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Practical and entertaining education for
attorneys, accountants, business owners and
executives, and investors.
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Thank You To Our Sponsor
Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial o...
Meet the Faculty
MODERATOR:
Charles Krugel - Law Offices of Charles Krugel
PANELISTS:
Helen Bloch - Law Offices of Helen B...
About This Webinar - Time for a Break: Managing
Leaves of Absence and Accommodating Disabilities
Your business likely func...
About This Series- Protecting Your Employee Assets:
The Life Cycle of the Employment Relationship 2020
If you have employe...
Episodes in this Series
#1: Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants
Premiere date: 1/2...
Episode #7
Time for a Break: Managing Leaves of Absence and
Accommodating Disabilities
10
FMLA – Family Medical Leave Act
• FMLA – Family Medical Leave Act (FMLA)
• Provides leave to employees for a ―serious heal...
FMLA Covered Employers
§ 825.104
• Private sector employers with 50 or more employees
12
Employee Eligibility
§825.110
• Works for a covered employer
• Worked at least 12 months for that employer
• Have at least...
Qualifying Leave Reasons: §825.112
• Eligible employees may take FMLA leave:
 For the birth or placement of a child for a...
Qualifying Family Members: §825.102
• Parent - A biological, adoptive, step or foster father or mother, or someone who sto...
Qualifying Leave Reasons: For the Birth or
Placement of a Child
§825.120-121
• Both the mother and father are entitled to ...
Qualifying Leave Reasons: Serious Health Condition
§825.113
• Illness, injury, impairment or physical or mental condition ...
Serious Health Condition – Inpatient Care
§825.114
• An overnight stay in a hospital, hospice or residential medical facil...
Serious Health Condition – Continuing Treatment
§825.115
• Continuing treatment by a healthcare provider:
 Incapacity plu...
Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Incapacity Plus Treatment
 Incapacity of more than three ...
Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Pregnancy
 Incapacity due to pregnancy or prenatal care
21
Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Chronic Conditions
 Any period of incapacity or treatment...
Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Permanent/Long-Term Conditions
 A period of incapacity wh...
Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Absence to Receive Multiple Treatments
 For restorative s...
Serious Health Condition: Practical Pointers
• The following ordinarily are NOT Serious Health Conditions:
 Routine physi...
Amount of Leave
§825.205 & §825.802
• Employee’s workweek is basis for entitlement
• Eligible employees may take up to 12 ...
Amount of Leave: Intermittent Leave §825.202
• Employee is entitled to take intermittent or reduced schedule leave for:
 ...
Amount of Leave: Intermittent Leave §825.202
• In calculating the amount of leave, employer must use the shortest incremen...
12 Month Period
§825.200
• Method determined by employer
 Calendar year
 Any fixed 12-month leave year
 A 12-month peri...
Substitution of Paid Leave
§825.207
• ―Substitution‖ means paid leave provided by the employer runs concurrently with unpa...
Substitution of Paid Leave – Limitations §825.207
• Workers’ compensation leave
 may count against FMLA entitlement
 ―to...
Employer Responsibilities
• Provide notice
• Maintain group health insurance
• Restore the employee to same or equivalent ...
Employer Responsibilities: General Notice, §825.300
• Employers must inform employees of FMLA:
 Post a General Notice, an...
Employer Responsibilities: Notice of Eligibility, §825.300
• Within five business days of leave request (or knowledge that...
Employer Responsibilities: Provide Notice of Rights
and Responsibilities
§825.300
• Provided when eligibility notice requi...
Employer Responsibilities: Provide Notice of Designation
§825.300
• Within five business days of having enough information...
Employer Responsibilities: Provide Notice of Designation
§825.300-.301
• Employer must notify employee of the amount of le...
Employer Responsibilities: Maintain Group Health
Plan Benefits
§825.209
• Group health plan benefits must be maintained th...
Employer Responsibilities: Maintain Group Health
Plan Benefits
§825.210-.213
• Employee must pay their share of the premiu...
Employer Responsibilities: Job Restoration
§825.214-.219
• Same or equivalent job
 equivalent pay
 equivalent benefits
...
Prohibited Employment Actions
§825.220
• Employers cannot:
 interfere with, restrain or deny employees’ FMLA rights
 dis...
Employee Responsibilities
• Provide sufficient and timely notice of the need for leave
• Engage with employer in ―interact...
Employee Responsibilities: Notice Requirements
§825.302-.303
• Provide sufficient information to make employer aware of ne...
Employee Responsibilities: Notice Requirements
• Timing of employee notice of need for leave:
 Foreseeable leave - 30 day...
What Notice is Required from an Employee?
• Request for leave from an employee may be given:
 In writing;
 Verbally;
 I...
Does an Employee Have to Use “The Magic FMLA Words?”
• NO – Employees do NOT have to specifically mention or request leave...
Employee Responsibilities: Provide Certification
§825.305
• Medical Certification for serious health condition (optional W...
Employee Responsibilities: Provide Certification
• Employer (not employee’s direct supervisor) may contact health care pro...
Employee Responsibilities: Provide Certification
• Recertification
 No more often than every 30 days and with an absence
...
Employee Responsibilities: Provide Periodic Status Reports
§825.311
• Employee must respond to employer’s request for info...
Employee Responsibilities: Fitness for Duty
Certification, §825.312
• For an employee’s own serious health condition, empl...
Other Issues
• Salaried employees:
 Deductions from certain ―exempt‖ employees’ salaries
 Deductions for employees paid ...
ADA vs. FMLA
• When FMLA leave is exhausted, the employer must go into ADA
―accommodation‖ mode
• FMLA ―serious health con...
Medical Certifications
• ADA and FMLA allow limited medical inquires by employer
• ADA inquiries must be job related and n...
Pregnancy and ADA
• Normal Pregnancy not considered a disability
• High-risk complications that substantially limit a majo...
Pregnancy and FMLA
• Definition of ―continuous treatment‖ includes incapacity due to pregnancy or prenatal care
• If a wom...
Effective Strategies Going Forward
• Communicate with employee and monitor leave
• Require medical certifications for heal...
About the Faculty
58
About The Faculty
Charles Krugel - cak1@charlesakrugel.com
As a management side labor & employment attorney & human resour...
About The Faculty
Gary Savine - gnoah@savinelaw.com
Gary Noah Savine is an employment lawyer and the founder of Chicago-ba...
About The Faculty
Helen Bloch - hbloch@blochpc.com
In 2007, Helen Bloch founded the Law Offices of Helen Bloch, P.C., a ge...
About The Faculty
Max Barack - maxbarack@gmail.com
Max leads the Garfinkel Group, LLC's employment law practices groups an...
Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, ...
About Financial Poise
64
Financial Poise™ has one mission: to provide
reliable plain English business, financial, and lega...
Time for a Break: Managing Leaves of Absence and Accommodating Disabilities (Series: Protecting Your Employee Assets: The ...
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Time for a Break: Managing Leaves of Absence and Accommodating Disabilities (Series: Protecting Your Employee Assets: The Life Cycle of the Employment Relationship 2020)

Your business likely functions more effectively when your employees are at work doing the work you hired them to perform? What are your rights (and obligations) as an employer when an employee is unable to work due to an illness or injury? Does the Family and Medical Leave Act apply? Do you operate in a jurisdiction that has recently enacted a sick leave law? What happens when an employee requests a reasonable accommodation because of a disability? These types of questions have been confounding employers for years and are likely to grow more complicated as state and local governments step in to fill the voids left at the federal level. Do not despair, though, as this webinar includes discussions of the mistakes commonly made by employers as well as a series of tips and pointers from a panel of experts who will help you navigate these and other thorny issues involving employees who are unable to work for health-related reasons.

To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/managing-leaves-of-absence-and-accommodating-disabilities-2020/

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Time for a Break: Managing Leaves of Absence and Accommodating Disabilities (Series: Protecting Your Employee Assets: The Life Cycle of the Employment Relationship 2020)

  1. 1. 1
  2. 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
  3. 3. 3 Thank You To Our Sponsor
  4. 4. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 5
  5. 5. Meet the Faculty MODERATOR: Charles Krugel - Law Offices of Charles Krugel PANELISTS: Helen Bloch - Law Offices of Helen Bloch, P.C. Max Barack - Partner, Garfinkel Law Group Gary Savine - Savine Employment Law, Ltd. 6
  6. 6. About This Webinar - Time for a Break: Managing Leaves of Absence and Accommodating Disabilities Your business likely functions more effectively when your employees are at work doing the work you hired them to perform? What are your rights (and obligations) as an employer when an employee is unable to work due to an illness or injury? Does the Family and Medical Leave Act apply? Do you operate in a jurisdiction that has recently enacted a sick leave law? What happens when an employee requests a reasonable accommodation because of a disability? These types of questions have been confounding employers for years and are likely to grow more complicated as state and local governments step in to fill the voids left at the federal level. Do not despair, though, as this webinar includes discussions of the mistakes commonly made by employers as well as a series of tips and pointers from a panel of experts who will help you navigate these and other thorny issues involving employees who are unable to work for health-related reasons. 7
  7. 7. About This Series- Protecting Your Employee Assets: The Life Cycle of the Employment Relationship 2020 If you have employees or advise companies with employees, this webinar series is for you! No employer—whether large, medium or small—is immune from the reach of federal, state and/or local employment laws and regulations. Now, more than ever, employers should consider taking a proactive approach to auditing their employment practices and policies so that they can better respond when issues arise. This webinar series approaches the employer-employee relationship from beginning to end, with programs covering the most important steps along the way, including hiring and onboarding, policy and procedure development and training, wage and hour compliance, accommodating disabled employees, conducting investigations and considerations associated with ending the relationship. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 8
  8. 8. Episodes in this Series #1: Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants Premiere date: 1/28/20 #2: An Ounce of Prevention: Policies, Procedures and Proactivity Premiere date: 2/25/20 #3: Show Them the Money: Wage & Hour Compliance Premiere date: 3/24/20 #4: The Impact of Communicable Diseases, Including Coronavirus, on the Workplace Premiere date: 4/28/20 #5: I Know What You Did Last Summer: Workplace Investigations Premiere date: 5/19/20 #6: It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees Premiere date: 6/16/20 #7: Time for a Break: Managing Leaves of Absence and Accommodating Disabilities Premiere date: 7/30/20 9
  9. 9. Episode #7 Time for a Break: Managing Leaves of Absence and Accommodating Disabilities 10
  10. 10. FMLA – Family Medical Leave Act • FMLA – Family Medical Leave Act (FMLA) • Provides leave to employees for a ―serious health condition‖ of an employee or certain family members • Includes birth, adoption, and foster care placement of employee’s child or ward • Certain military-related leave 11
  11. 11. FMLA Covered Employers § 825.104 • Private sector employers with 50 or more employees 12
  12. 12. Employee Eligibility §825.110 • Works for a covered employer • Worked at least 12 months for that employer • Have at least 1,250 hours of service during the 12 months before leave begins • Employed at a worksite with 50 employees within 75 miles of worksite 13
  13. 13. Qualifying Leave Reasons: §825.112 • Eligible employees may take FMLA leave:  For the birth or placement of a child for adoption or foster care  To care for a spouse, son, daughter or parent with a serious health condition  For their own serious health condition • Military Family Leave:  Because of a qualifying reason arising out of the covered active duty status of a military member who is the employee’s spouse, son, daughter or parent (qualifying exigency leave)  To care for a covered service member with a serious injury or illness when the employee is the spouse, son, daughter, parent or next of kin of the covered service member (military caregiver leave) 14
  14. 14. Qualifying Family Members: §825.102 • Parent - A biological, adoptive, step or foster father or mother, or someone who stood in loco parentis to the employee when the employee was a son or daughter. Doesn’t include in-laws. • Spouse - A husband or wife as defined by state law, including common law marriage, if recognized. The federal Defense of Marriage Act definitions of ―marriage‖ and ―spouse‖ apply to the FMLA and therefore FMLA leave for a spouse may only be taken to care for a spouse of the opposite sex. • Son or Daughter - For leave other than military family leave, a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis who is either under 18 years of age or 18 or older and incapable of self-care because of a mental or physical disability. 15
  15. 15. Qualifying Leave Reasons: For the Birth or Placement of a Child §825.120-121 • Both the mother and father are entitled to FMLA leave for the birth or placement of the child and/or to be with the healthy child after the birth or placement (bonding time) • Employees may take FMLA leave before the actual birth, placement or adoption • Leave must be completed by the end of the 12-month period beginning on the date of the birth or placement 16
  16. 16. Qualifying Leave Reasons: Serious Health Condition §825.113 • Illness, injury, impairment or physical or mental condition involving:  Inpatient care, or  Continuing treatment by a health care provider 17
  17. 17. Serious Health Condition – Inpatient Care §825.114 • An overnight stay in a hospital, hospice or residential medical facility • Includes any related incapacity or subsequent treatment 18
  18. 18. Serious Health Condition – Continuing Treatment §825.115 • Continuing treatment by a healthcare provider:  Incapacity plus treatment  Pregnancy  Chronic conditions  Permanent/long-term conditions  Absence to receive multiple treatments 19
  19. 19. Continuing Treatment by a Health Care Provider (HCP) §825.115 • Incapacity Plus Treatment  Incapacity of more than three consecutive, full calendar days, that involves either: o Treatment two times by HCP (first in-person visit within seven days, both visits within 30 days of first day of incapacity) o Treatment one time by HCP (in-person visit within seven days of first day of incapacity), followed by a regimen of continuing treatment (e.g., prescription medication) 20
  20. 20. Continuing Treatment by a Health Care Provider (HCP) §825.115 • Pregnancy  Incapacity due to pregnancy or prenatal care 21
  21. 21. Continuing Treatment by a Health Care Provider (HCP) §825.115 • Chronic Conditions  Any period of incapacity or treatment due to a chronic serious health condition, which is defined as a condition that: o requires periodic visits (twice per year) to a health care provider for treatment o continues over an extended period of time o may cause episodic rather than continuing periods of incapacity 22
  22. 22. Continuing Treatment by a Health Care Provider (HCP) §825.115 • Permanent/Long-Term Conditions  A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective 23
  23. 23. Continuing Treatment by a Health Care Provider (HCP) §825.115 • Absence to Receive Multiple Treatments  For restorative surgery after an accident or other injury, or  For conditions that, if left untreated, would likely result in incapacity of more than three consecutive, full calendar days 24
  24. 24. Serious Health Condition: Practical Pointers • The following ordinarily are NOT Serious Health Conditions:  Routine physical, eye or dental examinations  Common cold, flu, ear aches, upset stomach, minor ulcers  Headaches (other than migraines)  Routine dental or orthodontia problems or periodontal disease  Conditions in which treatment is limited to either: 1) taking OTC medications such as aspirin, antihistamines, salves; or 2) bed-rest, drinking fluids, or exercise o cosmetic treatments (unless in-patient care is required) 25
  25. 25. Amount of Leave §825.205 & §825.802 • Employee’s workweek is basis for entitlement • Eligible employees may take up to 12 workweeks* of FMLA leave:  for the birth or placement of a child for adoption or foster care;  to care for a spouse, son, daughter, or parent with a serious health condition; and  for the employee’s own serious health condition. 26
  26. 26. Amount of Leave: Intermittent Leave §825.202 • Employee is entitled to take intermittent or reduced schedule leave for:  Employee’s or qualifying family member’s serious health condition when the leave is medically necessary  Covered service member’s serious injury or illness when the leave is medically necessary  A qualifying exigency arising out of a military member’s covered active duty status • Leave to bond with a child after the birth or placement must be taken as a continuous block of leave unless the employer agrees to allow intermittent or reduced schedule leave 27
  27. 27. Amount of Leave: Intermittent Leave §825.202 • In calculating the amount of leave, employer must use the shortest increment the employer uses to account for other types of leave, provided it is not greater than one hour* • Shortest increment may vary during different times of day or shift • Required overtime not worked may count against an employee’s FMLA entitlement * Special rules apply for calculating leave for airline flight crew employees 28
  28. 28. 12 Month Period §825.200 • Method determined by employer  Calendar year  Any fixed 12-month leave year  A 12-month period measured forward  A rolling 12-month period measured backward 29
  29. 29. Substitution of Paid Leave §825.207 • ―Substitution‖ means paid leave provided by the employer runs concurrently with unpaid FMLA leave and normal terms and conditions of paid leave policy apply • Employees may choose, or employers may require, the substitution of accrued paid leave for unpaid FMLA leave • Employee remains entitled to unpaid FMLA if procedural requirements for employer’s paid leave are not met 30
  30. 30. Substitution of Paid Leave – Limitations §825.207 • Workers’ compensation leave  may count against FMLA entitlement  ―topping off‖ allowed if state law permits • Disability leave  may count against FMLA entitlement  ―topping off‖ allowed if state law permits • Compensatory time off (public sector only)  may count against FMLA entitlement  subject to FLSA requirements 31
  31. 31. Employer Responsibilities • Provide notice • Maintain group health insurance • Restore the employee to same or equivalent job and benefits • Maintain records 32
  32. 32. Employer Responsibilities: General Notice, §825.300 • Employers must inform employees of FMLA:  Post a General Notice, and  Provide General Notice in employee handbook or, if no handbook, distribute to new employees upon hire • Electronic posting and distribution permitted • Languages other than English required where significant portion of workforce not literate in English • $110 civil monetary penalty (CMP) for willful posting violation 33
  33. 33. Employer Responsibilities: Notice of Eligibility, §825.300 • Within five business days of leave request (or knowledge that leave may be FMLA- qualifying) • Eligibility determined on first instance of leave for qualifying reason in applicable 12-month leave year • New notice for subsequent qualifying reason if eligibility status changes • Engage in ―interactive discussion‖ with employee • Provide a reason if employee is not eligible • May be oral or in writing (optional WH-381) 34
  34. 34. Employer Responsibilities: Provide Notice of Rights and Responsibilities §825.300 • Provided when eligibility notice required • Must be in writing (optional WH-381) • Notice must include:  Statement that leave may be counted as FMLA  Applicable 12-month period for entitlement  Certification requirements  Substitution requirements  Arrangements for premium payments (and potential employee liability)  Status as ―key‖ employee  Job restoration and maintenance of benefits rights 35
  35. 35. Employer Responsibilities: Provide Notice of Designation §825.300 • Within five business days of having enough information to determine leave is FMLA- qualifying • Once for each FMLA-qualifying reason per applicable 12-month period (additional notice if any changes in notice information) • Include designation determination; substitution of paid leave; fitness for duty requirements • Must be in writing (optional WH-382) • If leave is determined not to be FMLA-qualifying, notice may be a simple written statement 36
  36. 36. Employer Responsibilities: Provide Notice of Designation §825.300-.301 • Employer must notify employee of the amount of leave counted against entitlement, if known; may be payroll notation • If amount of leave is unknown (e.g., unforeseeable leave), employer must inform employee of amount of leave designated upon request (no more often than 30 days) • Retroactive designation permitted provided that failure to timely designate does not cause harm to employee 37
  37. 37. Employer Responsibilities: Maintain Group Health Plan Benefits §825.209 • Group health plan benefits must be maintained throughout the leave period • Same terms and conditions as if employee were continuously employed 38
  38. 38. Employer Responsibilities: Maintain Group Health Plan Benefits §825.210-.213 • Employee must pay their share of the premium • Even if employee chooses not to retain coverage during leave, employer obligated to restore same coverage upon reinstatement • In some circumstances, employee may be required to repay the employer’s share of the premium if the employee does not return to work after leave 39
  39. 39. Employer Responsibilities: Job Restoration §825.214-.219 • Same or equivalent job  equivalent pay  equivalent benefits  equivalent terms and conditions • Employee has no greater right to reinstatement than had the employee continued to work • Bonuses predicated on specified goal may be denied if goal not met • Key employee exception 40
  40. 40. Prohibited Employment Actions §825.220 • Employers cannot:  interfere with, restrain or deny employees’ FMLA rights  discriminate or retaliate against an employee for having exercised FMLA rights  discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA  use the taking of FMLA leave as a negative factor in employment actions 41
  41. 41. Employee Responsibilities • Provide sufficient and timely notice of the need for leave • Engage with employer in ―interactive discussion‖ • If requested by the employer:  Provide certification to support the need for leave  Provide periodic status reports  Provide fitness-for-duty certification 42
  42. 42. Employee Responsibilities: Notice Requirements §825.302-.303 • Provide sufficient information to make employer aware of need for FMLA-qualifying leave • Specifically reference the qualifying reason or the need for FMLA leave for subsequent requests for same reason • Consult with employer regarding scheduling of planned medical treatment • Comply with employer’s usual and customary procedural requirements for requesting leave absent unusual circumstances 43
  43. 43. Employee Responsibilities: Notice Requirements • Timing of employee notice of need for leave:  Foreseeable leave - 30 days notice, or as soon as practicable (§825.302)  Unforeseeable leave - as soon as practicable (§825.303) 44
  44. 44. What Notice is Required from an Employee? • Request for leave from an employee may be given:  In writing;  Verbally;  In person;  By telephone;  By fax machine;  After the employee returns to work, but within two (2) business days of their return; or  By the employee’s spokesperson. 45
  45. 45. Does an Employee Have to Use “The Magic FMLA Words?” • NO – Employees do NOT have to specifically mention or request leave under the FMLA  Employees must provide a clear reason for taking leave  If asked, an employee must provide details of his or her condition or that of his or her child, spouse, or parent  Employees do not need to provide a ―diagnosis‖ for a serious health condition 46
  46. 46. Employee Responsibilities: Provide Certification §825.305 • Medical Certification for serious health condition (optional WH-380-E and 380-F)  Submit within 15 calendar days  Employer must identify any deficiency in writing and provide seven days to cure  Annual certification may be required  Employee responsible for any cost 47
  47. 47. Employee Responsibilities: Provide Certification • Employer (not employee’s direct supervisor) may contact health care provider to:  Authenticate: Verify that the information was completed and/or authorized by the health care provider; no additional information may be requested  Clarify: Understand handwriting or meaning of a response; no additional information may be requested beyond what is required by the certification form • Second and third opinions (at employer’s cost)  If employer questions the validity of the complete certification, the employer may require a second opinion  If the first and second opinions differ, employer may require a third opinion that is final and binding 48
  48. 48. Employee Responsibilities: Provide Certification • Recertification  No more often than every 30 days and with an absence o If the minimum duration on the certification is greater than 30 days, the employer must wait until the minimum duration expires o In all cases, may request every six months with an absence  More frequently than every 30 days if: o the employee requests an extension of leave, or o circumstances of the certification change significantly, or o employer receives information that casts doubt on the reason for leave • Consequences of failing to provide certification  Employer may deny FMLA until certification is received 49
  49. 49. Employee Responsibilities: Provide Periodic Status Reports §825.311 • Employee must respond to employer’s request for information about status and intent to return to work 50
  50. 50. Employee Responsibilities: Fitness for Duty Certification, §825.312 • For an employee’s own serious health condition, employers may require certification that the employee is able to resume work  Employer must have a uniformly-applied policy or practice of requiring fitness-for-duty certification for all similarly-situated employees • If state or local law or collective bargaining agreement is in place, it governs the return to work • Not permitted for intermittent or reduced schedule leave unless reasonable safety concerns exist • Authentication and clarification • Employee responsible for any cost 51
  51. 51. Other Issues • Salaried employees:  Deductions from certain ―exempt‖ employees’ salaries  Deductions for employees paid overtime on a fluctuating workweek method §825.311 52
  52. 52. ADA vs. FMLA • When FMLA leave is exhausted, the employer must go into ADA ―accommodation‖ mode • FMLA ―serious health condition‖ can also qualify as an ADA ―disability‖ • Must consider further leave after FMLA leave • No specific time limit on ADA leave, but cannot be indefinite and the employee must demonstrate expected duration when requesting leave • Light duty work • Increased litigation concern/threat • ADA explicitly requires ―interactive discussion‖ 29 C.F.R. § 1630.2(o)(3) 53
  53. 53. Medical Certifications • ADA and FMLA allow limited medical inquires by employer • ADA inquiries must be job related and necessary for business  Can ask for documentation of existence of disability if leave is requested as accommodation • FMLA allows you to require medical certification of need for leave related only to condition 54
  54. 54. Pregnancy and ADA • Normal Pregnancy not considered a disability • High-risk complications that substantially limit a major life activity may be considered a disability 55
  55. 55. Pregnancy and FMLA • Definition of ―continuous treatment‖ includes incapacity due to pregnancy or prenatal care • If a woman needs to stop work early due to complications this will count towards the 16 week leave total • ―Baby bonding time‖ is also covered for 12 weeks • Paternity leave covered for same 12 week limitation • Same health insurance coverage as when working 56
  56. 56. Effective Strategies Going Forward • Communicate with employee and monitor leave • Require medical certifications for health related leaves to determine eligibility for FMLA, ADA or both • When FMLA leave is up determine if employee is eligible for further ADA leave • Ensure reinstatement policy allows return to same job, not just equivalent, if employee is covered by both FMLA and ADA • Engage employee in interactive discussion & document 57
  57. 57. About the Faculty 58
  58. 58. About The Faculty Charles Krugel - cak1@charlesakrugel.com As a management side labor & employment attorney & human resources (HR) counselor, Charles Krugel, www.charlesakrugel.com, has 24 years of experience in the field & has been running his own practice for 18 years. His clients are small to medium sized companies in a variety of industries. Charles has been lead negotiator for hundreds of labor & employment agreements & contracts. Additionally, he’s litigated dozens of court cases, administrative proceedings & arbitrations. In addition to providing traditional labor & employment law services, he represents companies desiring to institute preventive & proactive HR functions. These functions include policies & procedures, which help to efficiently & discreetly resolve issues in-house & prevent lawsuits & complaints; they also help to reduce costs & act as catalysts for increasing productivity & profits. Moreover, he’s frequently the subject labor & employment law related TV, radio & print interviews. 59
  59. 59. About The Faculty Gary Savine - gnoah@savinelaw.com Gary Noah Savine is an employment lawyer and the founder of Chicago-based law firm Savine Employment Law, Ltd. Gary brings to the table over twenty years of legal expertise and hands-on experience, working around the globe, shoulder-to-shoulder with senior executives and human resource professionals solving the thorniest of workplace disputes. Before starting his firm, Gary practiced employment law exclusively at two of Chicago’s largest law firms and served as chief employment counsel at Navistar (NYSE: NAV) and Hill- Rom Holdings (NYSE: HRC). Gary frequently speaks and writes about employment law issues. He has written and presented before the American Bar Association, the National Employment Lawyers Association, the Northern Illinois Society for Human Resources Management, the Northern Illinois Franchise Association and the American Conference Institute. Gary received his law degree cum laude from the University of Michigan Law School in 1996. More information about Gary’s firm can be found at www.savinelaw.com. 60
  60. 60. About The Faculty Helen Bloch - hbloch@blochpc.com In 2007, Helen Bloch founded the Law Offices of Helen Bloch, P.C., a general practice firm that is a Certified Female Business Enterprise. In the employment & business context, Helen represents clients on all sides of the employment relationship- individual employees, managers, or employers. Routinely Helen negotiates & counsels clients on employment agreements, including non-competition, confidentiality, & severance agreements. Also, she drafts employment handbooks & various policies & procedures. Helen will advise businesses on best practices, including providing sexual harassment training. Helen has lectured on topics such as gender role in the law, legal issues affecting small businesses, & legal rights & obligations from multiple sides of the employer-employee relationship. For the past two years she has been selected for inclusion in Super Lawyers in the area of employment law. Helen is President of the Decalogue Society of Lawyers & serves on the Alliance of Bar Associations, where she assists in screening judicial candidates. Her other bar association memberships include the Illinois chapter of the National Employment Lawyers Association, Women’s Bar Association of Illinois, & the Illinois State Bar Association. An active National Association of Women Business Owner’s (NAWBO) member, Helen leads NAWBO’s Lincoln Park Business Exchange Group. 61
  61. 61. About The Faculty Max Barack - maxbarack@gmail.com Max leads the Garfinkel Group, LLC's employment law practices groups and is a plaintiff-side employment law attorney. He has been practicing law since 2013 and has spent the majority of that time handling plaintiff-side employment matters. He concentrates his practice primarily on representing plaintiffs in their claims of discrimination, as well as wage & hour violations, whistleblower actions, & severance negotiations. He has extensive litigation experience, with a focus on electronic discovery (ESI). He has represented & assisted employers in defending discrimination & wage & hour disputes, including in department of labor investigations. He is a member of the Board of Directors of the National Employment Lawyers Association of Illinois & co-chair of its Legislative Committee. He is a regular contributor to the Chicago Bar Association's @theBar blog, & is fluent in Spanish. Max Barack Attorney at Law J.D., Chicago-Kent College of Law B.A., University of Michigan 62
  62. 62. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 63
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