Leaves, absences, and accommodations 2017

Supervisory Training Series: Communication & Self Management
Kevin R.Thomas, Manager,Training & Development · Office of Human Resources · kevin.r.thomas@williams.edu · 413-597-3542
Presented by Kris Maloney
Office of Human Resources
Leaves, Absences,
and Accommodations

1. Americans with Disabilities Act (ADA)
2. Family and Medical Leave Act (FMLA)
3. Worker’s Compensation (WC)
Disability, Injuries & Leave: The Big Three

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

1. ADA – protects applicants and employees who are “qualified
individuals with a disability.”
2. 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.
3. Workers’ Compensation - provides for payment of compensation
and rehabilitation for workplace injuries and minimizes employer
liability.
Brief Overview

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.
Interplay - Employee Eligibility

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.
Interplay - Length of Leave

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.
Interplay - Medical Documentation

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.
Interplay - Light Duty

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.
Interplay - Fitness for Duty

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.
Interplay - Benefits While on Leave

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.
Interplay - Reinstatement

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
Introduction to the FMLA

 Private sector employers with 50 or more employees
 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
Employee Eligibility

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
• 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)
Qualifying Leave Reasons

 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.
Qualifying Family Members

 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
Qualifying Leave Reasons:
For the Birth or Placement of a Child

Illness, injury, impairment or physical or mental condition
involving any of the following:
• Inpatient Care, overnight stay in a hospital, hospice, or
residential medical facility
• Continuing Treatment by a Health Care Provider
Serious Health Condition

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

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)
 Incapacity due to pregnancy or prenatal care
Continuing Treatment by a Healthcare Provider

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
 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

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

 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
Amount of Leave:
Intermittent Leave

 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

 “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
Substitution of Paid Leave

 Provide notice
 Maintain group health insurance
 Restore the employee to same or equivalent job and
benefits
Employer Responsibilities

 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
Employer Responsibilities:
Provide Notice of Eligibility

 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
Eligibility

 Group health plan benefits must be maintained throughout the leave
period
 Same terms and conditions as if employee were continuously employed
 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
Maintain Group Health Plan
Benefits

 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
Job Restoration

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
Prohibited Employee Actions

 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
Employee Responsibilities

 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

Timing of Employee notice of need for leave:
 Foreseeable Leave - 30 days notice, or as soon as
practicable
 Unforeseeable Leave - as soon as practicable
Notice Requirements

 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
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
Provide Certification

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

 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
Fitness-for-Duty-Certification

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
•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
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-service member, per-injury”
entitlement – could be 52 weeks of leave . . .
FMLA Military Family Leave

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

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

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:
1. job application procedures
2. hiring
3. advancement
4. employee compensation
5. Job assignment/classification
6. job training
7. other terms, conditions, or privileges of employment
ADA Employment Prohibitions

“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
Qualified Individual with a Disability

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
Types of Reasonable Accommodations

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
Employment Undue Hardship

What is Not a Disability?
Conditions Excluded by Statute

Essential Job Functions
Fundamental Job Duties of the Position
48

Employers Can Establish Job-Related
Qualification Standards (e.g., education, skills,
experience, physical/mental standards)
49

Need Clear Job Descriptions
50

Reasonable
Accommodation
May Enforce Rules of Conduct Grounded In
Business Necessity
(e.g., Non-Violence Work Rules)

Reasonable
Accommodation
Accommodation must be Effective for
Employee
Consult with Employee

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

ADA in Practice
 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.
55

ADA in Practice
 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.
56

Employee (admin-exempt) has knee replacement
Example 1
FMLA (protected unpaid leave)
Employee STD (paid)
Surgery
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Weeks
Employee
contacts HR to
initiate FMLA
paperwork Return to work PT or
Light Duty
Cont’d intermittent (protected unpaid leave)

Pregnant employee (Support Staff/Non-Exempt)
Example 2
Employee STD (paid at 60% of earnings)
Baby
is
Born
Mass Parental Leave
(protected unpaid leave)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
Weeks
Bed
Rest
College parental leave policy (paid 100%)
Supplement 40% Sick Time (when
available)
8 weeks
Sick Time
2 weeks
8 weeks

Female pregnant employee (Admin/Exempt)
Example 3
Employee STD (paid)
Baby is Born
Mass Parental Leave
(protected unpaid leave)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
Weeks
Bed
Rest
College parental leave policy (paid)
College parental leave for spouse (paid) 8 weeks total, must be used within 6 months
Williams benefited spouse FMLA (protected unpaid leave)
8 weeks
8 weeks

Birth / Adoption of a Child
Example 4
Baby
is
Born
Mass Parental Leave (protect unpaid
leave)
Vacation
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
Weeks
College parental leave policy (paid)
College parental leave for spouse (paid) 8 weeks total, must be used within 6 months
Williams benefited spouse FMLA (protected unpaid leave)
8 weeks 4 weeks

FMLA Take-a-Ways
Notify HR, and direct the employee to contact us when:
• Individual missed three consecutive days of work
• Consistently late or absent for health related reasons
• Consistently late or absent for a family member’s health related reasons
• Anticipated absence due to pregnancy, illness, or surgery

ADA Take-a-Ways
• ADA protects qualified individuals with disabilities from employment
discrimination
• Accommodation requests can be verbal or written
• Do not ask the employee for medical information
• Consult with HR to start the interactive process

Links coming via email:
Contact Kris Maloney at x4478
kmaloney@williams.edu
Questions?
• Course page link to all course materials
• Program evaluation link, feedback welcome
FMLA/ADA

Leaves, absences, and accommodations 2017

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