1. Return To Work Suzanne Martin Ogletree Deakins Las Vegas, NV
Robert Sheeder
Bracewell
Dallas, TX
James Dale
Stoel Rives
Boise, ID

2. Objective: learning to LOAs
Identify common mistakes
Identify LOA laws and other obligations
Refresher on ER coverage and EE entitlement under those laws/”other”
Discuss reinstatement/return to work obligations

3. Common Return to Work Mistakes
Administration hiccups: not properly tracking leave, not running concurrently with other leave, and failure to communicate with employees
Counting protected absences under attendance policies
Denial of leave followed by adverse action
Employee with good reviews returns from leave and starts getting poor reviews or closer performance monitoring

4. Common Return to Work Mistakes
Not filling the job, and filling the job
“Temp” does a better job
Eliminating a position while someone is on leave
Not understanding reinstatement obligations, or to extend leave

5. Leave Laws Family Medical Leave Act (“FMLA”) State leave laws
Americans with Disabilities Act Amendments Act (“ADAAA”)
Pregnancy Discrimination Act (“PDA”)
State pregnancy discrimination acts
Workers’ Compensation
Military Leave (“USERRA”)

6. LOA Laws: Employer Coverage; Employee Eligibility
FMLA
Employee worked 12 months and 1250 hours
Serious health condition of employee, spouse, parent, child; bonding; military qualifying exigency or caregiver leave
12 weeks, or for military 26 weeks
Benefits continued
Reinstatement (unless termination would have occurred even if not on leave)
ADAAA & PDA
Employer w/15+ employees
NO LENGTH OF EMPLOYMENT REQUIREMENT
Employee with disability or disability related to pregnancy either before during or after birth (e.g., post partum)
Duration and benefits continuation… depends
Reinstatement (unless termination would have occurred even if not on leave)

7. LOA Laws: Employer Coverage; Employee Eligibility
Workers’ compensation
All employers with 4+ employees*
NO LENGTH OF EMPLOYMENT REQUIREMENT
Accidental and occupational injuries
Duration and benefits…it depends
May also trigger FMLA, ADAAA
Reinstatement, it depends
USERRA
“Any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment”
Employees in “uniformed service,” active, inactive, reserve
Training, fitness for duty, natural disasters, deployment, funeral services, active duty orders
Benefits through COBRA for the lesser of 24 mos. or one-day after the period of time you fail to apply for or return to work
Reinstatement, accrued seniority, promotion (and any necessary training)

8. Don’t forget employer policies!
Personal leave of absence policy
Paid time off (e.g., vacation and sick leave)
And unwritten practices
Creating expectation for your employees that if they take time off per these policies, it’s “OK” and they will be able to return to work

9. Employer Obligations Re: LOAs
Cannot interfere with LOA rights
Cannot consider protected time off in employment decision (w/limited exceptions)
Cannot discriminate
Cannot harass
Cannot retaliate

10. Reinstatement Obligations
Employer must reinstate employee at the end of leave
ADA:
Reinstatement to same position unless it would cause an “undue hardship” or can’t do job/not qualified
If can’t return to same position, must offer vacant position for which employee is qualified
No, they do not have to compete or apply for it
FMLA/WC: Reinstatement to same or equivalent position
Other, e.g., PDA, USERRA

11. Getting the employee back to work
Can’t have a 100% healed policy
Timing:
Keep track of return to work date
Check in with EE about 1-2 weeks before LOA expires
What if they don’t respond?
Try and try again….

12. Getting the employee back to work
What about “fitness for duty” exams
What did you say about returning to work when the LOA started?
FMLA, if you will require it, must give notice when designate leave
Cannot wait to require it once they are reinstated – if you do, violation
After ADAAA LOA if job related, consistent with business necessity and ER pays for it

13. Getting the employee back to work
USERRA
Different return to work obligations of EE depending on length of LOA
E.g., LOA between 1-30 days, return to work next calendar day after complete service (w/8 hours rest)
E.g., 180 days or more, EE has up to 90-days after service to reapply for position
Also forgiveness periods… highly regulated
ER can ask for documentation for LOA 31+ days

14. More Time Off?
Employee with FMLA “serious health condition” may also have ADAAA (or state law) disability”
If so, employee may get more than 12 weeks of leave if it’s provided as a reasonable accommodation
May also return to work, and then, need more time off/LOA
Always consider ADAAA when FMLA expires if employee can’t return to work/needs leave as a reasonable accommodation

15. What does return to work mean?
Part-time, reduced or modified schedule
Obligation under ADAAA, PDA
Should consider it under FMLA
Cannot make an employee take more FMLA than they need
Can ask an EE to temporarily transfer w/equivalent pay & benefits when intermittent or reduced schedule FMLA requested for planned medical treatment and recovery

16. What does return to work mean?
Different shift, schedule or position
Cannot force it (may be deemed retaliatory)
Yes, as a reasonable accommodation (ADAAA, PDA)
Yes to a different job upon an EE return to work under ADAAA, and maybe also PDA
Must be qualified
Not be required to compete
Take the job as-is

17. What does return to work mean?
USERRA
In the job they would have held had they remained employed, with training if required/needed
In the same position they held at the time of leave if not qualified w/the training
If not qualified for old position an approximate position

18. TEST YOUR SKILLS

19. Reinstatement?
Fred took 12 weeks off to care for his dying mother-in-law. While Fred was gone, the company had to hire a temp to get his work done. The temp is not only fantastic, but she found a whole lot of work on Fred's desk that just wasn’t getting done. It appears that Fred was in over his head. We’ll bring Fred back, but to a role he can manage better.
Can you do that?
Maybe…

20. More Time Off?
One of our long-term employees, broke her leg biking. She took extended leave for surgery and has been taking intermittent leave for the past few months. Now she’s used up all 12 weeks of FMLA leave and wants more time off to attend physical therapy. What do we do?

21. New employee LOA?
A full-time employee who just started three weeks ago, revealed she suffers from bipolar disorder. Her doctor has written her off work for 45-days while they adjust her medication. Now what? After 60-days, the doctor releases the employee back to work, part-time. She will be re-evaluated in 30-days, and every 30 days thereafter. Currently, the employee does not know when, or if her doctor will release her to return to work full-time.

22. Out; back; out again?
Sally has worked for ACE, Co. for 2-years. Earlier this year, she took FMLA leave for baby bonding. She was released to return to work, full duty, after her FMLA expired. But now, she’s in HR’s office saying she needs more time off, like 60 days. It’s something about post-partum.

23. Thank You! Return to Work
Suzanne Martin
Ogletree Deakins
Las Vegas, NV
Robert Sheeder
Bracewell
Dallas, TX
James Dale
Stoel Rives
Boise, ID