1. JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy. 1 Time, Attendance, and Leave Guest Presenter - Jeff Nowak, J.D., Co-Chair Franczek Radelet Labor and Employment Practice Group and Author, FMLA Insights Blog Tracie DeFreitas, M.S. JAN Lead Consultant, ADA Specialist

2.  Leave as an Accommodation under the ADA  Time and Attendance Issues  Designating FMLA Leave 2 Agenda

3. How do you explain that leave is considered a reasonable accommodation when accommodations are supposed to enable employees to perform their jobs? 3 Leave & the ADA

4.  To attend medical appointments related to an episodic or chronic medical impairment  To obtain medical treatment  To recuperate from an illness or surgery, or exacerbation of symptoms associated with an episodic or chronic medical impairment Other reasons…  To obtain repairs on a wheelchair, accessible van, or prosthetic device  To avoid temporary adverse conditions in the work environment  To train a service animal  To receive training in the use of Braille or to learn sign language 4 Why is leave needed?

5.  When there is no other effective accommodation  When a qualified employee is not Family Medical Leave Act (FMLA) eligible but has a qualifying disability under the ADA  When a qualified employee is FMLA eligible but requires additional time off – beyond twelve-weeks  When a qualified employee has exhausted paid vacation and sick leave and requires additional intermittent time off because of a qualifying medical impairment 5 When is leave needed?

6.  Accrued, paid vacation or sick leave under the ADA  Unpaid consecutive leave under the ADA and/or FMLA  Intermittent leave under the ADA and/or FMLA  Leave on a reduced work schedule under the ADA and/or FMLA  Short or Long-Term Disability (STD/LTD), Workers’ Compensation, or leave under an employer’s own medical leave of absence policy  State family medical leave laws (e.g., California Family Rights Act), including state Pregnancy Disability Leave (PDL) 6 How is leave provided?

7. Sew What, a textiles manufacturer, automatically terminates any employee who needs a leave of absence beyond three months. Can an employer automatically apply its “no-fault” leave policy to all employees? 7 “No-fault” Leave Policies

8.  Not according to EEOC, if it is possible to grant extended time under ADA  May be required to modify the policy  Modifying workplace policies is a form of reasonable accommodation 8 “No-fault” Leave Policies

9. What duration of leave is required under the ADA? 9 Duration of ADA Leave

10.  No specified duration  Employer's discretion to determine how much leave is reasonable  Case-by-case assessment  Document how leave of absence impacts business operations 10 Duration of ADA Leave

11. Emma is receiving treatment for cancer and is about to exhaust her FMLA leave. She will need approximately four more weeks of leave, beyond FMLA, for treatment and recovery. Is an employer required to grant an ADA leave extension after FMLA has expired? 11 ADA Leave Extension

12.  Extended leave may be required under ADA  Engage in the interactive process  May request medical documentation to substantiate the existence of an ADA qualifying disability  Document impact of leave on business operations  Employer determines reasonableness of duration 12 ADA Leave Extension

13. When does providing leave become an undue hardship?  Impact of the accommodation on business operations Factors (EEOC, 2008) :  Inability to ensure a sufficient number of employees to accomplish the work required  Failure to meet work goals or to serve customers/clients adequately  Need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them  Incurring significant additional costs when other employees work overtime or when temporary workers must be hired 13 Undue Hardship

14. Jackson has a gastrointestinal disorder that flares-up occasionally. During flare- ups, he misses work unexpectedly. He has asked his employer to accommodate him by modifying the attendance policy to excuse these intermittent, unplanned, absences. Can leave be taken intermittently or must it be consecutive under the ADA? 14 Intermittent Leave

15.  Leave can be intermittent  Allow the use of unscheduled, accrued paid leave or unpaid leave, as-needed, due to a qualifying medical impairment  Seek clarification from the medical provider  Modify attendance policy  FMLA may apply 15 Intermittent Leave

16. Should an attendance policy be modified when leave is provided as a reasonable accommodation? 16 Modified Attendance Policies

17. Sophia has OCD and finds it almost impossible to arrive at work on-time most days because of her compulsions. She also has a tendency to return late from her lunch break. Sophia thinks she should be excused from the attendance policy because her disability prevents her from being on-time. Does an employer have to exempt an employee with a disability from time and attendance requirements? 17 Attendance Issues

18. "…employers need not completely exempt an employee from time and attendance requirements, grant open- ended schedules (e.g., the ability to arrive or leave whenever the employee's disability necessitates), or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice.” (EEOC, 2008) What does this mean for Sophia? 18 Attendance Issues

19. DeShawn had a heart attack and subsequent bypass surgery. He was not eligible for FMLA leave, but was granted leave under the ADA to recover from the surgery. He was told that his position would be filled if he could not return after twelve weeks. Is an employer required to hold an employee's position during an ADA leave of absence? 19 Job Retention

20.  Yes…otherwise, the accommodation of leave is not effective  Undue hardship? Consider reassignment to an equivalent, vacant position for duration of leave period  Return to same or equivalent position 20 Job Retention

21. FMLA Issues 21 More on Attendance

22. If an employee does not follow the employer’s call-in policy to report an absence, does the employer have to provide FMLA leave? 22 Call-In Policies

23. John  Chronic Musculoskeletal condition – unable to work when condition “flares up”  John’s Pattern: –Calls into boss’ voicemail –On some occasions, reports chronic condition; on other occasions, reports that he’s “not feeling well again” or simply “taking an FMLA day” –He calls 15-30 minutes before reporting time; policy calls for employee to report absence at least one hour before start of reporting time  What do you do? 23 Just “Taking an FMLA Day”

24.  “The Employer may find it necessary to inquire further to determine if the leave is because of a serious health condition...” 29 C.F.R. 825.302(c)  Fairly broad right to talk directly to employee 24 Rule No. 1: Communicate

25.  Employer has right to know:  What is the reason for the absence?  What essential functions of the job can they not perform?  Will they see a doctor for the injury/illness?  Have they previously taken leave for this condition? If so, when?  When did they first learn he/she would need to be absent?  When do they expect to return to work?  An “FMLA Day” is not good enough 25 Communicate

26.  Employee must comply with employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances  Foreseeable (30 days or more in advance or as soon as practicable)  Unforeseeable (as soon as practicable)  If employee does not follow, FMLA may be delayed or denied  Importance of call-in policy and following employer’s procedural requirements 26 Rule No. 2: Enforce Your Call-In Policy!

27.  Start with basic assumption: Employee will follow call-in policy  If employee does not follow the policy, what is the reason?  Must be an unusual circumstance  Why are you calling in at __________?  Why could you not follow our policy requiring that you provide notice as soon as possible? 27 Enforcing Call-In Policy

28. What if John doesn’t want to take FMLA leave for his condition? 28 Call-In Policies

29. Answer:  Employees do not have the option of taking (or not taking) FMLA if absences qualify:  We MUST designate an employee’s leave as leave under the FMLA if the absences qualify  FMLA runs concurrently with all eligible paid leave  FMLA is job-protected leave: it is to the employee’s benefit to designate 29 If Employee Declines FMLA Leave…

30. How does an employer handle a pattern of absences? 30 Call-In Policies

31.  Fred is one of your project managers  Suffers from irritable bowel syndrome  Certification indicates 2 days/mo; 1 day ea.  Past three months: 3x/2x/3x  Almost all on M or F  Can we seek recertification? If so, why?  What does recertification look like? 31 Pattern of Absences

32. General Rule:  Every 30 days and with an absence  If duration specified is longer than 30 days, cannot seek recertification until that period is exhausted  Exception: Employer can seek recertification every 6 months, regardless of duration  Others:  Employee requests an extension  Circumstances have changed significantly  Receive information that casts doubt on the validity  Duration/period has expired and absence occurs 32 Recertification

33.  Do we have a significant change in frequency? 29 CFR § 825.308(c)(2)  Pattern?  “... employer may provide the health care provider with record of the employee’s absence pattern and ask health care provider if the serious health condition and need for leave is consistent with such a pattern”  Use correspondence to your advantage  Letter to HCP explaining background: fact pattern, express concern  Ask HCP why need for leave occurs on Fri./Mon.  Use new certification form for HCP to complete 33 Recertification

34. Resources 34  EEOC enforcement guidance documents:  Reasonable Accommodation and Undue Hardship at www.eeoc.gov/policy/docs/accommodation.html www.eeoc.gov/policy/docs/accommodation.html  Applying Performance and Conduct Standards at www.eeoc.gov/facts/performance-conduct.html www.eeoc.gov/facts/performance-conduct.html  FMLA Insights - Guidance & Solutions for Employers at www.fmlainsights.comwww.fmlainsights.com  JAN’s Leave as an Accommodation at http://askjan.org/topics/leave.html http://askjan.org/topics/leave.html  AskJAN.org – See the ADA Library, Publications & Resources, A-Z by Topic, JAN E-News AskJAN.org

35. JAN (800) 526-7234 (V) (877) 781-9403 (TTY) AskJAN.org jan@askjan.org (304) 216-8189 via Text janconsultants via Skype Special thanks to Jeff Nowak jsn@franczek.com (312) 786-6164 @jeffreysnowak 35 Questions?