T06) Surviving the Frozen Tundra

Surviving the Frozen Tundra:
Managing Leave in the Legal Arctic Circle
Presented by:
Catharine Morisset, Esq.
©
1
“The era of employers being able to inflexibly and
universally apply a leave limits policy without seriously
considering the reasonable accommodation requirements of
the ADA [is] over . . . . Inflexible leave policies which ignore
reasonable accommodations making it possible to get
employees back on the job cannot survive under federal
law.”
Source: EEOC 9/29/09 Press Release announcing $6.2 million dollar
settlement
©
2
Answer Common
Questions about Key Laws
Compare Key Laws
Watch Out for Terminations
Test your Knowledge
Identify Common Mistakes
©
3
 Figure out which laws apply immediately
 Examine obligations under EACH law separately
 Consider all information learned from handling each
different legal claim
©
4
Remember Your Destination
ADA
Worker’s
Comp.
FMLA
State/Local Leave
SHRM’s
HR Prof.
5
©
6
Recertification allowed every 6 months, even for
ongoing, indefinite, or lifetime conditions
Can recertify if
 “Substantially changed circumstances” or
 Reason to doubt validity of leave
Can provide health care providers with a record of
absence pattern
 Can ask health care provider if absence pattern is
consistent with employee’s condition
©
7
Restoration to same or equivalent position
Employer may deny job restoration if it can show:
 Employee cannot perform essential job functions
 Employee would not have been employed at the end of the
FMLA leave (layoff, job elimination, termination for
misconduct)
©
8
Must be medically necessary.
Can be taken intermittently in days, hourly increments
or even fractions of hours.
Medical certifications should support the medical
necessity of intermittent leave.
Employer can request why leave is necessary and the
schedule for treatment
©
9
©
10
Failing to follow up
 If employee fails to respond to provide FMLA forms,
follow up and document!
 Requests for medical information should not be
intermingled with discipline or job performance
discussions
Too restrictive regarding “serious health condition”
 E.g., mental health conditions
 Seek legal advice
©
11
Failing to terminate or document decision to terminate
employee prior to employee’s request for FMLA
Failing to designate the method of calculating the
FMLA 12-month period
Failing to consider reassignment to a vacant position.
©
12
True or False?
You may not request a FFD
certification at the end of the
FMLA leave period if it
coincides with the original
date set by the health care
provider.
©
13
©
14
Alaska
 Disability/reasonable accommodation
 AFLA = state employees
©
15
Oregon
Disability/reasonable
accommodations
Domestic partners included
in military family and OFLA
OR Military Family Leave Act
OFLA “Sick Child Leave”
©
16
Washington
Disability/reasonable
accommodation
 Pregnancy/childbirthrelated disability
 Domestic partners eligible
under WFLA
 Family Care Act

©
17
Seattle Paid Sick and Safe Leave
 Paid leave at mandatory accrual
levels based on employer’s size
 FT, PT, temporary and “occasional”
workers leave right
 Includes preventative care
 Cannot require medical certification
for illnesses < 3 days without
pattern of abuse/proof of misuse
 Leave runs concurrently
 Anti-retaliation rights
©
18
©
19
Failing to give notice to employees
Failing to understand when leave can run concurrently
©
20
©
21
Since the ADAAA, disability charges filed with the EEOC
increased dramatically
 From 1997-2007, charges remained steady (between
15,000 – 18,000 charges per year)
 Since 2008, charges have increased each year (25,742
charges filed in 2011)
EEOC has continued to focus on leave and attendance
policies
 Beware systemic discrimination claims!
©
22
“ESSENTIAL” Job Functions
“REASONABLE” ACCOMMODATIONS
“UNDUE HARDSHIP”
©
23
Be accurate about essential v. marginal functions
Example: Receptionist
©
Essential Functions
Marginal Functions
• Answering the telephone
and assisting callers.
• Recording messages for
department personnel.
• Greeting clients and
customers.
• Serving coffee to clients
and customers.
• Escorting clients to staff
offices.
24
“Disability” Means
ADAA
Alaska
Oregon
Washington
(1) impairment
substantially
limits >1 major
life activities,
(2) a record of
such an
impairment, or
(3) being
regarded as
having such an
impairment.
ADAA plus
“a condition
that may
require use of
a prosthesis,
special
equipment for
mobility or
service animal”
ADAA except
“regarded as”
is minor and
does not apply
if impairment <
6 months
Disability = “the presence of a
sensory, mental, or physical
impairment that:
(i) is medically cognizable or
diagnosable; or
(ii) exists as a record or
history; or
(iii) is perceived to exist
whether or not it exists in fact.”
©
25
No time limit on ADA leave if no
undue hardship
 Courts: Anywhere from 6 to 18
months can be reasonable unless
undue hardship
 EEOC: No bright line rule, but
specifically state states that an
“otherwise qualified individual
with a disability is entitled to
more than 12 weeks of unpaid
leave as a reasonable
accommodation.”
©
26
Indefinite leave generally not
“reasonable”
EEOC refuses to accept that indefinite
leave is always “unreasonable” or an
“undue hardship”
“Reasonable” = if leave will allow
employee to perform the essential
functions in the near future
“When will this leave end?”
The expected duration of the
impairment, rather than the expected
duration of the leave, controls
Individualized assessment
©
27
Flexible or even part-time work schedules may be
required as a reasonable accommodation if they
do not pose an undue hardship.
The key is an effective “interactive process” to
explore potential accommodations.
Remember: temporarily disabling conditions may
trigger reasonable accommodation obligations.
©
28
Which law offers broader protections to employees:
The FMLA or the ADA?
©
Why?
29
©
30
Poor or no communication from
supervisors “in the know”
 The supervisor’s knowledge
= Employer’s knowledge
 Overemphasis on “privacy”
 Failure to engage in the
interactive process =
violation of antidiscrimination laws
 Reach out to employee if
they don’t reach out to you
©
31
Forgetting about state laws.
Not considering additional unpaid leave with job
restoration as accommodation.
Not considering modification of policy as
accommodation.
©
32
Failing to adequately acquire or analyze medical
information
Failing to identify/document “actual” essential job
functions
Failing to document performance deficiencies
©
33
True or False?
An employee who does not
have a “serious health
condition” under the FMLA
does not have a “disability” for
purposes of anti-discrimination
laws.
©
34
©
35
Ensuring enough medical information
 Ask the attending health-care provider to specify work
restrictions in writing.
 Provide a written description of the
work duties to the provider for
specific comments.


©
Use Q & A format
Clarify work restrictions.
36
©
37
Providing unrestricted “light duty” assignments
Failing to view a “return to work program” against a
“reasonable accommodation”
Failing to have consistent, well documented “essential job
functions”
Focusing on workers compensation and forgetting antidiscrimination or leave laws
©
38
FMLA*
ADA
State AntiDiscrmin.
Worker’s
Comp.
Seattle
PSSL
Covered
> 50 at
Employer? same
(# of
“worksite”
> 15
employees
> 8 WA
> 6 OR
> 1 AK
>1 WA
>1 OR
>1 AK
>4 or more
FTEs
anywhere
Applies if
injury =
Impairs
“substantial
life activity”
-or –
“regarded as”
WA:
“Substantial
limiting
effect” on
ability to do
job - or –
“regarded as”
Workrelated
Sick,
injured,
preventative
care
employees)
©
“serious
health
condition”
*AK public EE only; OFLA > 25 EE; WFLA > 50
39
Length
of
leave/
Return
right
FMLA
ADA
WLAD
Worker’s
Comp
Exhausts
after 12
weeks,
-orif can no
longer
perform
“essential
job
functions”
As long as
“reasonable,”
considering
“undue
hardship”
As long as
“reasonable,”
considering
“undue
hardship”*
Maximum
Medical
Improvement
PPD
“Stabilized”
*WA Pregnancy = 12 weeks plus period of disability
©
40
Leave administrator's knowledge = employer’s
knowledge
©
41
If an employee is not/no longer FMLA-qualified, this
does not remove employee from the protection of antidiscrimination laws
How or where the employee injured himself is irrelevant
to FMLA or ADA/WLAD
Employees who are “regarded as” disabled are
“disabled” under anti-discrimination laws
©
42
©
43
FMLA
ADA/WLAD
Worker’s Comp
Retaliation claim
Retaliation claim
Retaliation claim
No restoration rights
if cannot perform
“essential job
functions”
No terminations
“because of” disability
unless employer can
show employee
cannot perform
essential job functions
with or without
reasonable
accommodation
“Employer may fire you
and replace you with
another worker if no
one else can do your
job and no light-duty
jobs are available - or if
your injury happened
because you violated a
safety rule.”
©
44
Taking adverse employment action
soon after employee engages in
“protected activity”





©
Leave = protected activity
Accommodation request =
protected activity
Retaliation, retaliation, retaliation!!
Don’t mix discipline with leave or
accommodation discussions
Consider extending PIP period
45
Discrimination Risk Analysis: Misconduct
 Is the misconduct arguably “disability related”?
 “Conduct resulting from a disability is part of the
disability and not a separate basis for termination.”
 Defenses: business necessity, undue hardship, and
direct threat, or inability to perform essential job
functions
 Gambini v. Total Renal Care, Inc., 486 F.3d 1087
(9th Cir. 2007)
©
46
Discrimination Risk Analysis: Misconduct
 But “direct threat” defense survives: Willis v.
Superior Court, 195 Cal. App. 4th 143, 161 (2011)
Review: http://www.eeoc.gov/policy/docs/psych.html
©
47
Discrimination Risk Analysis: Accommodation
 Can you really show undue hardship?
 Significant difficulty or
expense when considered
in light of a number of
factors
 More than “de minimis”
hardship
 Inconvenience not
enough
 Difficult standard to meet
©
48
©
49
©
50
Was Britney entitled to FMLA?
When should LOST Records provided Britney FMLA forms?
Was Britney capable of performing her essential job functions?
Was Britney entitled to reasonable accommodation? What?
©
51
Did LOST Records discriminate against Britney when it
gave her the PIP?
When it terminated her?
Does LOST Records have any defenses to a claim of
disability discrimination?
©
52
©
53
How does worker’s compensation impact the dialogue
and potential leave of absence?
Direct communication with an employee’s physician?
Is Phillip entitled to leave under the ADA?
When would you communicate in writing to Phillip and
what would be your purpose?
The inability to communicate with the employee
because employee refuses? What can an employer do?
©
54
©
55
Was Pam granted “enough” leave?
Was Pam granted a reasonable
accommodation?
Did Pam have a right to leave
because of her pregnancy?
Her daughter’s birth?
Did DM discriminate against Pam?
©
56
Was granting leave an undue hardship?
©
57
©
Catharine Morisset, Esq.
[email protected]
58
om
206-405-0404