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  • 1. Created by Simpo PDF Creator Pro (unregistered version) http://www.simpopdf.com UFOs – Unidentified Flying Objects Ufology – is a neologism coined to describe the collective efforts of those who study reports and associated evidence of unidentified flying objects (UFOs). Ufologist – A ufo investigator is called a ufologist Ufo Sightings- Some eye witnesses to the UFOs Roswell Incident- called the Roswell UFO crash 1947 UFO Conspiracy – Worldwide UFO cover Ups and related theories Alien- An extra-terrestrial being is called an alien
  • 2. The BermudaTriangle of Leave Laws ADA, FMLA and Workers Compensation Instructor: Brenda JM Sabin, CBP Director of Operations and Site Administration for HRSentry, LLC
  • 3. Today we are talking about these Federal Leave Laws: The American’s with Disabilities Act (ADA) The Family and Medical Leave ACT (FMLA) Workers Compensation (WC) We will look at each law separately then weave them together Its like putting a puzzle together blindfolded!Overview
  • 4. Americans with Disabilities Act of 1990(Titles 1 and V) pertains to: ◦ Private employers with 15 or more employees, ◦ State and local governments, ◦ Employment agencies and labor unions ◦ The ADAs nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amendedADA
  • 5. Employees with disabilities must: have an equal opportunity to apply for jobs and to work in jobs for which they are qualified; Provides protection from hiring discrimination Also provides protection from job loss due to disability have an equal opportunity to be promoted once they are working; have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training; and must not be harassed because of their disability.ADA
  • 6. As defined by the ADA, an individual with a disability is a person who: ◦ has a physical or mental impairment that substantially limits one or more major life activities; seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, working, etc….. ◦ has a record of such an impairment; or ◦ is regarded as having such an impairmentWhat is a disability?
  • 7. Under the ADA you as an employer arerequired to make reasonableaccommodations unless it creates unduehardship for your businessA reasonable accommodation is determined by: employee size, revenueand type of business on a case by case basisADA
  • 8. Reasonable accommodation may include, but is not limited to: ◦ Making existing facilities used by employees readily accessible to and usable by persons with disabilities ◦ Job restructuring, modifying work schedules, reassignment to a vacant position; ◦ Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.Reasonable Accommodations
  • 9. An employer never has to provide any reasonable accommodation that causes undue hardship, meaning significant difficulty or expense. ◦ Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business.Undue Hardship
  • 10. Reinstatement Rights – ◦ Must be to the SAME job unless doing so causes undue hardship to the employer ◦ No time limit on reinstatement ◦ Employer is obligated to make reasonable accommodations based on the essential functions of the jobEssential functions are the fundamental job duties performed in a position. The term "essential functions" does not include the marginal functions of the position. A function may be essential because: The position exists to perform that function. There are a limited number of employees available who could perform that function. The function is highly specialized. ADA
  • 11. Family Medical Leave Act (Federal) Some states have their own Family Leave Laws Whichever law is more beneficial to the employee must be followedFMLA
  • 12. FMLA Job protection 12 weeks unpaid leave in a 12 month period Intermittent leave is allowed Reasons why: Birth or adoption Check state law definitions for spouse’s working for same employer Serious health condition Yourself Immediate family member Check state laws for difference in definitions of immediate familyFMLA
  • 13. H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181.(eff. 01/28/2008) Caregiver Leave FMLA-eligible employees who are the spouse, child, parent, or next of kin to a service member who has been seriously injured (including illness) while on active duty can take up to 26 weeks of unpaid leave in a 12-month period to care for the service member. Important: Where appropriate, all existing provisions of the FMLA apply, including the intermittent leave, the substitution of paid leave, and the notice provisions.Recent Amendments to FMLA
  • 14. H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181.(eff. 01/28/2008) Active Duty Leave Under another FMLA amendment, an employee may take FMLA leave for "any qualifying exigency" arising out of the fact that his/her spouse, child, or parent is on active duty or has been notified of an active-duty call. Amount of leave available: up to 12 weeks in a 12- month period (i.e., the usual FMLA leave allotment). According to the DOL, this amendment wont become effective until final regulations defining any qualifying exigency are issued. In the interim, the DOL advised employers to provide this type of leave. Here, too, the regular FMLA provisions apply, so when the need for leave is foreseeable, employees must provide their employers with reasonable and practicable notice. Also, employers may require that leave requests be supported by certification.Recent Amendments to FMLA
  • 15. Private employers with 50 employees, working within 75 miles Schools Public agencies Must have a written FMLA policy GovernmentFMLA-FMLA- Covered Employers
  • 16. If an FMLA-covered employer has any eligible employees and has any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document.The Law on Policy Requirements
  • 17. Federal - Worked at least 12 months ◦ Do not have to be consecutively Federal - Worked 1250 hours in previous 12 months Check your State Laws VT – 3 laws to considerFMLA Eligible Employees
  • 18. Employee Requirements: ◦ Must notify employer as soon as reasonably possible for the need of time off ◦ Employer must notify Employee that their time off is being counted under FMLA (form WH- 380) ◦ Employer can require Drs certification if leave is for serious health condition (employees or family member) (form WH-381)Notices
  • 19. "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves: any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility; or a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or any period of incapacity due to pregnancy, or for prenatal care; or any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimers, stroke, terminal diseases, etc.); or, any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).Serious Health Condition
  • 20. Entitled to 12 weeks of job protection ◦ NOT additional time off ◦ Runs concurrent with other leave of absence policies Disability WC Paid Time off (check state laws) ◦ Can be taken intermittently Time tracking an issue Why is it important to track immediately and consistently?Entitlements
  • 21. Accrual of benefits ◦ Federal Law –time off benefits cannot be taken away but do not have to continue to accrue ◦ Check state law Using paid time off ◦ Federal Law – you can require your employees to use their time off ◦ Your employee can choose to use their paid time off Check state lawFMLATime Off Benefits
  • 22. Maintenance of Health Benefits◦ Keep on insurance – same status◦ Can require the payment that they normally would have paid Pre-tax vs post-tax
  • 23. Reinstatement Rights ◦ Must be reinstated to the same or equivalent position with same pay and benefits and other “perqs” if returned to work within the 12 weeks. ◦ Special rules for educational institutions ◦ Not entitled to reinstatement if out beyond the 12 weeksFMLA
  • 24. Joyce is pregnant and her baby is due on October 1st. ◦ On September 10th Joyce comes to you to say that her Dr has told her she must stop working now before the baby is born. ◦ Assume you have no paid disability policies. ◦ Assume Joyce has some paid time off available to her to use.Example/POLL
  • 25. Injury or Illness that is Work Related. ◦ Provides for partial income replacement ◦ Provides for medical treatment payments ◦ Permanency benefits ◦ Vocational Rehab ◦ Death Benefits Reinstatement rights – check state law – WC is governed by State Laws. Some have more restrictive laws on reinstatement.Workers Compensation
  • 26. Illness or Injuries/Serious Health Conditions Injury at work may qualify for WC only-if no lost days at work It may qualify for FMLA and WC if lost work days. Bronchitis - out sick for three days – FMLA serious health condition Heart Attack would qualify for FMLA and may qualify for ADA if it substantially limits major life activity A injury at work that impairs a major life activity -WC and ADA and FMLA would apply. Any time an illness or injury occurs you need to ask yourself: Does the illness/injury impair the employees ability to perform a “major life activity”? If so, you have a duty to make a reasonable accommodation.Serious health conditions
  • 27. ADA – ◦ a reasonable accommodation may be unpaid leave – and this would not be limited to the 12 weeks of FMLA. FMLA – ◦ the employee can take intermittent leave or work on a part time basis for a serious health condition if it is medically necessary, up to the 12 weeks time in a 12 month period WC – ◦ unable to perform job duties/ may do light duty work if availableComparisons of LawsReduced time at Work
  • 28. ◦ ADA – it has to be the same position unless doing so would cause undue hardship to the employer ◦ FMLA – same job or an employee can be transferred to an alternative position as long as it’s an equivalent position (pay, benefits) ◦ WC an employer may be obligated to reinstate an employee within a specified time frame to any job that they can meet the essential functions – employers do not have to create a job (check state laws)ComparisonsReturning to Work
  • 29. ◦ ADA – open ended /reasonable ◦ FMLA – 12 weeks within 12 months ◦ WC – open ended until medical end result or return to work is medically certified or termination of employment.ComparisonsTime Off Away from Work
  • 30. Reasons for: ◦ ADA – taken only for their own disability – fairly serious health conditions affecting “major life activities” ◦ FMLA – taken for their own serious health condition or family member Birth or adoption Military amendments ◦ WC – work related injury or illnessComparisonsReasons for Leave
  • 31. Minimum length of employment to be eligible: ◦ ADA – none ◦ FMLA -1250 hrs within last 12 months; have worked 12 months in total ◦ WC - noneComparisons
  • 32. Joe works in a job that requires him to pick up 50 lb bags from a loading dock and carry them to a storage room. ◦ He hurts his back while working and is out of work on WC for three weeks. ◦ When he returns to work – medical restrictions apply and he can only lift up to 50lbs to waist level but cannot carry it ◦ How does each law apply?Example
  • 33. WC Claim ◦ Pays for medical and partial lost wages FMLA ◦ Start the clock ticking as soon as he goes out of work ADA – is there a disability?How the laws may interact
  • 34. ◦ Answer: It depends --- ADA is looked at on a case by case basis. ◦ The medical restrictions– can they be accommodated reasonably? ◦ The essential job function is to “move” the bags, not necessarily carry them….Case by Case…..
  • 35. Make every qualifying leave an FMLA event Revise existing policies of sick, personal, disability etc to run concurrent with FMLA Designate and provide notice of such Identify essential functions of ALL jobs Provide FMLA training especially to front line supervisors and managers Maintain separate confidential records Document all time away from work Establish a reinstatement procedure and/or return to work program (light duty)What to do! Best Practices
  • 36. Have information available – quickly Keep up to date and current on law changes and revisions Document all your steps and proceduresWhat to do continued….
  • 37. In HRSentry ◦ www.hrsentry.com Libraries – ◦ Federal Employment Laws and Regulations State Employment Laws and Regulations Best Practices Using Search feature: ◦ ADA ◦ FMLA ◦ Workers CompensationADA – FMLA - WC
  • 38. Q&A www.hrsentry.com - take the tour! Browse the site support@hrsentry.com(for information on sign up and group rates) admin@hrsentry.com (for help inside HRSentry)Wrap Up