FMLA, ADA, Workers' Compensation & the Bermuda

Triangle

Kate BischoffSHRM-SCP

@k8bischHRLaw

What We’re Going to Cover…

• Current state of affairs

• Smidge of basics

• Disability discrimination

• Reasonable accommodations

• Leaves

• Scenarios

@k8bischHRLaw

What’s the DOL Thinkin’?

• “[F]ront-line managers…who are often unaware of what is protected by the … FMLA… are uniformed about their role in the process.”

• “They also sometimes engage in improper communication with employees about motives or personal lives, and it’s exactly these types of behaviors that can lead to discrimination & wrongful termination claims & introduce liability for organizations.”

• Helen Applewhaite, DOL FMLA branch chief to HR Dive

@k8bischHRLaw

SHOCKING!Managers pose the greatest compliance risk for FMLA, ADA,

workers compensation

@k8bischHRLaw

Americans with Disabilities Act• Prohibits discrimination & ensures equal opportunity for persons with

disabilities in employment, State and local government services, public accommodations, commercial facilities & transportation

• Broadly defines disability• A physical or mental impairment that substantially limits a major life

activity• A record of a physical or mental impairment that substantially limits a

major life activity• A perception of a disability

• Includes “silent” disabilities, like mental health diagnosis• Major life activities include learning, thinking, concentrating, and

communicating• EEOC says many mental health disorders will be a disability

@k8bischHRLaw

QUIZ - ADA Edition

• What are your obligations as an employer under the ADA?• Engage in the interactive process

• Provide a reasonable accommodation

• What is a reasonable accommodation?

@k8bischHRLaw

Undue Burden

Items to consider:

• Nature & cost of the accommodation

• Financial resources of the organization

• Number of employees of the organization

• Effect the accommodation would have on the resources of the employer

• Impact the accommodation would have on the employer

• Note to Managers:

Not liking it ≠ undue burden

Employers are not required to make an accommodation if it creates an undue burden.

@k8bischHRLaw

Reasonable Accommodation Requests

• Not required to be in writing

• Enough information to suspect that a reasonable accommodation could be needed

• “I’m really depressed and stressed out.”

• “I can’t drive for six weeks.”

• “I need to keep my leg elevated.”

• “I’m not feeling well and haven’t been for the past few weeks.”

• You all need to recognize these requests

@k8bischHRLaw

Scenario

Opioids. You believe an employee is under the influence of opioids. What do you do?

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QUIZ! Who is Covered?

• Who is a covered employer?• Private sector employers with 50 or more

employees in 20 or more workweeks in the current or proceeding calendar year

• Who is a covered employer?

• Worked for the employer for at least 12 months

• Worked 1,250 hours within 12 month period immediately proceeding leave

• Works at a location that has 50+ employees within 75 miles

@k8bischHRLaw

QUIZ – What’s Covered?

• Up to 12 weeks of unpaid leave for?

• Serious illness of employee

• Care for immediate family member with a serious health condition

• Placement or birth of a child

• Qualifying exigency related to an immediate family member being in the military on covered active duty

• Care for covered servicemember (26 weeks)

@k8bischHRLaw

Scenario - What About My Brother?

• DOL language suggests that siblings when in a situation of in loco parentis, FMLA may be appropriate

• Courts have disagreed generally

• What would you do?

@k8bischHRLaw

Serious Health Condition

“Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:

• Any period of incapacity or treatment connected with inpatient care• Requiring an absence of more than three calendar days that involves

continuing treatment• Any period of incapacity due to pregnancy or prenatal care• Any period of incapacity due to a chronic serious health condition

(asthma, diabetes, epilepsy, etc.)• Absences to receive multiple treatments

@k8bischHRLaw

Scenario – JoAnna

JoAnna has been complaining lately about how her ankle hurts. She’s hobbled around for a couple days. Today, she heads to her herbalist for some treatment. Her herbalist tells her that she can’t work for two weeks while the treatment works. The herbalist gives JoAnna a note, and JoAnnagives the note to you.

@k8bischHRLaw

Conversations• Employee comes to manager, says I need _____

• Manager freaks out, sends employee to HR

• HR talks to employee – as law requires

• Identify the need (accommodation, leave, or combo)

• What laws/policies protect the employee?

• Address employer’s need for information

• Forms

• Certification

• Information about essential job duties

• This conversation is not a one-time event

• “Interactive process” required?

@k8bischHRLaw

Scenario – Company Policy

Company has a policy outlining how employees are to call in when they need to be absent. The policy requires calls – texts won’t do.

Stevie is on intermittent leave for back pain. He calls most of the time, but he texts other times and sometimes, his girlfriend who also works there tells his manager.

Stevie gets fired because the Company considered all the times he didn’t call unexcused.

@k8bischHRLaw

EEOC Allows Limited Information

• Under guidance from the EEOC, health care providers are not required to give a specific diagnosis, only enough information for which you are then required to grant a reasonable accommodation

• Think conditions that carry a stigma• HIV/AIDS

• Hepatitis

• Addiction

• Required to protect this information

@k8bischHRLaw

Scenario – Georgina

Georgina was in a car accident outside of work. She has been in the office, but is currently off of work. You’ve given her all the necessary paperwork for FMLA, but she has not returned it. You’ve called. You’ve emailed.

@k8bischHRLaw

Fitness for Duty

• Use caution – consistency & notice required

• Have fitness for duty as a policy & then use the policy

• The employer may request a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave

@k8bischHRLaw

Intermittent Leave

FMLA requires employers to allow employees to take leave on an intermittent basis

• Same serious health condition requirement

• May calculate leave on an hourly basis

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Effect on: Worker’s Compensation

• Leave under FMLA & worker’s compensation can run concurrently

– Considered an employee’s own serious health condition

– State in handbook

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Employee Health Information

• Don’t mix & mingle

• Must be kept separate under ADA, GINA & state laws

• Under lock & key (electronic or in hard copy)

• Access only if there’s a need to know (includes HR team & IT)

• Just give it to HR

@k8bischHRLaw

The Oversharing Problem

• Employees have a right to privacy in their health information

• Managers & co-workers only need to know that an employee is out on leave or needs the accommodation – not the details

• Avoid opinions & value statements in connection with disability or serious health condition

@k8bischHRLaw

What Not to Say…

• “You can come back when you’re fully released to work without restrictions.”

• “That’s not our policy.”

• “She never said she was disabled.”

• “There’s no way she can do this job.”

• “You’re getting older…”

• “You’ve got to try these essential oils!”

• “Go to X Treatment Center. That’s the only way you’ll beat this.”

@k8bischHRLaw

ScenarioGenhi has been out of the office for two weeks. Her manager stops by HR to explain that Genhi has been diagnosed with cancer & is not likely to return to work soon. Genhi’s manager tells her that she can take as much time as she needs.

25

@k8bischHRLaw

ScenarioAndy, who has worked for the Company for about 2 years as a full-time salesperson finds out his fiancé is cheating on him. Although he says he’s fine, he has been coming in later than usual, his hygiene appears to be suffering. Perhaps the weekend will cheer him up.

On Monday, Andy is a no show. He also fails to show up on Tuesday. Toby calls him to find out why he is not coming in & warning him that his next absence will result in termination. Andy replies that he is ill, but should be back the next day, Wednesday. He fails to show up. Toby fires Andy.

@k8bischHRLaw

Scenario Angela suffers from post-traumatic stress disorder which result in panic attacks. Her doctor certifies that when an attack occurs, she is not able to do her job.

An essential function of Angela’s job is engaging in high power meetings with corporate. This coming Thursday, she needs to present a cost-reduction proposal to Corporate. The morning of the proposal, Angela calls-in & says she is not able to come in to work due to a panic attack. Toby fires her.

@k8bischHRLaw

Takeaways

• Leaves are hard

• FMLA is harder

• These are easy to goof up

• Use DOL resources

• Contact someone when you have questions

@k8bischHRLaw

Questions?

Kate Bischoff

(612) 361-7707

(320) 249-9269

kbischoff@thrivelawconsulting.com

thrivelawconsulting.com