Interplay of FMLA, ADA & Worker’s Compensation

Managing Absenteeism in Legal Compliance

Presented by:

Jacqulyn G. Schulte, Esq.

(248) 974-5340

jschulte@jgschultelaw.com

GOALS

• To get your “red flags” to go up in any absenteeism situation and recognize potential legal landmines.

• To “diffuse” any landmine and successfully navigate past it.

• Utilize the 6 tools for success in addressing absenteeism.

Why Recognize Landmines?

Organization and individual managers may be held legally liable for violating an employment law:

• If they knew of the violation but failed to act;

• Or failed to act appropriately;

• Or failed to recognize the violation (when a jury says they should have)

And “hindsight is 20/20 vision”

CASE STUDY

• Once-good employee; Manager had given her breaks by not documenting everything (anything).

• Employee’s performance/attendance has declined significantly. Manager is now tired of her “lame excuses”.

• “Fire her now!”

What do you do?

Quick Note: “At-Will” Employment

• Exception to At-Will doctrine: Can never take an adverse action for a reason that violates a law.

• Thus: No such thing as an “at-will termination”.

• Employer must always have a legitimate, non-discriminatory, documented reason for action.

LANDMINES TO BEWARE

• FMLA – Employee’s time off work was protected by law.

• ADA – Employee’s poor performance is due to a disability for which she is entitled to a reasonable accommodation.

• Discrimination/Harassment – Employee is experiencing differential treatment because of a legally-protected trait.

LANDMINES TO BEWARE

• Sexual Harassment – Employee is unreasonably subject to a sexually hostile work environment or quid pro quo harassment.

• Retaliation / “Whistleblower’s Protection” – Employee is being retaliated against for having complained about a possible violation of law.

LandminesHow to Recognize & Address Them

FMLA: Implicated as a potential landmine when employee gives notice to employer of need for FMLA-qualifying leave.

FMLA Fundamental #1

“3 Prongs of Notice”:

–Need time off work

–Possible FMLA-qualifying reason

–Approximate start date/duration

Landmines - FMLA

Case study What did she say when she called off work?– Did she satisfy the “3 Prongs of

Notice”? – Did she say anything in

conversations with the supervisor (or HR) that satisfies notice?

Landmines - FMLA

After FMLA-qualifying notice given,

all obligations shift to employer:

1. Employee eligible?

Give “Notice of Eligibility Form” & appropriate “Certification of HCP” form

2. Situation eligible?

Give “FMLA Designation Notice”

3. Monitor leave time & RTW (Fitness for Duty)

FMLA Fundamental #2

FMLA Protection Applies if:

• Employer Eligible

• Employee Eligible

• Situation Eligible

Objective (not subjective) decision.

Not: Should I let them take time off?

Not: Does employee want to take LOA as FMLA or not?

FMLA Fundamental #3

FMLA has nothing to do with compensation

FMLA: FMLA is unpaid “unless an employer has a compensation policy stating otherwise.”

Your comp. policy FMLA is paid until PTO exhausted, then remainder unpaid.

FMLA Qualifying Situations– Birth, adoption, or foster care placement of a child;

WH-380-E

– Employee’s own serious health condition WH-380-E

– Serious health condition of an employee’s immediate family member – spouse, child, parent

WH-380-F

– “Qualifying exigency” related to military leave of an employee’s immediate family member WH-384

– Caregiver leave for injured servicemember if employee is immediate or next of kin. WH-385

“Serious Health Condition”

• Hospital inpatient care

• 3-day absence + treatment

• Pregnancy (incapacity or prenatal care)

• Chronic condition requiring treatment(> 2x in past year)

• Permanent/long-term condition requiring supervision

• Multiple treatments for non-chronic conditions (chemo; kidney disease)

FMLA PROTECTION

• Job protection – cannot be fired while on FMLA leave;

• Benefits protection – “major” benefits including health care;

• 12 weeks of protection for a 12 month period of time NOTE: 26 weeks protection for caregiver leave for injured service-member.

• Restoration to job & benefits upon RTW.

FMLA-WC Interplay

All leaves of absence for on the job injuries will BOTH:

• Possibly qualify for worker’s compensation; and

• Qualify as FMLA protected leaves of absence.

“Rail 1” = FMLA Protection

“Rail 2” = Compensation Issue

Landmines - FMLA

1) Recognize “red flag” of notice

2) Make determination: protected or not– Employee eligible?– Qualifying situation?

3) Administer FMLA

- “Pre-Leave Expectations Meeting”

- Administer FMLA bank;

- RTW & fitness for duty

Landmines - ADA

ADA: Implicated as potential landmine when employee is having difficulty performing an essential part of their job.

Job performance/attendance difficulty

+“Medically-ish” reason

Recognizing an ADA situation

• Law: Employee’s duty to request accommodation in writing

• But: Any notice of disability to employer can incur employer liability – employer must inform of possible ADA rights.

Recognizing an ADA situation

1. Employee tells you they’re having difficulty performing job function (or attendance or tardiness) because of a disability

2. If employee having difficulty performing job function, or attendance or tardiness, ASK what’s wrong.– Listen & document answer

Refer Employee to ADA Policy or HR

Recognizing an ADA situation

3. Employee writes response to evaluation / discipline / PIP referencing disability as a reason

4. Employee presents Fitness for Duty note stating can return to work but with restrictions.

This is a written request for ADA Accommodation.

Forward information to HR

ADA Process

* Recognize potential ADA situation and refer to rights/report notice

1) Employee gives written notice of request for reasonable accommodation

2) HR verifies employee is “QID”Determine impact of disability on job functions

3) HR/Manager ask employee for input and offer a reasonable accommodation.

ADA – Q.I.D.

1) Actual, record of or regarded as having a disability

2) Substantially Impacts 1+ life activities (working is one)

3) Permanent/Long-term (> 6 months)4) Qualified for job

& disability not directly related to job

5) No health/safety exception

ADA: Reasonable Accommodation

It is the employer’s sole decision as to what reasonable accommodation to offer the employee/applicant

–Need not choose one of employee’s suggestions

–Need not choose the “best” one

–Selected accommodation need only be “reasonable”

If employee rejects the offered reasonable accommodation, employee is no longer protected by ADA and can be disciplined for failing to perform essential job functions.

ADA-WC Interplay

Employee returning from leave of absence for on the job injuries may have restrictions

• Dr.’s note re: restrictions = written ADA notice;

Warning: Cannot prohibit from RTW with restrictions.

LandminesDiscrimination & Harassment

Title VII: Implicated as potential legal landmine when employee complains about being treated differently, or of discriminatory or harassing conduct/communication.

Remember: Courts & juries also hold employers and supervisors responsible for situations they “should have known about”.

Landmines - Discrimination

•Race•Sex / Gender•Age•National Origin•Familial Status

•Religion•Veteran Status•Disability

Discrimination laws prohibit an employer or agent of an employer from making employment-related decisions based even in part on an employee’s protected trait.

Landmines - Discrimination

How to prevent discrimination claims:

Document all foundational events leading up to the adverse employment action

– Coaching, verbal & written warnings, etc.

– Each should include “wrong” done, opportunity to respond, and warning of “next step” for continued violation;

How to recognize a potential discrimination or harassment landmine:

ASK!Examples:

- Why has your performance declined?

- Why has your attendance declined?

Landmines - Discrimination

Landmines- Sexual Harassment

• Recognizing potential sexual harassment or discrimination is not easy for most supervisors and managers.

• Instead, ask supervisors and managers to look for, recognize, report & address “inappropriate workplace conduct”.

Landmines - Harassment

Illegal

Policy Violation

“Inappropriate Workplace Conduct”

Landmines - Retaliation

Federal and state laws protect employees who report actual or suspected violations of law. – Employee’s report/complaint

need not be correct.– “Retaliation” can be almost

anything negative related to work.

– Retaliation claims often survive after underlying legal claim is dismissed.

Landmines - RetaliationHow to prevent:

• Adopt a policy requiring employees to report suspected violations of any law to HR or Legal department first.

• Educate managers/supervisors about non-retaliation.

• Give notice of policy to employees through Handbook and staff meetings, etc.

Landmines - RetaliationHow to recognize a potential claim:

• Ask for & listen to an employee’s response before disciplining, terminating, etc.

• Use exit interview to ask employee’s opinion of working for the company, both good and bad. Listen for claims of rule violations, and follow up immediately.

Controlling Absenteeism

• Identify attendance/tardiness problem (document) and discuss with employee

• ASK reason for absenteeism

• LISTEN to response; Listen for landmines (FMLA, ADA, etc)

Controlling Absenteeism

• If landmine report to HR/Legal and address accordingly.

• If no landmine

–re-state attendance expectation (not personal),

–levy discipline, and

–warn of consequences for continued violation

Questions and Answers

Thank You!!