FMLA & ADA TRAINING

1. FMLA & ADA TRAINING Presented by: The Office of the State Employer Toni McFarland Employee Health Management & Cheryl Schmittdiel Contract Negotiations & Administration

2. Disclaimer • The material contained in this power point training is intended for training purposes only and should be used as a guide for implementing the FMLA & ADA and does not constitute legal advice with respect to factual circumstances.

3. Test Your Knowledge of the FMLA & the ADA!

4. 1. Kim has worked for the SOM for 12 months and has always worked 20 hours per week. Based on the length of service and hours worked, Kim is eligible for FMLA leave. • True • False

5. True is incorrect! • False is correct!Kim will not be able to satisfy the 1,250 hour requirement working only 20 hours per week.

6. 2. FMLA allows employees to take time off to care for the following family members with a serious health condition: • child, spouse, grandparent • spouse, grandparent, sibling, child • child, spouse, parent

7. "a" is incorrect! • "b" is incorrect! • "c" is correct!FMLA allows employees to take time off to care for a child, spouse, or parent.

8. 3. Kim had minor surgery and was required to stay in the hospital overnight. This condition caused Kim to miss one day of work. Since Kim was back to work the following day and required no more subsequent doctor's visits, Kim's leave should be documented as FMLA leave. • True • False

9. True is correct!Any length of stay in a hospital should be handled as FMLA leave. • False is incorrect!

10. 4. The ADA requires that all printed material and publications that the SOM produces for employees or the public also be distributed in Braille. • True • False

11. True is incorrect! • False is correct!The ADA requires that all printed material for SOM employees or the public be available in an alternate/accessible format, if requested. Braille is only one of the accessible formats.

12. 5. The ADA, Title I, requires extensive renovation of all SOM buildings to make them accessible. • True • False

13. True is incorrect! • False is correct!As an employer, the SOM is responsible under Title I of the ADA for making facilities accessible to qualified applicants and employees with disabilities as a reasonable accommodation, unless this would cause undue hardship. Accessibility must be provided to enable a qualified applicant to participate in the application process, to enable a qualified individual to perform essential job functions and to enable an employee with a disability to enjoy benefits and privileges available to other employees.

14. 6. The ADA, Title II, requires extensive renovation of all SOM buildings to make them accessible. • True • False

15. True is incorrect! • False is correct!The ADA requires SOM programs, not all SOM buildings, to be accessible. "Program accessibility" is a very flexible requirement and does not require the SOM to do anything that would result in an undue financial or administrative burden. Not every building, nor each part of every building needs to be accessible. Structural modifications are required only when there is no alternative available for providing program access.

16. 7. SOM Employees must have at least 12 months of prior state service and must have worked a minimum of 1,250 hours during the previous 12 months to be considered eligible for FMLA leave. • True • False

17. True is correct!Please note that all that is required is total SOM service and not a specific department. • False is incorrect!12 months of prior SOM service and 1,250 hours worked during the previous 12 months are the only two requirements for FMLA eligibility.

18. 8. FMLA leave must be taken in one lump sum period of 12 weeks. • True • False

19. True is incorrect! • False is correct!FMLA leave may be taken intermittently.

20. 9. Kim has a certified chronic medical condition that will require being off work for treatments one day per week for the next two months. How should the leave be documented regarding FMLA? a. Kim will not miss more than three consecutive days from work; therefore, the absences for the treatments should not be counted as FMLA leave. b. Although Kim will not miss more than three consecutive days from work, the condition is chronic. The absence should be handled as FMLA leave.

21. "a" is incorrect! • "b" is correct!Chronic conditions such as this may be applied to FMLA leave. Kim's condition was certified; the absence for treatments of the chronic condition in this case may be applied to FMLA leave.

22. 10. FMLA law requires the SOM to return an employee to the exact same position held prior to taking FMLA leave. • True • False

23. True is incorrect! • False is correct!FMLA law states that an employee may be returned to the same or an equivalent position.

24. 11. FMLA leave, with the SOM, begins when the employee’s accrued leave expires. • True • False

25. True is incorrect! • False is correct!FMLA leave starts when the employee begins missing time due to an FMLA-related condition. The employee’s accrued leave will run concurrently with any FMLA leave.

26. 12. The employee would be required to pay their normal monthly premium to maintain their health, dental & vision coverage if they are on unpaid FMLA leave for an entire pay period. • True • False

27. True is correct!The employee will still be required to pay their monthly premiums if they are on unpaid FMLA leave for an entire pay period. The employee would not, however, be required to pay the SOM share of the premiums. • False is incorrect!

28. 13.A full-time SOM employee is entitled to how many hours of FMLA leave? • 340 hours • 480 hours • 600 hours • 1200 hours

29. "a" is incorrect! • "b" is correct!12 weeks X 40 hours/week = 480 hour • "c" is incorrect! • "d" is incorrect!

30. 14. If an employee is on workers’ comp and has an FMLA qualifying absence at the same time, and a light duty assignment is identified and available, the dept may offer the light-duty assignment , but they may not require the employee to take it. • True • False

31. True is correct!The employee is able to turn down favored work or light-duty while on workers’ comp and FMLA. The employee’s workers’ comp benefit will be stopped and the employee will be required to use sick leave, but may substitute annual leave, to continue on payroll. The employee will not be allow to buy back their leave credits in these circumstances. • False is incorrect!

32. 15. An employee can no longer perform their original position because of a work related injury. The ADA requires the dept to create a new position or “bump” another employee from their position as a reasonable accommodation. • True • False

33. True is incorrect! • False is correct!The ADA does not require an employer to create a new position or to “bump” another employee from their position in order to reassign an employee who can no longer perform the essential functions of their original position, with or without a reasonable accommodation.

34. 16. An FMLA “serious health condition” is the same as an ADA “disability”. • True • False

35. True is incorrect! • False is correct!An FMLA “serious health condition” is not necessarily an ADA “disability.” An ADA disability is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Some FMLA “serious health conditions” may be ADA “disabilities”, i.e., cancers and serious strokes, and some ADA disabilities, i.e., diabetes and being HIV positive, may be serious health conditions.

36. Scenarios

37. Instructions • What do you need to take into consideration to answer these Scenarios? • With those sitting near you put together a response to the following scenarios. If there are questions you need to have answered, write them down and hand to Toni or Cheryl. • You will be given approximately 5 minutes to brainstorm. Then we will discuss the Scenario.

38. Scenario 1 • Jane Doe has been a model employee for the SOM for 10 years. She is well liked by co-workers, she is friendly and easy going. Jane recently missed 3 days of work because she was “sick”. When she returned to work she requested 2 weeks off. Telling her supervisor that she is “tired and anxious”.

39. Questions? • Is this a request for FMLA leave? • Is an employee obligated under FMLA to specifically state a request for FMLA leave? • What would you do in this situation?

40. Things to Remember • The ER needs to make further inquiries and give the EE the CS1789 and CS1790 to complete. • An EE must simply request leave and link that leave to an illness. Jane is “tired and anxious”. Anxiety can be a mental health illness.

41. Scenario 2 • After Jane has been on FMLA for 2 weeks, she calls and requests additional leave of 3 weeks. Meanwhile rumors are going around at work that Jane is fine and that her second cousin is her doctor. A second rumor that she is in jail is also circulating.

42. Questions? • Can the dept request re-certification of Jane’s request with another doctor? • Should the employer send Jane a letter saying the “rumor” is that you are in jail, so we are stopping your FMLA? • If an employee is incarcerated can they still be on FMLA?

43. Things to Remember • Requests for re-certification can be made every 30 days but only in connection with an absence. • However, with the request for an extension and the reason to doubt the first certification, the dept can request recertification from a doctor that it chooses at the ER’s expense. • If the second certification conflicts with the first the ER may require a third opinion which will be binding on both the EE and the ER. • “Rumors” are not enough to stop an FMLA leave approval.

44. Scenario 3 • Jane returns to work following her FMLA leave and does her job satisfactorily for a couple of weeks. However, her supervisor is informed that Jane is having conversations with herself in the break room after work hours and is easily agitated. Jane is yelling at co-workers and starts calling in sick or just not showing up for work. This has been going on for about a week. Jane requests more time off.

45. QUESTION • Can the dept deny the request and terminate Jane for her behavior? • Should the department send Jane out for a fitness for duty? • Should the dept confront her on her behavior with a disciplinary action and hope she reveals to them what is going on?

46. Things to Remember • Just because an employee is using FMLA does not prohibit you from disciplining them for work rule violations or inappropriate behavior at work. • The dept should proceed the way they would for any employee that commits a work rule violation.

47. Scenario 4 • While Jane is out on FMLA leave, her spouse calls and requests that she be allowed to work a reduced work schedule or take intermittent FMLA leave. During the conversation, he informs Jane’s supervisor that Jane is suffering from post-traumatic stress disorder caused by her service in the military.

48. Questions? • Is there an ADA situation that should be taken into consideration? • Is the request covered by FMLA? • How much time is Jane entitled to?

49. Things to Remember • Intermittent leave or a reduced work schedule may be a reasonable accommodation, if the employee has a disability under the ADA, if the employee is able to do the essential functions of the job. • A reduced schedule or intermittent leave on a permanent basis may be an “undue hardship” depending on where the employee works. • The request may be covered by FMLA if the EE has not exhausted their leave entitlement and they have provide medical certification of a serious health condition.

50. Scenario 5 • The dept has just finished interviewing a great candidate for their open position and on the way out of the interview the candidate says to the interview panel “I have a disability under the ADA.” The panel has given every candidate a copy of the PD and ask them if they can do the “essential functions” of the job with or without and accommodation.