1 MOVING TARGETS… Managing Employee Leave Issues (FMLA/ADAAA) Ann Holden Kendell (515)

2 At-Will Employment Employment may be terminated by the employee or employer at any time for any reason. Therefore, unless there is a contract, it is employment at will.

3 Except for…  Terminations in violation of law or public policy  State and federal law protects certain classes of people from discrimination  State and federal law protects employees who engage in certain activity from discrimination or retaliation

4 Employer Expectations  Employers do have a right to an “at work” workforce  Employees must be able to perform the essential functions of the job with or without reasonable accommodation  Attendance is an essential job function

5 Purpose of Webinar  Empower you to manage your employees while identifying potential problem issues  Handle potential problem issues in compliance with the law and as business needs necessitate  Focus employment decisions based upon the facts of the situation – not assumptions and only facts necessary to the business needs

6 Managing Employee Leave Issues  FMLA  ADAAA

7 Family and Medical Leave Act (Protected Activity)  Covered Employer – 50 employees  Covered Employee – works at a location that has 50 employees within 75 miles, has worked for Employer for 12 months and has worked1250 hours over the last 12 months

8 Family and Medical Leave Act  Employees are entitled to:  12 weeks of unpaid leave and  job reinstatement for:  the birth or adoption of a child or placement of a foster child,  serious health condition or to care for a family member with a serious health condition.

9 Family and Medical Leave Act  Military Family Leave Provisions: Final Rule Published ; implements amendments to the military leave provisions made by the National Defense Authorization Act for Fiscal Year 2010  For employees with a family member that is in the Regular Armed Forces, National Guard or is a Reservist, there is “qualifying exigency” leave under the FMLA. If the family member is a service member who became injured or sick in the line of duty, the leave can be 26 weeks.  Similar to the “historic” FMLA provisions, spouses employed by the same employer share the leave.

10 Family and Medical Leave Act  Qualifying exigency leave: made available to family members of the National Guard and Reserve components under the FY 2008 NDAA, is expanded to include family members of members of the Regular Armed Forces.

11 Family and Medical Leave Act  Substituted the term “covered active duty” for “active duty” and defined “covered active duty” for a member of the Regular Armed Forces as ``duty during the deployment of the member with the Armed Forces to a foreign country'', and for a member of the Reserve components of the Armed Forces as ``duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty.” Prior to the FY 2010 NDAA amendments, there was no requirement that members of the National Guard and Reserves be deployed to a foreign country. 11

12 Family and Medical Leave Act  Qualifying exigency leave: Employee is allowed to take Rest and Recuperation qualifying exigency leave for the same amount of time as is provided to the military member for the member's Rest and Recuperation leave, up to a maximum of 15 days.  The employee may choose to take the leave in a continuous block of time or intermittently over the duration of the military member's R and R, up to 15 calendar days.

13 Family and Medical Leave Act  Servicemember Care: The definition of a serious injury or illness for current members of the Armed Forces expanded to include an injury or illness that existed prior to service and was aggravated in the line of duty on active duty and that renders the member medically unfit.

14 Family and Medical Leave Act  Covered Service Member: Broadened to include a veteran with a serious injury or illness who is receiving medical treatment, recuperation, or therapy, if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy. 14

15 Family and Medical Leave Act  Serious Injury or illness for a veteran: An “injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.'' 15

16 Family and Medical Leave Act  Final Rule also amends the regulations to implement the Airline Flight Crew Technical Corrections Act, which establishes eligibility requirements specifically for airline flight crewmembers and flight attendants for FMLA leave and authorizes the Department to issue regulations regarding the calculation of leave for such employees as well as special recordkeeping requirements for their employers.

17 Family and Medical Leave Act  Final Rule includes clarifying changes concerning the calculation of intermittent or reduced schedule FMLA leave

18 Family and Medical Leave Act  Clarifying Changes:  1) Clarify that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave.  2) Insertion of an example to illustrate that when an employer uses different increments to account for different types of leave, the employer must use the smallest of the increments to account for FMLA leave usage.

19 Family and Medical Leave Act  Clarifying Changes:  3) Emphasis that an employer may only reduce an employee's FMLA entitlement by the amount of leave actually taken, excluding any time after an employee has returned to work.  Accordingly, where an employer chooses to waive its increment of leave policy in order to return an employee to work--for example, where an employee arrives a half hour late to work due to an FMLA-qualifying condition and the employer waives its normal one-hour increment of leave and puts the employee to work immediately--only the amount of leave actually taken by the employee may be counted against the FMLA entitlement.

20 Family and Medical Leave Act  The FMLA, 29 U.S.C. Section 2615(a)(1), subjects an employer to money damages and potential injunctive relief for interfering with, restraining or denying the exercise of an employee’s FMLA rights. No retaliation!

21 ADA and ADAAA (Protected Class)  The federal Americans with Disabilities Act and recent amendments protect people with disabilities from discrimination.  Fifteen or more employees = coverage  Also, don’t forget the ICRA = coverage for employers with 4 or more employees

22 ADA and ADAAA  Expansion of ADA: Signed into law on Sept. 25, 2008  Effective on Jan. 1, 2009  Purpose: Restore intent of the original Americans with Disabilities Act and overturn 4 U.S. Supreme Court decisions that narrowed the interpretation of the ADA  Final regulations approved and published March 25, 2011

23 Americans with Disabilities Act Amendments Act - ADAAA  Retains 3 categories, but requires a broad application  Episodic impairments/impairments in remission are a disability if they would substantially limit a major life activity when active.  Modifies the 3 rd Category – Regarded As  Regarded as having an actual or perceived physical or mental impairment--whether or not the impairment limits or is perceived to limit a major life activity (Overrules Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) )  Does not apply to minor and transitory (expected to or does last 6 months or less) impairments  Does not require Reasonable Accommodation

24 Americans with Disabilities Act Amendments Act - ADAAA  Substantial Limit on one major life activity is sufficient  Directed EEOC to revise regulations on “substantially limits”

25 Americans with Disabilities Act Amendments Act - ADAAA  Added list of MLAs to the Statute – Includes new ones not in old regulations  Added the Operation of MBFs (Major Bodily Functions) as MLAs

26 Americans with Disabilities Act Amendments Act - ADAAA  Formerly, MLA’s only listed in Regulations; New MLA’s (not in former regulations) =  Eating, Sleeping  Standing, Lifting, Bending  Reading, Concentrating, Thinking, Communicating  --New Major Bodily Functions (All are new)  Immune system  Cell growth  Digestive, Bowel, Bladder  Neurological, Brain  Respiratory  Circulatory  Endocrine  Reproductive

27 Americans with Disabilities Act Amendments Act - ADAAA  Burden to prove the individual with a disability is “qualified” for the job remains on the Employee/Applicant

28 Americans with Disabilities Act Amendments Act - ADAAA  Clarifies that no claims for reverse disability discrimination are allowed under the ADA

29 Americans with Disabilities Act Amendments Act - ADAAA  Don’t forget about Workers’ Compensation issues, too

30 Real Life Scenarios  Employee has work injury that qualifies as a “serious health condition” but employee doesn’t want leave counted as FMLA leave.  Employee is off on FMLA leave and needs time in addition to 12 weeks. (1 week, 1 month, indefinite)

31 Real Life Scenarios  Employee is on FMLA leave and is seen out in the community or on Facebook.  Employee has a work injury and has been off work. Employee gets new restrictions and we can provide light duty work to meet those. Employee refuses to come back to work. 31

32 When in Doubt  Provide the FMLA notice even if you are not sure the time off will qualify.  Do not make assumptions about employee health issues - communicate with the employee but make sure that the communication revolves around the job (hours, weight restrictions, mobility issues, etc.) 32

33 Additional FMLA Resources  FMLA final rule fact sheet:  FMLA comparison of 2008 and 2013 regulations:  FMLA Notice of Eligibility and Rights & Responsibilities: 33

34 Additional ADAAA Resources  ADAAA final rule fact sheet:  ADAAA Questions and Answers on the final rule: 34

35 Thank You! Ann Holden Kendell 666 Grand Avenue, Suite 2000 Des Moines, IA Telephone: Facsimile: