1. BEST PRACTICES IN FMLA & ADA MANAGEMENT
Presented to
DMEC Ohio Chapter by
Todd F. Palmer, Esq.
September 2016

2. FMLA SERIOUS HEALTH CONDITION
Inpatient Care
Period of Incapacity lasting more than 3 consecutive days if:
Two or more visits to a health care provider; visit 1 within 7 days of first day of incapacity, and visit 2 within 30 days of first day of incapacity; OR
Treatment by a health care provider on one occasion that results in a regimen of continuing treatment under the supervision of the health care provider; visit 1 within 7 days of first day of incapacity
© Calfee, Halter & Griswold LLP 2010

3. FMLA SERIOUS HEALTH CONDITION
Any period of incapacity due to pregnancy or for prenatal care
Chronic Serious Health Condition
Requires periodic visits to
health care provider (2/yr);
Continues over an extended
period of time
May be episodic rather
than continuing
© Calfee, Halter & Griswold LLP 2010

4. FMLA SERIOUS HEALTH CONDITION
Any period of incapacity which is permanent or long term for which treatment may not be effective
To receive multiple treatments for a condition that if left untreated would result in incapacity of more than 3 days
© Calfee, Halter & Griswold LLP 2010

5. © Calfee, Halter & Griswold LLP 2010
ADA DISABILITY
A physical or mental impairment that substantially limits one or more major life activities; or having a record of such impairment; or being regarded as having such impairment
2008 Amendments (ADAAA): core definition of disability remains same; but interpretation of key elements expanded
Disability to be construed broadly
© Calfee, Halter & Griswold LLP 2010

6. © Calfee, Halter & Griswold LLP 2010
ADA DISABILITY
Major Life Activities: basic activities and major bodily functions which most people can perform
ADAAA expands list of basic activities, and adds new category of major bodily functions
Result: expand class of persons with disabilities
Impairment = Disability
© Calfee, Halter & Griswold LLP 2010

7. © Calfee, Halter & Griswold LLP 2010
ADA DISABILITY
Substantially limits: revised to expand coverage of disability
An impairment is a disability if it substantially limits a person’s ability to perform a major life activity as compared to most people
© Calfee, Halter & Griswold LLP 2010

8. © Calfee, Halter & Griswold LLP 2010
ADA DISABILITY
Impairment need not prevent or severely restrict the person from performing a major life activity
Mitigating measures no longer considered in assessing “substantially limits”
Impairment need not be “constant” to substantially limit
Episodic/in remission conditions count
© Calfee, Halter & Griswold LLP 2010

9. © Calfee, Halter & Griswold LLP 2010
ADA DISABILITY
Substantially limited in major life activity of working: concept expanded by ADAAA
An impairment substantially limits the major life activity of working if it substantially limits the person’s ability to perform “the type of work at issue”
Type of work at issue = the person’s job
© Calfee, Halter & Griswold LLP 2010

10. © Calfee, Halter & Griswold LLP 2010
ADA DISABILITY
“Scheduled list” of impairments which consistently meet definition of disability: deafness, blindness, intellectual disability, missing limbs, mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, MS, MD, depression, bi-polar, PTSD
© Calfee, Halter & Griswold LLP 2010

11. ADA QUALIFIED INDIVIDUAL WITH A DISABILITY
An individual who:
satisfies the requisite skill, experience, education and other job-related requirements
of the position; and
who, with or without accommodation,
can perform the essential functions of the position
This is the threshold for ADA protection
© Calfee, Halter & Griswold LLP 2010

12. ADA REASONABLE ACCOMMODATION
Modifications or adjustments to the work environment, or to the manner or circumstances under which the position is customarily performed, that enable a QIWD to perform the essential functions of the position
© Calfee, Halter & Griswold LLP 2010

13. WHO IS A COVERED EMPLOYER?
FMLA: 50 or more employees in 20 or more workweeks in current or preceding calendar year
ADA: 15 or more employees in 20 or more workweeks in current or preceding calendar year
© Calfee, Halter & Griswold LLP 2010

14. WHO IS A COVERED EMPLOYEE?
FMLA: employee who has worked for 12 months, and worked 1250 hours in 12 months preceding start of FMLA leave
ADA: applicants and employees, if a QIWD
© Calfee, Halter & Griswold LLP 2010

15. WHAT EVENT TRIGGERS THE PROTECTION OF THE LAW?
FMLA: serious health condition of employee or family member; birth/adoption of a child; Military caregiver
ADA: disability, and being a QIWD
© Calfee, Halter & Griswold LLP 2010

16. © Calfee, Halter & Griswold LLP 2010
HOW MUCH LEAVE?
FMLA: 12 weeks per year
ADA: ongoing, if reasonable accommodation; limited by concept of undue hardship; perpetual leave is not r.a.
© Calfee, Halter & Griswold LLP 2010

17. © Calfee, Halter & Griswold LLP 2010
PAY & BENEFITS
FMLA: unpaid leave (unless paid leave is substituted); health insurance continued during leave
ADA: unpaid; COBRA rights
© Calfee, Halter & Griswold LLP 2010

18. LIMITATIONS ON DISCHARGE
FMLA: no discharge of employee during leave (with exceptions); no discrimination or retaliation against employee who uses FMLA leave
ADA: employer obligated to make reasonable accommodation, subject to undue hardship limitation; failure to accommodate and discrimination claims
© Calfee, Halter & Griswold LLP 2010

19. © Calfee, Halter & Griswold LLP 2010
LIGHT DUTY
FMLA: employee on light duty not on FMLA leave; cannot require employee to accept a light duty position and give up FMLA leave
ADA: can be a reasonable accommodation
© Calfee, Halter & Griswold LLP 2010

20. WHAT HEALTH-RELATED INQUIRIES ARE ALLOWED?
FMLA: medical certification; employer (but not direct supervisor) can contact health care provider to clarify the certification
ADA: allowed as to current employees, but must be job-related and consistent with business necessity; keep confidential
© Calfee, Halter & Griswold LLP 2010

21. Employer Tools for Managing FMLA
Limit FMLA Only to "Eligible Employees"
Use "Rolling" 12 Month Period for Calculating Entitlement
Require Employees to Use Paid Leave for FMLA Leave
© Calfee, Halter & Griswold LLP 2014

22. Employer Tools for Managing FMLA
Learn What Constitutes "Serious Illness" Under FMLA
MLOA > 3 days
"chronic conditions"
"Intermittent" and "Reduced Schedule" Only for Illness-Related FMLA Leave
© Calfee, Halter & Griswold LLP 2014

23. Employer Tools for Managing FMLA
"Conditionally Designate" FMLA within 5 Business Days
Insist on Timely Medical Certification and Recertifications
© Calfee, Halter & Griswold LLP 2014

24. Employer Tools for Managing FMLA
Discipline Consistently for Failure Timely To Provide Certification or Recertification
Must provide at least 15 days
"Final Warning" (?)
© Calfee, Halter & Griswold LLP 2014

25. Employer Tools for Managing FMLA
Insist on Employee Making Contributions to Health Insurance While on FMLA
Recover Employer Share of Benefits Premium Payments from Non-Returning Employees.
© Calfee, Halter & Griswold LLP 2014

26. Employer Tools for Managing FMLA
Require "Fitness For Duty" Certificate to Return to Work
Terminate for Fraudulently Obtaining FMLA Leave
© Calfee, Halter & Griswold LLP 2014

27. Employer Tools for Managing FMLA
Don't Penalize Employees For Taking FMLA Leave
Attendance Discipline
Performance Reviews
Develop Bonus Programs Based on "Performance" not "Absence of Occurrence"
© Calfee, Halter & Griswold LLP 2014

28. Evaluating ADA request
Is the employee disabled?
Is there an impairment?
Does it impact a major life activity?
Is that major life activity substantially limited?
© Calfee, Halter & Griswold LLP 2008

29. Evaluating ADA request
Is the employee a qualified individual?
Does the employee have the skills and experience required?
What are the employee’s essential job functions?
Can the employee perform those functions, with or without a reasonable accommodation?
© Calfee, Halter & Griswold LLP 2008

30. Evaluating ADA request
Is the employee entitled to a reasonable accommodation?
What has the employee requested?
Is the accommodation reasonable?
Does the accommodation create an undue hardship?
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