NEASHRM FMLA and ADA

NEASHRMFMLA and ADA Abe Bogoslavsky Bogoslavsky Law Firm 111 Center Street, Ste. 1200 Little Rock, AR 501-244-0722 www.bogolaw.com

FMLA Regulations Revised • On November 17, 2008, the Department of Labor issued revised FMLA regulations. • These regulations attempt to address several recurrent issues by providing formal guidance, and incorporate the NDAA into the FMLA regs.

COVERED EMPLOYERS AND EMPLOYEES The FMLA entitles eligible employees to take up to twelve weeks of unpaid, job protected leave during a twelve month period as a result of the employee’s serious health condition, or to take care of an immediate family member who has a serious health condition.

COVERED EMPLOYERS AND EMPLOYEES (NDAA) • Up to 12 weeks of leave as the result of a “qualifying exigency” because the employee’s spouse, son, daughter or parent is a covered military member. • Up to 26 weeks of leave to care for a covered servicemember with a serious injury or illness.

COVERED EMPLOYER • Employs 50 or more employees for each working day during 20 calendar workweeks in current or prior year. • Employee whose name appears on payroll will be considered employed each day of the calendar workweek (even if not paid for that week).

JOINT EMPLOYMENT • Occurs when an employee performs work that simultaneously benefits 2 or more employers. • Employee must be counted by BOTH employers. • “Primary employer” is responsible for FMLA leave, job restoration, etc. Look at who exerts control and hiring/firing authority.

EMPLOYEE ELIGIBILITY • The employee must have been employed by the company for at least 12 months & have worked at least 1,250 hours with the employer preceding the date the leave is to begin. • 50 employees within 75 mile radius of workplace

NEW Regs • Break in service of 7 years or more is not counted in determining 12 months of service. • Time spent in military service (including Guard or Reserve) must be counted in determining 12 months and 1,250 hours. (USERRA)

NEW Regs (cont’d) • 50 employee count is determined at the time notice of leave is given. • Worksite is the site employee reports to, or from which work is assigned. • Joint employment is site of primary employer UNLESS worked for 1,000 hours during year at one location. • 75 miles is surface miles (shortest transportation route).

SERIOUS HEALTH CONDITION • Illness, injury, impairment or physical or mental condition that makes employee unable to perform functions of job. • Inpatient care • Continuing treatment by health care provider

DEFINITION OF CONTINUING TREATMENT • Any period of incapacity requiring absence from work of more than 3 full calendar days that involves continuing treatment by a health care provider.

CONTINUING TREATMENT DEFINITION • Two or more visits to health care provider, OR two or more treatments by a health care practitioner under orders from a health care provider, within a 30 day period. • A single visit that results in a regimen of medication or therapy.

SERIOUS HEALTH CONDITION (cont’d). • TREATMENT • Includes exam to determine if serious health condition exists REGIMEN Includes continuing prescription meds Does NOT include: over-the-counter meds; bed rest; drinking fluids; etc. NORMALLY cold, flu, ear aches, upset stomach, etc. are NOT FMLA events. However, the new regulations clarify that they can be if they otherwise meet the definition that follows.

CONTINUING TREATMENT (cont’d) • Pregnancy or prenatal care • Chronic conditions • Permanent or long-term conditions • Conditions requiring multiple treatments Absences due to pregnancy or chronic condition usually qualify even if there is no treatment prescribed.

PREGNANCY • Applies equally to males and females. Dads can attend prenatal visits and care for a spouse with severe morning sickness. • Both mother and FATHER are entitled to FMLA leave for birth and bonding during 12 month period beginning on day of birth.

ADOPTION OR FOSTER CARE • May take FMLA leave prior to placement or adoption if required for adoption or foster care to proceed (interviews, counseling, court appearances).

DEFINITION OF “SPOUSE” AND “PARENT” • Husband or wife, under state law; • Includes common law marriages in States where recognized. • “Parent” specifically excludes in-laws.

In Loco Parentis • On June 22, 2010, the Administrator issued an interpretation regarding employee standing “in loco parentis” to a child. • Regulations do NOT require both day-to-day care AND financial support of the child.

In Loco Parentis (cont’d) • Look at the intent of the person claiming in loco parentis status. • Specifically includes individuals who provide day-to-day care for unmarried partner’s child and employee who will raise adopted child with same sex partner.

UNABLE TO PERFORM • “Unable to perform functions of position” is unable to perform ANY ONE of essential functions of job within meaning of ADA. • Employer may provide list of essential functions to health care provider. These should be provided with the “eligibility notice.”

SUBSTANCE ABUSE • Substance abuse may be a serious health condition. • FMLA leave only for treatment for substance abuse by health care provider, not simply absence due to substance abuse. • Allows for “need to care for family member” coverage.

AMOUNT OF LEAVE • Same as prior • If employer changes time period for calculating “12 month period”, must give at least 60 days notice.

NEW TYPE OF LEAVE FMLA also provides leave due to a “qualifying exigency” arising out of employee’s spouse, son, daughter, or parent is a covered military member on active duty.

“QUALIFYING EXIGENCIES” • Short-notice deployment (leave up to 7 days) • Military events/related activities • Childcare and school activities (childcare is urgent/immediate basis) • Financial and legal arrangements • Counseling

“Qualifying Exigencies” (cont’d) • Rest and recuperation (up to 5 days of leave) • Post-deployment activities (events for a period of up to 90 days following termination of active duty status)

NEW TYPE OF LEAVE FMLA also provides for leave to care for a covered servicemember with a serious injury or illness, if the employee is the spouse, son, daughter, parent, or next of kin.

Care for Servicemember Applies when servicemember: Is on the temporary disability retired list; or, Has a serious injury or illness incurred in line of duty while on active duty, for which he is undergoing medical treatment, recuperation or therapy.

Care for Servicemember (cont’d) An eligible employee is entitled to up to 26 weeks of leave during a single 12 month period to care for a covered servicemember with a serious illness or injury. This leave is calculated on a “per servicemember”, “per injury” basis.

INTERMITTENT/REDUCED LEAVE SCHEDULE • Must be medical need for leave AND it can best be accommodated through intermittent or reduced schedule (as opposed to employee simply wanting intermittent leave). • Expressly includes morning sickness.

INTERMITTENT/REDUCED LEAVE SCHEDULE • Employer may transfer employee to alternative position during intermittent leave; HOWEVER pay and benefits must remain the same. • Employees must attempt to schedule leave so as not to disrupt company’s operations.

CONTINUATION OF BENEFITS • When employee returns from leave, must be reinstated on same terms as prior to taking the leave, without any qualifying period, physical examination or exclusion of pre-existing conditions. • These rules apply even if employee failed to make premium payment or declined coverage initially.

JOB RESTORATION EQUIVALENT PAY • Any unconditional pay increases • NOT increases based on seniority, length of service or work performed. • NO bonus if based on the achievement of specified goal such as hours worked, products sold or perfect attendance. (You must apply the same policy for all employees on any type of “leave without pay.”)

JOB RESTORATION EQUIVALENT BENEFITS • Not entitled to accrue any additional benefits or seniority during unpaid FMLA leave. • Employee on FMLA leave is deemed to be employed for purposes of vesting in pension plan.

NOTICE • Employer must post notice of FMLA rights and have policy in handbook. • The employee does not have to expressly request FMLA leave, but must give enough information to indicate the leave could qualify for FMLA designation.

Notice cont’d • “Eligibility Notice.” After leave is requested, the employer has 5 days to notify the employee of whether or not leave is available, and if not, state why it is unavailable. They should also notify the employee of medical certification requirements. • “Designation Notice.” The employer must designate leave as FMLA, paid or unpaid, in writing and notify the employee within 5 business days of making such determination (Up from 2 days).

PENALTY Failure to follow notice requirements may constitute an interference with, restraint or denial of FMLA rights. The employer may be responsible for any actual damages the employee suffers due to notice requirements not being followed.

DESIGNATION OF FMLA LEAVE • Remains employer’s right/responsibility to make decision. • In cases of a dispute on whether paid leave qualifies as FMLA leave, it should be resolved through discussions between the two. Such discussions and the final decision MUST be documented.

NOTICE BY EMPLOYEE • Must provide sufficient information for employer to determine that FMLA may apply. Calling in “sick” not enough. • For PLANNED medical treatment, employee must consult with employer to attempt to schedule treatment so as not to unduly disrupt operations – subject to approval of health care provider.

MEDICAL CERTIFICATION • Must give notice of requirement IN WRITING and advise of consequences. • Employee must provide a complete and sufficient certification. If not all entries on certification are completed, this is NOT complete. • If the certification is insufficient, employee must receive notice in writing of deficiencies.

MEDICAL CERTIFICATION • Certification requirements can include: • date condition began; • probable duration; • medical facts re: condition; • statement of need to care for family member, or inability to perform functions of job; & • If leave is not continuous, & leave is due to planned medical treatment, the expected dates & duration of the treatment.

QUESTIONING A COMPLETE MEDICAL CERTIFICATION • AUTHENTICATION – verifying that information was completed/authorized by health care provider • CLARIFICATION – cannot read handwriting or do not understand a response. Cannot ask for information beyond what is required on certification. • Workers Comp claims/inquiries are still “exempt” from these regs.

RECERTIFICATION • Still no less than 30 days. • Still no sooner than minimum duration on medical certification. • However, if the employer receives information that casts doubt upon the stated reason for the absence or the continuing validity of the certification, may request recertification sooner.

INTENT TO RETURN TO WORK • Not the same as recertification. May require employee to report periodically on intent to return to work. (Don’t discriminate though.) • If employer receives UNEQUIVOCAL notice of intent not to return to work, FMLA obligations cease.

FITNESS FOR DUTY REPORT • Only if required for similarly situated employees, whether on FMLA or not. • Must be related to employee’s health condition necessitating FMLA leave • Cost is borne by employee • Intermittent leave – no report for each absence. Only once every 30 days and only if reasonable safety concerns regarding ability to perform duties.

EMPLOYEE’S RIGHTS • Prohibited from interfering with, restraining, or denying the exercise of (or attempt to exercise) rights. • Refusing to authorize leave • Improper notice, or lack thereof • Delay in authorizing leave • Anti-retaliation provision

REMEDIES • File complaint with DOL • File private lawsuit • 2 years (3 if willful violation) • Wages, benefits, other actual losses directly associated (up to 12 weeks of pay) • Liquidated damages (double amounts) • Costs and attorney’s fees

Americans with Disabilities Act

ADA • The ADA prohibits discrimination in employment against a qualified individual with a disability who is able to perform the essential functions of the job, with or without a reasonable accommodation.

DIRECT THREAT • An individual who poses a direct threat to the safety of himself or others is NOT covered under the Act. Threat must be actual, not perceived.

DRUG USE • Current users of illegal drugs are specifically exempted from the ADA. However, an individual who has successfully completed drug rehabilitation, or is undergoing drug rehabilitation, is considered to be “disabled” under the ADA.

NEASHRM FMLA and ADA