Manager training on employment law related to the Family Medical Leave Act and the Americans with Disabilities Act.

1. Presenter:
Kevin M. Kinne, Cohen Kinne Valicenti & Cook LLP

3.  Americans with Disabilities Act (ADA)
 Family and Medical Leave Act (FMLA)
 Workers’ Compensation (WC)

4.  The majority of unscheduled and scheduled absences
are related to the illness of employees or their family
members. One, both, or all three of these laws may be
involved.
 Violations of these laws may result in lost wages, back
pay, reinstatement, retroactive benefits,
compensatory damages, and punitive damages.
 Employers have a duty to ensure that employees
receive the benefits and protections these laws
provide.

5.  ADA – protects applicants and employees who are
“qualified individuals with a disability.”
 FMLA – sets minimum leave standards for employees
for the birth and newborn care of a child, placement
of a child for adoption or foster care, to care for an
immediate family member with a serious health
condition, and for the employee’s serious health
condition. New Military component.
 Workers’ Compensation - provides for payment of
compensation and rehabilitation for workplace
injuries and minimizes employer liability.

6.  Employee Eligibility
 ADA – Employee (or applicant) who is disabled as defined by the
ADA; qualified for the position; can perform the essential functions
of the position, with or without a reasonable accommodation.
 FMLA – Employee who has worked at least 12 months and 1250
hours prior to the start of the leave; works at a worksite where there
are 50 or more employees within a 75-mile radius.
 Workers Compensation – Employee who has an injury arising out of
or in the course of employment - state law exceptions possible for
willful misconduct or intentional self-inflected injuries, willful
disregard of safety rules, or intoxication from alcohol or illegal
drugs.

7.  Length of Leave
 ADA – No specific limit for the amount of leave that
would be provided as a reasonable accommodation that
does not create an undue hardship on the employer.
 FMLA – 12 weeks in the 12 month period as defined by
the employer
 Workers’ Compensation – No specific limit for the
amount of leave an injured worker may have.

8. Medical Documentation
 ADA – Only medical examinations or inquiries regarding
an employee’s disability that are job-related and limited to
determining ability to perform the job and whether an
accommodation is needed and would be effective.
 FMLA – Medical certification of the need for the leave not
to exceed what is requested in the Department of Labor
(DOL) Medical Certification Form.
 Workers’ Compensation – Medical information that
pertains to the employee’s on-the-job injury.

9. Restricted or Light Duty
 ADA – Required to be offered, if it is a reasonable
accommodation that does not create an undue hardship on
the employer.
 FMLA – Cannot be “required”.
 Workers’ Compensation – Ought to be offered if available
as it may eliminate the employee’s entitlement to the wage
replacement benefit.

10. Fitness-to-Return-to-Work Certification
 ADA –Permitted as long as the medical examination and
inquiry is job-related and necessary to determine whether
the employee can perform the essential functions of the
job.
 FMLA – Can only be required under a policy or practice
that requires employees who have been on a similar type of
leave of absence
 Workers’ Compensation – May be and is typically required.

11. Benefits While on Leave
 ADA –No specific requirements but cannot discriminate
and must provide same benefits as those provided to
employees on non-ADA leave of absence.
 FMLA – Health coverage must be continued at same level
as prior to the leave.
 Workers’ Compensation – Not required to continue unless
run concurrently with FMLA leave.

12. Reinstatement
 ADA –Required reinstatement to previous job unless doing
so would create an undue hardship on the employer.
 FMLA – Required reinstatement to the same or an
equivalent job. NO undue hardship exception.
 Workers’ Compensation – No reinstatement rights , except
for retaliatory discharges.

13. Topics of Discussion:
 Employer Coverage and Employee Eligibility
 Qualifying Reasons for Leave
 Amount of Leave
 Employer Rights and Responsibilities
 Employee Rights and Responsibilities
 Military Family Leave Provisions

14.  Private sector employers with 50 or more
employees
 Williams College qualifies

15.  Employed by covered employer
 Worked at least 12 months
 Have at least 1,250 hours of service during the 12 months
before leave begins – Does vacation time count towards
1,250 hour requirement? - NO
 Employed at a work site with 50 employees within 75 miles

16. • 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 servicemember with a serious injury or
illness when the employee is the spouse, son, daughter, parent,
or next of kin of the covered servicemember
(military caregiver leave)
Military
Family
Leave
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

17.  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. Parent for FMLA purposes does not
include in-laws.
 Spouse - A husband or wife as defined under state law, including
common law marriage where recognized.
 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.

18.  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 – incapacitation.
 Leave must be completed by the end of the 12-month
period beginning on the date of the birth or
placement

19. Illness, injury, impairment or physical or
mental condition involving:
• Inpatient Care, or
• Continuing Treatment by a Health Care
Provider

20.  An overnight stay in a hospital, hospice, or
residential medical facility
 Includes any related incapacity or subsequent
treatment

21. Continuing Treatment by a Health Care Provider
• Incapacity Plus Treatment
• Pregnancy
• Chronic Conditions
• Permanent/Long-term Conditions
• Absence to Receive Multiple Treatments

22. Incapacity Plus Treatment
 Incapacity of more than three consecutive, full calendar days that
involves either:
 Treatment two times by HCP (first in-person visit within seven
days, both visits within 30 days of first day of incapacity)
 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)

23. Pregnancy
 Incapacity due to pregnancy or prenatal care

24. Chronic Conditions
 Any period of incapacity or treatment due to a
chronic serious health condition, which is defined as
a condition that:
 requires periodic visits (twice per year) to a health care
provider for treatment
 continues over an extended period of time
 may cause episodic rather than continuing periods of
incapacity – migraines, asthma, epilepsy, diabetes

25. 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 – stroke, terminal disease, alzheimer’s

26. 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

27.  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

28.  When leave is needed for planned medical treatment,
the employee must make a reasonable effort to schedule
treatment so as not to unduly disrupt operations.
 In such cases, the employee temporarily can be
transferred to an alternative job with equivalent pay and
benefits that accommodates recurring periods of leave
better than the employee’s regular job.
Intermittent Leave

29.  “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.  Provide notice
 Maintain group health insurance
 Restore the employee to same or equivalent job and
benefits

31.  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
 Provide a reason if employee is not eligible
 May be oral or in writing

32.  Provided when eligibility notice required
 Must be in writing
 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
Provide Notice of Rights and
Responsibilities

33.  Group health plan benefits must be maintained
throughout the leave period
 Same terms and conditions as if employee were
continuously employed

34.  Employee must pay his/her 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

35.  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

36. 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

37.  Provide sufficient and timely notice of the need for
leave
 If requested by the employer:
 Provide certification to support the need for leave
 Provide periodic status reports
 Provide fitness-for-duty certification

38.  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
Employee Responsibilities –
Notice Requirements

39. Timing of Employee notice of need for leave:
 Foreseeable Leave - 30 days notice, or as soon as
practicable
 Unforeseeable Leave - as soon as practicable
Employee Responsibilities –
Notice Requirements

40.  Medical Certification for serious health condition
 Submit within fifteen 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
Employee Responsibilities –
Provide Certification

41.  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
Employee Responsibilities –
Provide Certification

42. Employee must respond to employer’s request for
information about status and intent to return to
work
Employee Responsibilities –
Provide Periodic Status Reports

43.  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
Employee Responsibilities –
Fitness-for-Duty Certification

44. FMLA MILITARY FAMILY LEAVE
The FMLA military family leave provisions include:
Qualifying exigency leave, which provides up to 12 workweeks of
FMLA leave to help families manage their affairs when a military
member has been deployed to a foreign country; and
Military caregiver leave, which provides up to 26 workweeks of
FMLA leave to help families care for covered service members
with a serious injury or illness
Generally, FMLA rules and requirements continue to apply

45. FMLA MILITARY FAMILY LEAVE
• Entitled to a combined total of 26 workweeks of
military caregiver leave and leave for any other
FMLA-qualifying reason in single 12-month period;
• May not take more than 12 workweeks of leave for
any other FMLA-qualifying reason during this period;
• Military caregiver leave is a “per-servicemember, per-
injury” entitlement – could be 52 weeks of leave . . .

46. What is ADA?
The Americans with Disabilities Act, effective
July 26, 1992, established a clear and
comprehensive prohibition of discrimination on
the basis of disability in employment

47. Who is Disabled?
People who currently have a disability
People who have a history of disability
People who are perceived as disabled by
others

48. ADA Employment
Prohibitions
 Requires employers to provide qualified individuals with
disabilities an equal opportunity to benefit from the full range of
employment-related opportunities available to non-disabled
persons . It prohibits discrimination in:
 job application procedures
 hiring
 advancement
 employee compensation
 Job assignment/classification
 job training
 other terms, conditions, or privileges of employment

49. Qualified Individual With a Disability
“Qualified individual with a disability” means
an individual with a disability who satisfies
the requisite skill, experience, education and
other job-related requirements of the
employment position such individual holds
or desires and who with or without
reasonable accommodation, can perform the
essential functions of such position

50. Types of Reasonable Accommodations
 Reasonable accommodations may include but are not
limited to:
 Modifying the job application process
 Making facilities accessible
 Job restructuring part-time or modified work
schedules
 Acquiring or modifying of equipment/devices
 Modifying policies
 Providing readers/interpreters/notetakers/CART
 Educating co-workers
 Other similar accommodations

51. Employment
Undue Hardship
Reasonable accommodation may not be provided if
such accommodation results in undue hardship on
the employer.
“Undue hardship” means:
 an action requiring significant difficulty or expense
 one that is costly, extensive, substantial or disruptive
 One that will fundamentally alter the nature of
employment

52. WHAT IS NOT A DISABILITY?
Conditions Excluded By Statute

54. ESSENTIAL JOB FUNCTIONS
Fundamental Job Duties of the
Position

55. ESSENTIAL JOB FUNCTIONS
Employers Can Establish Job-Related
Qualification Standards (e.g.,
education, skills, experience,
physical/mental standards)

56. ESSENTIAL JOB FUNCTIONS
Need Clear Job Descriptions

58. REASONABLE
ACCOMMODATION
May Enforce Rules of Conduct
Grounded In Business Necessity (e.g.,
Non-Violence Work Rules)

59. REASONABLE
ACCOMMODATION
Only Known Disabilities Need
Accommodation

60. REASONABLE
ACCOMMODATION
Accommodation Must Be Effective for
Employee
Consult With Employee

61. REASONABLE
ACCOMMODATION
Procedure for Requesting
1. Notice to Human Resources
2. Meeting to Identify Limitations
3. Discuss Potential
Accommodations
4. Determine Reasonableness

62.  May select the most qualified applicant available and make
decisions based on reasons unrelated to a disability.
 Two people apply for a job where typing is an essential
function.
 Can hire the faster typist even if the slower typist needs an
accommodation if speed is important.

63.  Can establish qualification standards that will exclude
individuals who pose a direct threat -- i.e., a significant risk
of substantial harm -- to the health or safety of the
individual or of others;
 Cannot simply assume that a threat exists;
 Must establish through objective, medically supportable
methods that there is significant risk that substantial harm
could occur in the workplace.

65. Presenter:
Kevin M. Kinne, Cohen Kinne Valicenti & Cook LLP