Don’t Leave Me Now: Integrated Leave
Management under the ADA, FMLA and
Workers’ Compensation Laws
Jeff Nowak, Franczek Radelet P.C.
Melanie Peterson, EEOC
Scott Roberts, Hirsch Roberts Weinstein LLP
Tackling the Three-Headed Monster
AGENDA
Goal: Provide overview of the many, many
issues that arise when trying to tame the
three-headed monster – FMLA, ADA, and
Workers’ Comp
Methodology: Interactive Case Studies, or
“Let’s Just Jump Right in to the Deep End of
the Pool”
Q & A
Introduction of Panel
Case Study #1
Case Study #1 – Issue Spotting
Where the FMLA Ends, ADA Begins
• Does employer have obligation to
communicate?
• Personnel policy changes under ADAAA
– Obligation not to discriminate, reasonable
accommodation
• What are employee’s obligations?
• What does employer’s communication look
like?
6
I Just Called…to say…I Love You!
• As of [date], you will have exhausted all FMLA leave available to you.
Presently, you have no additional leave time available. We understand
that you currently are unable to work through [date]. As such, we
expect you to return to work the following workday, [date]. If you fail
to report for work on your expected return date and have not
contacted us, we will presume that you have voluntarily resigned your
employment.
• If you are not able to return to work by the above date, or if you
believe you may need some assistance or accommodation to resume
your normal job duties, or if there is any other information about your
return to work that you wish to call to our attention, you must contact
[contact name / telephone no.] as soon as possible before this date.
• Before returning to work, you will be required to provide a return-towork certification confirming that you are able to perform the essential
duties of your position and are able to return to work.
7
Can the School Terminate Kathy?
• Kathy contacts you: needs another 4 weeks off,
since she’s recuperating from surgery to remove
fluid from her back. “I know I am a burden to
you, but I still am in pain. I miss you guys.”
• Her doctor will review her status at three weeks
to determine whether she can return to work
• What do you think?
8
What Information Can Employer Obtain?
• Medical facts/condition at issue
• How these affect employee’s ability to perform
essential job functions, and which job functions
• Whether HCP can identify any accommodations
that would help employee perform job functions
• Expected date upon which employee can perform
essential job functions
• Will requested leave allow employee to perform
essential functions now or in immediate future?
9
Kathy’s Second extension…
•
•
•
•
After doctor appointment, Kathy avoids you
Give her an extra week (a total of 5 weeks) & call her
Kathy still cannot return to work
Requests another 4 weeks. Pressure in back is
diminishing, but still in pain. Physician wants to
meet with her in four weeks for follow up.
(“Doc thinks I may be ready to return…”)
• Prescription note: “Off work until July 19, 2013. Will
re-evaluate.”
• Time to Terminate? What are the considerations?
10
“Costs” to Employer: Undue Hardship?
• Significant losses in productivity because work is completed by less
effective, temporary workers or last-minute substitutes, or
overtired, overburdened employees working overtime who may be
slower and more susceptible to error
• Lower quality and less accountability for quality
• Lost sales (?)
• Less responsive client service and increased client dissatisfaction
• Deferred projects
• Increased burden on management staff required to find
replacement workers, or readjust workflow or readjust priorities in
light of absent employees
• Increased stress on overburdened co-workers
• Lower morale
11
But really, How does this work?
• Give serious consideration to employee’s request
• Interview supervisory staff to determine how:
– employee’s work has been absorbed now & in
future
– what are the hardships created by the absence
• Document the alternatives you have examined to
extend leave and the undue hardship
• Before termination: make sure you can justify—with
documentation—the business rationale for the
decision
12
Henry v. United Bank
• Two other credit analysts and Henry's boss had taken on
extra work that resulted from Henry's absence, which in
turn strained the department
• No other employee available, causing an overload on dept.
• Hiring a temp employee was not an advisable business
practice, due to the confidential nature of client
information and particularized training involved
• Analysts' loan review responsibilities expected to increase
because of increased regulations on the financial industry
• The Bank was expecting an increase in new loans, creating
further stress on a short-handed staff.
13
Follow United Bank’s lead
• Carefully administer FMLA leave
• Communicate regularly with the employee
while he or she is on FMLA leave
• If additional leave beyond FMLA is requested:
– Individually assess the individual's return to work
with or without a reasonable accommodation
– Interview your managers/employees
– Document how the continued absence
significantly impacts your operations
14
Case Study #2
Case Study #2 – Issue Spotting
Reasonable Accommodation & ADA
• Is Gia entitled to a change in the way things
are normally done at work so she can perform
her grant-writing job?
• Pregnancy not an impairment under the ADA.
– What about complications due to pregnancy?
– Medical complications due to pregnancy are
covered under the ADA.
– Employer can ask for more medical information if
necessary to determine whether or not to grant a
reasonable accommodation.
Employer Must Engage in the Interactive
Process re: Request for Accommodation
• Request for reasonable accommodation need not
be formal or even made by the individual in need
of the accommodation.
• Gia asked to telework. SU’s response is to place
Gia on FMLA leave.
– Has need for the interactive process been fulfilled?
– NO!!
– Why not? You name it: No discussion with her. No
request for any additional information. No discussion
of how it would be accomplished. No presentation of
alternatives.
Accommodations Granted to Remove
Barriers to Performing Essential Functions
of the job.
• Gia is a grant writer -- what are the essential functions
of her job?
– Writes, coordinates tours, uses SU computer.
• Can Gia be accommodated by working from home?
– Writing – can be done at home.
– Coordinates tours. Does not conduct them.
– SU computer – could use an SU laptop or desktop
computer with the requisite encrypted drive.
– Climbing ladders not a part of her job. Can she work
unsupervised?
– Has she/have others been allowed to telework?
• Regular attendance is not an essential
function of Gia’s job.
– Writing can be done at anytime.
– Gia can return phone calls and e-mail messages at
anytime and from nearly anywhere. Gia does not
have to be in her office to do her work.
– There is no indication she needs to be in her office
during any particular hours. If some set hours are
necessary, working from home should not be a
barrier.
Unpaid Leave Can Be a Reasonable
Accommodation under the ADA.
• ADA allows an indeterminate amount of leave, barring
undue hardship, as a reasonable accommodation.
– Unspecified is not indeterminate.
– Time for surgery, to recuperate, etc.
– May result in extended medical leave after FMLA has expired.
• Exhaustion of the 12 weeks of FMLA leave does not constitute undue
hardship under the ADA.
– Employer should allow employee to exhaust accrued paid leave
first.
• Employer may ask the employee about why the original
prediction of the duration of leave was wrong and why
more time is needed. EEOC Enforcement Guidance.
• BUT, Gia did NOT even ask for FMLA leave. SU forced it on
her.
ADA: Reasonable Accommodation Request
Granted Unless There is Undue Hardship.
• Employer has to establish the undue hardship.
• SU has raised a safety concern. OK under the
ADA?
– Likely not. Why not?
•
•
•
•
Paternalistic.
Not based on relevant facts.
No demonstration she is of harm to herself or others.
No medical evaluation concerning the likelihood of any such
danger.
– What about Title VII of the Civil Rights Act of 1964?
• Pregnancy Discrimination Act modified Title VII.
• SU running the risk of a pregnancy discrimination lawsuit.
What Role Does Gia’s MS play here?
• Should be no role. Why?
• She has not asked for reasonable accommodation for her
MS.
• SU knows about her MS, but has insufficient reason to
believe that an accommodation was requested for her MS
so she could perform her essential functions.
• Cannot deem someone a safety risk just because employer
knows of a potentially disabling condition.
• Employer cannot determine mitigating measures for an
employee, including medication for MS!!
• SU running the risk of a disability discrimination lawsuit for
acting on knowledge of Gia’s MS and the fact that she has
not been taking her meds during her pregnancy.
100% Healed Policies Violate the ADA.
• 100% healed policies are contrary to
employee rights to reasonable
accommodations.
• ADA places no time limitation on reasonable
accommodation.
• SU’s willingness to hire Gia back when she is
100% healed does not save SU from the fact
that it terminated Gia due to her disability.
SU’s Main Failings
• Failure to conduct individualized assessment.
• No interactive process.
• Forcing on FMLA and automatic termination resulted
robbed employee of her right to reasonable
accommodation.
• Acted on fear, not facts.
• Requires a fitness-for-duty examination to re-hire Gia,
which to be lawful must be job-related and consistent
with business necessity.
• Made an EEOC investigator’s job really easy - not in a
good way for SU.
Case Study #3
Light Duty under FMLA
• Can employer offer light duty instead of FMLA
leave?
– 825.207(e): Employee can take leave instead of
light duty assignment
– If employee takes light duty position, time cannot
count against FMLA
Modified/Light Duty
• Light duty only for “on-the-job” injuries?
– Long-held practice/CBAs
– EEOC position: cannot reserve light duty only for
on-the-job injuries
• Agree: Stephenson v. United Airlines (9th Cir.
2001)
• Disagree: Dalton v. Subaru-Isuzu (7th Cir. 1998)
• Argument that discrimination not based on disability,
but rather where someone was injured?
Modified/Light Duty
• Employer can offer temporary modified/light
duty positions (EEOC Guidance 195.002, 1996)
• Return to “full duty” or else…
– “Risk of a [100% healed] policy is even greater, if
not absolute.” Powers v. USF Holland (7th Cir. ‘11)
– ADA requires individualized assessment
– Determine whether reasonable accommodation
available
– Remove automatic termination provisions
Disclosure of Reasonable Accommodation
• What can an employer share about an
employee’s reasonable accommodation?
– Can’t disclose employee’s “medical” information
– Acting for legitimate business reasons or in
compliance with federal law (EEOC Guidance, ’97)
– Policy of assisting employee who has difficulty in
the workplace…but matter is private (Williams v.
Astrue (EEOC 2007))
– “Medically disqualified” from performing certain
work duties (Dozbush v. Mineta (EEOC 2002))
“Get Back to Work”
• Best practices for handling end of light duty
– Need information from employee first
– Conduct individualized assessment
– Communicate with employee about possible
accommodations
• Modest extension of light duty
• Reassignment to vacant position
• Leave
– Termination
Case Study #4
Is Roger a Qualified Individual with a
Disability under the ADA?
• ADA covers mental impairments: “Any mental or
psychological disorder, such as an intellectual
disability…, organic brain syndrome, emotional or
mental illness, and specific learning disabilities.” 29
C.F.R. §1630.2(h)(2).
• “Severe depression” qualifies.
• Even if the symptoms of the condition come and go or
are in remission, limitations caused by the impairment
during an active episode are sufficient to establish the
person has a disability, and person only has to show
substantial limitation of one major life activity.
• Employer has the right to ask employee for medical
documentation when the disability and/or need for
accommodation is not obvious.
• As with other disabilities, an employer may not seek
too much information. See The Mental Health
Provider's Role in a Client's Request for a Reasonable
Accommodation at Work,
http://www.eeoc.gov/eeoc/publications/ada_mental_h
ealth_provider.cfm
Qualified? What are the Essential Functions
of the Job? Questions to ask, Include:
• What was the employee hired to do?
• What are the core tasks or functions of the
job?
• Job description relevant, but does not control.
• Particularly where mental impairments are
concerned, employers may expect appropriate
employee conduct and good social skills, but
these are more appropriately performance
issues, not “essential functions” of the job.
What are the Essential Functions
of Roger’s Job?
• Assistant Professor, Journalism Department.
• Primarily teaches Intro to Journalism and
Entrepreneurial Journalism.
– Was Roger hired just to teach these two courses?
• Probably not, but need more information.
– Can only Roger teach these courses?
• Unlikely.
• Intro – obviously not – other faculty members covered the
Intro classes during his sabbatical.
• Entrepreneurial – Unknown. However, University covered
his classes during his sabbatical with adjunct faculty.
Does University Have to Allow Roger
to work Part-Time?
• Part-time work as reasonable accommodation
under the ADA:
– Allowing a qualified individual with a disability to
work part-time in his/her current position, or
– Allowing a qualified individual with a disability to
occasionally take time off,
– IF it would not impose an undue hardship on the
employer.
• That is, the accommodation would NOT be too difficult or
too expensive to provide, in light of the employer's size,
financial resources, and the needs of the business.
Part-Time Work and Undue Hardship
• If employer can establish that working reduced hours
would cause an undue hardship in the current position,
must look for a vacant, equivalent position for which
the employee is qualified and to which the employee
can be reassigned without undue hardship while
working a reduced schedule.
• If no such equivalent position available, look for a
vacant position at a lower level for which the employee
is qualified.
• If there is no such position at a lower level available,
continued accommodation is not required.
Undue Hardship Factors in Roger’s Case?
• Roger is the only one teaching Entrepreneurial Journalism.
– But, University covered for him before with an adjunct professor.
• Is there really no one else on the faculty who could cover the
course while Roger recovers? For example, there may be faculty
who could, but do not desire to do so.
• Is the cost prohibitive if Roger is allowed to work part-time?
• Department resources.
• Will there continue to be a separate journalism department.
• Any unique facts: For example, must Entrepreneurial Journalism
be taught every semester/term?
• Is Roger’s RA request too indefinite?
– Not unusual not to be able to specify an exact return-to-work date
from the outset.
– Case-by-case determination. May need to reassess impact over time.
– What are University’s leave and leave-related policies and practices?
Equivalent Vacant Position
• Is there an equivalent vacant position to which
Roger could be temporarily reassigned that
would accommodate his need for a part-time
schedule?
• If there is no equivalent position, could he be
transferred to a lower position?
• Could Roger be reassigned to do public
relations work for University – temporarily or
permanently?
What if Roger takes FMLA Leave but Cannot
Work Full Time after FMLA expires?
• If teaching Entrepreneurial Journalism is an essential
function of the job – FMLA: 12 weeks. He only has used 3 weeks. Remaining
equivalent part-time or intermittent leave up to equivalent
of 12 weeks.
– No duty to assign to another vacancy if still cannot
perform the essential functions of his job at the end of the
leave period.
– ADA: Leave is viewed as a reasonable accommodation for
medical treatment or recuperation. No set time specified.
More than 12 weeks possible, because not bound by
FMLA. Employer still has obligation to search for
equivalent vacant positions.
Part-Time Status and Tenure
• ADA applies to tenure. Cannot discriminate against an
employee with respect to tenure because of his/her
disability.
• Under ADA, disabled and nondisabled employees may be
subject to the same evaluation criteria, but not necessarily
required to perform the job in the same manner.
• How is tenure defined?
• What are University’s other leave and leave-related
policies? For example, how does maternity/paternity leave
affect the tenure clock? Does University have a policy of
extending probationary period for those who take FMLA or
other leave? Does employee have to ask for the extension
(stopping of the tenure clock) or is it automatic?
Q&A