Effectively Managing Difficult FMLA (Family and Medical Leave Act) and ADA (Americans with Disabilities Act) Issues

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Today’s Webinar

Effectively Managing Difficult

FMLA and ADA Issues

Hosted by: Presented by:

The Partners Group Jeff Nowak, Partner

Total Absence Management Franczek Radelet

EMPLOYEE BENEFITSEMPLOYEE BENEFITS

■ Welcome and Introductions

■ The Partners Group (TPG) Overview

■ TPG Absence Management Services

■ FMLA

■ ADA

Today’s Agenda


Employer Services

Retirement & Investment Services

Commercial & Individual Insurance

Interas™ Data and Analytics

w w w. t p g r p . c o m

Complementary Health & Wealth Management

Services

The Partners Group (TPG)


Patty Borst Jean Shearer Brycie Repphun

TPG Total Absence Management

Practice Leads

80+ combined years of experience and insights:- Total Cost of Absence Analysis and ROI models

- Policy review, program design and process improvement

- Integrated Absence Management and Population Health Strategies

- Market Analysis, RFP Management, Vendor Selection

- Project and Implementation Management for outsourced and insourced

solutions

- Data Analytics and Performance Benchmarking

- Transitional Return to Work Programs

- Leave and ADA training and communication strategies

- Compliance updates and best practice recommendations

Industry Leading Experts


■ Compliance Risk Assessment

■ Total Cost of Absence Analysis

■ Absence Management Solutions Review

TPG Total Absence Management Services


Why does it Matter?

■ Risk of Non-Compliance

■ Cost of Absenteeism

■ Consistent and Coordinated

Management

Absence Management –

Employer Challenges


Jeff Nowak, Partner, Franczek Radelet

■ Mr. Nowak serves as co-chair of Labor and Employment practice for Franczek Radelet P.C.

■ Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting audits and training and litigating FMLA and ADA lawsuits.

■ The author of the highly regarded FLMA Insights blog and serves on the editorial board of the Family and Medical Leave handbook.

■ Jeff received his B.A. from Indiana University and graduated cum laude from Indiana University School of Law.

Today’s Speaker

[email protected]

www.franczek.com

www.fmlainsights.com

http://linkedin.com/in/jeffnowak@jeffreysnowak

http://www.franczek.com/

http://www.fmlainsights.com/

http://linkedin.com/in/jeffnowak


Is Anyone Listening to Me?


■ Susie is a supply clerk: has two elderly parents

who require her support and attention

■ Recently:

Employee Notice


■ Pattern:

■ Occasionally, Susie reports her absences late

■ Susie’s supervisor now wants to discipline her for her poor attendance

Employee Notice


■ “The Employer may find it necessary to inquire further to determine if the leave is because of a serious health condition . . .” 29 C.F.R. 825.302(c)

■ Fairly broad right to talk directly to employee

■ Employer has right to know:

What Can an Employer Ask An

Employee?


■ Employee must comply with employer’s usual

and customary notice and procedural

requirements for requesting leave absent unusual

circumstances

■ If employee does not follow, FMLA may be

delayed or denied

Enforce Your Call-In Policy!


■ Jamie: Psychiatric technician for Univ. of Pitt.

■ Awful attendance record: In the three months leading up to her termination: absent twice, tardy six times and switched shifts constantly

■ She called her supervisor prior to a scheduled shift and shared the following:

■ Supervisor wrote in log: “Sick mom”

■ 3rd Circuit: Question of fact as to whether employer had sufficient information

Lichtenstein v. U. of Pitt., 691 F.3d 294 (3rd Cir. 2012)

Issues Involving Employee Notice


“I Need to Take Leave.

But How ‘Bout We Not Call It FMLA…”


■ Maria seeking leave to care for her father

■ Maria was an FMLA pro: 15 previous leaves

■ Maria: no contact until two weeks after scheduled return;

terminated for no call/no show

Need Leave…But Not FMLA Leave?


■ Maria files FMLA interference lawsuit

■ Key issue: Can an employee decline FMLA?

■ Court: Circumstances in which employee might

seek time off but intend not to exercise his or her

rights under the FMLA

Escriba v. Foster Poultry Farms (9th Cir. Feb 25, 2014)

Need Leave…But Not FMLA Leave?


■ Should We Follow the Escriba decision?

■ Ignore Escriba decision?

■ What do you tell your employees?

How Do We Deal with this Decision?


The Social Media Bust:

What Do You Do When Facebook

Nabs Your Employee?


■ Gia: needs to care for mom in Mexico

■ Continuous leave for 4 weeks; provides certification

■ Two weeks into Gia’s FMLA leave, one of Gia’s co-

workers, Molly, tells HR manager:

Here’s the photo of her new FB profile pic

Gia is the one in front…

The Social Media Bust


Waaaaaahoooooo!!


■ Some courts: job protection can be denied

based on an “honest belief/suspicion” that

the employee was abusing leave

■ Analysis is largely fact-intensive

Honest Belief Defense

“Honest belief/suspicion” test (7th Cir.):

An employer “need not conclusively prove that

[the plaintiff] had misused her leave; an honest

suspicion will do.”


■ Courts look for complete/exhaustive investigation

■ Employers lose when there is no sense of “due process” or there is a rush to judgment

■ What is a complete investigation of the facts?

Honest Belief: Best Practices


Best Practices in Recertification


■ Fred is one of your direct reports

■ Suffers from irritable bowel syndrome

■ Can we seek recertification? If so, why?

■ What does recertification look like?

Fred Seeks Recertification


■ General Rule:

Recertification


■ Do we have a significant change in frequency?

■ Pattern?

Frequency/Pattern


Where FMLA Ends, ADA Begins


■ Last year, Susie transferred to the position of Asst. Director, Addictions Services

■ Neck pain, blurred vision, dizziness

■ Diagnosed with spinal cord compression

■ Provide accommodations (time off, staggered schedule), but condition gets worse

■ Takes FMLA leave; medical certification = “indeterminable”

■ Don’t hear from Susie

■ Coming up on 10th week of FMLA leave and nervous she will not return

What do you do?



■ Does employer have obligation to communicate?

■ What are employee’s obligations?

■ What does employer’s communication look like?



As of [date], you exhausted all FMLA leave available to you and presently are on

additional leave provided by [name of employer]. Presently, you have no additional

leave time available. We understand that you currently are unable to work through

___________________. As such, we expect you to return to work the following

workday, ______________. If you fail to report for work on your expected return

date and have not contacted us, we will presume that you have voluntarily resigned

your employment.

If you are not able to return to work by the above date, or if you believe you may

need some assistance or accommodation to resume your normal job duties, or if

there is any other information about your return to work that you wish to call to our

attention, you must contact [contact name / telephone no.] as soon as possible

before this date.

Before returning to work, you will be required to provide a return-to-work

certification from your health care provider confirming that you are able to perform

the essential duties of your position and are able to return to work.

I Just called…to say…I Love You!


■ Susie contacts you: needs another 4 weeks off,

since she’s recuperating from surgery to remove

fluid from her back. “I know I am a burden to you,

but I still am in pain. I miss you guys.”

■ Her doctor will review her status to determine

whether she can return to work at that point

■ How do you respond?

First Extension


■ Medical condition or facts at issue (no diagnosis!)

■ How condition affects employee’s ability to

perform essential job functions; and what job

functions

■ Whether doctor can identify any accommodations

that would help employee perform job functions

■ Expected date upon which employee can perform

essential job functions

■ Will requested leave allow employee to perform

essential functions in near future?

What Information is an Employer

Entitled to?


■ You tell her “OK,” but you need a note in 4 weeks

confirming she can return without restrictions

■ After doctor appointment, Susie avoids you

■ You give her an extra week (for a total of five weeks)

and call her

■ Susie still cannot return to work

■ Requests another four weeks. Pressure in back is

diminishing, but still in pain. Physician wants to meet

with her in four weeks for follow up. (“Doc thinks I

will be ready to return…”)

What do you think?

Second extension…


■ Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error

■ Lower quality and less accountability for quality

■ Lost sales (not here)

■ Less responsive client service and increased client dissatisfaction

■ Deferred projects

■ Increased burden on management staff required to find replacement workers, or readjust workflow or readjust priorities in light of absent employees

■ Increased stress on overburdened co-workers

■ Lower morale

“Costs” to Employer: Undue Hardship?


■ If additional leave is requested (before or

after maximum is reached), an employer

also can request that the employee’s HCP

respond to the following:

■ EEOC Resource: May also request

relevant information to determine undue

hardship

Extension Requests


■ Employers have no obligation to provide leave of

indefinite duration

■ EEOC Resource:

EEOC Position on Indefinite Leave

“Indefinite leave – meaning that an employee cannot say whether or when she will be able to return to

work at all – will constitute an undue hardship, and so it does not have to

be provided as a reasonable accommodation.”


■ Two other credit analysts and Henry’s boss had taken on

extra work that resulted from Henry’s absence, which in

turn strained the department

■ No other employee in the bank was available to temporarily

fill Henry's analyst position, causing an overload on dept

■ Hiring a temp employee was not an advisable business

practice, due to the confidential nature of the client

information to which the credit analysts have access and

the particularized training involved

■ Analysts’ loan review responsibilities expected to increase

because of increased regulations on the financial industry

■ The Bank was expecting an increase in new loans, creating

further stress on a short-handed staff

Henry v. United Bank


■ Give serious consideration to employee’s request

■ Interview supervisory staff to determine:

■ Document the alternatives you have examined to

extend leave and the undue hardship

■ Don’t Forget about Reassignment!

■ Before termination, justify—with documentation—the

rationale for the decision

But really, how does this work?

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■ All participants of today’s webinar will receive a copy

of the PowerPoint and a link to a recording of this

presentation

■ For any questions that we didn’t have time to address

today, we will send a summary Q & A

■ A short survey will follow at the end of this webinar.

Please take a few minutes to reply

Information to follow


Questions?

Please send any additional questions to

Patty Borst at [email protected]

and Jean Shearer at

[email protected]

mailto:[email protected]

mailto:[email protected]

EMPLOYEE BENEFITS





www.tpgrp.com

800-722-6339

Portland | Lake Oswego

Bellevue | Bend | Bozeman

EMPLOYEE BENEFITS

Thank you for the

opportunity to present to

you today!

Healthcare

Effectively Managing Difficult FMLA (Family and Medical Leave Act) and ADA (Americans with Disabilities Act) Issues