FMLA & ADA Roundtable Discussion - June 10, 2024
"Join us for an insightful roundtable session on FMLA and ADA regulations featuring Abby J. Clark and Davis Campbell LLC. This event on June 10, 2024, will delve into crucial aspects of leave and disability law. Stay informed, ask questions, and engage with experts in the field. Email ajclark@dcamplaw.com for more information and to reserve your spot!"
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FMLA & ADA ROUNDTABLE ABBY J. CLARK ABBY J. CLARK AVIS & C & CAMPBELL AMPBELL L.L.C. D DAVIS L.L.C. JUNE 10, 2024 ajclark@dcamplaw.com
OVERVIEW 1. Family Medical Leave Act 2. Americans With Disabilities Act 3. Questions
FAMILY MEDICAL LEAVE ACT 1. Employer Coverage a. Private employers with 50+ employees 20 or more workweeks in current/prior calendar year Workweek = any part of the week Workweeks do not have to be consecutive b. Includes anyone on payroll, regardless of $ c. Includes employees on leave d. Includes joint employers + integrated employers
FAMILY MEDICAL LEAVE ACT 1. Employer Coverage b. Public employers + schools Regardless of # of employees
FAMILY MEDICAL LEAVE ACT 2. Employee Coverage a. Works for covered entity b. 12 months (does not have to be consecutive) Within last 7 years (USERA or CBA exception) c. 1,250 hours during last 12 months d. Employer has at least 50 employees within 75 mile radius
FAMILY MEDICAL LEAVE ACT 3. Qualifying Reasons a. Birth of son or daughter or placement of son or daughter for adoption or foster care Within first year May not be taken intermittently b. Care for spouse/son/daughter/parent with serious health condition c. Own serious health condition
FAMILY MEDICAL LEAVE ACT 3. Qualifying Reasons d. Qualifying exigency arising out of military member on active duty or call to activity Spouse, son, daughter, parent e. Care for covered service member with serious injury or illness Spouse, son, daughter, parent, or next of kin 26 weeks
FAMILY MEDICAL LEAVE ACT Serious Health Condition -- Illness, injury, impairment, or condition involving: 1. Inpatient care Overnight stay in hospital, hospice, or residential care facility Any period of incapacity or subsequent treatment
FAMILY MEDICAL LEAVE ACT Serious Health Condition -- Illness, injury, impairment, or condition involving: 2. Continuing treatment by health care provider a. Incapacity + treatment More than 3 consecutive, full calendar days Prescribed course of prescription medication OR One other visit to healthcare provider within 30 days of first day of incapacity b. Pregnancy (consecutive days/treatment not required)
FAMILY MEDICAL LEAVE ACT Serious Health Condition -- Illness, injury, impairment, or condition involving: 2. Continuing treatment by health care provider c. Chronic condition Periodic visits to healthcare provider at least 2x/year Consecutive days of incapacity not required Treatment during absence not required d. Permanent/Long-Term Condition e. Conditions requiring multiple treatments Restorative surgery after injury Condition that would likely cause 3 or more consecutive days of incapacity were it not for the treatment
FAMILY MEDICAL LEAVE ACT Qualifying Exigency 1. Covered Active Duty a. Spouse, son, daughter, parent b. Regular armed forces + reserves/national guard c. Deployment to foreign country
FAMILY MEDICAL LEAVE ACT Qualifying Exigency 2. Categories a. Short notice deployment (7 days or less) b. Military events and related activities c. Childcare + school activities Arranging alternate childcare, providing childcare on urgent/immediate bases, new school enrollment d. Financial/legal arrangements e. Counseling f. Rest/recuperation g. Post-deployment activities
FAMILY MEDICAL LEAVE ACT Military Caregiver Leave 1. Covered Servicemember a. Active duty in regular armed forces, reserves, national guard b. Receiving medical treatment, surgery, or therapy OR outpatient status OR temporary disability retirement list c. Serious injury or illness incurred in line of duty on active duty
FAMILY MEDICAL LEAVE ACT Military Caregiver Leave 1. Covered Veteran a. Armed forces, reserves, or national guard b. Discharged for reasons other than dishonorable c. Discharged within 5 years before first taking leave d. Serious injury or illness that is: Continuation of serious injury/illness incurred during active duty + rendered unable to perform Physical/mental condition w/VA Service Related Disability Rating of 50% or more Substantially impairs ability to work OR Basis for enrolment in VA Program of Comprehensive Assistance for Family Caregivers
FAMILY MEDICAL LEAVE ACT Next of Kin of Servicemember/Veteran 1. Nearest blood relative other than spouse, parent, son, daughter in following order of priority: a. Blood relative designated in writing as next of kin for FMLA b. Blood relative who has been granted legal custody of servicemember c. Siblings d. Grandparents e. Aunts and uncles f. First cousins
FAMILY MEDICAL LEAVE ACT Military Caregiver Leave 1. Single 12-month period a. Begins on first day of leave and ends 12 months later, regardless of calendar employer uses for other leave 2. Entitled to combined total of 26 weeks of leave for any qualifying reasons within the 12-month period
FAMILY MEDICAL LEAVE ACT Spouses Working for Same Employer 1. Limited to combined total of 12 weeks for birth/bonding/adoption/foster and for care of parent with serious health condition 2. Limited to combined total of 26 weeks for military caregiver leave 3. Each entitled to 12 weeks separately for care of spouse/son/daughter or own serious health condition 4. Each entitled to 12 weeks separately for qualifying exigencies arising out of son/daughter/parent is servicemember on activity duty
FAMILY MEDICAL LEAVE ACT Employer Notice Requirements 1. Poster (language, electronic) 2. General notice (handbook or upon hire) -- DOL Rights & Responsibilities (calendar, concurrent) 3. Eligibility notice (w/i 5 business days, concurrent requirements, calendar) 4. Designation notice (decision, amount, w/i 5 days, fitness for duty certification)
FAMILY MEDICAL LEAVE ACT Employee Notice Requirements 1. 30 days advance notice if foreseeable 2. As soon as practicable if leave isn t foreseeable 3. Failure to provide sufficient notice may result in delay/denial
FAMILY MEDICAL LEAVE ACT FMLA Certifications 1. DOL forms 2. Optional use, but can t request more than allowed by law
FAMILY MEDICAL LEAVE ACT FMLA Certifications -- Serious Health Condition 1. Notify employee if certification required 2. Provide form w/i 5 days of notice of need for leave 3. Employee must return w/i 15 days 4. Failure to timely return may lead to delay/denial 5. Before denying leave, employer must notify in writing of deficient certification (incomplete/insufficient) and allow 7 days to fix
FAMILY MEDICAL LEAVE ACT FMLA Certifications -- Serious Health Condition 6. Employee bears cost 7. Employer cannot contact provider directly if certification is incomplete or insufficient 8. Employer may contact provider for authentication or clarification, but not additional information (not direct supervisor)
FAMILY MEDICAL LEAVE ACT FMLA Certifications -- Serious Health Condition 9. Second opinions (can t just disagree, employer expense) 10.Third opinions (only if second opinion differs, employer expense) 11.Employee provisionally entitled to FMLA while waiting
FAMILY MEDICAL LEAVE ACT Recertifications 1. No more than every 30 days and only in connection with absence 2. If initial certification specifies minimum duration of more than 30 days, can t request until minimum expires (or every 6 months, but only in connection with absence) 3. Less than 30 days only if employee requests extension, circumstances change, employer receives info causing doubt 4. No second/third opinions 5. New certification each subsequent FMLA leave year
FAMILY MEDICAL LEAVE ACT Intermittent Leave 1. Where medically necessary and supported by certification 2. Separate blocks of time or reduced weekly/daily work schedule 3. Employee must work with employer to schedule foreseeable intermittent leave so as not to disrupt operations 4. Employer may transfer employee temporarily to alternate job with equivalent pay/benefits to accommodate recurring use of leave in way that s better for employer s operations
FAMILY MEDICAL LEAVE ACT Return to Work 1. Employer can require periodic reports on status and intent to return to work 2. Can require fitness for duty pursuant to uniformly applied written policy applicable to similarly situated employees on leave 3. Addresses ability perform essential functions of job, not demanding 100% healthy
FAMILY MEDICAL LEAVE ACT Inability to Return to Work 1. May terminated for absences after exhaustion of FMLA leave 2. BUT consider/potentially provide additional short-term leave as reasonable accommodation under ADA
FAMILY MEDICAL LEAVE ACT Protection from Retaliation 1. Prohibited from interfering with, restraining, or denying exercise of FMLA rights 2. May discipline for fraudulent use 3. Moonlighting policies
AMERICANS WITH DISABILITIES ACT Application 1. Employers with 15 or more employees (including part-time) 2. Employees who have a disability are protected from discrimination/retaliation and reasonable accommodation 3. Also protected from association/relationship with disabled individuals
AMERICANS WITH DISABILITIES ACT Disability 1. Impairment that substantially limits one or more major life activities 2. Record of such impairment 3. Regarded as having such an impairment
AMERICANS WITH DISABILITIES ACT Reasonable Accommodations 1. Perform the essential functions of the job or enjoy benefits/privileges of employment equal to others without disabilities
AMERICANS WITH DISABILITIES ACT Reasonable Accommodations -- Examples 1. Changes/adjustments to work environment or application process 2. Modified equipment/devices 3. Job restructuring 4. Part-time or modified work schedule 5. Reassignment to vacant position 6. Modifying exams, training materials, or policies 7. Readers/interpreters 8. Short term leave
AMERICANS WITH DISABILITIES ACT Interactive Process 1. Employers required to engage in interactive dialogue over accommodations 2. May request medical information relating to claimed disability and need for requested accommodation 3. Don t need to provide employee s preferred accommodation
AMERICANS WITH DISABILITIES ACT Undue Hardship 1. Employers not required to provide accommodation that causes undue hardship 2. High standard -- threaten the economic viability of the employer or inconsistent with employer s mission/purpose
AMERICANS WITH DISABILITIES ACT Medical Exams + Inquiries 1. May not ask applicants if they are disabled 2. Can ask how, with or without reasonable accommodation, applicant will perform essential duties of the job 3. Cannot require medical exam before making conditional job offer 4. Medical exams must be uniformly required, job related, and consistent with business necessity 5. Return fitness for duty -- okay if meets above
AMERICANS WITH DISABILITIES ACT Job Protection & Benefits Protection 1. If taking leave as reasonable accommodation, entitled to return unless holding job open would be undue hardship 2. Must receive same benefits as nondisabled employee on leave
FMLA & ADA ROUNDTABLE ABBY J. CLARK ABBY J. CLARK AVIS & C & CAMPBELL AMPBELL L.L.C. D DAVIS L.L.C. JUNE 10, 2024 ajclark@dcamplaw.com
