1. No category

Stoel Rives Labor & Employment Breakfast Briefing Series
Family
a y Leave
ea e a
and
d Leave
ea e as a
Reasonable Accommodation:
Beyond the Basics
Presented by attorneys in the Stoel Rives
Labor and Employment Group
1
L&E Breakfast Briefings: Family Leave
Wednesday, May 22, 2013 • Multnomah Athletic Club
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Family Leave and Leave as an Accommodation:
B
Beyond
d th
the Basics
B i
• Goals
– Update on recent FMLA regulations re military
leave
– Address ADA, job protection and leave as a
reasonable accommodation
– Discuss intricacies among OFLA, FMLA and
ADA re leaves
– Focus on thorny challenges of intermittent,
2
extended and retroactive leave
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
An Overview of Leave Laws
State
Injured Worker
Laws
Prohibits
di i i ti
discrimination
The ADA and
State Disability
Laws
FMLA and State
Family Leave
Reasonable
accommodation
d ti
required for qualified
employee with
disability …
12 weeks protected
ti
time
off
ff ffor:
 Employee’s serious
Provides for job
health condition
reinstatement
 Family member’s
serious health
Provides for available, Unless employer can
condition
show undue hardship or  Parental Leave; or
suitable (light duty
work)
direct threat.
 Other State
mandated Leave
3
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
FMLA Updated
• FMLA p
passed in 1993
• Significant revision in 2008
– added military leave
• Revised again in 2009
– added military care giver leave (MCL) and qualifying
exigency leave (QEL)
– added special eligibility for airline flight crews
• DOL published final rules in Feb
Feb. 2013
– revised forms and posters
4
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Military Caregiver Leave
• MCL now:
– Includes covered veterans
• Vet discharged or released (except dishonorably)
w/in
/i 5 yrs prior
i tto lleave (10
(10.09–3.13
09 3 13 nott counted)
t d)
– Includes pre-existing injuries/illnesses aggravated in
line
eo
of du
duty
y
– Includes expanded category of HCPs allowed to
certify need for leave (no longer limited to DOD or VA
related
l t d HCP
HCPs))
5
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Qualified Exigency Leave
• QEL now:
– Provides 15 calendar days of leave when
service member is on R&R
– Covers regular armed forces and reserves
deployed to foreign country
– Allows employer to require copy of R&R leave
orders
6
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
This Is Your Reveille!
• Update and distribute your forms
and policies (see sample policy in materials)
• Use new DOL forms (see
(
materials
t i l and
d go tto DOL
website: http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm)
• Replace old posters (go to DOL website:
http://www.dol.gov/whd/regs/compliance/posters/fmla.htm)
• Train
a you
your supervisors
supe so s
7
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
FMLA/OFLA Provides Leaves For:
•
•
•
•
Employee s own serious health condition
Employee’s
Family member’s serious health condition
P
Parental
t l lleave
Military Family leave
– Qualifying Exigencies (FMLA)
– Covered Service Member Leave
8
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
ADA Requires Employers To:
• Make reasonable accommodations
– For qualified individuals;
– With disabilities;
– Unless it would cause undue hardship
• R
Reasonable
bl accommodation
d ti can iinclude
l d
allowing employee to take unpaid leave of
absence
b
9
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
ADA / FMLA /OFLA Overlap
• Employee with a “serious
serious health condition”
condition
(SHC) under OFLA/FMLA may also have a
disability under the ADA and state law
“disability”
– If so, an employee may get more than 12
weeks of leave if it’s
it s provided as a reasonable
accommodation
10
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Challenging Leave Issues
•
•
•
•
•
Intermittent leave
Retroactive leave designation
J b preservation
Job
ti obligations
bli ti
“Debatable” medical condition
New employee
• Untimely notice by employee
11
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Challenging Leave Issues
•
•
•
•
•
•
Intermittent leaves – taken by employee in separate intervals for
particular qualifying long-term or recurrent health issue
Retroactive leave designation – occurs when past absence(s) should
have been designated as protected OFLA/FMLA leave, but was not
Job preservation obligations – employee is off work for extended time
and employer wants to fill position
Employee’s medical condition is “debatable” – occurs when employer
questions
ti
whether
h th a condition
diti is
i either
ith a SHC or a disability
di bilit under
d ADA
Employee has worked only short time – employee is not eligible for
OFLA/FMLA because too new, but has medical condition & requests
leave
Untimely notice by employee – employee does not notify of need for
12
leave w/in statutory time periods
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Challenging Leave Issues
•
•
Intermittent leaves – taken by employee in separate intervals for particular
qualifying long-term or recurrent health issue
How to handle?
– Always require certification for FMLA/OFLA intermittent leave and medical info for
ADA accommodation leave
– The CHCP can be employer’s most effective tool for ensuring proper compliance.
Need to carefully scrutinize and monitor for:
• Timely return (employee gets 15 days to return)
p
for follow up/clarification
p
((employer
p y must notify
y employee
p y
• Completeness/need
in writing of deficiency and employee gets 7 days to cure after notice of
deficiency)
• Need to obtain 2nd or 3rd opinion
• Duration/expiration and right to obtain updated certification (employer has right
to new certification upon expiration or upon changed circumstances)
– Ensure absence pattern consistent w/ CHCP or ADA medical cert.
– Consider temporary transfer of employee (only w/ employee’s agreement)
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
13
Challenging Leave Issues
•
Retroactive leave designation – occurs when past absence(s)
should
h ld have
h
been
b
designated
d i
t d as protected
t t d OFLA/FMLA leave,
l
but
b t
was not
– Why designate retroactively?
• Benefit to employer: reduces available leave bank and prevents “hoarding”
hoarding
• Benefit to employee: absences are protected
– How to accomplish?
• Going forward, make sure managers are trained to recognize potential
OFLA/FMLA covered absences/tardies
• Retroactive designation allowed upon agreement by employee (29 CFR
§825.301(d))
• Give employee notice of eligibility
eligibility, rights,
rights responsibilities; CHCP
• After employee returns CHCP, go through dates of employee’s absences
and determine which are SHCs (see next slide) based on what employee
14
reported to you as reason for absence compared to CHCP info
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Challenging Leave Issues
Determining whether condition qualifies as SHC
Must do analysis to determine which absences are SHCs and which are not:
1. Inpatient care in med facility
2. Imminent danger of death, or terminal and likely to cause death in near future
p
y of more than 3 consecutive calendar days
y ((i.e.,, inability
y to p
perform at least one
3. Incapacity
essential job function), coupled w/
• 2 or + treatments w/ HCP; or
• 1 treatment + regimen of continuing care
e od o
of incapacity
capac ty o
or ttreatment
eat e t for
o cchronic
o cS
SHC
C tthat
at requires
equ es pe
periodic
od c visits
s ts to ttx by hcp,
cp,
4. Period
continues over period of time, and may be episodic -- e.g., asthma, diabetes, epilepsy
5. Permanent or long term incapacity -- e.g, severe stroke or terminal stages of disease and be
under the continuing care of a HCP
6. Multiple txs for restorative surgery or condition like chemo, pt for arthritis, kidney dialysis that
if not treated would result in incapacity of 3 or + days
7. Disability due to pregnancy, childbirth or prenatal care
15
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Challenging Leave Issues
•
•
Job preservation obligations – employee is off work for extended
time and employer wants to fill position
How to handle?
– OFLA – employee’s job protected through duration of leave and
employee must be restored to same position if it exists or to available
equivalent position if it does not
– FMLA – employee’s job protected through duration of leave and
employee must be restored to same or equivalent position (with exception
for “key employee” if no OFLA coverage; not likely to apply in vast majority of situations in
Oregon)
– ADA – must hold employee’s job, unless doing so presents “undue
h d hi ” even w// undue
hardship”;
d h
hardship,
d hi mustt still
till consider
id employee
l
ffor
equivalent position, then lesser position
• In 9th circuit, even “indefinite leave” may still be reasonable accommodation, despite
EEOC’s position to contrary and new employer friendly case law
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
16
Challenging Leave Issues
• Employee’s
p y
medical condition is “debatable” –
occurs when employer questions whether a
condition is either a SHC or a disability under ADA
– How
H
tto h
handle?
dl ?
• For FMLA/OFLA, must do the analysis of SHC
discussed in prior slide
• If employee’s HCP appears to “rubber stamp”
employee’s purported condition, require second
opinion
i i ((att employer’s
l
’ expense))
17
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Challenging Leave Issues
• Employee
p y has worked only
y short time – employee
p y is
not eligible for OFLA/FMLA because too new, but
has reported medical condition & requests leave
– How to handle?
• Simple (and CRITICAL) – do ADA analysis
18
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Challenging Leave Issues
•
Untimely notice by employee – employee does not notify of need
for leave w/in statutory time periods
– How to handle?
• If OFLA only applies, and employee did not give 30 days or as much
advance notice as possible of foreseeable leave or notice w/in 3
days of returning to work of unforeseeable leave, can reduce
employee’s leave by the number of days (up to 3 weeks) employee
failed to provide timely notice (OAR 839-009-0250(4)(a)).
839 009 0250(4)(a)).
• If FMLA only applies, may delay or deny the leave due to improper
notice (29 CFR §825.304).
• If both OFLA and FMLA apply,
pp y may
y only
y discipline
p
employee
p y under
employer’s policies, but cannot delay/deny/reduce the leave. (Note,
there is an error in the OARs and BOLI’s handbook on this issue).
19
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Materials
•
•
•
•
•
•
•
Tab 1: Updated FMLA (incl. fed.military leave updates) and Oregon Military Leave Policy
T b 2:
Tab
2 DOL 2008 R
Regulations
l ti
and
d 2013 R
Regulations:
l ti
Sid
Side-by-Side
b Sid Comparison
C
i
off Current/Final
C
t/Fi l
Regulations
Tab 3: OFLA/FMLA Checklist and Deadlines
Tab 4: OFLA/FMLA Overview
T b 5:
Tab
5 ADA O
Overview
i
Tab 6: Scenarios
Tab 7: DOL Forms from http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm
– WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
– WH-380-F Certification of Health Care Provider for Family Member’s Serious Health
Condition
– WH-381 Notice of Eligibility and Rights & Responsibilities
– WH-382 Designation Notice
– WH-384 Certification of Qualifying Exigency For Military Family Leave
– WH-385 Certification for Serious Injury or Illness of Current Servicemember -- for Military
Family Leave
20
– WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenarios
1.
1
2.
3
3.
4.
“High
High Voltage”
Voltage Jim
I Want My Leave Back
Th Oxygenated
The
O
t d Pharmacist
Ph
i t
But He Hasn’t Been Here Long Enough!
21
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenarios for Family Leave and Leave as a Reasonable
Accommodation::
Accommodation
Be ond the Basics
Beyond
• Scenario One—“High
One High Voltage”
Voltage Jim
“Jim, a long term employee, works remotely and often on his own as a field service engineer
who deals with high voltage and heavy equipment. After 30 years of outstanding performance
and near perfect attendance, Jim was out for a lung cancer operation and treatment in mid2012 R
2012.
Recently,
tl h
he was outt ffor b
brain
i ttumor ttreatment.
t
t Hi
His d
doctor
t authorized
th i d Ji
Jim tto return
t
tto
work a month ago without restrictions. Jim works remotely but his manager visited him to give
him his annual performance review and observed that his health appears to be continuing to
decline. A major customer has called to inquire about what the “succession plan” is for Jim and
is concerned about the employee’s
p y
reliability.
y Coworkers state that Jim has told them that he is
taking “heavy duty” medication because of the brain tumor treatment. It also was reported that
Jim recently used the power hoist to move heavy equipment without a second worker present in
violation of company safety protocols.”
• What are your options for addressing what
appears to be an urgent situation with Jim?
22
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenario One: Discussion Points
•
Check FMLA paperwork
•
Talk with Jim with another present (interactive process)
•
Ask about health status (declining?)
•
Ask about drug use and failure to disclose to management; remind of drug
policy disclosure requirement
•
Ask about safety violation; remind of protocols
•
paid administrative suspension
p
while learning
g of condition
Consider p
•
Remind Jim of concern for his health and safety
•
Ask to talk to doctor using medical authorization form (share job description)
•
Consider requiring an IME by second doctor
•
Remind Jim of STD and LTD
•
Figure out how to cover Jim’s work in the interim
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
23
Scenarios for Family Leave and Leave as a Reasonable
Accommodation::
Accommodation
Be ond the Basics (cont.)
Beyond
• Scenario Two—I
Two I Want My Leave Back
“Jill is a long-term employee at a large company. She recently confronted her coworker,
Innocent, and accused Innocent of having an affair with their boss, Jack. Innocent, upset at the
accusations, went to HR Director, Henrietta, complaining about Jill and the trouble she was
causing
i iin th
the d
department.
t
t
During the course of her investigation into the situation, Henrietta learned that while there was
no basis for Jill’s accusations of the affair, Innocent’s complaints about Jill were well-founded
and other employees
p y
in the department
p
came forward to complain
p
about how inappropriate
pp p
Jill
was in the office and what a “pot stirrer” she was within the group.
When Henrietta met with Jill to counsel her about her behavior, Jill became immediately
defensive and left Henrietta’s office, claiming that she couldn’t discuss the situation then. Jill
did not return to her own office at all that day
day, and the next day texted her supervisor that she
was going to be in meetings all day at another building on the company’s campus.
(continued)
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
24
Scenarios for Family Leave and Leave as a Reasonable
Accommodation::
Accommodation
Be ond the Basics (cont.)
Beyond
When her supervisor asked Jill the following day who she’d met with, she told him she didn’t
feel she could disclose that information
information. Jill did not come to work the following day and texted
her supervisor that she was out for health reasons.
When Henrietta emailed Jill that they needed to meet finish their discussion regarding her
behavior and now also an attendance issue, Jill replied that she didn’t feel “safe” meeting with
Henrietta and insisted that she be allowed to have a “trusted
“
advocate”” from
f
outside the
company at the meeting because of her emotionally fragile state. After some back and forth,
the meeting was scheduled for the following week. Prior to the meeting, Jill requested
FMLA/OFLA paperwork, stating she needed to take a couple of weeks off for health reasons.
Jill submitted a CHCP at the meeting stating that she needed to be off work intermittently for 4
hours on Wednesdays and 8 hours on Thursdays for PTSD treatment, and that the condition
had started two weeks prior and was of unknown duration. Jill sought to have the leave for the
days she was previously out of the office covered as protected FMLA/OFLA leave.”
– Does Jill have a right to have her prior absences retroactively
covered as protected FMLA/OFLA leave? What rights does the
employer have in this situation?
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
25
Scenario Two: Discussion Points
•
Check FMLA/OFLA paperwork
•
Did Jill follow company’s attendance/reporting policies?
•
Can Jill be disciplined for being dishonest?
•
C Jill’s
Can
Jill’ lleave b
be d
delayed/denied/reduced?
l
d/d i d/ d
d?
•
Should the company get a second opinion?
26
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenarios for Family Leave and Leave as a Reasonable
Accommodation::
Accommodation
Be ond the Basics (cont.)
Beyond
• Scenario Three—The
Three The Oxygenated
Pharmacist
“Shannon has been a hospital pharmacist for several years when she developed non-specific
i t titi l pneumonitis
interstitial
iti (NSIP) resulting
lti iin bi
biopsies
i and
d lilimited
it d llung ffunction.
ti
Sh
She h
has b
been off
ff
intermittently since September 2012. When she asked to return to work in November, she
requested a temporary accommodation to lift no more than 5 lbs. and a long-term
accommodation to use oxygen while working and at rest. The hospital said it could not
accommodate the lifting
g restriction and refused to accommodate the oxygen
yg use because of the
concern about the risks of unrestricted oxygen use throughout the hospital. The pharmacist's
job included visiting patients and delivering medication. The weight limitation was removed in
December and the hospital continued to negotiate with the pharmacist about the oxygen use. It
finally allowed the pharmacist to return to work in January using the requested oxygen
conditioned on the pharmacist's
pharmacist s obtaining liquid oxygen
oxygen, which was deemed safer
safer.
(continued)
27
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenarios for Family Leave and Leave as a Reasonable
Accommodation::
Accommodation
Be ond the Basics (cont.)
Beyond
The pharmacist returned to work with the oxygen and after obtaining the liquid oxygen,
demanded back p
pay
y to November because the the hospital
p
did not return her to work when she
requested. The hospital considered whether to refuse the back pay demand, pay back to
December or pay back to November. The pharmacist also wanted the missed hours credited so
that she would receive her 401K match and additional PTO hours.
In February,
February the pharmacist again went out on leave
leave. The hospital is outside the metropolitan
area, and its efforts to find a temporary replacement or a locum tenens (traveling pharmacist)
have failed. The pharmacist recently has informed the hospital that the pharmacist will be out
for another 8 or 9 months receiving treatment. The hospital has encouraged the pharmacist to
apply for long term disability and is considering whether it should advertise and fill the position.”
28
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenario Three: Discussion Points
•
Check FMLA paperwork (job description shared with physician?)
•
How to handle request for back pay? From November? From December?
Credit the hours
•
Whether to post and fill position
•
Proper communication with the pharmacist
•
Administrative Separation with potential to seek available position when
able
bl to
t return
t
to
t workk
•
Tell pharmacist, “If you have any information that would cause us to
reconsider this decision, please contact us immediately.”
29
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenarios for Family Leave and Leave as a Reasonable
Accommodation::
Accommodation
Be ond the Basics (cont.)
Beyond
• Scenario Four—But
Four But He Hasn’t
Hasn t Been Here
Long Enough!
“Larry is employed by Temporary Employees, Inc., and was placed at Ace, Inc., a large
technology company as a Systems Analyst on a 6-month temp to hire assignment. Larry was
being trained by Ace Department Manager, Susan. Susan had requested a temporary
employee because Ace was in desperate and immediate need full-time help to address growing
technical problems in department software.
Within the first week of his placement, Susan began to doubt Larry’s performance abilities, but
decided to wait another week before notifying Temporary Employees that Larry was not suitable
for the position. During the second week of his placement, Larry told Susan that he would need
to be off work for approximately 3 to 5 days every three weeks for his cancer treatment.
(continued)
30
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenarios for Family Leave and Leave as a Reasonable
Accommodation::
Accommodation
Be ond the Basics (cont.)
Beyond
In his second week, Larry’s performance has not gotten any better – mostly due to his “know it
all” attitude and poor listening skills
all
skills. Susan has contacted Temporary Employees
Employees, Inc
Inc. to let
them know that she is terminating Larry’s assignment. Susan doesn’t think she has any
obligation to continue to employ Larry because he’s just a temporary employee, and she does
not think she has any potential liability to him because of that.
– What do you think?
31
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Scenario Four: Discussion Points
•
OFLA/FMLA ineligible
•
Would ADA leave be reasonable accommodation?
•
Consider undue burden
•
Wh
Whose
responsibility
ibilit iis it tto accommodate
d t contingent
ti
t workers?
k ?
•
Problematic timing – retaliation/refusal to accommodate
•
Performance issues and failure to counsel him right
g awayy
32
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3
Questions
?
33
L&E Breakfast Briefings: Family Leave
W E D N E S D AY, M AY 2 2 , 2 0 1 3