leaves, absences, and accommodations 2017

Supervisory Training Series: Communication & Self ManagementKevin R.Thomas, Manager,Training & Development · Office of Human Resources · [email protected] · 413-597-3542

Presented by Kris MaloneyOffice 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 Eligibil ity 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 Cer tif ication 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 (qualify ing 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 (mil itary 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

Employer Responsibilities: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

Employer Responsibilities: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

Employee Responsibilities: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

Employee Responsibilities: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

Employee Responsibilities:Provide Certification


Employee must respond to employer’s request for information about status and intent to return to

work

Employee Responsibilities: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

Employee Responsibilities: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 qualif ied individuals with disabil i t ies an equal oppor tunity to benefit from the ful l range of employment-related oppor tunit ies avai lable to non-disabled persons.

I t 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 l imited 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

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Employers Can Establish Job-Related Qualification Standards (e.g., education, skills,

experience, physical/mental standards)

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Need Clear Job Descriptions

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Reasonable Accommodation

May Enforce Rules of Conduct Grounded In Business Necessity

(e.g., Non-Violence Work Rules)



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



May Enforce Rules of Conduct Grounded In Business Necessity

(e.g., Non-Violence Work Rules)


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.

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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.

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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

BedRest

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 [email protected]

Questions?

• Course page link to all course materials• Program evaluation link, feedback welcome

FMLA/ADA

leaves, absences, and accommodations 2017

Leadership & Management