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AVOIDING THE LEGAL SNARES WHEN NEGOTIATING THE COMPLEX MAZE OF FMLA, ADA, PDA & WORKERS’ COMP LAWS

AVOIDING THE LEGAL SNARES WHEN NEGOTIATING THE COMPLEX MAZE OF FMLA, ADA, PDA & WORKERS’ COMP LAWS. Von E. Hays, Esq. vhays@kl.com 214.939.4959. Common Goal. ADA, FMLA and Worker’s Comp Laws serve a common goal:

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AVOIDING THE LEGAL SNARES WHEN NEGOTIATING THE COMPLEX MAZE OF FMLA, ADA, PDA & WORKERS’ COMP LAWS

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  1. AVOIDING THE LEGAL SNARES WHEN NEGOTIATING THE COMPLEX MAZE OF FMLA, ADA, PDA & WORKERS’ COMP LAWS Von E. Hays, Esq. vhays@kl.com 214.939.4959

  2. Common Goal ADA, FMLA and Worker’s Comp Laws serve a common goal: • To allow sick, injured or disabled employees to take time away from work without fear of losing jobs and benefits.

  3. Different Approaches • ADA: provides a right to work. • FMLA: provides a right not to work. • Worker’s Comp: provides compensation to those who cannot work.

  4. A Confusing Intersection • While the ADA, FMLA and Worker’s Comp Laws have common goals, the different approaches create the potential for confusion in their application, especially with employers’ leave policies.

  5. What Does That Mean For You? • The HR Professional is tasked with mastering this “Bermuda Triangle” and keeping the company out of trouble so …. LET’S GET SOME PRACTICE

  6. “REAL-LIFE” CASE STUDIES OF THE TRICKIEST OVERLAP ISSUESCase Study Number 1 • Is Bob eligible for FMLA leave? • Is Jennifer eligible for FMLA leave? • How much FMLA leave is available to Jennifer? • Are there limitations on the amount of FMLA leave that Jennifer and Bob can take because they are husband and wife?

  7. Is Bob Eligible for FMLA Leave? • Under the FMLA, an employee must have worked for the company at least 12 months and have worked at least 1,250 hours in the preceding 12 months to be eligible for FMLA leave. • Bob has worked for the company for well over a total of 12 months, but he been in Iraq on military duty and only has 980 “hours worked” in the last 12 months. • DOL memorandum regarding the rights of re-employed military veterans (July 26, 2002). • DOL opined that returning military service members are entitled to FMLA leave if the hours that would have worked had they not been called to duty bring them up to the FMLA eligibility threshold of 1,250 hours. • Employers should calculate this by taking the employee’s work schedule before he entered military service to gauge the amount of time he was gone and add that time to the hours that the employee has actually worked in the last 12-month period. • BOB IS ELIGIBLE FOR FMLA LEAVE.

  8. Is Jennifer Eligible for FMLA Leave? • Jennifer has worked for the company at least 12 months as she started in August of 2002 and it is now September of 2003. • Jennifer has worked more than the 1,250 hours in the preceding 12 month period. • Thus, Jennifer is eligible for FMLA leave.

  9. How Much FMLA Leave is Available to Jennifer? • Jennifer has used 2 weeks of leave for prenatal doctor’s visits, BUT only one week since she became eligible for FMLA (after August 2003). • Jennifer has indicated that she wants to take as much leave as she can when the baby is born. • Jennifer has remaining 11 weeks because she has already used a week of FMLA leave for this 12 month period.

  10. Are there Limitations on the Amount of FMLA Leave that Jennifer and Bob can Take because They are Husband and Wife? • Possibly, depending on the reason(s) that underlies the FMLA leave. • 29 C.F.R. Section 825.202 -- Limits a husband/wife employed by the same employer to a combined total of 12 weeks of FMLA leave if the leave is being taken for: • (1) for the birth, adoption or foster care placement of a child or to care for the child after the birth, adoption or placement; or • (2) to care for the employee’s parent with a serious health condition.

  11. Are there Limitations …? • Be cautious with Bob and Jennifer and don’t just assume that they only get a combined total of 12 weeks of FMLA leave. Know the specifics. • For example, if Jennifer’s doctor certifies that she will need 6 weeks to recuperate from the pregnancy, that leave is being taken due to mom’s serious health condition and thus, Jennifer would be taking 7 weeks off due to her own condition of being pregnant (including prenatal visits) and she has 5 more weeks that she can then take for “bonding.” • Bob, if supported by the doctor’s certification, could take the first 6 weeks off after the birth to take care of his wife recuperating from her condition of being pregnant and then he could take an additional 6 weeks off for “bonding time.” • In essence, both Bob and Jennifer may be able to each take 12 weeks of FMLA leave as a result of the pregnancy and resulting baby, depending on the specific reason for the leave.

  12. “REAL-LIFE” CASE STUDIES OF THE TRICKIEST OVERLAP ISSUESCase Study Number 2 • What action should you take, now that you are aware of Fred’s need for assistance? • What possible accommodations can you think of that might assist Fred?

  13. What Action Should You Take Now That You Are Aware of Fred’s Need for Assistance? • The EEOC and the courts have determined that once an employer becomes aware of an employee’s need for a possible accommodation, the employer must engage in an “interactive process” with the employee. • See e.g., Shapiro v. Township of Lakewood, 292 F.3d 356 (3rd Cir. 2002)(summary judgment for employer was inappropriate where employer failed to engage in an interactive process with the employee in response to the employee’s request for a job modification or reassignment). • The concept of the interactive process is not complicated. • It means that the employer has an obligation to discuss and explore possible accommodations with an employee once the employer is on notice that the employee might need such an accommodation to enable him to perform the essential functions of the job.

  14. “Reasonable accommodation” • “Reasonable accommodations” include … • Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.

  15. “Reasonable accommodation” CONTINUED • Certain modifications and adjustments are not “reasonable accommodations”, including … • Eliminating an essential function of a job. • Lowering production standards, whether qualitative or quantitative. • Providing personal use items.

  16. The Interactive Process – Requesting Reasonable Accommodation • The interactive process: the informal discussion between the individual and the employer to identify the person’s particular limitations and to establish the actions, if any, that would reasonably accommodate those limitations.

  17. The Interactive Process – Requesting Reasonable Accommodation CONTINUED • What notice is required? • That the person has a disability; and • That the person seeks assistance because of that disability.

  18. The Interactive Process – Requesting Reasonable Accommodation CONTINUED • The Substance of the interactive process • What should you do? • Know the essential functions of the job. • Ask questions to elicit relevant information about the precise job-related limitations caused by the disability. • Identify potential accommodations and assess the effectiveness of each.

  19. The Interactive Process – Requesting Reasonable Accommodation CONTINUED • What should you do? • If the disability is not obvious, ask for reasonable documentation of the individual’s disability and functional limitations. • Respond promptly. • Document thoroughly. • Be nice!

  20. What Possible Accommodations Can You Think Of That Might Assist Fred? Think creatively and consider alternative accommodations: • Working at home? • EEOC fact sheet (February 3, 2003) -- Work-at-home or telework may be a reasonable accommodation. • Additional leave beyond that required by the FMLA? • The courts and EEOC continue to emphasize that additional leave beyond the FMLA 12 week period may be a reasonable accommodation that an employer should consider.

  21. “REAL-LIFE” CASE STUDIES OF THE TRICKIEST OVERLAP ISSUESCase Study Number 3 • Is Susie in any protected classes? • What would Susie have to provide to prevail on her gender discrimination claim? • What facts support the employer’s position that the demotion was not related to Susie’s pregnancy? • What does Susie have to show to prevail on her FMLA claim? • Does a demotion equal an adverse employment action?

  22. Is Susie In Any Protected Classes? A female employee who is pregnant and who is using available FMLA leave. • A gender (pregnancy) discrimination claim. • A FMLA retaliation claim.

  23. What Would Susie Have to Prove to Prevail on Her Gender Discrimination Claim? • Susie will have to show that the demotion was based on her being a pregnant female. • If Susie only succeeds in showing that she was treated the same as other similar situated employees with similar performance issues, then the employer will win. • See Armstrong v. Systems Unlimited, Inc. (8th Cir. 9/8/03). (If a pregnant female establishes that she was treated the same although equally badly as similarly situated employees not in the protected class, she cannot prevail on her pregnancy discrimination claim.) • See Smith v. Allen Health Systems, Inc.,302 F.3d 827, 833-34 (8th Cir. 2002) (employee bears burden of showing employer’s justification is not credible. Evidence that employer had been concerned about performance problems before employee engaged in protected activity undercuts the significance of the temporal proximity of the adverse decision to the protected activity).

  24. What Facts Support the Employer’s Position that the Demotion was not Related to Susie’s Pregnancy? • Susie’s ongoing performance problems brought to her attention before she notified the company of her desire to become pregnant. • Six-month evaluation, which, although it was a “good” rating, did document that start of the performance problems. • Executive Director had begun to investigate the employee complaints prior to knowing of Susie’s pregnancy. • Evidence of additional performance problems that were discovered and additional employee complaints that were raised after Susie went on leave. Is it enough? Will employees stick by their complaints?

  25. What Does Susie Have to Show to Prevail on her FMLA Claim? Susie must demonstrate that her employer intentionally discriminated against her in the form of an adverse employment action for having exercised an FMLA right. • Susie will likely claim that her employer interfered with her substantive rights under the FMLA and retaliated against her by not restoring her to her position upon returning from leave, but rather demoting her.

  26. What Does Susie Have to Show to Prevail on her FMLA Claim? • FMLA grants an employee the right to take leave and reinstatement to the same or substantially equivalent position upon return from leave. 29 U.S.C. Section 2614(a)(1)(A). • The right to restoration, however, is not absolute. • Employer may refuse to restore the employee if doing so would confer any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken leave. 29 U.S.C. Section 2641(a)(3)(B). • With respect to its burden of proof, the company will again rely on the same factual information discussed previously to show that the demotion was based on Susie’s performance, not on her use of FMLA leave.

  27. Does a Demotion Equal an Adverse Employment Action? • The EEOC and courts have routinely held that a demotion itself may be an adverse employment action. • And if Susie quits? • A constructive discharge situation may also constitute an actionable employment action for purposes of the federal employment laws. See, e.g., Jennings v. Mid-American; Fenney v. Dakota, Dakota, Minnesota & Eastern Railroad Company, 327 F.3d 707 (8th Cir. 203). • Some courts have even extended the “constructive discharge” concept to apply to a “constructive demotion.” See, Fenney; Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir. 1999); Sharp v. City of Houston, 164 F.3d 923, 933-34 (5th Cir. 1999). A plaintiff claiming constructive demotion must show that he found the environment to be abusive and that an objective person in his position would have felt that he had to demote himself because of the discriminatory work conditions.

  28. “REAL-LIFE” CASE STUDIES OF THE TRICKIEST OVERLAP ISSUESCase Study Number 4 • Does Pat have an FMLA claim against his employer? • Does Pat have a disability for purposes of the ADA? • Assuming Pat has a disability, did the employer violate the ADA when it terminated Pat for excessive absenteeism?

  29. Does Pat Have an FMLA Claim Against His Employer? Issue: Pat used all his FMLA leave, but argues the company extended the FMLA protections to 6 months by its medical leave policy. • In an actual case involving a similar fact scenario, the court disagreed and relied on the statutory language of the FMLA in stating that an employer cannot modify the FMLA by adoption of its more generous leave policies. See Panto v. Palmer Dialysis Center, 8 Wage & Hour Cas. 2d (BNA) 1072 (E.D. Pa. 4/7/03). • The Panto court’s analysis is also consistent with the United States Supreme Court’s ruling in Ragsdale v. Wolverine Worldwide, Inc. 535 U.S. 81 (2002). • Contractual obligation? -- May depend on the state law and the language of the employee handbook.

  30. Does Pat Have a Disability for Purposes of the ADA? • Just because the employer is aware that the employee has a medical condition does not establish that the employee has a disability. • The employee’s impairment must substantially limit the employee’s ability to perform at least one major life activity. • The assessment of the employee’s condition must be done on an individualized basis based on particular objective facts about that employee’s abilities and limitations. • Pat’s condition appears to be substantially limiting in that he has a flare-up every month or two which lasts for several days and during that time Pat is confined to bed and cannot perform many of the daily life activities, such as caring for himself and working.

  31. Assuming Pat has a Disability, did the Employer Violate the ADA when it Terminated Pat for Excessive Absenteeism? • According to the EEOC, additional leave beyond that allowed under the FMLA may be a reasonable accommodation. • See Wood v. Green, 2003 WL 1090412 (11th Cir. 2003)(The court indicated that it is not a reasonable accommodation to request a leave of indefinite duration.) • Pat’s additional leave has not exceeded the 6 months of medical leave that the employer allows under its own policy, so assess whether there is an undue hardship if further leave is granted. • If there is no undue hardship, the ADA may even require leave beyond what is offered by the employer’s policy. • See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000) (Because no showing of undue hardship, employer may be required to provide leave beyond what policy allows. In this case, secretary with cancer who took 15 months of disability leave asked for an additional two months of leave and was terminated.)

  32. “REAL-LIFE” CASE STUDIES OF THE TRICKIEST OVERLAP ISSUESCase Study Number 5 • Were you correct in granting the leave of absence? • In responding to the civil rights complaint, can you question whether Mary has a disability? • Has the employer complied with its reasonable accommodation obligations?

  33. Where You Correct In Granting The Leave of Absence? • It appears that Mary’s injuries are work-related and the company doctor has recommended a leave of absence. • Depending on your state’s workers’ compensation laws, Mary may be entitled to workers’ compensation benefits during the 4-week leave. • Additionally, if Mary is eligible for FMLA leave, you also should designate this 4-week leave as part of her FMLA leave. It is still recommended that you notify Mary in writing that you are counting the leave as FMLA even after the U.S. Supreme Court decision in Ragsdale v. Wolverine Worldwide, Inc.

  34. In Responding to the Civil Rights Complaint, Can You Question Whether Mary Has A Disability? • ABSOLUTELY! • That is almost always an issue that is open to questioning. • You may find yourself at a disadvantage if you do not raise the issue early – waiver. • Also consider questioning what major life activities are substantially impaired? • If Mary claims that she is limited in her ability to perform manual tasks, remember that they need to be manual tasks that are central to most people’s daily lives. See Toyota Motor Mfg. Kentucky Inc. v. Williams, 534 U.S. 184 (2002).

  35. Has The Employer Complied With Its Reasonable Accommodation Obligations? • Assuming that Mary may have a disability, a smart employer should consider whether it has met its reasonable accommodation obligations and should spell those efforts out: • Steps taken with respect to engaging in an interactive process; • Describe what reasonable accommodations were provided to Mary: • The ergonomic evaluation • The exercise brochure • The gel pad • The leave of absence • Ordered the ergonomic chair.

  36. Has The Employer Complied With Its Reasonable Accommodation Obligations? What about the delay? • There are federal court decisions on both sides of this argument. • In Danielson v. AT&T Corp., 2003 WL 225360 (Minn. App., April 29, 2003) a Minnesota court concluded that the delay in providing accommodations to an employee did not rise to the level of a failure to accommodate. • A Maryland court, however, held that a delay in and of itself could be unreasonable and amount to a failure to accommodate. See Cohen v. Montgomery County Dept. of Health and Human Services, 817 A.2d 915 (Md. Ct. App. 2003). • The delay in Cohen was more significant than the delay in Danielson, which may help explain the different rulings.

  37. Useful FMLA Links FMLA Statute: www.dol.gov/dol/esa/public/regs/statutes/whd/fmla.htm FMLA Regulations: www.dol.gov/dol/allcfr/Title_29/Part_825/toc.htm FMLA Compliance Guide: www.dol.gov/dol/esa/public/regs/compliance/whd/1421.htm FMLA Poster: www.dol.gov/dol/esa/public/regs/compliance/posters/fmla.htm

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