FAMILY MEDICAL LEAVE ACT (FMLA) AND AMERICANS WITH DISABILITIES ACT (ADA)

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FAMILY MEDICAL LEAVE ACT(FMLA)AND AMERICANS
WITH DISABILITIES ACT(ADA)
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What is theFamily Medical Leave Act?

• Provides certain employees with up to 12 weeks of
  unpaid, job-protected leave per year for a
  qualifying event. It also requires that their
  group health benefits be maintained during the
  leave.
• It also provides certain employees with up to 26
  weeks of unpaid, job-protected leave per year to
  care for an injured or ill member of the Armed
  Forces and permits an employee to take FMLA leave
  for any qualifying exigency.
• FMLA is designed to help employees balance their
  work and family responsibilities by allowing them
  to take reasonable unpaid leave for certain
  family and medical reasons. It also seeks to
  accommodate the legitimate interests of employers
  and promote equal employment opportunity for men
  and women.

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FMLA Eligibility

• To be eligible for FMLA benefits, an employee
  must
• work for a covered employer
• have worked for the employer for a total of 12
  months
• have worked at least 1,250 hours over the
  previous 12 months and
• have a qualifying event.
• While the 12 months of employment need not be
  consecutive, employment periods prior to a break
  in service of seven years or more need not be
  counted unless the break is occasioned by the
  employees fulfillment of his or her National
  Guard or Reserve military obligation (as
  protected under the Uniformed Services Employment
  and Reemployment Rights Act (USERRA)), or a
  written agreement, including a collective
  bargaining agreement, exists concerning the
  employers intention to rehire the employee after
  the break in service. 

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WHAT IS A QUALIFYING EVENT?

• for the birth and care of a newborn child of
  the employee
• for placement with the employee of a son or
  daughter for adoption or foster care
• to care for a spouse, son, daughter, or parent
  with a serious health condition
• to take medical leave when the employee is
  unable to work because of a serious health
  condition or
• for qualifying exigencies arising out of the
  fact that the employees spouse, son, daughter,
  or parent is on active duty or call to active
  duty status as a member of the National Guard or
  Reserves in support of a contingency operation.

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When is FMLA paid?

• FMLA is unpaid leave UNLESS the employee uses
  their sick or vacation leave accruals.
• Does your County have a policy regarding FMLA and
  other Leaves of Absence?
• Dallas County will not place an employee on
  Unpaid status until they have exhausted all
  accruals.

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FORMS
Request for FMLA This form is the employees
formal request for FMLA.
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FORMS
Certification of Health Care Provider This form
is completed by the employees health care
provider.
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FORMS
Designation Notice This form notifies the
employee of their approval or non-approval of
FMLA and of their responsibilities while out and
returning to work
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FORMS
Notice of Eligibility and Rights and
Responsibilities This form notifies the
employee, after you receive their request, of
their eligibility and additional information that
may be required from them to gain approval.
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FORMS

• The US Department of Labor has available on their
  website the various forms your office needs to
  meet the requirements of the FMLA.
• http//www.dol.gov/whd/fmla/index.htm

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What about record keeping?

• Create a separate filing system for you FMLA
  files. Do not keep health information in the
  official personnel file.
• WHY??? Because of HIPAA Health Information
  Portability and Accountability Act is a federal
  law that requires employers and health care
  providers to protect medical records as
  confidential, separate and apart from other
  business records. That means we may no longer
  retain medical information in a personnel file.
  Here are some examples of information you should
  extract from your personnel files and place in
  separately protected files as medical
  information
• Health insurance application form
• Life insurance application form
• Request for medical leave of absence regardless
  of reason
• Personal accident reports
• Workers' compensation report of injury or illness
  
• OSHA injury and illness reports
• Any other form or document which contains private
  medical information for a specific employee.

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Is she eligible?

• Suzy Creamcheese comes in to the office and
  states she needs to take FMLA to care for her
  mother, who is having her right leg amputated due
  to complications of diabetes. You give her the
  paperwork and when she returns the medical
  certification, you learn while talking to her
  that her mother is actually her mother-in-law.
  Suzy has worked for the office since 7/20/2000,
  and in her 10 plus years with the office has
  called in sick only twice and has over 1,000
  Sick hours accrued. Is she eligible for FMLA?

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SUZY CREAMCHEESE

• Yes, she works for a covered employer.
• Yes, she has worked for the employer for 12
  months.
• Yes, she has worked at least 1,250 hours over the
  previous 12 months.
• NO she does not have a qualifying event.
  IN-Laws are NOT eligible family members.
• What are Suzys options?

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Is he eligible?

• Darryl Dinglehopper is recently divorced, single
  father. In the past three (3) weeks, he has had
  to leave work four (4) times, and has called in
  twice, missing a total of 32 hours of work. When
  you bring it to his attention, he mentions his
  son has severe asthma and has to receive
  breathing treatments at the doctors office when
  the rag weed count is up. He started working for
  the office as a part time clerk January 23, 2010
  promoted to full time May 20, 2010. Is he
  eligible for FMLA?

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DARRYL DINGLEHOPPER

• Yes, he works for a covered employer.
• Yes, he has worked for the employer for 12
  months. Part Time work DOES count toward FMLA.
• Yes, he has worked over 1,250 hours the past 12
  months.
• YES, he has a qualifying event. His sons
  chronic medical condition, when certified by a
  physician, is a qualifying event. Time missed
  due to his sons illness should be charged to
  FMLA and should not be used against him should
  your office have a sick time usage policy.

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Is he eligible?

• Bart was raised by his aunts because his parents
  died when he was very young. Barts aunt suffers
  from lung cancer which requires constant
  treatment by a nurse. The nurse who cares for the
  Barts aunt has a sick child and has sporadic
  absences several times a month. On days that the
  nurse is not available, Bart cares for his aunt.
  Bart provides a note from his aunt's physician to
  his supervisor stating that his aunt suffers from
  lung cancer and needs full-time attendance. Bart
  includes a handwritten statement that he will
  substitute for the nurse on days that the nurse
  is not available.

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BART SIMPSON

• Yes, he works for a covered employer.
• Yes, he has worked for the employer for 12
  months.
• Yes, he has worked at least 1,250 hours over the
  previous 12 months.
• Yes, his aunt meets the definition of parent
  under FMLA as parent is defined as biological
  parent or individual who stands in loco parentis.
  
• Yes, Barts aunt's cancer is specifically
  identified in the FMLA regulations as a "serious
  health condition.,' In addition, his aunt is
  under continuing care and is covered by FMLA.
  Barts supervisor should request medical
  certification to the facts.

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Performance Appraisals

• It is performance appraisal time! Bobby has
  been on FMLA leave for a "serious medical
  condition" for three weeks. Can his supervisor
  take his use of leave as an occurrence for
  attendance purposes?

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Can you do that?

• The employees supervisor is prohibited by FMLA
  from taking into consideration the employees use
  of FMLA leave as a negative factor in any
  employment action. Whether the employees leave
  is paid or unpaid, it cannot be counted as an
  "occurrence" under any applicable attendance
  policy. Any other interpretation would represent
  discrimination on the basis of FMLA use.

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Misuse of FMLA

• Ima Hogg is on intermittent FMLA, taking turns
  with her sister, Ura, in caring for their sick
  father, Jim, who has pancreatic cancer. She has
  reported that on Mondays, Wednesdays and Fridays,
  she will be taking her father to his radiation
  treatments at the hospital in Garland, Texas.
• One of your employees, Wyatt Earp, comes to your
  office Monday morning and casually mentions he
  ran in to Ima twice at Schlitterbahn in New
  Braunfels on Wednesday and Friday morning of last
  week. They even took pictures together at the
  river. Wyatt was on scheduled vacation with his
  gang when he saw her there.
• You know Ima called in last Thursday morning to
  report that she was sick and would not be coming
  in to work.
• What, if anything, can you do?

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What can you do?

• Ask Wyatt for a written statement.
• Confront Ima with the allegations against her.
• If she denies the allegations, you may ask her
  for documentation from the medical facility that
  treats her father.
• Be careful! You can only truly ask for
  documentation if you have substantial proof of
  misuse. If you dont have proof, but wish to
  challenge whether or not there is a true need for
  the intermittent FMLA or FMLA, you can ask the
  employee for recertification only every 30 days.

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What is the AMERICANS WITH DISABILITIES ACT?

• The ADA prohibits discrimination on the basis of
  disability in employment, State and local
  government, public accommodations, commercial
  facilities, transportation, and
  telecommunications. It also applies to the United
  States Congress

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Who is protected?

• To be protected by the ADA, one must have a
  disability or have a relationship or association
  with an individual with a disability.
• An individual with a disability is defined by the
  ADA as a person who has a physical or mental
  impairment that substantially limits one or more
  major life activities, a person who has a history
  or record of such an impairment, or a person who
  is perceived by others as having such an
  impairment.
• The ADA does not specifically name all of the
  impairments that are covered.

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What is a major life activity?

• Under the ADA, you have a disability if you have
  a physical or mental impairment that
  substantially limits a major life activity such
  as
• Hearing
• Seeing
• Speaking
• Thinking
• Walking
• Breathing
• Performing manual tasks.
• You must also be able to do the job you want or
  were hired to do, with or without reasonable
  accommodation.

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What is a reasonable accommodation?

• A reasonable accommodation is any change or
  adjustment to a job, the work environment, or the
  way things usually are done that would allow you
  to apply for a job, perform job functions, or
  enjoy equal access to benefits available to other
  individuals in the workplace. Some of the most
  common types of accommodations include
• physical changes, such as installing a ramp or
  modifying a workspace or restroom
• sign language interpreters for people who are
  deaf or readers for people who are blind
• providing a quieter workspace or making other
  changes to reduce noisy distractions for someone
  with a mental disability
• training and other written materials in an
  accessible format, such as in Braille, on audio
  tape, or on computer disk
• TTYs for use with telephones by people who are
  deaf, and hardware and software that make
  computers accessible to people with vision
  impairments or who have difficulty using their
  hands and
• time off for someone who needs treatment for a
  disability.

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How to request an accommodation

• When an individual decides to request
  accommodation, the individual or his/her
  representative must let the employer know that
  s/he needs an adjustment or change at work for a
  reason related to a medical condition. To request
  accommodation, an individual may use "plain
  English" and need not mention the ADA or use the
  phrase "reasonable accommodation
• A request for an accommodation does not need to
  be in writing! An employee may request
  accommodations in conversation or may use any
  other mode of communication.

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Case Study.

• Joe Black is a gay, HIV positive male that
  recently transferred to your family courts
  division from the criminal division as a second
  clerk. He has been placed on the 4th floor in
  your Diva pod. Your Divas are women that
  have worked for your office for an average of 15
  plus years.
• Joe is very outspoken and does not keep his
  opinions to himself. Joe has started questioning
  the Lead, tenured clerks in the pod regarding
  processing the mail, a job he feels is beneath
  him. This has caused him to become crossways
  with some of your experienced clerks.
• He comes to you, requesting an accommodation to
  be moved from the 4th floor pod, basing his
  request on his HIV status and that it is
  dangerous to his health to be working on a floor
  where snotty nosed kids come in to the building
  for hearings with their parents. He produces a
  letter from his physician supporting his request.

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Step by step guide

• Gather facts from the employee Meet with the
  employee and gather information from them
  regarding their request. Ask them to identify
  both the work limitations and a range of various
  accommodations the employee believes would
  address those limitations. If input from a
  physician is necessary, ask the employee to
  provide that documentation as well.
• Identify potential accommodations Armed with
  the employees specific request and any
  additional information needed from treating
  physicians, the employer should then
  independently and outside the presence of the
  employee identify what you believe are
  potential accommodations that would address the
  employees limitations. Your list of potential
  accommodations need not be limited to those
  proposed by the employee. Indeed, it should
  encompass the whole universe of options. To
  identify possible accommodations, you should
  review the essential job functions of the
  employees current position to determine how and
  whether the employee may continue to perform
  those functions.

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Step by step

• Determine the reasonableness of potential
  accommodations. Once all of the potential
  accommodations are identified, review each for
  its reasonableness. According to the ADA, an
  accommodation is reasonable if it does not
  fundamentally alter the nature of the goods,
  services, facilities, privileges, advantages or
  accommodations of the employers business.
• An accommodation that would cause an undue
  hardship to the employer is not a reasonable
  one. However, an undue hardship is not simply a
  generalized conclusion that an accommodation
  would cost too much.
• A determination of undue hardship should be based
  not only on the cost of the accommodation, but
  also on the overall financial resources and size
  of the business, the type of business, and the
  specific impact of the accommodation on business
  operations. The ADA requires an employer to
  consider all possible sources of outside funding
  when assessing whether a particular accommodation
  would be too costly.

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Step by step

• Communicate the decision to the employee. An
  employer is not required to provide the
  accommodation requested by the employee. If the
  employee specifically asks for an accommodation
  that either cannot be provided (or the employer
  decides not to provide), the employer should
  explain in detail why the accommodation requested
  by the employee was not selected.

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And most importantly

• Document the process. You should draft and retain
  a confidential, internal file memorandum
  documenting the above-outlined interactive
  process, regardless of whether the employee
  agrees to the accommodation(s) offered.
• The memorandum should identify the dates of each
  meeting with the employee, the accommodations and
  limitations identified by the employee, and your
  own efforts to identify and assess the
  reasonableness of accommodations. The memorandum
  will memorialize your efforts and be important in
  the event the employee files an ADA claim against
  the you!

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Responding to the request

• Write up your findings and present them to him in
  memo form so that you have a clear record of your
  due diligence.

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Back to Joe Black Is the request reasonable?

• The first question to ask is is his request
  valid? Can you do anything to help him avoid the
  dangers to his health?
• Moving him to a different floor or division will
  not remove him from the dangers he faces. He
  works in a County courthouse. He will still have
  to push the same elevator buttons, touch door
  handles, and be around people who may be sick but
  have come to the Courthouse for their hearings.
• Unless you can provide him with a boy in the
  bubble work environment, his accommodation is
  not reasonable.
• So now what? Draft a letter to him, responding to
  his request and outline the specific reasons he
  cannot be accommodated.

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Questions

• Why the picture of the three cute redheaded
  girls?
• My boss said it would be a great ending!