Everything you ever wanted to know about the EEOC Workers Comp, FMLA and the ADA … but were afraid to ask Joe Bontke Outreach Manager & Ombudsman EEOC Houston District Office 713 209 3436 joe.bontke@eeoc.gov

this training is meant to Educate you about law and policy Enable you to avoid the legal pitfalls of the employment process Maintain a safe, fun and productive workplace Protect your organization and yourself from costly, time consuming legal proceedings

What’s in your “backpack”?

To make distinctions in treatment. DISCRIMINATE According to Webster: To make distinctions in treatment.

IS ALL DISCRIMINATION BAD? Sometimes it is OK to make distinctions between people Example: The person with greater experience gets the promotion or hired The law prohibits distinctions made based on protected characteristics Example: The male gets the promotion over female just because of his gender.

What questions can I ask an applicant? Before you ask the applicant any questions ask yourself. What do you need to know? Is it business related? Is this person looking for a job or lawsuit? Is the interview being recorded?

Job Application Questions It is best to limit job application questions to basic identifying information (e.g. name, address, social security number) Questions about job qualifications Questions related to the ability to perform essential functions Required licenses or degrees

Questions to avoid-- Are you pregnant? Do you plan to have children? What is your date of birth? Are you married? Do you have a disability? Do you need an accommodation to do this job? Have you ever been treated for a mental illness?

Title VII -Civil Rights Act It is illegal for employers to treat individuals differently based on the following protected characteristics: Race Color Religion National Origin (ethnic background) Gender (sex)

Title VII - Civil Rights Act Discrimination prohibited as to: Hiring Promotion Discipline Termination Wages All other terms and conditions of employment Retaliation prohibited

AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) Age a protected characteristic (40 and over) BEWARE: Stray remarks and skewed policies

Americans with Disabilities Act (ADA) Disability is a protected characteristic Definition of disability: physical or mental impairment which substantially limits a major life activity In addition to prohibition of discrimination, reasonable accommodation is required Beware: “record of” or “regarded as” disabled

REQUIRED: Interactive Process ADA Accommodations No requirement to eliminate an essential function of the job No requirement to lower production standards A modification need not be made if it creates an unreasonable hardship for the company REQUIRED: Interactive Process

FMLA, ADA and WORKERS COMPENSATION: Which one do I use when? For Employee Leave And or Serious Medical Conditions

Employee Leave Any period when an employee is excused from reporting to regularly scheduled work duty.

Employers Already have a Leave Policy Most employers permit: Paid leave for sickness, vacation, personal days, etc., and periods of unpaid leave Other have a unpaid leave, permitting the employee to be absent, but without pay.

Leave and the ADA ADA doe not specifically require employers to grant leave to their employees. ADA does require Employers to provide Reasonable Accommodations, which may include some form of leave.

ADA Requires Reasonable Accommodations The ADA prohibits discrimination against qualified individuals with Disabilities. Discrimination includes the failure to provide a reasonable accommodation that will enable the employee to perform the essential functions of the job. 42 USC 12112 (b)(5)(A)

Leave is not an Example The ADA lists various examples of reasonable accommodations, but employee leave is not one of the examples: Examples include: Modifying work schedules Reassignment to Vacate position Adjusting policies

EEOC recommends leave as an option The EEOC Compliance manual recommends flexible leave policies, but does not requires additional paid leave as a reasonable accommodation Unpaid leave is an option to accommodate a disabled employee. Flexible but not open ended.

Examples of Flexible Leave Advancing paid or unpaid leave. Borrowing paid leave from other employees Granting reasonable amounts of unpaid leave in anticipation of return None of these are required, so why do them?

Who is Entitled to a Reasonable Accommodation? Qualified Individuals with a disability Who is qualified? Those able to perform the essential functions of the job with or without a reasonable accommodation.

Attendance as an Essential Function of all Jobs. Most courts (including the Fifth Circuit) presume that regular and predictable attendance is an essential function of all employment. Is this True? What about sick leave policies? Why do employers have them?

Even if it is not true that regular and predictable attendance is a requirement of all jobs, the courts will presume that it is. Plaintiff will have to rebut this presumption with evidence that the employer did not regard regular and predictable attendance as essential. (Sick leave policy is some evidence, or pay when work policy, work at home policies, etc.)

So who is Unqualified? Workers who cannot attend work are not qualified for fro the job. Inability to attend makes them incapable of performing any job function. If not qualified, then no obligation to provide a reasonable accommodation. No obligation to grant leave as a reasonable accommodation.

Those requesting leave are not qualified to receive it Those requesting leave are not qualified to receive it. Can this be Right? What is the purpose of a reasonable accommodation? To enable the employee to perform the essential functions of the job. Does granting leave enable the employee to perform the essential function of the job? If attendance is an essential function, does granting leave enable the employee to attend?

Is it not discrimination to fire someone because their disability makes them unable to report for work? What is an employee did not report for work because he liked to fish and did not regularly and predictably appear for work because he went fishing? Isn’t attendance a disability neutral reason for discharge.

FMLA & the ADA The ADA does not provide an effective remedy for the serious ill employee needing leave. The FMLA fills this gap. It does not fill the gap perfectly.

ADA & FMLA Cover Different Set of Employees ADA covers only those with disabilities who can perform the essential functions of the job. Under ADA employee can receive an accommodation only for his own disabilities, not for a family member’s disabilities.

ADA & FMLA Cover Different Set of Employees FMLA covers those with a serious medical condition The condition need only be serious, not disabling Covers employees whose family members have a serious medical condition.

ADA & FMLA Cover Different Set of Employees ADA covers employees, regardless of how long they have served. FMLA covers employers who have worked for 12 months and in that 12 months have worked 1250 hours (essentially at least part time)

ADA & FMLA Cover Different Set of Employees The event that triggers the employee’s right to FMLA leave is the inability to report for work because of a serious medical condition. Under the ADA, the event that (according to most courts) triggers the employee being unqualified and unable to claim leave as an accommodation is the inability to report work because of a disability.

ADA & FMLA Cover Different Set of Employers ADA covers employers with 15 or more employees. FMLA covers employers with 50 or more employees.

Defenses are different under ADA and FMLA Under the ADA providing a reasonable accommodation is excused when doing so would impose an undue hardship on the employer. There is no such defense under the FMLA, leave must be granted regardless of the burden.

Workers Compensation and termination Can you fire an employee who is out on workers compensation leave while recovering from an injury or illness First, if the employee is not able to report to work and has exhausted all leave, he is probably not going to be considered qualified on the date of termination because not able to appear for work. So no ADA exposure.

If the employer has 50 or more employees, and the employee has work 1250 hours in the past 12 months, the employee is entitled to 12 weeks leave, with the right to return to position or equivalent. If worker has been off for less than 12 weeks there may be an FMLA claim, but perhaps not.

Can you fire a worker out on workers compensation leave? It depends It depends on the reason fro the firing.

Workers compensation Cannot fire an employee for exercising their right to make a claim for workers compensation. If the reason is because of the WC claim, there is a violation for which the employee can recover damages. Do not fire employees for filing a claim.

Workers Compensation An employee, even if on workers compensation leave, is still an at will employee. He can be fired for any reason or no reason, except for reasons precluded in statute or other other. Let us pause and think …..

Problem of proof The question is not “Did I have a lawful reason to fire?” Not even: “Can I prove I had a lawful reason to fire?” As a practical matter the question is:”How much will it cost to prove I had a lawful reason to fire him?”

If you did not fire him before he took leave for the injury, and you fired him for poor performance while on leave, you will not sound credible. You will need a specific legitimate reason that is applied to all workers.

Some Reasons that are OK Employee is released by doctor but fails to report to work. It is not the comp claim but the failure to report for work that is the reason, it is best if you fire others who fail to report for work when scheduled.

Failure to return to work in the prescribed time (I. e Failure to return to work in the prescribed time (I.e. 26 weeks, 52 weeks etc.) Misconduct – including failure to follow safety rules which cause the accident. And other legitimate reasons.

To trouble, worry or torment HARASS According to Webster: To trouble, worry or torment

HARASSMENT ALWAYS WRONG, SOMETIMES UNLAWFUL Harassment can become unlawful when someone is tormented because of a protected characteristic such as race or gender All other harassment is against company policy

RETALIATE According to Webster: To return like for like.

RETALIATION A retaliation claim is the victim’s best friend: The plaintiff in a retaliation case does… NOT NEED A VALID UNDERLYING CLAIM

RETALIATION Retaliation is prohibited by most discrimination statutes as well as public policy: Whistleblowing Making a Workers Comp claim Refusal to lie under oath Refusing to violate the law

REDUCING EXPOSURE THROUGH DOCUMENTATION, POLICIES AND EFFECTIVE EMPLOYEE RELATIONS

KEY QUESTIONS TO ALWAYS ASK YOURSELF WHEN MAKING PERSONNEL DECISIONS Am I using job related criteria in making this decision? Am I treating this person the same as I treat other similarly situated individuals?

Common Methods of Discipline Verbal Warning Written Warning Suspension Discharge Document, Document, Document (even the Verbal Warning) And remember – BE PROACTIVE.

Appropriate Discipline Investigate thoroughly. Discipline with respect. Explain purpose of discipline. Provide expectation and/or assistance. Offer opportunity for comment. Obtain signed acknowledgement. Apply discipline consistently. Ensure policies/discipline do not disproportionately impact those of a particular protected class. Document, Document, Document

any questions, comments, concerns or complaints Joe Bontke EEOC Outreach Manager and Ombudsman 713 209 3436 office 713 907 2855 cell joe.bontke@eeoc.gov