned to same or equivalent job. Must maintain group health insurance coverage during leave.

8 8 Employee o Tell Supervisor Reasons for Absence or Leave o Employees not required to mention FMLA to be protected Property Managers o Tells HR what Employees says about reason for absence HR o Sends FMLA forms and medical certifications to Employee o Approves or Denies FMLA leave after receiving certifications o Evaluates potential additional leave entitlements beyond FMLA

9 Employees are allowed to take intermittent leave if the leave is to care for themselves or a spouse, parent or child with a serious health condition and intermittent leave is medically necessary. Intermittent leave is not required for the birth/adoption of a child unless employer agrees.

10 Interference o Employee claims that he/she was denied an FMLA benefit (leave, reinstatement, etc.) o Merits often will turn on: Whether the individual was eligible for and entitled to the FMLA benefits Whether the reinstatement was to an equivalent job Whether the process was followed

11 Retaliation o Employee claims that he/she suffered an adverse employment action because the employee requested or took leave o Merits often will turn on: Employer’s legitimate reason Evidence that supervisors were frustrated by the leave

12 FMLA is the beginning … not the end!

13 FMLA ADAAA WC State Laws Your Policies Jury Military Domestic Violence/ School/ Other Pregnancy

14 Prohibits discrimination against qualified individuals with a disability. Requires covered employers to provide a reasonable accommodation if doing so will allow the individual to perform the essential functions of his/her job o a reasonable accommodation must also be provided to job applicants.

15 The definition of “disability” is very broad. Reasonable accommodations are sometimes necessary to help a disabled employee perform the job. o Change in equipment or tools/assistive device. o Modified work or break schedule. o Work from home. o Reassignment to open position. o Leave of absence. What is reasonable depends upon the circumstances.

16 (1)Physical or mental impairment that substantially limits 1+ major life activities; (2)Record of such an impairment; or (3)Regarded as having such an impairment. Note: An FMLA “serious health condition” is not necessarily the same as an ADA “disability.”

17 Discrimination cases (wrongful employment action) Typical Scenarios: o Adverse employment action because of medical condition o Adverse employment action because of performance related to medical condition o Negative treatment after employer learns of medical condition o Fitness for duty exams o Adverse action based on fear of behavior associated with condition/medication o Comments: “crazy,” “psycho,” “gimp,” “crippled”

18 Discrimination cases (wrongful employment action) Merits often will turn on: o Whether the individual was “qualified.” Could he/she perform the essential job functions? o Whether employer had knowledge o Employer’s legitimate reason

19 Reasonable accommodation cases Typical Scenarios: o Employee’s requested “accommodation” is denied o Employee quits (is constructively discharged) because of medical condition o Adverse employment action because of performance related to medical condition

20 Reasonable accommodation cases Merits often will turn on: o Interactive dialogue o Whether employee has actual disability or a record of disability o Defenses including undue hardship

21 Leaves of Absence Excused intermittent absences Light Duty Work at Home Change in Supervisor Excusing performance issues or misconduct Reallocating marginal job functions Reassignment Commuting assistance Service animals

22 If a leave of absence was given as an accommodation, an employee has the right to return to the same job unless holding the position open would impose an undue hardship.

23 The ADA is the toughest law to deal with in the current environment. You have some burden (or all of the burden) in recognizing that an accommodation may be needed Be prepared to adjust rules and policies as an accommodation The ADA requires special treatment, not equal treatment Focus on performance or conduct, not medical condition

24 Employer’s obligation is to engage in an interactive dialogue with the employee to determine if the Company can provide a reasonable accommodation. Recognize that leave (including beyond 12 weeks of FMLA), may be a reasonable accommodation Do not say “no” without documented interactive dialogue Do not remove or change job functions without review Do not terminate for attendance without considering whether absences should be job protected Document the accommodations you provide to employees Keep medical information confidential

25 Massachusetts, o Parental Leave o Earned Sick Time o Domestic Violence New Jersey o State FMLA (New Jersey Family Leave Act) o Jersey City Paid Sick Leave o Newark Paid Sick Leave Florida- Miami-Dade County Family Leave Law

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27 Mary was diagnosed with cancer earlier this year. She took 12 weeks of FML from May 1 – July 31 (and substituted all of her paid leave) while she was undergoing chemotherapy treatments. She returned to work on August 1 and is now in remission. Since her return, she has called off work unexpectedly times a month because of migraines which her doctor has diagnosed as the result of the lingering depression from the cancer diagnosis and side effects from the chemotherapy. Mary’s boss has not issued any discipline for her absences, but now he wants to write her up. Can you discipline Mary?

28 1.Statutory Entitlements (FML, State Leave of Absence, State Paid Time Off, WC)? Under the FMLA, does Mary have any time off available? 2.Policy and Practice Commitments? Under your policy and practice do you consistently discipline after the 4 th day of absence? 3.Reasonable Accommodation? Under the ADA are the migraines or her cancer a disability? If so, must you provide the unlimited unplanned absences? Are there any alternative accommodations? Can you discipline for the continued unplanned absences?

29 Thomas recently had to undergo an amputation of his left leg, just below the knee. Thomas took 12 weeks of FML, but was unable to return. Thomas has requested a 1 month extension until his next doctor’s appointment, but the doctor has indicated he is not certain how much longer Thomas will require off work. Thomas’ manager wants to replace him now and terminate his employment. Can you replace and terminate employment now?

30 1.Statutory Entitlements (FML, State Leave of Absence, State Paid Time Off, WC)? Under the FMLA, does Thomas have any time off available? 2.Policy and Practice Commitments? Under your policy and practice have you given Thomas all time off available under your policies? 3.Reasonable Accommodation? Under the ADA is Thomas seeking time off for a disability? If you continue to give Thomas more time off under your Medical Leave policy, can you replace him while he is on leave and if so what do you do when he is ready to come back?

31 Mark is responsible for developing marketing plans for the Company's clients. He is evaluated based on the timeliness of meeting client expectations as well as the quality of his work. Mark has been on intermittent FML leave due to MS. But he never misses more than 2 days in a row. Over the last 3 months he has missed over 20 days. Because of the intermittent need for leave and low resources, the Company has not had anyone fill in for Mark or cover his absences. Four clients have complained that Mark did not finish their plans in a timely manner. The Company has historically terminated employees who receive 3 or more client complaints in a year. Can you terminate?

32 1.Statutory Entitlements (FML, State Leave of Absence, State Paid Time Off, WC)? Mark’s time off work is protected under the FMLA, but is his failure to get his work completed resulting in customer complaints also protected? 2.Policy and Practice Commitments? Does the Company consistently terminate employees who receive 3 customer complaints in a year? 3.Reasonable Accommodation? Is Mark’s MS also a disability? Do you have an obligation to try to accommodate him if he’s taking FML?

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