Time for a Break: Managing Leaves of Absence and Accommodating Disabilities (Series: PROTECTING YOUR EMPLOYEE ASSETS: THE LIFE CYCLE OF THE EMPLOYEE RELATIONSHIP 2018)

Practical and entertaining education for
attorneys, accountants, business owners and
executives, and investors.
2

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.
While Financial Poise is happy to make this PowerPoint freely available to all, the reader is
cautioned that it was created for use as part of a webinar that featured an extensive verbal
discussion of the topics addressed in the PowerPoint. It was not designed to be read by
itself. Financial Poise webinars can be purchased at www.financialpoise.com. You may also
receive offers for free webinars by subscribing to Financial Poise's DACyak, a free weekly
newsletter.
DISCLAIMER
3

MEET THE FACULTY
MODERATOR:
Aaron Gelb Conn Maciel Carey LLP
PANELISTS:
Dena B. Calo Saul Ewing Arnstein & Lehr LLP
Emily Fess Benesch, Friedlander, Coplan &
Aronoff LLP
Charles A. Krugel Law Offices of Charles Krugel
4

ABOUT THIS WEBINAR
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.
This webinar is delivered in Plain English, understandable to you even if you do not have a background in the
subject. It brings you into an engaging, even sometimes humorous, conversation designed to entertain as it
teaches. And, it is specifically designed to be viewed as a stand-alone webinar, meaning that you do not have to
view the other webinars in the series to get a lot out of it.
5

ABOUT THIS SERIES
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.
As with every Financial Poise Webinar, each episode is delivered in Plain English understandable to
investors, business owners, and executives without much background in these areas, yet is also valuable to
attorneys, accountants, and other seasoned professionals. And, as with every Financial Poise Webinar, 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.
6

Dates shown are premiere dates; all episodes will be available on demand after
their premiere date.
EPISODES IN THIS SERIES
EPISODE #1 Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants 1/23/18
EPISODE #2 An Ounce of Prevention: Policies, Procedures and Proactivity 2/20/18
EPISODE #3 Show Them the Money: Wage & Hour Compliance 3/20/18
EPISODE #4 Time for a Break: Managing Leaves of Absence and Accommodating Disabilities 4/17/18
EPISODE #5 I Know What You Did Last Summer: Workplace Investigations 5/15/18
EPISODE #6 It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees 6/19/18
7

FMLA – FAMILY MEDICAL LEAVE ACT
• FMLA – Family Medical Leave Act
• 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
• Certain military-related leave
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 8

COVERED EMPLOYERS
§ 825.104
• Private sector employers with 50 or more employees
9© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™

EMPLOYEE ELIGIBILITY
§825.110
• Employed by covered employer
• Worked at least 12 months
• Have at least 1,250 hours of service during the 12 months before leave
begins
• Employed at a work site with 50 employees within 75 miles

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 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)

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. 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. 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.

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

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

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

SERIOUS HEALTH CONDITION –CONTINUING
TREATMENT
§825.115
Continuing Treatment by a Health Care Provider
•Incapacity Plus Treatment
•Pregnancy
•Chronic Conditions
•Permanent/Long-term Conditions
•Absence to Receive Multiple Treatments

CONTINUING TREATMENT BY A HEALTH
CARE PROVIDER
§825.115
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)

CARE PROVIDER (CONT.)
§825.115
Pregnancy
• Incapacity due to pregnancy or prenatal care

§825.115
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

§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

§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

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
✓ Cosmetic treatments (unless in-patient care is required)

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.

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 servicemember’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- §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

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

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

SUBSTITUTION OF PAID LEAVE-
LIMITATIONS - §825.207
• Workers’ compensation leave
✓ may count against FMLA entitlement
✓ “topping off” allowed if state law permits
• Disability leave
✓ “topping off” allowed if state law permits
• Compensatory time off (public sector only)
✓ subject to FLSA requirements

EMPLOYER RESPONSIBILITIES
• Provide notice
• Maintain group health insurance
• Restore the employee to same or equivalent job and benefits
• Maintain records

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 CMP for willful posting violation

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
• Provide a reason if employee is not eligible
• May be oral or in writing (optional WH-381)

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

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

NOTICE OF DESIGNATION (CONT.)
§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

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

EMPLOYER RESPONSIBILITIES: MAINTAIN
GROUP HEALTH PLAN BENEFITS (CONT.)
§825.210-.213
• 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

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

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

EMPLOYEE RESPONSIBILITIES
• 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: 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

EMPLOYEE RESPONSIBILITIES: NOTICE
REQUIREMENTS (CONT.)
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)

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
his or her return; or
• By the employee’s spokesperson.

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

EMPLOYEE RESPONSIBILITIES: PROVIDE
CERTIFICATION
§825.305
Medical Certification for serious health condition (optional WH-380-E and
380-F)
• 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

CERTIFICATION - §825.305 (CONT.)
• 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

CERTIFICATION- §825.308 & .313 (CONT.)
Recertification
No more often than every 30 days and with an absence
• If the minimum duration on the certification is greater than 30 days,
the employer must wait until the minimum duration expires
• In all cases, may request every six months with an absence
More frequently than every 30 days if:
• the employee requests an extension of leave, or
• circumstances of the certification change significantly, or
• 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

PERIODIC STATUS REPORTS
§825.311
• Employee must respond to employer’s request for information about status
and intent to return to work

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

OTHER ISSUES
• Salaried employees:
✓ Deductions from certain “exempt” employees’ salaries
✓ Deductions for employees paid overtime on a fluctuating workweek
method
§825.311

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

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

PREGNANCY AND ADA
• Normal Pregnancy not considered a disability
• High-risk complications that substantially limit a major life activity may be
considered a disability

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 16 weeks
• Paternity Leave covered for same 16 week limitation
• Same Health Insurance coverage as when working

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

ABOUT THE FACULTY
AARON GELB
agelb@connmaciel.com
Aaron R. Gelb is a partner in the Chicago office of Conn Maciel Carey, a boutique law firm focused on
Labor & Employment, Workplace Safety, and Litigation. Mr. Gelb specializes in labor and
employment, and OSHA litigation. He has extensive experience litigating equal employment
opportunity matters in federal and state courts having tried a number of cases to verdict and defending
employers before the EEOC as well as fair employment agencies across the country; in the past 5 years
alone, Aaron has successfully handled more than 250 discrimination charges. Aaron also has a
particular emphasis on advising and representing clients in relation to inspections, investigations, and
enforcement actions involving federal OSHA and state OSH programs, and managing a full range of
litigation against OSHA. Mr. Gelb received his bachelor’s degree from the University of Chicago in
1992 and his JD from the University of Texas in 1995.

ABOUT THE FACULTY
DENA B. CALO
Dena.Calo@saul.com
Dena Calo, a partner at Saul Ewing Arnstein & Lehr LLP and Vice-Chair of the Labor & Employment Practice Group, counsels
companies through complex labor and employment risks that pose a threat to their reputation in the marketplace. As a seasoned
HR strategist and employment lawyer, she understands employers are facing increased scrutiny of their labor and employment
policies and procedures from governmental regulators and employees. She advises management clients, particularly in the
hospitality, higher education, and multi-family real estate industries in Pennsylvania, New Jersey and New York, on the
application of employment laws to their particular business needs, the implementation of legal HR policies, and representation
in litigation in courts throughout the United States when their compliance is challenged.
Dena has litigated cases to federal and state juries throughout the United States involving Title VII, ERISA, Age Discrimination
in Employment Act, Family Medical Leave Act, and the Fair Labor Standards Act, state and federal constitutional issues,
defamation, restrictive covenants and contract disputes.

ABOUT THE FACULTY
EMILY FESS
EFess@beneschlaw.com
Emily C. Fess is an Associate in the Benesch’s Labor and Employment Practice Group.
Emily counsels and represents employers on a broad range of employment law matters,
including medical leave and accommodation requests, discipline and discharge, harassment
and workplace investigations and wage and hour issues.
Emily’s litigation experience includes regularly responding to discrimination charges filed with
the EEOC and state agencies and representing clients in federal and state court in various
Title VII, ADA, FMLA, FLSA and retaliation suits.

ABOUT THE FACULTY
CHARLES KRUGEL
cak1@charlesakrugel.com
As a management side labor & employment attorney & human resources (HR) counselor, Charles
Krugel has 20-plus years of experience in the field & has had his own practice for more than 15 years;
www.charlesakrugel.com.
Charles’ clients are small to medium sized companies & not-for-profits in a variety of industries. His
practice is equal parts prevention, negotiation & litigation. Besides providing traditional labor &
employment law services, he represents companies desiring to institute preventive & proactive HR
functions. These functions include policies & procedures that which help to efficiently and discreetly
resolve issues in-house & prevent lawsuits & complaints. They also help to reduce costs & act as
catalysts for increasing productivity & profits.
For perspectives of what Charles’ clients think of him, please see his “Client Testimonials” web page.

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.
While Financial Poise is happy to make this PowerPoint freely available to all, the reader is
cautioned that it was created for use as part of a webinar that featured an extensive verbal discussion
of the topics addressed in the PowerPoint. It was not designed to be read by itself. Financial Poise
webinars can be purchased at www.financialpoise.com You may also receive offers for free webinars
by subscribing to Financial Poise's DACyak, a free weekly newsletter.
IMPORTANT NOTES

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About Financial Poise™
www.financialpoise.com
DailyDAC LLC, d/b/a Financial Poise™ provides continuing education to
attorneys, accountants, business owners and executives, and investors. Its
websites, webinars, and books provide Plain English, entertaining,
explanations about legal, financial, and other subjects of interest to these
audiences.
62

Time for a Break: Managing Leaves of Absence and Accommodating Disabilities (Series: PROTECTING YOUR EMPLOYEE ASSETS: THE LIFE CYCLE OF THE EMPLOYEE RELATIONSHIP 2018)

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