Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
Mark Blondman, Blank Rome LLPBrooke T. Iley, Blank Rome LLPAndrew B. Cohen, Comcast
Avoiding Headaches: Leave, Accommodation, and the New Economy
The Landscape
Laws Impacting Leave Policy Considerations Concerns in the Modern
Workplace Practical Advice and Key
Takeaways
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
The Leave Dilemma
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LEAVES
ADA FMLAPOLICIES
Primer on Legal Basics
Laws Impacting Leave– Family Medical Leave Act (FMLA)– Americans with Disabilities Act (ADA)– State/Local Laws– Paid Sick Leave– Family Leave– Workers Compensation– Other LOA
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
Still Making News
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Companies Embracing Leave
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
FMLA Review
Applicability:– Public or Private employer with 50+ employees
Eligibility:– Employed at least 12 months/1250 hours– Facility has 50+ employees within 75-mile radius
Protection provided:– Up to 12 weeks/26 weeks for military caregiver leave– Same or equivalent position
Coverage for:– Serious Health Condition– Birth/Adoption of a Child– Military Exigencies
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ADA Review
Applicability:– Employers with 15+ employees Eligibility:– Must be a “qualified individual” Protection against:– Discrimination– Harassment– Not providing “reasonable accommodation”– Illegal medical inquiries/requiring medical tests– Retaliation
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
Key Terms under the ADA
Disability– Physical or mental impairment . . .– that substantially limits a major life activity Otherwise qualified person– Possesses necessary qualifications– Can perform essential job functions . . .– With or without reasonable accommodation Reasonable accommodation– Adjustments to work environment, or manner/circumstances
under which the job (or application) is customarily performed
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Key Company Policies
Sick Leave Short & Long-Term
Disability PTO/Vacation Health Coverage Plan Parental LeaveWorker’s Compensation Alternative Work/Telecommuting Flex Days
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
State Paid Sick Leave Laws
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Local Paid Sick Leave Laws
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
Paid Family Leave Benefits
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What If…
1. Joe comes to HR and states that he needs time off.a) Assume Joe says it is because of a
medical condition.b) Joe brings note from HCP stating
that Joe needs time off, but the medical reason is not clear.
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
Requesting Information from Healthcare Providers
Key Considerations:– Use the DOL’s Model Medical
Certification Form– Can the information be
obtained directly from employee?
– If information must be obtained from HCP, have employee sign a HIPAA release
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What If…
c) Joe comes back with note from HCP stating Joe needs intermittent time off due to sleep apnea.
d) Joe requests time off to care for a family member who has a serious health condition.
e) Joe requests time off to care for his child who is going through a gender identity “crisis,” and will ultimately have an identity change surgery.
f) Joe is in a common law marriage. Is there any basis for denying his request for leave?
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
Common Misunderstandings
Misunderstanding #1: You can always deny leave if you do not believe an employee has a serious health condition.Misunderstanding #2: You can always request a doctor’s note to verify the need for a medical leave of absence.Misunderstanding #3: A spouse in a same-sex relationship is not entitled to FMLA leave.Misunderstanding #4: Employers cannot run leave of absences concurrently or in increments of less than a day.Misunderstanding #5: In order to qualify for FMLA leave to care for a family member, the employee must be the primary caregiver.
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What If…
1. Sarah requests leave for medical reasons.a) Sarah’s employer is not covered
by FMLA because it has less than 50 employees.
b) Sarah requests leave of 10 weeks.c) Sarah’s department goes through
a RIF.
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
What If…
You have not been in communication with Sarah, but as leave is about to expire Sarah sends you a note from HCP stating that:
d) Sarah needs an additional week of leave.e) Sarah requests two more weeks and you grant her
request. You then receive another note from HCP at the end of the extension requesting another two weeks.
f) Sarah is not ready to return and HCP is not sure when she will be able to return.
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Common Misunderstandings
Misunderstanding #1: If an employee has a medical condition and needs to be absent from work, the maximum amount of leave to which the employee is entitled is 12 weeks of FMLA leaveMisunderstanding #2: The best way to deal with an employee’s request for leave is to apply guarantees in federal and state lawsMisunderstanding #3: Employees working remotely from home are never entitled to FMLA leave.Misunderstanding #4: You can always deny a request for leave if you have less than 50 employees.
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Annual Labor & Employment Law Briefing:Strategic Guidance for Legal Trends and Developments
Blank Rome LLP © 2017
It’s a Balancing Act
Minimizing Legal Risk Attracting & Obtaining Top Talent Fostering Positive Culture Promote Diversity
Costs Disruption to Business Decrease Productivity Employee Relations
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What the Future Holds
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Working Families Flexibility Act
Flexibility for Working Families Act
Strong Families Act
Federal Employees Paid Parental Leave Act
Family and Medical Insurance Leave
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