Bermuda Triangle of FMLA, ADA and Worker s Compensation - Ebone Ø Hamilton Lewis, Shareholder, Littler
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Managing Leaves of Absence: Navigating the Bermuda Triangle of FMLA, ADA and Worker’s Compensation FEATURED FACULTY: Eboneé Hamilton Lewis, Shareholder, Littler 973.848.4734 enlewis@littler.com
Eboneé Hamilton Lewis, Shareholder, Littler Eboneé Hamilton Lewis devotes the majority of her practice to representing companies in state and federal courts and before administrative agencies in the litigation of employment disputes involving claims of discrimination, harassment, retaliation, and wrongful discharge. Eboneé also conducts employment law training sessions for employees and management at every level aimed at preventing discrimination and harassment in the workplace. Eboneé regularly guides management and human resources professionals through a broad range of employment law matters, including: employee hiring, internal investigations, medical/family leave issues, disciplinary actions, reductions-in-force, and development and implementation of workplace policies and employee handbooks. In addition, Eboneé advises companies on compliance with various state and federal employment-related laws respecting accommodation of disabilities, wage and hour, equal employment opportunity, retaliation and leaves of absence.
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Managing Leaves of Absence:
Navigating the Bermuda Triangle of
FMLA, ADA and Worker’s
Compensation
Presented by:
Eboneé Hamilton Lewis, Esq.
Littler Mendelson, P.C., Newark
ENLewis@littler.com
973.848.4734
1
Managing Employee
Leaves of Absences
Where Do Leaves Come From?
Company-Specific Leave Policies
FMLA
ADA
Workers’ Compensation
2
Different Schemes, Different Goals
FMLA for serious health conditions
(job and benefits protection)
ADA for qualified individuals with
disabilities (accommodation
obligation and protection from
discrimination)
Workers’ compensation for on-the-
job injuries (medical expenses and
wage replacement)
Are You A Covered Employer?
FMLA – private employers with 50+ employees
and all public employers (posting
requirement!)
ADA – private employers with 15+ employees
and all public employers
Workers’ Comp – generally all employers
(although still some exceptions in TX)
3
Eligibility
FMLA – employee with a serious health
condition (at a worksite with 50+ EEs in a
75-mile radius)
ADA – qualified individual with a disability
who can perform the essential functions of
the job with or without a reasonable
accommodation
Workers’ Comp – employee with an
injury/illness arising out of employment
Company-Specific
Leave Policies
4
Company-Specific Policies
State and federal laws impact these benefits
application and implementation should be non-discriminatory
watch out for “one-size fits all”
efficiency vs. abuse
Basics of FMLA
Policies
5
FMLA – The Basics
Family
Serious health condition of parent, spouse or child
Birth, adoption, foster care placement
Medical
Serious health condition
Military
“Qualifying exigency” leave
Caregiver, for serious injuries or illness
FMLA – The Basics
12 weeks
• Job protected leave
Reinstatement
• Same or equivalent position
Health care benefits
• Same as if not on leave
6
Essential Elements of
FMLA Policy
FMLA – Essential Elements
Define scope of policy
• Can track DOL poster
Specify “12 month period”
• Rolling, calendar, anniversary, other?
Incorporate CBU rights and other policy obligations
• What do your other policies say?
• Overlap of paid leave with FMLA leave
• Specify if leave benefits (PTO) accrue during FMLA leave
7FMLA – Essential Elements
Specify communication expectations
• Who, when, what. . .
Specify advance notice requirements
• Advance notice and operational disruption
Explain disciplinary consequences
• What happens when employee fails to communicate or
plan, or does not provide paperwork in timely manner
FMLA – Essential Elements
Medical certifications
• When required
• May ask for re-certification
• May ask for 2nd or 3rd opinions
Fitness for duty examinations
• Required for employee’s own serious health condition
Job restoration rights
• End when FMLA over, but explore ADA accommodation
8Implementing your
FMLA Policy
FMLA - Implementation
Why important?
• Illegal to interfere!
What is “interference?”
• Illegal to “restrain, or deny the exercise of or the
attempt to exercise” FMLA rights
• Includes:
− Refusing to authorize FMLA leave;
− Discouraging an employee from using such leave; and
− Manipulation by employer to avoid FMLA responsibilities
9FMLA - Implementation
12 month calculation:
• Calendar year
• Fixed period
• Measured from 1st leave request
• Rolling
FMLA - Implementation
Block leave
• Single period of time, time taken all at once
Reduced schedule leave
• Schedule that changed working hours or days/week
Intermittent leave
• Separate blocks of time due to same qualifying event
10FMLA – Implementation
Employer Requirements
• General (employee handbook, poster, acknowledgement during hire)
• Eligibility
• “Rights & Responsibilities”
• Designation
Employee Requirements
• Must follow usual and customary call-in procedures
• Exception for emergency, then earliest notice practicable
FMLA Issues –
Intermittent Leave
11FMLA Issues – Intermittent Leave
Can an employer restrict intermittent/reduced
schedule leave?
• If planned medical treatment, employer can require
employee to give “reasonable effort” to avoid disruption
to operations. 29 CFR § 825.203
FMLA Issues – Intermittent Leave
Can employer provide alternative position?
• If planned medical treatment, then:
− Equivalent pay and benefits and better accommodate employee’s
leave schedule; and
− Cannot be used to discourage leave or retaliate for taking leave.
29 CFR § 825.204
12Calculating Intermittent Leave
Only amount of leave ACTUALLY TAKEN counts
toward 12 weeks
Normal workweek calculation is different for
employees with schedule that varies from week to
week
• weekly average of hours worked during 12 months prior to
the beginning of the leave period is used for calculation of
“normal” workweek 29 C.F.R. §825.205(b)
Overtime impact 29 C.F.R. § 825.205(c)
FMLA Issues –
Certification Process
13Healthcare Provider’s Certification
When employee’s serious health condition, then:
• Date serious health condition commenced;
• Probable duration of condition; and
• Statement that employee unable to perform job because of
condition
When family member care, then:
• Estimate of time needed to care; and
• Statement that condition warrants participation of family member
Additional Requirements for
Intermittent Leave/Reduced Schedule
Why medical necessity for this kind of
leave;
Expected duration of intermittent leave
and, if applicable:
• Date treatment is scheduled; and
• Duration of treatment
14Certification Process
Certification must be “complete and sufficient”
• First step:
− Send Designation Notice explaining specific portions that are
incomplete or unclear
− Provide time limit (e.g., 7 days), unless not practicable despite
employee’s “diligent good faith efforts”
• Second step:
− Option to seek authorization to speak to medical provider re:
clarification
− Be suspicious of medical provider claims of inability to estimate
duration and/or frequency
Post-Certification Leave
Administration
2nd/3rd Opinions
• Use sparingly – assess basis for doubt and nature of the
employee’s condition
• Not available for Exigency or Caregiver Leave or Fitness for
Duty
• Consider suggesting to second medical provider that he/she
obtain “all relevant medical information” pertaining to the
serious health condition from the employee’s initial provider
before completing the certification. If employee refuses to
authorize, FMLA may be denied.
15“New” Certifications
Upon expiration of applicable leave year, employer
may require “new” certification if the employee
continues leave
• Reopens opportunity to seek second/third opinions instead
of recertification
• Where abuse is suspected, employers should strongly
consider this option
• Consider incorporating suspicious pattern of absence
inquiries into new certification process and then
second/third opinion process
Recertification Process
Creates disincentive for leave abuse
• Co-pay is employee’s responsibility
• Employee is made aware of scrutiny
• 15-day deadline may be enforced
• Employer can require completeness/clarity, as
with original certification
16Recertification Process
Caveat Emptor
• If recertified despite suspicious pattern, may
embolden the employee to continue or expand
disrupting pattern of absences
When Can Employer Request
Recertification?
For intermittent, may not request recertification in less
than the minimum period specified on the certification
as necessary, UNLESS:
• Significant changes in circumstances described by
previous certification;
• employer has information that casts doubt on
employee’s purported reason for absence.
However, even if minimum period extends beyond six
months, can seek recertification every six months, in
connection with a covered absence.
17FMLA –
Other Statutory
Intersections
FLSA
Can employer deduct pay for intermittent leave
hours?
• If non-exempt, then employer may pay the employee
only for hours worked.
• If exempt, then employer may reduce salary for time
taken as intermittent/reduced-schedule leave without
jeopardizing exempt status
18GINA
FMLA Forms Implicated by GINA
• Eligibility / Rights & Responsibilities Notice
• Certification of Health Care Provider for Employee’s
Serious Health Condition
• Certification of Health Care Provider for
Family Member’s Serious
Health Condition
• Designation Notice
GINA
GINA’s Safe Harbor Language – inquiries relating to
employees
• Specify that not seeking any genetic info of employee
• Define “genetic information” consistent with GINA:
− An individual’s family medical history;
− Results of an individual’s or family member’s genetic tests;
− Fact that an individual or an individual’s family member sought
or received genetic services; or
− Genetic information of a fetus carried by an individual or an
individual’s family member.
19GINA
GINA’s Safe Harbor Language – inquiries relating to
family members
• May request family medical history, even though this is
one form of genetic information
• Specify only seeking family medical history if necessary
to complete form, but clearly state do not want:
− No other type of genetic info, including results of genetic tests
− Fact that sought or received genetic services; or
− Genetic information of a fetus carried by an individual or an
individual’s family member.
Potential FMLA
Abuses
20Do You Suspect Leave Abuse?
Potential patterns indicating abuse:
• Possible 2nd jobs during work hours
• Monday/Friday absences
• Refusal to work OT or weekends
Leave Abuse?
If documented pattern of absence
• May be allowed to communicate with
healthcare provider re patterns
21Leave Abuse?
What to do when you suspect abuse. . .
• “Nothing in the FMLA prevents employers from
ensuring that employees who are on leave from
work do not abuse their leave.” Callison v. City of
Philadelphia, 2005 WL 900029 (3rd Cir.)
• Consider requiring new certification of eligibility
and conduct investigation
Preventing Leave Abuse
Moonlighting is abuse, if established policy
• An employee may not continue to work at a second job during FMLA
leave if the employer has an established policy that prohibits outside
employment. DOL Opinion Letter No. 106 (July 1, 1999)
Company can have policy which prohibits outside
employment.
• If no such policy, at least have policy which prohibits outside
employment while on paid or unpaid leave where benefits may be
retained while on leave.
22Preventing Leave Abuse
Treat absences as non-FMLA absences, subject
to attendance policy discipline, if:
• Complete medical certification is not timely
provided (after reasonable grace period)
• Employee refuses (on annual leave anniversary
date) to cooperate with 2nd or 3rd opinion of
medical certification
− Employees must be warned in advance of these
consequences
Preventing Leave Abuse
1. Scrutinize the Certification
• Must be “complete and sufficient [i.e., clear].”
• First step: Designation Notice explaining specific
portions that are incomplete or unclear.
• 7-day time limit, unless not practicable despite
employee’s “diligent good faith efforts.”
• Second step: Option to seek authorization to speak to
medical provider re: clarification.
• Be careful regarding medical provider claims of
inability to estimate duration and/or frequency.
23Preventing Leave Abuse
2. Authenticate / Verify Certification
• Only once “complete and sufficient”
• No employee authorization required
• ‘‘ ‘Authentication’ ’’ means providing the health care
provider with a copy of the certification and
requesting certification that the information
contained on the certification form was completed
and/or authorized by the health care provider.” 29
CFR §825.307(a).
Preventing Leave Abuse
3. Second / Third Opinions
• Use sparingly – assess basis for doubt and nature of the
employee’s condition.
• Not available for Exigency or Caregiver Leave.
• Consider suggesting to second medical provider that
he/she obtain “all relevant medical information”
pertaining to the serious health condition from the
employee’s doctor before completing the certification. If
employee refuses to authorize, FMLA may be denied.
24Preventing Leave Abuse
Terminate if reasonable and conclusive evidence of
FMLA leave fraud
Consider transfers during the period of intermittent or
reduced schedule leave (if permissible under
applicable regulatory constraints)
Consider other means to verify absence
• For instance, observation of activities inconsistent with
stated need for recovery time
− May consider surveillance of employee if strong basis for belief of
FMLA abuse
Preventing Leave Abuse
Surveillance
• Consider all factors - cost, potential
benefit, slime factor - and make this
“last resort” option to confirm suspicion
• Be careful – illegal to terminate based on
off duty activity that is not inconsistent
with limitations caused by condition
“[E]ven an employer’s honest suspicion that the employee was not using
his medical leave for its intended purpose is enough to defeat the
employee’s substantive rights FMLA claim”
Crouch v. Whirlpool Corporation, Inc., 447 F.3d 984, 986 (7th Cir.
2006)
25Preventing Leave Abuse
Surveillance - Be Careful!
• Could be FMLA interference
if employer terminates
employee because he/she
engaged in off duty activity
that is not inconsistent with
the limitations caused by
his/her serious health
condition
How Far Is Too Far?
29 U.S.C § 2615(a)(1): “It shall be unlawful for
any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any
right provided under this subchapter.”
29 C.F.R. § 825.220 (b): “Interfering with” the
exercise of an employee's rights would include,
for example, not only refusing to authorize
FMLA leave, but discouraging an employee from
using such leave. It would also include
manipulation by a covered employer to avoid
responsibilities under FMLA.
26Basics of ADA
Policies
ADA – The Basics
Disability is defined broadly
• Significant restriction of major life activity
• Relevant comparison is to general population
• Can consider mitigating measures in rare cases
27ADA – The Basics
Duty to engage in interactive process
• Must determine essential functions of job
Obligation to provide reasonable accommodations
• Exceptions include:
− BFOQ
− Undue burden
− Direct threat
Implementing the
ADA - The
Interactive Process
28ADA – Interactive Process
Request can be made at any time
Legal words not required
Request can be oral or written
Others may seek accommodation for worker
In some circumstances, no request needed
ADA – Interactive Process
Acknowledge request in writing
Make accurate disability status determination
Inform worker of status, schedule meet & confer
Conduct meet & confer
Confirm meet & confer in writing
Final response, in writing
Remember on-going duties to accommodate
29The Key Question – When Is Enough,
Enough?
“[The fact that some employers have] had infinite
patience does not necessarily mean that every
company must put up with employees who do not
come to work. Nor must every company hire
replacements for absent employees and call that a
reasonable accommodation. The issue before us is,
when is enough, enough?”
Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir.
1999).
Uncertainty Reigns – There Is
No Limit
“Upon reflection, we are not sure that there should be a per se
rule that an unpaid leave of indefinite duration (or a very
lengthy period, such as one year) could never constitute a
reasonable accommodation under the ADA. It is not clear why
unpaid leave should be analyzed differently from any other
proposed accommodation under the ADA.”
Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d
775, 782 (6th Cir. 1998); citing Norris v. Allied – Sysco Food
Servs., Inc., 948 F. Supp. 1418 (N.D. Cal. 1996), aff’d, 191 F.3d
1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000).
30Your Policies May Be Used
Against You
Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1334-35
(10th Cir. 1998)(disability policy, personal leave policy and S&A plan).
Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)(paid disability
leave policy).
Haschmann v. Time warner Entertainment Co., 151 F.3d 591, 602 (7th
Cir. 1998)(medical leave policy).
Clayton v. Pioneer Bank, 21 A.D. Cas. (BNA) 1199 (D.N. Mex.
2008)(STD plan).
But see Cortez v. Raytheon Co., 663 F.Supp.2d 514 (N.D. Tex. 2009)(relying
on SPD reference to “authorized leaves” to limit application of policy).
A Possible Litigation Defense to
Your Policy Being Used Against You
“A particular accommodation is not necessarily reasonable, and
thus federally mandated, simply because the County elects to
establish it as a matter of policy. While the County is free to
exceed the requirements of the ADA in fashioning its policies
regarding disabled employees, such policies are not the definitive
sources of the standard by which reasonable accommodation is
measured under federal law.”
Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995); accord, Amadio
v. Ford Motor Co., 238 F.3d 919, 929 (7th Cir. 2001); Duckett v.
Dunlop Tire Corp., 120 F.3d 1222, 1225 (11th Cir. 1997).
31Cards That You Should Never
Play
“I met my accommodation obligations by providing FMLA
leave.” See, e.g., Shimell v. De Lage Landen Fin. Servs., 20
A.D. Cas. (BNA) 927 (E.D.Pa. 2008).
“My policy is to give FMLA leave and one week.” See
Lafever v. Acosta Inc., 24 A.D. Cas. (BNA) 1208 (N.D. Cal.
2011).
The Battle Over Indefinite
Leaves
“To require [an employee recovering from illness to give an
absolute date as to when his symptoms will ameliorate to the
point that he will be able to return to work], and to read such a
requirement into the principle that an employer need not wait
an indefinite period for an accommodation to achieve its
intended effect, would be to eviscerate much of the protection
afforded under the ADA.”
Powers v. Polygram Holding, Inc., 40 F. Supp. 2d 195, 202
(S.D.N.Y. 1999).
32The Gamut of
Indefinite/Definite Information
Approx.
“Return Absence Specific
“I have
date date of
no idea” of mention date of
unknown” return or
of return return
range of
date
dates
A Suggestion to Consider?
“Before an employer should be able to rely on the
‘indefiniteness’ of a leave request as a justification for avoiding
the accommodation, the interactive process should compel the
employer to explain its particular difficulty surrounding the
lack of a return date, and to invite the employee to seek an
approximate return-to-work invitation from a caregiver.
Alternatively, the employer should state the lengthy of leave that
it could provide without incurring ‘undue hardship.’”
Written Testimony of Brian East, Senior Attorney for Disability
Rights Texas, at the EEOC’s 6/8/11 public meeting on leaves as
reasonable accommodation
33The Basic “Undue Hardship”
Factors
1. The nature and cost of the accommodation;
2. The overall financial resources of the business;
3. The overall number of individuals employed by the
employer;
4. The effect the accommodation would have on the resources
of the business; and
5. The impact the accommodation would have on the business.
• 29 C.F.R. §1630.2(p)(2); see also 42 U.S.C.
§1211(10)(B).
Six Facts That Can Kill Your
“Undue Hardship” Argument
1. A policy that provides for leaves of that
length. Nunes v. Wal-Mart Stores, Inc., 164
F.3d 1243 (9th Cir. 1999).
2. The employee’s past leaves, without incident.
Mallon v. U.S. Physical Therapy Ltd., 16 A.D.
Cas. 818 (D. Minn. 2005).
3. Successful coverage during this leave by co-
workers or subordinates. Haschmann v.
Time Warner Entertainment Co., 151 F.3d
591 (7th Cir. 1998); Rascon v. U.S. West
Communications, Inc., 143 F.3d 1324 (10th
Cir. 1998).
34Six Facts That Can Kill Your
“Undue Hardship” Argument
4. Successful coverage, or ability to cover, this
leave by temporary employees. Garcia-Ayala
v. Lederle Parenterals, Inc., 212 F.3d 638
(1st Cir. 2000); Nunes, supra.
5. Termination right before the employee’s
expected return. Miller v. Hersman, 759 F.
Supp. 2d 1 (D.D.C. 2011); Austin v. Better
Bus. Bureau of Middle Tem. Inc., 24 A.D.
Cas. (BNA) 535 (M.D. Tenn. 2011).
6. Failure to quickly replace the employee after
termination. Haushmann, supra (took 6
months to replace); Garcia-Ayala, supra
(never replaced).
QUESTIONS?
35THANK YOU
Eboneé Hamilton Lewis
Littler Mendelson, P.C., Newark
ENLewis@littler.com
973.848.4734
DISCLAIMER
The information and materials provided by
Littler are designed to be authoritative in
regard to the subject matter of the training
without implied warranties. We strongly
encourage you to consult legal counsel of
your choice on specific matters involving
employment law, and important personnel
policies and practices prior to adoption or
implementation.
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