FLORIDA SHERIFFS ASSOCIATION - PowerPoint Presentation

FLORIDA SHERIFFS ASSOCIATION FSA Headquarters • 2617 Mahan Drive • Tallahassee, Florida

Legislative Affairs at FSAFSA EXECUTIVE LEADERSHIP CONFERENCEApril 8, 2015AMERICANS WITH DISABILITIES ACT/FAMILY AND MEDICAL LEAVE ACT OVERVIEWWayne EvansGeneral Counsel, FSA Allen, Norton & Blue, P.A. 850-561-3503 revans@anblaw.com

FMLAEligibility29 C.F.R. §825.110(b) Eligible Employee 12 Months of employment need not be consecutive, provided break in service doesn’t exceed 7 years, unless break in service occasioned by Nat’l Guard or reserve military service obligation; or written agreement exists re: intent to rehire after break, e.g., break for education or childbearing.

FMLAEligible EmployeeFMLA excludes employees if agency employs less than 50 and total number of employees, within a 75 mile radius of worksite is less than 50.29 U.S.C. § 2611(2)(b)(ii); Tilley v. Kalamazoo Cnty. Rd. Comm’n, 2015 WL 304190 (6th Cir. 2015)

FMLAEmployee Notice Requirements29 C.F.R. §, 825.303(b) When employee seeks leave under FMLA for first time for FMLA- qualifying reason, employee need not assert rights under FMLA. Employee must provide sufficient information to determine if FMLA applies.

FMLA con’t.Employer Notice Requirements29 C.F.R. §825.303(b) When employer acquires knowledge of FMLA qualifying reason employer must notify employee within 5 business days.Fitness for duty requirements and job description should be provided.

FMLAEmployee Notice Requirements29 C.F.R. §825.303(b) When employee seeks leave for qualifying reason for which FMLA leave has been provided, the employee must specifically reference qualifying reason or need for FMLA leave. Calling in sick is insufficient.

FMLAQualifying Reasons for Leave29 C.F.R. §825.112Employers covered by FMLA are required to grant leave to eligible employees.Employees do not have the right to decline FMLA leave.

FMLAThe Family and Medical Leave Act – Accrued Leave29 C.F.R. § 825.100Eligible employees are allowed 12 weeks of unpaid, job-protected leave, and employees may substituteaccrued leave.Sheriff may, but is not required, to separate upon expiration of leave if employee is unfit for duty.

FMLA CLAIMSInterference29 U.S.C. § 2615(a)(1) Employers burden or deny substantive statutory rights, e.g., leave. Retaliation29 U.S.C. § 2615(a)(2) Discharge of employee for exercising FMLA right to leave.

FAMILY AND MEDICAL LEAVE ACTNo FMLA violation when “wheels of termination were put in motion before request for leave.” Beno v. United Telephone Co. of Fla., 969 F.Supp. 723, 726 (M.D. Fla. 1997); see also Pashoian v. GTE Directories, 208 F.Supp.2d 1293 (M.D. Fla. 2002)

ADA SCOPE OF COVERAGEAbsenteeism 42 U.S. C. § 12112(a) Disability: Physical or mental impairment that substantially limits a major life activity; record of such impairment; or regarded as having an actual or perceived disability.Chronic absenteeism is not protected under ADA.

ADA ACCOMODATION UNDUE HARDSHIPPerception of Disability42 U.S.C. § 12112(a); 29 C.F.R. § 16302(g) Agency prohibited from taking action against employee because of an actual or perceived disability.Treat performance issues without regard to medical issues unless raised by employee.

FMLABirth of a Child29 C.F.R. §§ 825,120, 825.202Unless employer agrees, employee can’t take bonding leave intermittentlyEmployee must take bonding leave in a continuous block of time

ADA MEANS OTHER DISABILITIES ACTSAccommodation Moving one employee to permanent day shift placed heavier burden on the rest of plant operators when only rotating shifts available. Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1997)

AMERICANS WITH DISABILITIES ACTAccommodationADA doesn’t require essential job functions to be eliminated or the City to continue to accommodate disability with respect to investigation of crime scene-previous accommodation exceeded what the law requires. Holbrook v. City of Alpharetta, Ga, 112 F.3d 1522, 1526-27 (11th Cir. 1997)

WORKERS’ COMPENSATION§ 440.15(11), Fla. Stat.Law enforcement officer who in the line of duty is maliciously or intentionally injured shall be carried in full-pay status. Deputy is not required to use leave to supplement W.C. benefit of 2/3 of salary.

WORKERS’ COMPENSATIONWorkers’ comp., leave, and FMLA may run concurrently. 29 C.F.R. § 825.207(e)- Serious health condition may result from injury on or off duty.Paid leave may supplement W.C. benefits (eg. 2/3 salary).

WORKERS’ COMPENSATIONRetaliation§ 440.205 Fla. Stat. doesn’t prohibit discharge of employee for any non-retaliatory reason once W.C. claim has been filed.Pierich v. Climatrol, Inc., 523 So.2d 684, 685 (Fla. 3d DCA 1988).

WORKERS’ COMPENSATIONEmployer has the obligation to obtain physician’s reports and cannot require employee to assume this duty.§ 440.13(4)(a),(c), Fla. Stat.; Hornfischer v. Manatee County Sheriff’s Office, 136 So. 3d. 703 (Fla. 2d DCA, 2014).

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