FMLA and ADA 101: What Every Manager Needs to Know


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FMLA and ADA 101: What Every Manager Needs to Know

  1. 1. FMLA/ADA 101What Every Manager Needs to Know
  2. 2. Vicki WorthHR
  3. 3. About1. President/Owner, HR Luminary, LLC2. HR Generalist, SPHR Certified3. Over 25 years experience in Human Resources in the private sector4. Member of SHRM, both national and local5. BSBA from Arizona State University 4
  4. 4. Intent of Webinar1. Inform/educate HR professionals on the legal consequences surrounding FMLA and ADA.2. Focus on the important role of HR professionals to manage FMLA and ADA related issues and their understanding of laws, policies and practices to ensure compliance. 5
  5. 5. Learning Objectives6. Know what is and is not allowed under each act.7. Understand the basic interplay between FMLA/ADA/Worker’s Compensation/DisabilityHRCI has approved this programfor 1.25 General Recertificationcredits for PHR, SPHR and/or GPHR 7
  6. 6. Family and Medical Leave Act 1993• Allows employees to balance their work and family life due to certain family and medical reasons.• Provided for in a manner that accommodates the legitimate interests of employers.• Minimizes the potential for employment discrimination on the basis of gender.• Promotes equal employment opportunity for men and women. 8
  7. 7. Family and Medical Leave Act• FMLA requires employers to grant eligible employees a maximum of 12 work weeks of unpaid, job protected leave during a 12 month period.• This applies to all companies engaged in commerce where at least 50 employees are employed at the location, or within 75 miles of the location. 9
  8. 8. Who is Eligible?• Full and part time employee who have worked for the employer for at least 12 months (does not have to be 12 continuous or consecutive months)• Employee must have worked at least 1,250 hours during the 12 months prior to the start of the qualified leave. 10
  9. 9. What does FMLA Cover?FMLA allows employees to take up to 12 workweeks ofunpaid, job protected leave during a designated 12month period in the following cases: For incapacity due to pregnancy, prenatal medical care, or childbirth To care for the employee’s child after birth or placement for adoption or foster care To care for the employee’s spouse, son or daughter, or parent who has a serious health condition For a serious health condition that makes the employee unable to perform his or her job. 11
  10. 10. What doesn’t FMLA Cover?The law does not cover:• In-laws• Grandparents• Aunts• Uncles• Siblings• Cousins• Children over the age of 18 (with exceptions)• Unmarried domestic partners 12
  11. 11. Serious Health Condition“Serious Health Condition” – illness, injury, impairment, orphysical or mental condition:• Health condition lasting more than three consecutive days, requiring continuing treatment (e.g., hospitalization), plus two visits• Any period of incapacity due to pregnancy or prenatal care• Any period of incapacity due to a chronic, serious health condition that continues over an extended period of time and requires visits to a health care provider• A permanent or long term condition for which treatment may not be effective, requiring supervision by a health care professional (e.g. terminal cancer)• Any absences to receive multiple treatments for restorative surgery or for a condition resulting in a period of incapacity of more than three days if left untreated, such as chemotherapy or radiation treatments. 13
  12. 12. Serious Health ConditionIn January 2009, DOL issued a new set of regulations toclarify one of the definitions.Original definition of Serious Health Condition:A health condition lasting more than 3 consecutive days requiringcontinuing treatment, (such as hospitalization), plus 2 visits to a health-care provider or 1 visit to a h/c provider plus continuing treatment.Amendment:The first health-care provider visit must occur within 7 days of the firstday of incapacity. Where applicable, the two visits must occur within 30days of the beginning of the period of incapacity.In addition, for chronic serious health conditions, the employee mustvisit a health-care professional at least twice/year. 14
  13. 13. What is A Serious Health Condition• Heart Conditions/Strokes• Back Injuries• Injuries caused by accidents• Pregnancy and related conditions (miscarriages, morning sickness)• Cancer• Asthma• Pneumonia• Diabetes• Epilepsy• Serious Infections• Alzheimer’s Disease• Arthritis 15
  14. 14. What is Protected• The employee is entitled to be restored to the same or equivalent position with equivalent benefits, pay, other terms/conditions of employment• New position must involve the same or substantially similar duties and responsibilities, skill requirement, responsibility and authority• Attendance based awards must not consider FMLA based absences• Company cannot take negative action toward employee, such as hiring, promotions, or disciplinary action 16
  15. 15. FMLA ExpansionOn January 28, 2008, George W. Bush signedinto law the National Defense AuthorizationAct, creating two new qualifying events:• Qualified Exigency Leave• Military Caregiver Leave 17
  16. 16. Qualified Exigency LeaveQualified Exigency Leave - Provides up to 12 workweeks of FMLAdue to a spouse, son, daughter or parent being on covered activeduty or having been notified of an impending call or order tocovered active duty in the armed forces.Covered Active Duty• For members of regular component of armed forces (army, navy, marines, etc.) – duty during deployment to a foreign country• For members of the reserves – duty during deployment to a foreign country under a call or order to active duty in a contingency operation 18
  17. 17. Qualified Exigency LeaveQualifying events as defined by DOL in 2009:- Short notice deployment - Military Events- Child Care/School Activities - Financial/Legal Arrangements- Counseling: rest /recuperation - Post Deployment ActivitiesAdditional activities agreed to by employer andemployee 19
  18. 18. Military Caregiver LeaveProvides up to 26 workweeks of unpaid FMLA leave during asingle 12 month period for an eligible employee who is thespouse, son, daughter, parent or next of kin of a coveredservice member with a serious injury or illness.Under NDAA in 2010, “covered service members” wasexpanded to include veterans 20
  19. 19. Requesting FMLA 30 day advance notice of need to take FMLA when the need is foreseeable If unforeseeable, notice should be provided as soon as practicable If employee was absent for an unknown reason and wants the leave counted toward FMLA, need to provide timely notice (within 2 business days) If employee is absent but doesn’t let the employer know why, employer is under no obligation to protect the employee’s job 21
  20. 20. Employer ResponsibilitiesTo provide written notice designating the leave asFMLA leave and providing specific expectations andobligations of the employeeNotice should be provided within one or twobusiness days after receiving notification ofemployee’s request for leave 22
  21. 21. Employer Responsibilities– To provide employee preliminary designation letter and medical certification form– Employee must be allowed 15 calendar days to obtain medical certification– Failure to do so may result in disciplinary action for unexcused absences– HR/Responsible Party will determine eligibility for FMLA 23
  22. 22. Retroactive Designation of FMLAAn employer may not designate FMLA retroactivelyfor more than two business days unless:- The employer doesn’t learn of the need for leave until after the leave has begun- The employer doesn’t know the reason for an absence and is notified by employee within two business days after returning to work- The employer made a preliminary designation of FMLA leave, conditioned upon providing timely medical certification 24
  23. 23. Intermittent Leave May be taken when medically necessary to care for a seriously ill family member or because of an employee’s serious health condition May be taken prior to birth May be taken to care for a newborn or newly placed adopted or foster care child 25
  24. 24. Intermittent Leave• Only the amount of leave actually taken may be charged to FMLA• Cannot require employees to take more FMLA leave than necessary. Leave must be tracked in the shortest period of time payroll system allows• If disruptions occur, employee may be transferred to an alternative job 26
  25. 25. Two Spouses at Same Company ?Spouses employed by the same employer may be limited to a combined total of 12 workweeks for the following reasons: Birth and care of a child For the placement of a child for adoption or foster care or to care for a newly placed child To care for an employee’s parentBut they may each take 12 workweeks of FMLA for their ownserious health condition. 27
  26. 26. Defining the FMLA TimeframeEmployers are required to use one of the following methods:• The calendar year• Any fixed 12-month “leave year” (e.g., a fiscal year, anniversary date)• The 12-month period measured forward from the date an employee’s first FMLA leave begins• A “rolling” 12-month period measured backward from the date an employee uses any FMLA 28
  27. 27. Other FMLA Facts• Holidays – full workweek of FMLA is used even if some days are holidays• If “exempt” employee is on intermittent leave, under FLSA that employee can be “docked” for any unpaid leave time• Some employers require employees to use PTO to cover some or all of the FMLA leave 29
  28. 28. Other FMLA Facts• Disability leave and Worker’s Compensation run concurrent with any FMLA leave• A company can suggest, but not force an employee to return to light duty• If there is a state family or medical leave law, employee is entitled to the most generous benefit 30
  29. 29. Other FMLA Facts• If an employee gives notice that they do not intend to return to work, they lose their entitlement to FMLA• FMLA makes it unlawful for any employer to interfere with, restrain or deny the exercise of any right provided , or discharge or discriminate against anyone due to involvement in any proceeding related to FMLA• Enforced by the Wage & Hour Division of the DOL 31
  30. 30. Americans with Disabilities Act 1990 32
  31. 31. Americans with Disabilities Act 1990• Bring those who have disabilities of one kind or another into the mainstream of life• Adds a new category to the Civil Rights Act of 1964: Disability• Amended in 2008 by George W. Bush to broaden the definition of “disability”• Enforced by the Equal Employment Opportunity Commission 33
  32. 32. What is a disability?Under the ADA, an individual with a disability is a personwho:1. Has a physical or mental impairment that substantially limits one or more major life activities2. Has a record of such impairment3. Is regarded as having such an impairment 34
  33. 33. Who is Covered?The scope of the ADA’s definition of protected disabilitiesextends to persons who: Have mental disabilities that substantially limit their relations with others Have a history of a disability Are perceived as having a disability, even though the impairment is not substantially limiting 35
  34. 34. Who is Covered?The scope of the ADA’s definition of protected disabilitiesextends to persons who: Are recovering or former drug addicts Are infected with AIDS or HIV virus Are able to control their disability through mitigating measures, such as medication but are still substantially limited in a major life activity 36
  35. 35. Who is Covered?The scope of the ADA’s definition of protected disabilitiesextends to persons who: Temporary impairments may or may not be considered disabilities under the ADA. Hidden disabilities – AIDS, HIV, Kidney failure, TB No definitive list of “disabilities” 37
  36. 36. What Is Not Covered?Conditions that are not protected disabilities: Sexual disorders Compulsive gambling Current illegal use of drugs Environmental, cultural, or economic disadvantages Stress/depression – may or may not be covered 38
  37. 37. Definition of ImpairmentAn impairment is a “disability” only if itsubstantially limits one or more major lifeactivities by1. Its nature and severity2. How long it will last or is expected to last3. Its permanent or long term impact or expected impact 39
  38. 38. Major Life Activities• Walking• Seeing• Hearing• Speaking• Breathing• Learning• Caring for oneself• Working 40
  39. 39. ADA Amendments Act of 2008The Act retains the ADA’s basic definition of disability;however it changes the way that these statutory termsshould be interpreted, most significantly:1. It directs the EEOC to revise the portion of its regulations defining the term “substantially limits”2. Expands the definition of “major life activities” by including two non exhaustive lists to include 1) reading, bending, communicating and 2) major bodily functions i.e., immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, etc. 41
  40. 40. ADA Amendment Act of 20083. Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.4. Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g. failure to hire or termination) based on an impairment that is not transitory or minor5. Provides that individuals covered under the “regarded as” prong are not entitled to reasonable accommodation. 42
  41. 41. Who is Qualified?Individuals with disabilities are protected under ADAprovided they are qualified to perform the essentialfunctions of the job.1. Person must meet the legitimate skill, experience, education, licensing or other requirements for the position2. Requiring the ability to perform the “essential functions” assures that the person will not be considered unqualified due to inability to perform marginal/incidental, i.e., “non essential” job functions. 43
  42. 42. Essential Job FunctionsWhen making this distinction, there are twoconsiderations:1. Whether employees in the position actually are required to perform the function2. Whether removing the function would fundamentally change the job 44
  43. 43. Essential Job Functions– The position exists to perform the function– There are a limited number of other employees available to perform the functions– A function is highly specialized and the person is hired for special expertise or ability to perform– Employee spends most of his/her time performing the function– There would be consequences if the function were not carried out 45
  44. 44. Reasonable AccommodationAccommodation means a change to:• Workplace – ramps, elevators to accommodate wheelchairs, accessible rest room facilities, parking spaces• Work Schedule – allowing time off for treatment, making up time, unpaid leave, taking breaks, adjusting start and end times• Job Structure – Restructuring or redistributing duties that are not essential functions• Equipment modifications – raising or lowering a desk or chair, telephone amplifiers, Braille machine 46
  45. 45. Reasonable AccommodationA reasonable accommodation must:– Be effective – provide an opportunity to achieve the same level of performance or enjoy the same benefits or privileges– Necessary – must be employment related, reducing barriers to a disabled person’s ability to perform.A reasonable accommodation may go beyond the ADA’srequirementsDetermining the best way to identify a reasonableaccommodation:Consult with the person. 47
  46. 46. Interviewing Individuals with DisabilitiesTo have an effective interview,be aware of “attitudinalbarriers”, have informationabout specific disabilities andunderstand theaccommodation process.Some managers may feeluncomfortable; some may havenegative attitudes towardspeople with disabilities. 48
  47. 47. Attitudes toward the disabled- Avoid asking questions necessary to make an informed decision- Terminate the interview prematurely- Assume potential coworkers would feel the same- Conclude the applicant would not “fit in” 49
  48. 48. Interviewing Individuals with DisabilitiesMake the interview accessible:– Accessible location– A sign interpreterEtiquette:– Look directly at applicant– Speak directly to the applicant– Don’t assume applicant needs assistance– Don’t tell applicant you admire his/her courage– Don’t avoid certain questions for fear of sensitivity– Ask all questions in a straightforward, matter of fact manner 50
  49. 49. What Can I ask in the Interview? – Ask whether the person knows of any reason he/she cannot perform the essential functions of the job – Ask questions about an applicant’s ability to perform job-related functions – Describe or demonstrate a job function and ask all applicants whether they can perform the function with or without reasonable accommodations 51
  50. 50. Performance IssuesIf an employee cannot perform the essentialfunctions of the job, he/she is no longer aqualified person.Three components of each employee’s suitabilityfor employment supervisors should focus on:CAP = Conduct, Attendance and PerformanceIf the disabled employee can comply, the person isqualified. 52
  51. 51. Key Points for Success1. Ensure FMLA Posters are displayed2. Act quickly when you are aware of a qualifying event3. Keep accurate attendance records4. Don’t deny FMLA for an employee who meets eligibility requirements5. Don’t ask an employee for doctor’s notes for intermittent leave. Could be deemed as harassment6. Don’t talk to employee’s doctor 53
  52. 52. Key Points for Success7. ADA & FMLA are not the same, but both may be involved.8. Some serious health conditions under FMLA may be ADA disabilities9. ADA relates to an impairment that “substantially limits one or more major life activities”. 54
  53. 53. Next Steps1. Download this Event at HRLuminary.com2. View Upcoming Events • Fair Labor Standards Act • Patient Protection and Affordable Care Act3. Check back soon for a recording of this event4. A brief survey will be sent at the end of the webinar 55
  54. 54. Vicki WorthHR