fmla training part iv presented by the office of the state employer employee health management toni...

FMLA Training Part IV

presented by

The Office of the State Employer

Employee Health ManagementToni McFarland

&Contract Negotiations/Administration

Cheryl Schmittdiel

The State of Michigan (SOM) must observe employee rights under the FMLA;

The State of Michigan must observe employee rights under an applicable collective bargaining agreement (CBA) or Civil Service Rules and Regulations (CSR&R);

The State of Michigan cannot interpret CBA or CSR&R to diminish rights guaranteed by the FMLA.

FMLA Basics:Eligibility, Qualifying Reasons

& Entitlements

Employee Eligibility +

Qualifying Reason =

FMLA Entitlement

Employee Eligibility

Employee EligibilityTo be eligible for FMLA leave an employee must:

Work for a covered employer; and

Work for the covered employer for 12 months, which need not be consecutive months; and

Actually work at least 1,250 hours within the 12 months immediately prior to the FMLA leave.

Paid leave hours do not count; however, Military leave hours do count toward 1,250 hours

as time worked.

For leave to be designated as FMLA leave, an eligible employee need not mention the FMLA specifically when requesting leave, the employee must simply give an FMLA qualifying reason for the leave.

Qualifying Reasons

Qualifying ReasonsThe SOM, as a covered employer, must grant an eligible employee up to 12 workweeks of job-protected FMLA leave within a 12-month period for the following reasons:

the birth of an employee’s son or daughter, and to care for the newborn;

the placement with an employee of a son or daughter for adoption or foster care, and to care for the newly placed child;

to care for an employee’s spouse, son, daughter, or parent with a Serious Health Condition (SHC); and

because the employee's own SHC makes the employee unable to perform the essential functions of their position.

Spouse Husband or wife, as defined or recognized

under State law for purposes of marriage in the State where the employee resides.

Common law marriage qualifies in states where it is recognized; it is not recognized in Michigan. Note: We have employees who reside in other states.

Parent

A biological parent or a person who stands or stood in loco parentis to an employee when the employee was under 18.

In loco parentis means “in the place of a parent”.

Parent does not include parents-in-law.

Son or Daughter

Son or daughter includes a biological child, adopted child, foster child, stepchild, legal ward, or a child of a person standing in loco parentis.

The son or daughter must be: under 18, or 18 or older and “incapable of self-care

because of a physical or mental disability.”

“Incapable of Self-care” An employee’s son or daughter is “incapable of

self-care” if the child requires active assistance or supervision to provide daily self-care in 3 or more activities of daily living (ADL) or instrumental activities of daily living (IADL):

ADL include bathing, dressing, and eating;

IADL include cooking, cleaning, shopping, transportation, etc.

“Physical or Mental Disability” An employee’s son or daughter has a “physical

or mental disability” if the child has a physical or mental impairment that substantially limits 1 or more of the child’s major life activities.

See the Americans with Disabilities Act (ADA) for definitions of these terms: physical or mental disability substantially limits major life activities

Serious Health Condition

A SHC is any illness, injury, impairment, orphysical or mental condition that involves either:

Inpatient care (i.e., overnight stay); or Continuing treatment.

See Section 825.114.

Continuing Treatment1. Incapacity of more than 3 consecutive calendar days

with either: treatment 2 or more times by a Health Care

Provider (HCP), or 1 time with a regimen of continuing treatment under

the HCP supervision

Note: If this is the reason for FMLA leave, then FMLA would also cover any subsequent incapacity or treatment relating to the same condition.

Continuing Treatmentcont.

2. Any incapacity due to pregnancy or for prenatal care

Note: Need not be 3 consecutive days and need not receive treatment during the absence (unless the reason for the absence is prenatal care) but must be incapacitated.


3. Any incapacity or treatment due to a chronic SHC: requires periodic visits for treatment by HCP or under

the supervision of HCP; and may cause episodic periods of incapacity, examples

include asthma, diabetes, epilepsy, etc. and continues over an extended period of time, including

recurring episodes of a single underlying condition;

Note: Need not be 3 consecutive days and need not receive treatment during the absence but must be incapacitated.


4. Permanent or long-term incapacity due to a condition for which treatment may not be effective:

must be under continuing supervision of HCP but need not be receiving active treatment;

examples include Alzheimer’s, a severe stroke, or the terminal stages of cancer.


5. Any period of absence to receive multiple treatments for, including any period of recovery from, either:

restorative surgery after an accident or injury; or

a condition likely to result in incapacity of more than 3 consecutive calendar days in absence of medical intervention or treatment; examples include chemotherapy for cancer, physical therapy for severe arthritis, or dialysis for kidney disease.

Incapacity

Incapacity is the inability, due to the SHC,

treatment for the SHC, or recovery from the

SHC, to:

Work,

Attend school, or

Perform other regular daily activities

FMLA Entitlements

FMLA Entitlements

An eligible employee with a qualifying reason is entitled to:

Up to a total of 12 work-weeks of job-protected FMLA leave in a 12 month period (unpaid/paid); and

Benefits protection during the FMLA leave; and

Job restoration upon return from FMLA leave.

FMLA Leave

Up to a Total of 12 Workweeks

Only the amount of FMLA leave actually taken may be counted towards the 12 workweeks.

The 12 workweeks are based on the employee’s normal workweek.

DCDS records time in hours, not workweeks.

For purposes of recording time in DCDS, the workweek is converted to hours.

Up to a Total of 12 Workweeks 12 workweeks is always 12 workweeks:

An eligible full-time employee is entitled to up to a total of 480 hours of FMLA leave for qualifying reasons and every full day of FMLA leave used is recorded as 8 hours.

An eligible part-time employee who works 4-hour days, 5 days a week is entitled to up to a total of 240 hours of FMLA leave for qualifying reasons and every full day of FMLA leave used is recorded as 4 hours.

An eligible permanent-intermittent employee who works varying hours each workweek is entitled to the weekly average of hours worked over the 12 weeks prior to the beginning of the FMLA leave times 12 workweeks.


Limitations FMLA leave to care for an employee’s newborn child or a

newly placed child must conclude within 12 months after the birth or placement. See Section 825.201.

Under the FMLA ,spouses employed by the same employer may be limited to a combined total of 12 workweeks of family leave for: birth or care of a newborn son or daughter; or placement with an employee of a son or daughter for

adoption or foster care, and care for the newly placed child.

If limited, each spouse is entitled to the difference between the amount taken individually and 12 workweeks within the 12-month period for other FMLA qualifying events.

*Note: Consult the employee’s CBA, it may alter this limitation.

Employer Substitution of Paid Leave

Under the FMLA, an eligible employee is entitled to up to a total of 12 workweeks of unpaid FMLA leave in a 12-month period for qualifying reasons.

The employer may require accrued paid sick leave be substituted for the unpaid leave if the reason for the leave is the employee’s own SHC or the SHC of the employee’s spouse, son, daughter, or parent. (See Section 825.207).

If requiring accrued sick leave to be substituted for unpaid FMLA leave, the employer must provide notice within 2 business days following the employee’s request for leave, or when sufficient information is obtained to determine that the leave qualifies as FMLA leave.

Employee Substitution of Paid Leave

If the employer requires substitution of accrued paid sick leave for unpaid FMLA leave for a SHC, the employee may choose to substitute accrued paid annual leave or personal leave instead.

If the employer does not require substitution of paid sick leave for a SHC, the employee may choose to substitute sick leave for the unpaid FMLA leave.

If the reason for the FMLA leave is other than the employee’s own SHC or the SHC of the employee’s spouse, son, daughter, or parent, the employee may choose to substitute accrued paid annual leave or personal leave for the unpaid FMLA leave.

Employee Substitution of Paid Leave cont.

Some CBA’s permit an employee to certify the need to use up to 2 weeks of sick leave, upon the birth of their child, prior to the beginning of any parental leave. The 2 weeks of sick leave are deemed to be due to

the SHC of the employee’s spouse or newborn child; however, no CS-1789 is required for these 2 weeks.

An employee may not substitute paid compensatory time, BLT, or deferred hours for unpaid FMLA leave.

If an employee uses compensatory time, BLT, or deferred hours for FMLA qualifying purposes, the time cannot be counted against the employee’s FMLA leave entitlement.

A 12-Month Period An eligible employee with a qualifying reason

is entitled to up to a total of 12 workweeks of job-protected FMLA leave during a 12-month period beginning on the first date the employee's leave is taken. The next 12-month period begins the first time leave is taken after completion of any previous 12-month FMLA period.

Although the FMLA permits alternate ways to calculate the 12-month period, this is the method the SOM uses, which is incorporated into CBAs, and it cannot be changed by a department.

Job-Protected Leave The employer is to grant FMLA leave to an

eligible employee with a qualifying reason requesting FMLA leave.

The employer is to restore an eligible employee on FMLA leave to their position upon expiration of the FMLA leave.*

The employer cannot interfere with an employee’s exercise of FMLA rights.

The employer cannot retaliate against an employee for exercising FMLA rights.*Note: not an absolute, unqualified right

Intermittent Leave and Reduced Leave Schedule

Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason.

A reduced leave schedule reduces an employee’s usual number of working hours per workweek, or hours of work per workday.

The leave may be taken in the shortest period used to account for absences or use of leave.

The employer cannot count more FMLA leave against an employee’s entitlement than is actually taken.

Intermittent Leave and Reduced Leave Schedule cont. FMLA leave may be taken intermittently or on a reduced

leave schedule when medically necessary for: planned or unanticipated medical treatment of a SHC; recovery from treatment for a SHC ; or recovery from a SHC.

Intermittent FMLA leave or a reduced leave schedule may be taken for absences where the employee is unable to perform the essential functions of the position because of a chronic SHC.

Intermittent leave or a reduced leave schedule may be taken only with the employer’s approval to care for a newborn or newly placed adopted or foster care child.


“Medically Necessary” Intermittent leave or leave on a reduced schedule

must be “medically necessary”. “Medically necessary” means there must be a

medical need for the leave, which is best accommodated through intermittent leave or a reduced leave schedule.

Employees needing intermittent leave or leave on a reduced schedule must attempt to schedule leave so the employer’s operations are not disrupted.

The employee may be assigned to an alternative position that better accommodates an employee’s intermittent leave or reduced leave schedule.


Alternative Position The employer may transfer an employee to an

alternative position during the period of intermittent leave or reduced leave schedule if: leave is foreseeable based on planned

medical treatment; or the employer has agreed to permit

intermittent leave or leave on a reduced schedule due to the birth of a child, or placement of a child for adoption or foster care.

Any transfer to an alternative position must be in compliance with an applicable CBA, and state and federal laws.

Alternative Position cont. An alternative position need not be equivalent in

duties. The alternative position must:

have equivalent pay and benefits; and better accommodate recurring periods of leave

than the regular position of the employee. The employer may proportionately reduce benefits,

such as annual and sick leave accruals, that are based on the number of hours worked.

The employer may not transfer an employee to an alternative position to discourage the taking of FMLA leave.

HRMN Notifications HRMN is now sending notifications to the departments when a date

is entered that is not at least 9 months from the start date of the employee’s FMLA leave, and when the employee’s FMLA qualifying year has expired and the expiration date has not been removed or reset.

“The below employee had an FMLA expiration date of entered in HRMN that is less than 9 months out from the Date of the "MISCUPDAT2" Personnel Action. This action was entered by User000000. Please adjust the date to at least 9 months in the future.”

“The below employee had a FMLA expiration date that is over 14 days ago. Please review the employee's record, either reset the expiration date or remove it, and zero out the FMLA time accrual hours.”

Benefit Protection

Benefit Protection During FMLA leave, an employer must maintain the employee’s

coverage under any group insurance plan (health, dental and vision) the employee was enrolled in prior to the FMLA leave.

While on FMLA leave, an employee is entitled to any new or changed group insurance plan benefits provided by the employer to the same extent as the employee would have been if not on leave.

The employer’s obligation ceases if and when the employment relationship would have ended if the employee had not taken FMLA leave.

An employee may choose not to retain group insurance plan coverage during FMLA leave.

Job Restoration

Job Restoration Upon return from FMLA leave, an employee is

entitled to restoration to the same position or an equivalent position as long as the employee is able to perform all of the essential functions of their position. (See Section 825.214)

An equivalent position must have the same benefits, pay, and other terms and conditions of employment prior to the FMLA leave.

A “key employee” is not necessarily entitled to job restoration but this provision rarely applies in the state classified service. (See Section 825.217)

CS-1790Employee Request

&

Employer Response

Notifying the Employer Notice of the need for FMLA leave may be given:

in writing orally in person by telephone by fax machine after the employee returns, but within two (2) business

days by the employee’s spokesperson

An employee is not required to use the CS-1790 to notify the employer of the need for FMLA leave.

If notification is made in any other manner, the employer will complete Sections I and II of the CS-1790.

Notifying the Employer cont. Notice for foreseeable leave is to be given:

30 days or more into the future; or as soon as practicable, which is within two (2)

business days of beginning leave. Notice for unforeseeable leave may be given as soon as

practicable: within two (2) business days of going on leave; or within two (2) business days of returning from leave.

Any employer rules regarding call in or notification required when an employee cannot work remain in effect and are not relieved under the FMLA; however, a transgression cannot serve as a basis for denial if timely notice of the need for FMLA leave is given.

Medical Certification & Documentation Analysis

CS-1789Medical Certification

& Documentation Analysis

Test Your Knowledge of the

FMLA

1. FMLA allows eligible employees to take time off to care for the following family members with a SHC:

a. child, spouse, grandparent

b. spouse, grandparent, sibling, child

c. child, spouse, parent

"a" is incorrect!

"b" is incorrect!

"c" is correct!FMLA allows eligible employees to take time off to care for a child, spouse, or parent with a SHC.

2. Kim had minor surgery and was required to stay in the hospital overnight. This condition caused Kim to miss one day of work. Since Kim was back to work the following day and required no more subsequent doctor's visits, Kim's leave should be documented as FMLA leave.

True

False

True is correct!Kim had an overnight stay in the hospital so this should be handled as FMLA leave. The greater benefit.

False is incorrect!

3. SOM employees must have at least 12 months of prior state service and must have worked a minimum of 1,250 hours during the previous 12 months to be considered eligible for FMLA leave.

True

False

True is correct!Please note that all that is required is total SOM service and not a specific department.

False is incorrect!12 months of prior SOM service and 1,250 hours worked during the previous 12 months are the only two requirements for FMLA eligibility.

4. Kim has a chronic serious health condition certified by a health care provider that will require being off work for treatments one day per week for the next two months. Should the leave be designated as FMLA leave?

a. Kim will not miss more than three consecutive calendar days from work; therefore, the absences for the treatments should not be counted as FMLA leave.

b. Although Kim will not miss more than three consecutive calendar days from work, the condition is chronic. The absence should be handled as FMLA leave.

"a" is incorrect!

"b" is correct!Any absence for treatment of a chronic SHC condition may be applied to FMLA leave. Kim's condition was certified by a HCP; the absence for treatments of the chronic condition in this case may be applied to FMLA leave.

5. An eligible full-time SOM employee is entitled to how many hours of FMLA leave in a 12-month period?

a. 340 hours

b. 480 hours

c. 600 hours

d. 1200 hours

"a" is incorrect!

"b" is correct!12 weeks X 40 hours/week = 480 hour

"c" is incorrect!

"d" is incorrect!

CS-1789Medical Certification

& Documentation Analysis

Health Care Provider Health Care Providers (HCP) include:

Licensed M.D. or Osteopath Podiatrists, Dentists, Clinical Psychologists Optometrists, Chiropractors, Clinical Social

Workers, Counselors Nurse Practitioners and Nurse-midwives HCP authorized to practice in a country other

than the U.S. Any HCP from whom the State of Michigan’s

group health plan will accept certification.

A “Serious Health Condition” means an illness, injury impairment, or physical or mental condition that involves one of the following:

1. Hospital Care Inpatient care (i.e., an overnight stay) in a

hospital, hospice, or residential medical care facility, including any period of incapacity2 or subsequent treatment in connection with or consequent to such inpatient care.

2. Absence Plus Treatment(a) A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves:

(1) Treatment3 two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

---------------------------------

3 Treatment includes examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.

(2) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment4 under the supervision of a health care provider.

________________

4 A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition. A regimen of treatment does not include the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider.

3. Pregnancy

Any period of incapacity due to pregnancy, or for prenatal care.

____________

2”Incapacity,” for purposes of FMLA, is defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

4. Chronic Conditions Requiring Treatments

A chronic condition which:

(1) Requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity² (e.g., asthma, diabetes, epilepsy, etc.).

5. Permanent/Long-term Conditions Requiring Supervision

A period of Incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee of family member must be under the continuing supervision of, but need not be receiving active treatment by, a heath care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

6. Multiple Treatments (Non-Chronic Conditions)

Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of Incapacity of more than three consecutive calendar days in the absence of medical intervention of treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), and kidney disease (dialysis).

Employer Options

Upon review of the CS-1789, the employer may: Accept the form as submitted; Determine the form is incomplete; Determine the form is confusing; Determine the form looks odd and question the

authenticity; or Determine the form looks incongruous and

question the validity.

CS-1789 is Incomplete The employer may seek only the information

requested on the CS-1789. If the employer accepts an incomplete CS-

1789 and grants FMLA leave, the employer may not later seek further information absent a change in circumstances.

Return the incomplete CS-1789 to the employee and advise the employee of the consequences of an incomplete form.

Do not contact the HCP directly.

CS-1789 is Confusing The employer may seek only the information

requested on the CS-1789. If the employer accepts a CS-1789 containing

confusing information and grants FMLA leave, the employer may not later seek clarification absent a change in circumstances.

Return the CS-1789 to the employee with a letter of clarification addressed to the HCP and advise the employee of the consequences of a form which does not substantiate the need for FMLA leave.


Letters of Clarification Use the template clarification letters. It is a good business practice to attach a copy

of the employee’s regular schedule. With re-certification please indicate on a calendar the dates and times the employee has been absent and the reason the employee was away from work.

It is a good business practice to include a signature line on the letter and leave space for the HCP to answer specific questions on the letter itself.

Question Authenticity of CS-1789 The employer may seek only the information

requested on the CS-1789. If the employer accepts a CS-1789 which does not

appear to be authentic and grants FMLA leave, the employer may not later question the authenticity of the form.

Request the employee’s permission to have a HCP representing the employer contact the employee’s HCP for purposes of authenticating the CS-1789 and advise the employee of the consequences of a form which does not substantiate the need for FMLA leave.


Question Validity of CS-1789 The employer may seek only the information

requested on the CS-1789.

If the employer accepts a CS-1789 even though the employer doubts the validity of the medical certification and grants FMLA leave, the employer may not later question the validity of the certification.

Require the employee to obtain a second opinion at the employer’s expense and advise the employee of the consequences of failing to cooperate.


Second Opinions If the employer has reason to doubt the validity of

the medical certification provided by the employee, the employer may require the employee to obtain a second opinion.

The second opinion is at the employer’s expense. The employer is permitted to choose the HCP to

furnish the second opinion as long as the HCP chosen is not employed on a regular basis by the employer (unless the employer is located in an area where access to health care is extremely limited).

If the employee cooperates in the second opinion process, the employee is provisionally entitled to FMLA leave pending receipt of the second opinion.

Third Opinions If the second opinion differs from the opinion of the employee’s HCP,

the employer may require the employee to obtain a third opinion. The third opinion is at the employer’s expense. The third HCP must be approved jointly by the employer and the

employee. The employer and the employee must act in good faith to attempt to

reach agreement on the third HCP. If the employer does not attempt to act in good faith, the employer will be bound by the first opinion; if the employee does not act in good faith, the employee will be bound by the second opinion.

If the employee cooperates in the third opinion process, the employee is provisionally entitled to FMLA leave pending receipt of the third opinion.

The third opinion is final and binding.

Employee Consequences If an employee fails to satisfy the medical

certification requirements, the employer may: delay the taking of FMLA leave until the required

certification is provided if the need for the leave is foreseeable;

delay the continuation of FMLA leave until the required certification is provided if the need for the leave is unforeseeable; however, the employer’s time frame for providing medical certification must be reasonable under the circumstances.

If the employee never produces the required medical certification, the leave is not FMLA leave.

ADA/FMLA/Workers’ Compensation:

When More Than One Applies

Test Your Knowledge of the FMLA, ADA

& Workers’ Compensation!

1. When might both the FMLA and ADA affect an employee’s leave?

a. When the employee’s family member has a

SHC.

b. When the employee has a SHC that requires an overnight stay in the hospital.

c. When an employee who has been on FMLA leave for 12 weeks cannot return to work because of a continuing SHC.

"a" is incorrect!

"b" is incorrect!

"c" is correct!These laws will overlap when an employee takes a leave of absence for a FMLA SHC that also qualifies as a disability under the ADA. For example, if an employee who has been on

FMLA leave for 12 weeks cannot return to work because of a continuing SHC, the condition also may be a disability.

2. The ADA requires that all printed material for SOM employees or the public be available in an alternate/accessible format, if requested.

True

False

True is correct!The ADA requires that all printed material for SOM employees or the public be available in an alternate/accessible format, if requested. Materials need not be put into Braille or other formats until requested.

False is incorrect!

3. The ADA, Title I, requires extensive renovation of all SOM buildings to make them accessible.

True

False

True is incorrect!

False is correct!As an employer, the SOM is responsible under Title I of the ADA for making facilities accessible to qualified applicants and employees with disabilities as a reasonable accommodation, unless this would cause undue hardship. Accessibility must be provided to enable a qualified applicant to participate in the application process, to enable a qualified individual to perform essential job functions and to enable an employee with a disability to enjoy benefits and privileges of employment.

4. The ADA, Title II, requires extensive renovation of all SOM buildings to make them accessible.

True

False

True is incorrect!

False is correct!The ADA requires SOM programs, not all SOM buildings, to be accessible. "Program accessibility" is a very flexible requirement and does not require the SOM to do anything that would result in an undue financial or administrative burden. Not every building, nor each part of every building needs to be accessible. Structural modifications are required only when there is no alternative available for providing program access.

5. FMLA leave must be taken in one lump sum period of 12 weeks.

True

False

True is incorrect!

False is correct!FMLA leave may be taken intermittently.

6. FMLA law requires the SOM to return an employee to the exact same position held prior to taking FMLA leave.

True

False

True is incorrect!

False is correct!FMLA law states that an employee may be returned to the same or an equivalent position.

7. FMLA leave, with the SOM, begins when the employee’s accrued leave expires.

True

False

True is incorrect!

False is correct!FMLA leave starts when the employee begins missing time due to an FMLA-related condition. The employee’s accrued leave will run concurrently with any FMLA leave.

8. The employee would be required to pay their normal monthly premium to maintain their health, dental & vision coverage if they are on unpaid FMLA leave for an entire pay period.

True

False

True is correct!The employee will still be required to pay their monthly premiums if they are on unpaid FMLA leave for an entire pay period. The employee would not, however, be required to pay the SOM share of the premiums.

False is incorrect!

9. If an employee is on workers’ compensation and has an FMLA qualifying absence at the same time, and a light duty assignment is identified and available, the dept may offer the light-duty assignment , but they may not require the employee to take it.

True

False

True is correct!The employee is able to turn down favored work or light-duty while on workers’ comp and FMLA. The employee’s workers’ comp benefit will be stopped and the employee will be required to use sick leave, but may substitute annual leave, to continue on payroll. The employee will not be allowed to buy back their leave credits in these circumstances.

False is incorrect!

10. An employee can no longer perform their original position because of a work related injury. The ADA requires the dept to create a new position or “bump” another employee from their position as a reasonable accommodation.

True

False

True is incorrect!

False is correct!The ADA does not require an employer to create a new position or to “bump” another employee from their position in order to reassign an employee who can no longer perform the essential functions of their original position, with or without a reasonable accommodation.

11. An FMLA “serious health condition” is the same as an ADA “disability”.

True

False

True is incorrect!

False is correct!An FMLA “serious health condition” is not necessarily an ADA “disability.” An ADA disability is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Some FMLA “serious health conditions” may be ADA “disabilities”, i.e., cancers and serious strokes, and some ADA disabilities, i.e., diabetes and being HIV positive, may be serious health conditions.

Definitions

The Basics

Requires covered employers to give eligible employees up to twelve weeks per year of unpaid leave for:

birth or adoption of child placement of foster child serious medical condition

of parent, spouse, or child Employee’s own serious

medical condition

No employment discrimination on the basis of:

a mental or physical impairment that substantially limits a major life activity;

a record of such an impairment; or

being regarded as having such an impairment.

**Not every unfavorable or difficult condition is a protected disability!

ADAFMLA

The BasicsWorkers’ Compensation

Temporary income replacement for covered employees who have job-related injuries or other medical problems.

Retaliation or job discrimination is prohibited against employees who are involved in workers’ compensation claims.

Injured employee is limited to statutory caps on compensation for covered medical conditions.

Prohibited Actions

Counting FMLA leave against employees who take it.

Failing to allow FMLA leave under covered circumstances.

Retaliating against employees who take FMLA leave, who file FMLA-related complaints, or who assist in FMLA claim actions.

Pre-employment medical inquiries, including questions about workers’ comp claim history.

Failure to make a reasonable accommodation of a known disability when an employee could do the “essential functions” of the job with the accommodation.

ADAFMLA

Prohibited Actions

Workers’ Compensation Interfering with an employee’s right to file a

workers’ compensation claim. Discharging or otherwise discriminating

against a person who has filed a workers’ compensation claim.

Coverage

Employers with 50 or more employees.

Employee has worked at least 12 months’ total time with Employer.

Employee has worked at least 1,250 hours during 12-month period preceding the leave.

All Employers in interstate commerce with 15 or more employees are covered.

Any individual, with a disability, applying for a job.

Current employee’s with a disability. There is no limit on length of time employed.

FMLA ADA

Coverage

Workers’ Compensation Employees of companies that have workers’

compensation insurance.

Employees of independent contractors – “borrowed servants” – if under first Employer’s direction and control.

Job-related injuries and illnesses.

Interaction Based on Employee Count

Below 15 employees, only workers’ compensation laws are in effect.

With 15 to 49 employees, workers’ compensation and ADA are in effect.

With 50 or more employees, workers’ compensation, ADA, and FMLA are potentially at issue (With the SOM all three should always be taken into consideration).

Independent contractors are not counted or covered.

Interaction Based on the Situation

Only a job-related medical problem affecting the employee will ever potentially involve all three laws.

A situation involving a family member’s medical problem may involve both ADA (“regarded as”) and FMLA, but not workers’ compensation.

Some medical problems may only involve one law.

Interaction Between the Three Laws:

Some situations may be covered by all three laws, but all the coverage requirements for all the laws must be fulfilled.

Some situations may be covered by two laws.

In multiple coverage situations, the outcome that is most favorable for the employee must occur.

FMLA/ADA Interplay

SHC and/or Disability

Generally, most disabilities will qualify as SHC under the FMLA.

For example, cancer can be both a SHC under the FMLA and a disability under the ADA. However, not all SHCs will also be disabilities.

The ADA generally is not intended to cover temporary medical conditions.

Accordingly, a person is disabled under the ADA only if

he/she has a physical or mental impairment; and

that impairment substantially limits a major life activity, such as walking, seeing, hearing, speaking, and breathing.

FMLA ADA

Short term medical conditions that will resolve themselves following an expected course of treatment and recovery: Examples: Appendicitis,

Cancer, Gall Bladder removal, pregnancy.

Temporary disabilities: Examples: Broken bones

or soft tissue injuries that result in no or minimal impairment.

NOT COVERED BY THE ADA

Short term medical conditions that will resolve themselves following an expected course of treatment and recovery: Examples: Appendicitis,

Cancer, Gall Bladder removal, pregnancy.

Temporary disabilities: Examples: Broken bones

or soft tissue injuries that result in no or minimal impairment.

COVERED BY THE FMLA

A SHC that involves the ongoing treatment for: Sexual behavior

disorders, or; Compulsive gambling,

or; Psychoactive substance

use disorders (from use of illegal drugs).

Current illegal drug users Sexual behavior

disorders Compulsive gambling Kleptomania Pyromania Psychoactive substance

use disorders (from use of illegal drugs).

NOT COVERED BY THE ADA

MAY BE COVERED BY THE FMLA

A SHC that involves the ongoing treatment for: past illegal drug use,

or; Past alcohol use.

Past illegal drug use is covered.

Past alcohol use is covered

Employer may prohibit use of illegal drugs and alcohol in workplace

COVERED BY THE ADA

COVERED BY THE FMLA

Reasons for Leave

SHC of self or family member ( see definition of family member);

Adoption of a child; Birth of a child.

Must be related to the employee’s disability.

FMLA ADA

Reasons for Leave: Time Away from Work

Obtain medical treatment; rehabilitation services; or physical or occupational therapy;

Recuperating from an illness or an episodic manifestation of the disability.

Obtain medical treatment; rehabilitation services; or physical or occupational therapy;

Recuperating from an illness or an episodic manifestation of the disability;

Obtaining repairs on a wheelchair, accessible van, or prosthetic device.

FMLA ADA

Reasons for Leave: Time Away from Work cont.

Avoiding temporary adverse

conditions in the work

environment (i.e., carpet

cleaning).

Avoiding temporary adverse

conditions in the work

environment (i.e., carpet

cleaning);

Training a service animal;

Receiving training in the use

of Braille or to learn sign

language.

FMLA ADA

Who is eligible?

Employees who have worked for the SOM for 12 months, need not be consecutive, and;

who have worked 1250 hours within previous 12 months.

Employee is eligible first day of employment regardless if they are full or part-time.

FMLA ADA

How Much Time is Available?

Up to 12 weeks of leave within 12 month period of time.

Leave may be taken intermittently (under certain circumstances) Day by day; Hour by hour; Multiple weeks or

consecutive days.

Based on what is “reasonable.”

May be used intermittently Day by day; Hour by hour; Multiple weeks or

consecutive days.

FMLA ADA

Compensation

SOM has a policy that would apply accrued sick time for SHC, employee may substitute accrued annual leave, against the leave time.

Unpaid leave available beyond use of accrued sick leave.

SOM may allow individual to use accrued vacation and sick time toward leave.

Unpaid leave available beyond use of accrued time.

FMLA ADA

Documentation

Documentation of the need for leave required from medical provider.

Conflict between employee and employer regarding documentation resolved through use of 2nd and 3rd opinion process.

Documentation of the need for leave and relation to disability are required by the employer.

The employer has a right to require sufficient documentation. There is no formal method of resolving conflicts between the employer and employee documentation.

FMLA ADA

Protections for Employees

Position employee held prior to the leave, or equivalent position, is available upon return to work, as long as the employee can perform the essential functions of the job.

Employer must maintain benefits during leave: Group Health, dental &

vision Insurance.

Position employee held prior to the leave is available upon return to work.

Employee responsible for any Group Health insurance payments related to maintaining benefits during leave.

Employer may fill the position if able to demonstrate business necessity.

FMLA ADA

Reassignment

Temporary transfer to an alternative position that better accommodates recurring absences may be consider when intermittent leave is foreseeable because of planned medical treatment, i.e., physical therapy or chemotherapy.

Must be within employee’s qualifications.

Reassignment not to violate collective bargaining agreement.

Considered when qualified individual is not able to do current position with other reasonable accommodations

Do not need to create a position.

Promotion to a higher position is not a required form of reassignment.

Reassignment not to violate collective bargaining agreement

FMLA ADA

Michigan Supreme Court Decision

ADA identifies reassignment as reasonable accommodation for qualified individuals.

Michigan Rules that Reassignment not required, Rourk v Oakwood Hospital Corporation, under Handicappers' Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq.

Considerations for an ADA Reasonable Accommodation

The ADA does not require an employer to eliminate the “essential functions” of the position. If the functions an employee cannot perform are “marginal job functions” they may be delegated to co-workers, as part of the reasonable accommodation.

If there is already a vacant position for which an employee is qualified, it may be a reasonable accommodation to reassign the employee to that position. Reassignment not to violate collective bargaining agreement.

FMLA/ADA/Workers’ Compensation

Interplay

FMLA/ADA/Workers’ Compensation Being awarded Workers’ Compensation benefits, or

being assigned a high compensation disability rating, does not automatically establish that an employee is protected by the ADA, however, the employee will be considered to have a SHC under the FMLA if their injury results in time away from work or the inability to work their regular hours.

Workers’ Compensation and FMLA will run concurrently if the employee has not exhausted their FMLA leave.

An employee must be substantially limited in one or more major life activities, or be regarded as a person with a disability, or have a record of disability under the ADA.

FMLA/ADA/Workers’ CompensationConfidentiality of Medical Records

Medical information must be kept confidential and not shared with other employees .

Disclosure limited to individuals who need to know in order to implement accommodation, safety concerns, state or federal reporting, and insurance.

FMLA/ADA/Workers’ Compensation

Once the employer is made aware of a work related injury or illness, for which the employee is seeking medical treatment, the employer has the right to direct the medical treatment for 10 days from the inception of medical care.

Once a request for an accommodation has been made, the ADA contem- plates an interactive process between the employer and the employee.

Workers’ Compensation

ADAFMLA Once the employer is alerted to

the need for FMLA by an employee, or their representa-tive, the employer needs to let the employee know if they qualify for leave and what will be required, within two business days.

Favored Work?

Participation by the employee in Light Duty, Modified Duty or Disability Management–Transitional Employment Program positions is required.

Light Duty, Modified Duty or Disability Management– Transitional Employment Program positions are not required as an accommodation by the employer.


ADAFMLA Participation by the employee

in Light Duty, Modified Duty or Disability Management–Transitional Employment Program positions is not required.

Discrimination Claims

A workers’ compensation claim does not prevent an employee from asserting rights under the ADA or FMLA or from filing a discrimination charge with the EEOC or DOL.

A workers’ compensation claim does not prevent an employee from asserting rights under the ADA or from filing a discrimination charge with the EEOC.


ADAFMLA

A workers’ compensation claim does not prevent an employee from asserting rights under the FMLA or from filing a discrimination charge with the DOL.

Things to Remember If an employee is receiving workers’ compensation

and the Civil Service 2/3 supplement the employee is entitled to a an LTD benefit when the 2/3 supplement ends.

In order for the employee to be eligible for the LTD Rider, file a LTD claim for the employee as soon as possible but no later than near the end of the 50/100 weeks. The Rider will cover 6 months of Group Health Insurance Premiums. (*The employee must be enrolled in the LTD Plan prior to their injury to be eligible for LTD benefits and the LTD Rider.)

Scenarios

Scenario I An employee you supervise has just told you, in

confidence, that their spouse has been diagnosed with HIV. They are concerned about others at work finding out because one of their co-workers saw some HIV brochures on their desk a couple of months ago. The employee has also told you that since then all the other co-workers are behaving strangely.

What should you do next???

Which, if any, laws apply???

Scenario I

Family member’s medical problem: FMLA and ADA would be at issue.

FMLA is the primary law at issue Employee should be given the CS1789 and CS1790 forms.

ADA could be at issue if employer regards employee as disabled due to family member’s problem (HIV, AIDS, or other communicable diseases). If you think there may be an issue here give the employee the CS1668 form and a copy of CS Reg 1.04.

Scenario II Your employee is having a difficult pregnancy. She

or her significant other have called in all week saying that she is unable to come to work. She is due to have the baby next month.

Her significant other called today and said that the employee most likely will not be back to work until after the baby is born. The employee was being considered for a promotion.

What should you do next???

Which, if any, laws apply???

What is Title VII????

Scenario II Employee’s difficult pregnancy: FMLA involved – Employee gets up to 12 weeks of

leave for pregnancy. The CS 1789 & 1790 forms should be sent to the employee. The employee may be entitled to other leave.

ADA – normal pregnancy is not a covered disability. If the employer regards employee as disabled, ADA is involved.

Problem pregnancy can lead to or reveal disabilities. If the employer becomes aware of a disability they should provide the employee with the CS1668 form and a copy of the CS Reg. 1.04

Don’t forget Title VII of the Civil Rights Act of 1964!

Scenario III Your employee has just adopted a child with medical

problems. They have let you know that they will need time off to take the child to the doctor and to treatment. They are requesting “Intermittent Leave”.

How much time do you think the employee is entitled to??

Can you request that the employee reschedule appointments??

They are the only employee doing this job right now but Joe could do the job and you need someone there full-time. What could you do??? What or who would you need to consult before doing anything???

Scenario III Employee gets child with medical problems: FMLA involved – Employee gets up to 12 weeks of

leave for new family situation. They may be entitled to more leave through their CBA or CS Rules.

If an Employee request “Intermittent Leave” the employer may ask them to reschedule appointments so that they are least disruptive to the employer. The employer may temporarily reassign an employee to a position that better suits the need for “Intermittent Leave”. “Intermittent Leave” for bonding purposes is at the discretion of the employer. Always consult the employees CBA before reassigning.

ADA – if employer regards employee as disabled due to having a child with problems, ADA is involved

Scenario IV Your employee has a work related injury and is off work.

They have requested a “Reasonable Accommodation” so that they may return to work. It does not look like their restrictions are permanent. They are going to be re-evaluated in 6 months. Workers’ Compensation just called and asked if you had “favored work” for this employee.

What would you do next??? What, if any, laws apply??? Is this a SHC??? What is “Favored Work” and if you have it how long will you

allow an employee to work in it???

Scenario IVWork Related Injury: The employee should be notified that their FMLA will

run concurrently with their time away from work for the work related injury. This would be considered a SHC if the injury prevents the employee from being able to return to work.

Temporary medical problems are not protected disabilities under the ADA. Give the employee the CS 1668 and a copy of the CS Reg 1.04.

“Favored Work” has many names such as Light Duty, Modified Work, Disability Management-Transitional Employment. Typically “favored work” is no longer than 6 months. Consult the employee’s CBA to see what is available.

Scenario V It is 7:30 am and your employee has just shown up at

work from an FMLA leave and told you they can no longer perform the “essential functions” of their job, but they have a full release to return to work. The only reason they returned is because their insurances were going to stop and they were going to be placed on a medical layoff.

What do you do next??? What laws, if any, apply??? Should you let them stay at work??? Should you send them home??? for an IME?? If so

what would support this???

Scenario VEmployee just showed up at work from leave: Under the FMLA there is no duty to return employee to

the same job. ADA may well be involved. Reasonable

accommodation may mean the employee could be offered an alternative position, if one exists within their restrictions.

Go home, stay at work, or send for an IME? This all depends on the facts and should be looked at on a case-by-case basis. The supervisor should consult with their department labor rep and the CBA administrator.

CONTACT INFORMATION

Toni McFarland, DMB/OSE/EHM (517) 33-54274 [email protected]

Cheryl Schmittdiel, DMB/OSE/CNA (517) 37-37400 [email protected]

Resources The FMLA Handbook: A Union Guide to the Family

and Medical Leave Act, Second Edition, Robert M. Schwartz

A Medical/FMLA Leave Checklist: Emerging Issues and How to Comply with the FMLA and the ADA, David B. Calzone, Vercruysse Murray & Calzone

The Family Medical Leave Act of 1993: Federal Regulations, Part 825: Title 29, Part 825 of the Code of Federal Regulations

FMLA Resource Manual, Complete Text of FMLA and Applicable Federal Regulations, Council on Education in Management

Enforcement

Complaints - Wage and Hour – Employer Policy Review

Litigation - DOL or private attorney

Remedies - wages/employment lost monetary loss for providing care reasonable legal and witness fees

Private right to action

Sec. 107 - 2 year statute

fmla training part iv presented by the office of the state employer employee health management toni...

Documents