what employers need to know about fmla, ada and gina...fmla and the americans with disabilities act...

9/22/2011

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What Employers Need To Know About

FMLA, ADA and GINASeptember 21, 2011

Leo S. Fisher, Esq.Arianna S. Gleckel, Esq.Anthony E. Cooch, Esq.

Bean, Kinney & Korman, P.C.2300 Wilson Boulevard, 7th Floor

Arlington, VA 22201(703) 525-4000

www.beankinney.com

Family and Medical Leave Act (FMLA)

Federal law that entitles employees to take up to 12 workweeks of unpaid, job-protected leave in a 12 month periodTo be eligible, employee must have worked for 12 (non-consecutive) months within the past 7 yearsOnly applies to employers with at least 50 employees within 75 miles of an employee’s worksite

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FMLA Continued

Qualified leave includes:To care for a spouse, child or parent who has a serious health conditionEmployee has a serious health condition that makes the employee unable to perform the essential functions of the jobThe birth of a child and to care for the newborn within 1 year of birthTo care for a newly placed adopted child of the employee within 1 year of placement

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Scenario One

Your employee, E, submits a request to take FMLA leave to care for her husband who suffers from chronic liver disease, a serious medical condition. The husband had a kidney transplant several years ago and his wife transports him to and from medical appointments, cooks and feeds him, assists with providing his medication and helps him move around the house.

E submits all the necessary paperwork to you and since her husband’s disease is a serious medical condition and she has not used up all her FMLA leave this year, you grant E the FMLA leave.

You later learn from another employee, who is facebook friends with E, that she has taken a trip to the Philippines with her husband while out on leave. When E returns from her trip, you request an explanation as to the purpose of the trip. E states that she and her husband traveled to the Philippines to attend mass, pray, speak with a priest and obtain spiritual healing. You also learn that she visited family while there.

It is still unclear to you, after speaking with E, if this trip was a vacation or for medical treatment and care. Is travel while on FMLA leave protected? What should you do if you learn an employee has or plans to travel while out on FMLA leave?

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Scenario One Continued

Is the employee seeking treatment or taking a vacation?

Courts have held that spiritual trips and healing pilgrimages do not constitute medical care within the meaning of FMLAFMLA does include leave to provide “psychological comfort and reassurance” to a sick spouse but this does not extend to accompanying an ill spouse on trips unrelated to medical care

What if the trip was to obtain medical care but included incidental socializing?

No clear standard yet but most likely would be covered

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Scenario One Continued

E’s leave is not covered by FMLA since it was for spiritual healing

If the medical certification you receive is questionable or incomplete, an employer can require second opinion from another medical provider if it has reason to doubt the validity of the medical certification

What should you do if you learn an employee has or plans to travel while out on FMLA leave?

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Best Practices

Obtain complete and sufficient medical certification regarding an employee’s or a spouse’s serious health condition, including information about treatment plans and durationUpdate your handbook to include a policy that requires employees to timely respond to inquiries related to FMLA leave (i.e., length of the leave, the basis for the need for the leave and expected return to work date)

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Best Practices Continued

Update your policy to require employees using sick leave to remain in the immediate vicinity of their home when they are utilizing sick leave unless they are seeking treatment or attending to the ordinary and necessary activities directly related to personal or family needs.

FMLA does not shield an employee from termination if the employee was involved in misconduct related to the use of the FMLA leave

Apply all policies consistently with respect to employees taking FMLA and non-FMLA leaves of absenceConduct a thorough investigation and allow the employee to explain the trip before making a decision to terminate

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FMLA

FMLA does not authorize employees to keep their employers in the dark about when they will return from leave

If the leave is unforeseeable, the employee often will not know how much time is needed but it is the employee’s duty to keep the employer informed about timing and duration of absence

Courts have held that when an employer receives an ambiguous request for leave and the employer has attempted to communicate with the employee to determine the nature of the need for leave and the employee does not communicate with the employer for over a week, an employee cannot prevail on an FMLA claim

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Scenario Two

E applies for FMLA leave and states that she has been diagnosed with post-traumatic stress disorder and that she needs bed rest, therapy, medications and time off of work. You ask her for additional documentation so you can understand why E is unable to perform her job duties.

E states that she has provided you all the necessary information to take medical leave and will not provide additional documentation.

What do you do? Can you terminate E?

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Scenario Two Continued

An employer has a right to request medical certification that provides sufficient information to allow the employer to understand the incapacitation of the employee seeking leave as well as what treatment may be required for the impairmentE failed to provide support to show the employer that she has a serious health conditionThe employee must provide the requested certification within 15 calendar days or may provide the employer with an authorization allowing the employer to communicate directly with the health care provider

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Scenario Two Continued and Best Practices

Validity vs. SufficiencyIf the employee has provided a medical certification that the employer doubts the validity of, the employer should follow-up by requesting a second and third (if necessary) medical opinionHowever, failure of an employee to provide the initial certification does not trigger the employer’s duty to request additional opinions, only to notify the employee of the deficiency and what information is still needed

Request the initial certification in writing when the employee gives notice of the need for leave (within 5 business days) and advise the employee in writing of the consequences of failing to provide complete, sufficient medical certification

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Best Practices Continued

If you believe a complete certification is unclear or possibly forged, a human resources manager or leave administrator may contact the health care professional to clarify and authenticate the certification

This cannot be done by a supervisorClarification is asking the provider to explain an unclear response or illegible handwritingAuthentication is showing the provider the certification and asking if this is what was submitted and signedNo additional information can be solicited from the provider, as this will constitute a HIPAA violation

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Second Opinions

If you doubt the accuracy of the medical certification, you can obtain a second opinion from a health care provider chosen by the employer but it is at the employer’s expenseThe selected provider cannot be employed by the employer on a regular basisWhile the second/third opinions are pending, the employee is provisionally entitled to the benefits of FMLABut if the certifications ultimately do not establish the employee’s entitlement to FMLA leave, the employer may treat the time as paid or unpaid leave under the employee’s established leave policyThe employer can request recertification once every 30 days

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Conclusion

FMLA and the Americans with Disabilities Act requirements overlap

Some employees who take FMLA leave may be considered disabled under the ADAIf the ADA is implicated for a particular employee, all medical information must be maintained in separate medical files and be treated as a confidential medical record

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The Americans with Disabilities Act (ADA)

Federal law which prohibits discrimination against qualified individuals with disabilities during the employer/employee relationship

Applies to private employers with more than 15 employees

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Elements of the employer/employee relationship protected by the ADA include:

Job application proceduresHiring / FiringAdvancementCompensationTraining

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Who is someone with a disability?Person has a physical or mentalimpairment that substantially limits one or more major life activitiesPerson has a record of such impairment; orPerson is regarded as having such an impairment

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Reasonable AccommodationRequired for a known disability and have a record of the disabilityNot required if the accommodation will impose an “undue hardship” to operation of the employer’s business

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Examples of Reasonable AccommodationSign language interpreter during interview with a deaf applicantRegular breaks for an employee with diabetes so they can eat and monitor sugar levelsEmployee with cancer may need to leave work for treatment

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Undue Hardship: An action requiring significant difficulty or expense when considered with size of employer, financial resources of employer, or nature and structure of the employer’s organization

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The ADA Amendments Act (ADAAA)

Signed into law in 2008Final Regulations were enacted in March 2011

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Expanded the definition of disabilityADA:

impairment must prevent or severely restrict an individual from doing activities central to most people’s daily lives

ADAAA: impairment that substantially limits one major life activity qualifies as disability

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Expanded the definition of what is considered a “Major Life Activity”

ADA: Original regulations contained a list of 9 major life activities. Activities were defined as of central importance to most people’s daily lives

ADAAA: Now, the list has been expanded to 19 activities including: reading, concentrating, communicating and thinking.

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Mitigating measures not consideredADA:

Considered in determining whether impairment substantially limits a major life activity

ADAAA:Not considered except for eyeglasses and contact lenses

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Episodic condition or condition in remission

ADA:Unless active, no accommodation warranted

ADAAA:Condition must be considered as if active

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Accommodating a Disability

Step 1: Notice of the DisabilityBurden is on employee to put employer on notice of any disabilityException: disability and adverse impact on job performance are obvious

i.e.: employee with cerebral palsy

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Step 2: Making the reasonable accommodation

Take a look at the employee’s job, its purpose and required dutiesConsult with employee regarding how to overcome the limitationsIdentify accommodations Consider the employee preference and implementation cost

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Step 3: Assess whether the accommodation will be an undue hardship on the employer. Take into account:

Nature and cost of the accommodationOverall financial resources of the companyOverall financial resources of the particular office or facility involvedDocument facts that support whatever conclusion is reached.

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Scenario 1

Mr. A is diagnosed with lupus and discloses to employer. Mr. A is a cashier who becomes easily fatigued due to the disability and has difficulty making it through an entire shift. Mr. A requests an accommodation.Mr. A meets with employer. Mr. A states that standing for long periods causes him fatigue. He explains that if allowed to sit, he would be able to make it through his shift. He requests a leather recliner and footstool where he can sit during work in order to reduce fatigue.

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Scenario 1 – part 2

Due to the location of Mr. A’s workspace and the cost of implementing a lounge chair solution, Employer instead offers a stool as an accommodation.

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Analysis

Employee disclosed disability.

Employer addressed the effect of the disability and discussed possible solutions with employee.

Several accommodation options were considered .

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Practice Pointers

“Reasonable Accommodation” enables the employee to perform the essential functions of their position.

Discuss the possible solutions with employee.

Employer is not required to accept the exact accommodation requested by employee.

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Scenario 2

Job candidate is about to be hired as long as he passes a drug test.Candidate arrives at the testing facility to take the drug test. Before taking the test, he leaves the facility. Because he refused to take the test, he was not hired. Candidate later complains he has a disability in his fear of confined spaces.Candidate sues employer claiming an ADA violation and claims employer failed to accommodate.

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Scenario 2 – part 2

Very low threshold used to determine if a disability existed. Plaintiff satisfied the definition of disability under ADAAA based solely on his own affidavit. No independent medical evidence was provided.Employer was successful and the case was dismissed because:

Employer had no knowledge of the disability before refusing to hire Candidate.Candidate made no request for accommodation.

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Practice Pointers

For applicants, focus on qualifications and candidate qualities that make him a good fit or bad fit for a position. Don’t focus on the disability.If in an interview an individual requests an accommodation to complete the interview, provide it.Provide as much advance warning as possible if testing will be required so that the individual can request accommodation if necessary.

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Scenario 3

Mr. X is the janitor. He has worked for employer for approximately three years. During that time, he has been disciplined several times and was recently warned that if his performance did not improve he would be fired. The disciplinary warnings were documented.Shortly after his last disciplinary meeting, Mr. X claimed to have a disability.Mr. X’s disability resulted in him taking excessive sick days. Mr. X applied for additional sick leave and long-term disability benefits.

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Scenario 3 – page 2

When Mr. X returned to work, he met with his employer. His history was discussed and performance expectations set. These were provided to him in writing and additional progress follow up meetings were scheduled.Mr. X’s performance did not improve and he was terminated for poor job performance and failing to follow policy and procedure.Mr. X sued claiming that employer violated the ADA. He claimed he was terminated due to his disability.

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Analysis

Plaintiff’s claim was dismissed.Court found that Plaintiff had job performance problems before his disability and at the end of his employment.The key evidence was the Employer’s extensive documentation of the Employee’s performance issues and his inability to show that he was meeting expectations.

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Practice Pointers

The mere existence of a disability does not preclude termination. But when the threat of a claim exists, documentation is key.What to Document:

Discuss problems with the employee – listen to the employee’s complaints / comments.Document the issue, discipline and discussion.Have the employee sign the documentation.

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The Genetic Information Nondiscrimination Act (GINA)

Federal law prohibiting discrimination in group health plan coverage based on genetic information.

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GINA Restrictions

Prohibits group health plans or health insurance issuers from requesting or requiring genetic testing of employeesProhibits a plan from collecting genetic information before or when a person enrolls in a planProhibits a plan from collecting genetic information for underwriting purposes

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Genetic Information

Information about an individual’s genetic tests.Information about a family member’s genetic tests.Any request for or receipt of genetic services or participation in clinical research that includes genetic services.Does not include information about the sex or age of the individual.

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Genetic Tests

Includes: Analysis of DNA, RNA and the detection of genotypes, mutation or chromosomal changes

Does Not Include:HIV test, CBC, cholesterol test, liver function test or test for the presence of alcohol or drugs

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GINA and the Health Risk Assessment

Health Risk Assessment (HRA) is a health questionnaire used to provide persons with feedback regarding their health risks due to lifestyle and other factors.

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GINA prohibits a health plan from collecting genetic information

Prior to or in connection with enrollment ORAt any time for underwriting purposes.

Genetic information includes family medical history.

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The HRA can request family medical history if

Completed after and unrelated to enrollmentNo premium reduction or reward for completing the HRA

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Can offer a premium discount or other reward for completion of an HRA if the HRA does not request family medical history or other genetic information.HRA should specifically state that genetic information should not be provided.

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Plan can use two HRA’s One collects genetic information such as family medical history

Conduct after enrollmentNo reward

One does not request genetic informationCan be tied to a reward

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Other permissible rewardsParticipation in annual physical even if family medical history is discussed during the exam.Participation in disease management or prevention programs.

Incentives must be available to those who qualify for the program but have not volunteered family medical history information

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THANK YOU!

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what employers need to know about fmla, ada and gina...fmla and the americans with disabilities act...

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