An Employment Law Nightmare – Intersection of the ADA &am - PowerPoint Presentation

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An Employment Law Nightmare – Intersection of the ADA & the FMLA

ADA

RIPFMLA

Temp. Caregiver Ins.

Presented at the

RIBA 2014 Annual Meeting by

Roger W. Hood

and

Rachelle R. Green

FMLA

1Slide2
Family Medical Leave Act (“FMLA

”)¹

FMLA

Basic Rule:

Covered employers

must allow

eligible employees

to take up to

12 weeks

of job-protected leave in a

12-month period

to be used for certain

qualifying

events.²Special rules apply to families of military service members or veterans, as well as airline flight crew employees.2Slide3
FMLA: “Covered Employers” & “Eligible Employees”³

Covered Employers

Eligible EmployeesCompany

has 50 or more employees

Must have worked at company for 12 monthsIncludes part-time workers, temporary workers, and workers on paid and unpaid leaveShort breaks in service do not interrupt employee eligibilityEmployee must work at U.S. location where the company employs at least 50 workers within a 75-mile radiusMust have actually worked 1,250 hours during the prior 12-month period3Slide4
Methods of Calculating 12-month Period⁴

FMLA

Employers may select one of four methods to calculate the 12-month period to be uniformly applied to all employees taking FMLA leave:

Calendar year

: January 1 to December 31

Any fixed 12-months

: fiscal year, year starting on employee’s anniversary of hire; or any other 12 month period

12-months measured forward

: measured from the first date an employee takes FMLA leave

“rolling” 12-months measured backward

: each time an employee takes leave, the remaining leave would be the balance of the 12 weeks not used during the preceding 12 months

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FMLA: “Qualifying Events”⁵

FMLA

Birth of newborn child

Placement

with employee of adopted or foster child

Leave to “care for” a serious health condition of employee’s spouse, child, or parent

Employee’s serious health condition

Event related to covered military service of employee’s family

“qualifying exigency” (12 weeks of leave)

military caregiver leave for service member or veteran’s serious illness or injury (26 weeks of leave)

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FMLA: “Serious Health Condition”

FMLA

Means: Illness, injury or physical

or mental condition that involves either:

inpatient

care; or

continuing treatment by a health care provider

Inpatient care includes an overnight stay at a hospital, hospice, or residential treatment facility.

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FMLA: Qualifying Family Relationships

FMLA

Spouse

:

husband or wife, as determined by state law

Parent

:

biological, adoptive, or any person who assumed parental duties while employee was a child

Child

:

biological, adopted, foster, step, or legal ward if under 18 years old; also includes child under age 18

for whom employee has

assumed parental duties, including financial support. If disabled, includes children over age 18.

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FMLA: Duration of Leave

FMLA

General Rule: Eligible employees may take up to

12 weeks

of job-protected, unpaid

leave

during any 12-month period

.

Intermittent leave may

be taken for serious health condition if medically necessary (e.g. several days

or hours per

month for chemo or dialysis

), but not for birth or adoption.

⁶

FMLA leave is

unpaid

leave. Employer may require employee to substitute available paid leave for unpaid leave8Slide9
FMLA: Prohibits Retaliation for Taking Leave¹³

FMLA

Employer may not “interfere” with employee’s right to FMLA leave or terminate employee for taking FMLA leave.

Consider:

Timing of discipline

Treating employees who have taken FMLA leave differently

Failing to document discipline

Employees who cannot perform

essential functions of their jobs

at the end of FMLA are not entitled to job restoration. However, they may be entitled to additional leave as a reasonable accommodation under the ADA.

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Rhode Island Parental & Family Medical Leave Act¹⁴

RIPFMLA

Basic Rule: Covered employers must allow

employees to take

13 consecutive work weeks

of

parental leave

or

family leave

in any

two calendar years

.

If leave is covered by both FMLA and RIPFMLA, the leaves run concurrently unless otherwise provided in the employee handbook.

In the event of inconsistencies, the employer must apply the provision that is more beneficial to the employee.

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Federal vs. RIPFMLA

FMLA¹⁵

RIPFMLA¹⁶

Amount of Leave

12 weeks unpaid leave in a 12-month period13 consecutive weeks unpaid leave in any 2 yearsLeave Year CalculationsCan use:CalendarFixed YearRolling ForwardRolling BackwardCalendar year“Covered Employer”Employers with 50 or more employees during the leave year or prior yearEmployers with 50 or more employees11Slide12
Federal vs. RIPFMLA

FMLA

RIPFMLA

Eligible Employees

12 months of service1,250 hours of service during the 12 months preceding the leaveat worksite with 50 or more employees within 75 miles of the worksite12 consecutive months of serviceworks an average of 30 or more hours per weekCovered RelationshipsChild (biological, adopted, step, foster, legal ward, or in loco parentis) under age 18 or incapable of self-care due to disabilitySpouse (husband or wife, but not domestic partner/civil union)*Parent (biological, adoptive, foster, step, or in loco parentis)Child (undefined)Spouse (husband or wife, as defined by RI law)**Parent (undefined)Parent-in-law (mother- or father-in-law)12*But see: Windsor v. United States**Rhode Island recognizes same sex spouses. See R.I. Gen. Law § 15-1-1.Slide13
Federal vs. RIPFMLA

FMLA

RIPFMLA

Mode of Leave Usage

ContinuousIntermittentReduced scheduleContinuousHealth Insurance BenefitsEmployer must continue coverage and pay employer’s share of premium. Employee still responsible for share of premium (if any).Same, except that RIPFMLA requires employee to pay in advance the amount of premiums required to maintain benefits during the leaveReinstatement Following leave, employee must be restored to the same or equivalent position.Exception for “key employees”Same, except that RIPFMLA does not have an exception for “key employees”13Slide14
Federal vs. RIPFMLA

FMLA

RIPFMLA

Pre-Leave

Notice Required30 days prior notice for foreseeable leave, and if leave is unforeseeable, as much notice as practicable30 days prior notice “unless prevented by medical emergency to provide said notice”Request for leave must verify the truthfulness of the factual representations made by employee and include a detailed description of employee’s entitlement to leaveMedical CertificationEmployer may require certification of the patient’s medical condition by healthcare providerEmployer may require certification of healthcare provider of the “probable duration” of the leave14Slide15
Rhode Island Temporary Caregiver Insurance (“TCI”)

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TCI

Effective

January 1, 2014, Rhode Island employers must allow their employees four (4) weeks of time off per year to care for a family member with a serious medical illness or to bond with a child within the first 12 months of parenting.

Applies to

all employers

regardless of size.

Covers

all employees

regardless of how long they have worked for the employer.

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Rhode Island Temporary Caregiver Insurance (“TCI”)

TCI

During TCI leave, the employer does not pay salary, but employees

receive

temporary disability insurance payments from the state.

During TCI leave, the employer must continue to provide health insurance to enrolled employees, but the employee is responsible for its share of health insurance premiums (if any).

Employer has no right to request certification of the employee’s relationship to the ill family member or of the family member’s serious health condition. Employee provides documentation to the state.

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Americans with Disabilities Act (“ADA”)

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Basic Rule: an employer with 15 or more employees shall not discriminate against a qualified individual with a disability.

The ADA makes it unlawful to discriminate in all employment practices such as:

RecruitmentHiringTrainingJob assignments and promotionsPay and benefitsLeave Termination 17Slide18
ADA: What is A Disability

?A person has “disability” if he or she has (1) a

physical or mental impairment that substantially limits one or more major life activities; (2) a

record of this impairment; or (3) is

regarded as having such an impairment.¹⁹Examples of major life activities include: standing, sitting, lifting, seeing, hearing, eating, caring for oneself, working, walking, reading, concentrating, performing manual tasks, or communicating.²⁰18Slide19
ADA: Substantially Limiting²¹

A person has “disability” if he or she has (1) a physical or mental impairment that

substantially limits one or more major life activities; (2) a record of this impairment; or (3) is regarded as having such an impairment.

Ability

to perform a major life activity is measured against the average person’s ability.Corrective measures must not be considered, except for ordinary eye glasses and contact lenses.Requires an individualized assessment:nature and severity of the impairmentimpairment’s permanent or long-term impacttransitory impairments are not covered, but episodic or in remission are covered19Slide20
ADA: “Record of” or “Regarded” as Disabled

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A person has “disability” if he or she has (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of this impairment; or (3) is

regarded

as having such an impairment.¹Record of impairment:Document indicates an impairment that would substantially limit one or more major life activities.Covers those with a history of having such an impairment.“Regarded” as disabled is based on the perceptions of others.20Slide21
ADA: Who is qualified?

Basic Rule

: an employer with 15 or more employees shall not discriminate against a qualified individual with a disability.

An individual with a disability is considered

qualified if the individual, with or without reasonable accommodation, can perform the essential functions of the job held or desired.23Reasonable accommodations to the known physical or mental limitations of a qualified employee or applicant with a disability must be made unless to do so would cause undue hardship on the operation of the employer’s business.24Undue hardship includes employer’s cost, onsite resources, overall resources, and nature of operations.2521Slide22
ADA: Reasonable Accommodations

C

ontemplates an Iterative ProcessTypes of Accommodations:required in the employment process for qualified applicants

make it possible for employees with disabilities to perform the essential functions of the position held or desired

enable employees with disabilities to enjoy the benefits and privileges of employment that are equal to (rather than the same as) the benefits and privileges that are enjoyed by other employeesTime off from work (either a modified schedule or flexible leave policy) may be required as a reasonable accommodation.22Slide23
ADA: Prohibits Discrimination/Retaliation

Discrimination may include:

denying employment opportunities to qualified individuals; failing to make reasonable accommodations for the individual’s known physical or mental limitations; and/or terminating an employee for requesting a reasonable accommodation. Employees

with disabilities may be disciplined

like any other employee.Employees with disabilities may not be disciplined if the employer has refused to provide a reasonable accommodation and the reason for unsatisfactory performance was the lack of accommodation.Employees with disabilities may not be terminated for requesting a reasonable accommodation.23Slide24
End Notes

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29 U.S.C. § 2601 et seq.29 U.S.C. § 2612.

29 U.S.C. § 2611.

29 C.F.R. § 825.200; see also U.S. Dep’t of Labor Fact Sheet No. 28H (available at http://www.dol.gov/whd/regs/compliance/whdfs28h.pdf).29 U.S.C. § 2612.29 C.F.R. § 825.202.29 C.F.R. § 825.300.29 C.F.R. § 825.305.29 C.F.R. § 825.305.29 C.F.R. § 825.311.29 U.S.C. § 2614(a).29 U.S.C. § 2614(b).29 U.S.C. § 2615.R.I. Gen. Laws § 28-48-1 et seq.29 U.S.C. § 2601 et seq.R.I. Gen. Laws § 28-48-1 et seq.R.I. Gen. Laws § 28-41-34.42 U.S.C. § 12101 et seq.42 U.S.C. § 12111(5)(A).42 U.S.C. § 12102(1).29 U.S.C. § 1630.2(i).29 C.F.R. § 1630.2(k)-(l).29 C.F.R. § 1630.2(m).29 C.F.R. § 1630.2(o).29 C.F.R. § 1630.2(p).Slide25

An Employment Law Nightmare – Intersection of the ADA & the FMLA

ADA

RIPFMLA

Temp. Caregiver Ins.

Presented at the

RIBA 2014 Annual Meeting by

Roger W. Hood

and

Rachelle R. Green

FMLA

25Slide26

THANK

YOU

FOR

YOUR

ATTENTION!

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