Managing Employee Absences Under the

ADA and FMLA

Anne G. Bibeau, Esq.Vandeventer Black LLP

Checking in …

2008 added 2 new FMLA categories:– Military exigency– Military caregiver

Covered Employers

• ≥50 employees

Eligible Employees

• 12 months employment• 1,250 hours worked in

past year• 50 employees within 75

miles

FMLA Reasons for Leave

• Birth/Adoption/Placement of child• Employee’s own serious health condition• Serious health condition of employee’s

spouse, parent or child• Military caregiver• Military exigency

Friday Monday

Leave Act

• SCOTUS ruled on June 26, 2013 that DOMA is unconstitutional.

• FMLA: DOL has updated guidance to make FMLA leave available to same sex couples.

• FMLA still not be available for same-sex couples in states that don’t recognize same-sex marriage (e.g., Virginia).

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• For employers in states that do recognize same-sex marriage, they will need to allow FMLA leave for employees’ same-sex spouses.

• EMPLOYEE’S STATE OF RESIDENCE CONTROLS.

The Death of DOMA

FMLA Requirements• 12 (or 26) weeks of unpaid leave within

a 12 month period• Reinstatement to same/substantially

similar job• Maintain benefits • No interference with FMLA rights• Notice of rights• No retaliation

Military Exigency Leave

Up to 12 weeks of leave while the employee’s spouse, son, daughter, or parent (“covered military member”) is on “covered active duty,” for one or more “qualifying exigencies.” The regs provide 9 qualifying exigencies.

Covered Active Duty

Covered Active Duty = deployment to a foreign country

Covered Military Member = members of the Reserves and Regular Armed Forces

Military Caregiver Leave

An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember* shall be entitled to a total of 26 workweeks of leave during a single 12-month period to care for the servicemember

* Includes vets if: discharged under conditions other than dishonorable and discharged within 5 years of employee first taking the military caregiver leave to care for him/her.

• Incapacity plus treatment. Incapacity of >3 consecutive days, plus either (a) 2 health care provider visits or (b) 1 health care provider visit and regimen of continuing care under his/her supervision• Chronic condition. E.g., asthma, diabetes,

epilepsy• Permanent/long-term condition. E.g.,

Alzheimer’s, severe stroke, terminal stages of a disease

Serious Health Condition

Serious Health Condition

• Conditions requiring multiple treatments. Restorative surgery after injury OR condition that would result in incapacity >3 consecutive days if not treated (e.g., chemo for cancer, P.T. for severe arthritis, dialysis for kidney disease)

• Pregnancy or prenatal care.

FMLA: What Happens in Vegas …• Plaintiff requested FMLA leave to

take her terminally ill mother to Las Vegas on a trip organized by a group that grants “last wishes.”

• While on the trip, plaintiff administered her mom’s meds and played the slots.

• Upon her return, plaintiff learned that her FMLA leave had been denied and she was terminated for her absence.

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• Plaintiff filed suit for violation of FMLA. Employer argued that trip was not protected by FMLA because it was not for medical treatment, but a vacation.

• Held: trip qualified for FMLA because plaintiff administered her mother’s medication and otherwise took care of her during the trip.

• Seventh Circuit affirmed.

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Intermittent/Reduced Schedule Leave

• Only required if medically necessary• Not required for birth/placement of child

• Employee must comply with an employer’s paid leave policies in order to substitute accrued paid leave for unpaid FMLA leave• Employers must notify employees of any

requirements for the use of paid leave

Paid Leave Substitution

Forgive My Last Absence

•Workers’ compensation leave may run concurrently with FMLA leave• Employee may decline offer of light duty and

elect to remain on FMLA if unable to return to the same or an equivalent position

Workers’ Compensation

• Covered employer must post and distribute notice, even if no eligible employees• 5 business days to notify employee of FMLA-

leave designation• Notice of Eligibility and Rights &

Responsibilities:1. How much leave will be designated FMLA2. Any requirement to use paid leave3. Whether FFD required for RTW

a. Include list of essential job functions

Employer Notice Requirements

• Employer may contact an employee’s health care provider to authenticate or clarify the information on a certification• Employer may not ask for any additional

information• Employer must use health care provider, an HR

professional, a leave administrator, or a management official to contact the employee’s health care provider – not direct supervisor

Medical Certification for SHC

• Employer may contact health care provider directly to authenticate/clarify certification, but may not delay the employee’s RTW while doing so• Employer must notify employee at the beginning

of FMLA leave of FFD requirement, whether FFD will address ability to perform essential job functions, and what those job functions are• Employer may delay RTW until employee

produces FFD certification, and may deny RTW if fails to do so

Fitness for Duty Certification

Americans with Disabilities Act

• Applies to employers with 15 or more employees • Prohibits employment decisions based on an

employee’s/applicant’s disability, if the individual is qualified to perform the essential functions of the job, with or without reasonable accommodation– Exception: if disabled individual poses a direct threat that

cannot be eliminated by reasonable accommodation• Requires employers to reasonably accommodate

applicants’/employees’ disabilities, unless such accommodation creates an undue burden on the employer

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ADA: definition of disability

• a physical or mental impairment that substantially limits one or more major life activities of such individual;– An impairment does not need to prevent or

severely or significantly restrict a major life activity to be considered “substantially limiting.”

• a record of such an impairment; or• being regarded as having such an impairment.

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Temporary Disability?

• Under ADAAA, a condition lasting less than 6 months may be a disability if meets the ADA disability definition.

• Heatherly v. Portillo’s Hot Dogs, Inc. (N.D. Ill. July 19, 2013). – Temporary light-duty restrictions, including no heavy

lifting, due to “high-risk” pregnancy could substantially limit plaintiff in the major life activity of lifting (citing to EEOC’s ADAAA regulations [“[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting”]).

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Qualified Individual

• One who, with or without accommodation, can perform the essential job functions

• Employers should have written position descriptions

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ADA Interactive Process• Employer should engage in an informal, interactive process with

the disabled individual to identify the precise limitations and potential accommodations.

• The individual must request an accommodation, but does not have to mention ADA.

• The employer may ask for documentation about the disability, functional limitations, and what aspect of the workplace is a barrier. The employee does not have to specify a precise accommodation.

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ADA Interactive Process, cont’d

An employer must consider each request for a reasonable accommodation to determine:– whether the accommodation is needed;– if needed, whether the accommodation will be

effective; and– if effective, whether providing the reasonable

accommodation will impose an undue hardship for the employer.

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Reasonable Accommodation Examples

• Making existing facilities accessible• Acquiring or modifying equipment• Providing qualified readers or interpreters• Modifying workplace policies• Job restructuring– Reassign nonessential or marginal job functions– Alter when or how a function is performed– An employer does not have to eliminate an

essential function of the position.

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More Reasonable Accommodation Examples

• Modified work schedule or location• Reassignment to a vacant position:

reasonable accommodation of last resort, to be provided when an employee can no longer perform the essential functions of his/her current position, with or without reasonable accommodation. The employee must be qualified for the new position.

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EEOC v. United Airlines: Reassignment Under the ADA

• United Airlines’ policy allowed transfer to an equivalent or lower-level vacant position as a reasonable accommodation, but the transfer process was competitive. Although the disabled employee received preferential treatment when compared with equally qualified candidates, he or she lost out to better qualified candidates.

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• EEOC filed suit, challenging United’s policy as a violation of the ADA.

• The Seventh Circuit held that the ADA does mandate that an employer appoint disabled employees to vacant positions for which they are qualified, if such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.

• Employer violates the ADA by refusing to transfer a disabled employee to a vacant position for which he is qualified, even if there is a better qualified candidate.

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Leave as a Reasonable Accommodation

• An employer may be required to grant an employee leave as a reasonable accommodation for a disability, even though the employer’s leave policies would otherwise require that the leave request be denied.

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Undue Hardship under the ADA

An action requiring significant difficulty or expense, based on: • nature and cost of the accommodation needed;• overall financial resources of the facility involved; • overall financial resources of the covered entity;

and• the type of operations of the covered entity,

including the composition, structure, and functions of the workforce of such entity

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Can you accommodate the leave without undue hardship?

Apply company leave policies.

Track FMLA usage until FMLA is exhausted.

A Very Bare Decision TreeIs employee eligible for FMLA? Yes

NoIs employee disabled? No

Yes

Remember My Name• Employee Walter White asks for time off for

chemo/radiation treatments for his cancer.• You grant Mr. White FMLA leave. His 12

weeks will expire on December 1.• You discover that Mr. White is running

another business while on FMLA leave. • On December 1, Mr. White returns to work.

His cancer is in remission. He seems distracted and confused, however, and makes frequent mistakes.

• Since returning to work from his FMLA leave, Mr. White’s attendance has been sporadic and unpredictable. He presents a doctor’s note stating that lingering effects of his chemo and cancer may cause him to experience nausea and fatigue at unpredictable times, and that he cannot work when that occurs.

• Mr. White submits a doctor’s note stating that his cancer has returned, and he needs another three months off for treatment.

Han’s Bad Back• Jan. 10: Han Solo calls in sick• Jan. 11: Han calls in to tell his supervisor that

his doctor put him on antibiotics. He expects to RTW on Jan. 16.

• Jan. 16: Han is feeling better, should be in by Jan. 17.

• Jan. 17: RTW • Feb. 5, Feb. 10, Feb. 12-14: Han’s wife Leia

has severe morning sickness. He stays home to care for her.

• Sept. 1-5: Han takes off to help his mom move to a new nursing home.

• Sept. 10-24: Han takes off 2 weeks to spend with his new baby, Lucas.

• Oct. 10: Han hurts his back working on the Millennium Falcon on his day off. His doctor’s note says he’ll be out until Oct. 26.

• Oct. 26: Doctor’s note: Han will be out until Nov. 15.• Nov. 15: Doctor’s note: Han will be out until Dec. 5.• Dec. 5: Doctor’s note: Han can RTW on Dec. 10 with

restrictions.

Hermione’s Stroke• May 1: Hermione, who is the manager of your

company’s marketing department, has a stroke. Her prognosis is unclear, but her doctor’s note states she may be able to RTW by June 30.

• June 30: Doctor’s note says Hermione may be able to RTW by July 31.

• July 31: Hermione, through a family member, requests a 6-month extension of FMLA. Her doctor’s note states that it is still unclear whether she will ever regain the ability to walk or talk.

Harry’s Migraines• Harry Potter works for Sea Quest Raytion, a federal contractor

that provides administrative staff for the Department of Defense. Harry is assigned to answer phones and perform data entry at a DOD site.

• Harry has frequent and unpredictable migraines. He has taken a lot of leave for his migraines, but always presents doctor’s notes and documentation. He has a WH-380-E supporting this FMLA leave.

• Sea Quest Raytion’s DOD customer is not happy. It demands a full-time body in the position, and reminds Sea Quest Raytion that the contract requires staffing for 8 hours per day.

Brushwood v. Wachovia Bank (4th Cir. 2013)

• Bank had “point system” attendance policy, under which employees earned points for consistent attendance/punctuality, and lost points for unscheduled absences and tardiness. A balance of -41 points prompted a warning; -57 triggered termination. No point reduction for FMLA leave.

• Jan. to Apr.: Brushwood accumulated -62.5 points. Bank gave her a formal warning but did not terminate her.

Brushwood, cont’d

• May 1: Brushwood cut her foot in an accident at home.

• May 2: Urgent care doctor examined foot, decided no stitches required. Gave Brushwood a tetanus shot, pain meds, and a note excusing 1 day’s absence from work.

Brushwood, cont’d• May 3: Brushwood notified supervisor. Supervisor told

her that if the absence extended beyond 1 day, it would trigger termination. Supervisor recommended that Brushwood see if her personal doctor would keep her out longer so that she could qualify for STD and FMLA. Brushwood declined because thought her personal doctor would say no.

• May 4: Brushwood stayed out another day. Bank terminated her for violation of attendance policy.

• May 7: Brushwood, on crutches, came to office to clean out her desk. She then visited personal doctor.

Brushwood, cont’d• Aug. 20: Brushwood had surgery to remove cyst that

had grown over scar after two nonsurgical injections failed to correct it.

• Brushwood sued for violation of ADA and FMLA.• Held: Brushwood failed to put Bank on notice of need

for FMLA. Brushwood did not provide Bank with sufficient information for it to determine that FMLA might apply. Even if May 7 office visit on crutches could be deemed notice, notice after termination does not trigger employer’s FMLA duties.

EEOC v. Interstate Distributor Co.• Company’s policy required employees returning from

medical leave to present documentation of no restrictions, 100% fit for duty.

• Company had leave cap of 12 weeks – no exceptions.• Settlement: $4.85 million– required to revise its policies; mandatory periodic

training on the ADA to employees; report all employee complaints of disability discrimination to the EEOC; post a notice about the settlement; appoint an internal consent decree monitor

Vanyan v. Hagel (E.D. Va. April 1, 2014)

• Employee was Russian instructor for DOD in a position that required travel.

• Employee knew of travel requirement when hired. 4 years later, employee complained that she could no longer fly due to phobia.

Vanyan, cont’d• Employee presented documentation that she had a panic disorder

with agoraphobia, and requested as an accommodation that she not be required to fly.

• DOD denied request because air travel was an essential function of position. DOD considered reassignment, but there was no vacant position for which employee was qualified.

• Apart from refusal to fly, employee had poor attendance and was frequently tardy. She responded to reprimands by stating that “15 minutes late is no big deal for government work.”

• Employee took 4 weeks of annual, sick, and donated leave, followed by 12 weeks of FMLA.

Vanyan, cont’d• DOD requested that employee RTW at end of FMLA. • Employee requested and was granted another 4 weeks

of leave. • Employee continued to send in requests, with medical

documentation, that she be relieved of air travel duties.

• DOD allowed employee additional leave, then put her in an AWOL status.

Vanyan, cont’d• Finally, ten months after employee stopped coming to

work, DOD fired employee.• Employee filed suit claiming that DOD failed to

accommodate her disability under the Rehabilitation Act (equivalent of ADA) and retaliated against her for filing EEOC charges about the failure to accommodate.

Vanyan, cont’d• Held:– “Plaintiff has failed to produce sufficient evidence that she

could perform perhaps the most essential function of all — regularly showing up to work — with or without reasonable accommodations from defendant. It is hardly controversial that attendance is an essential function of most employment positions.”

– “Nor has plaintiff produced evidence that approval of her requested accommodation — assignments involving land travel only — would have mitigated her serious attendance issues.”

– DOD correctly deemed employee’s requested accommodation unreasonable.

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