How to Address Employee Leave Requests
Ohio Provider Resource Association
2014 Spring Conference
Presented by:
Jim Kurek
[email protected]
April 9, 2014
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Issues to Consider When an Employee
Requests Leave :
What Do Your Policies Provide?
Is The Employee Eligible For FMLA Leave?
Could This Be A Request For An Accommodation Under The
ADA?
Is This Related To An Injury Covered By Workers’ Compensation?
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What Are Your Policies For Leaves
Paid And Unpaid
Eligibility Requirements
How Applied in the Past
Do They Address ADA, FMLA & W.C.
Failure To Follow Policies Can Be Used To Claim
Retaliation
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What Are The ADA, FMLA & WC Meant To
Cover?
How Do They Overlap
How Do They Differ
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Purpose
• Prohibits
discrimination
ADA
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• Sets minimum
leave standards
FMLA
• Provides for
payment of
compensation;
rehabilitation
WC
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Covered Employers
• Employers
with 15 or
more
employees
ADA
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• Employers
with 50 or
more
employees
FMLA
• All employers
WC
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Eligible Employees
• Qualified
employee or
applicant
ADA
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• Employee who
has worked one
year and 1,250
hours; 75 mile
rule
FMLA
• All employers
WC
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What Triggers Protection
• Disability – having an
impairment, having
had an impairment,
or being regarded as
having an
impairment
ADA
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• Employee or family
member’s serious
health condition,
birth or adoption,
military service
member reasons
FMLA
• A work-related injury
or occupational
disease
WC
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Medical Leave - CONTINUOUS
• Reasonable
accommodation
v.
undue hardship
ADA
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• 12 weeks of
leave
FMLA
• None – but see
R.C. 4123.90
concerning
protection from
retaliation
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Medical Leave - INTERMITTENT
• Reasonable
accommodation
v.
undue hardship
ADA
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• 12 weeks of
leave
FMLA
• None – but see
R.C. 4123.90
concerning
protection from
retaliation
WC
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Family Leave
• No
ADA
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• Family member with
serious health
condition or care for
newborn child,
adopted or foster care,
or service member
FMLA
• No – but nursing
services
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Medical Certification of Disability or Condition
• Job-related or
consistent with
business
necessity
ADA
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• “May” require
FMLA
• No prohibition –
must submit
medical proof to
receive benefits
WC
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Time Limit
• None –
reasonable
accommodation
and undue
hardship
ADA
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• 12 weeks per
year
FMLA
• Temporary total
and wage loss
issues
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Light Duty or Restricted Duty
• May be reasonable
accommodation
ADA
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• Focus is on
position at time of
request for leave;
cannot require
return to light duty
FMLA
• Loss of total
disability benefits –
but may be eligible
for wage loss
WC
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TEST YOUR KNOWLEDGE
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An employee can receive temporary
total disability benefits until:
A. The Cleveland Browns win the Super Bowl.
B. The medical condition has become permanent.
C. The Cleveland Indians win the World Series.
D. The employee changes physicians.
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A company with 15 employees is
covered under:
A. the FMLA, ADA and WC laws.
B. the FMLA and WC laws, but not the ADA.
C. the ADA and WC laws, but not the FMLA.
D. the WC laws, but not the ADA or FMLA.
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An employee with a serious health condition requests
FMLA leave. This employee has worked at least 1250
hours at a worksite with 200 employees during the twelve
months immediately preceding the commencement of
leave. This employee would be eligible for FMLA leave if
she has been employed by the Company:
A. For at least twelve consecutive months prior to requesting leave.
B. For at least six months prior to requesting leave.
C. For at least ninety days prior to requesting leave.
D. For at least twelve months prior to requesting leave.
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If an employer doubts a medical certification
provided by an employee pursuant to an FMLA
leave request, the employer may:
A. Require the employee to secure a second opinion from a medical
professional of the employee’s choosing at the employee’s expense.
B. Require the employee to secure a second opinion from a medical
professional of the employer’s choosing at the employee’s expense.
C.
Require the employee to secure a second opinion from a medical
professional of the employer’s choosing at the employer’s expense.
D. Never request a second opinion as the opinion provided by a medical
professional may never be challenged.
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An employer has a policy providing that six months is the
maximum length of time an employee may be on leave. An
employee sustains a work-related injury that constitutes a
disability as well as a serious health condition. The employee
takes her 12 weeks (3 months) of FMLA leave, but cannot return to
work for another 3 ½ months. In this instance, the employer:
A. May count the employee’s FMLA-qualifying leave against the six months
duration of leave and fire her.
B. Does not have to consider providing additional leave beyond the six
months as a possible reasonable accommodation.
C.
Must provide additional leave beyond the six months under the Workers’
Compensation statute.
D. Cannot count the FMLA qualifying leave against the six months maximum
duration of leave.
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A possible reasonable accommodation under
the ADA would not include:
A. Job restructuring.
B. Providing leave or extending time
beyond Company policy limits.
C. Making existing facilities easily
accessible to and usable by disabled
employees.
D. Creating a new light duty job for the
employee.
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An employee who is disabled as a result of a workplace injury that
also constitutes a serious health condition requests a leave of
absence. The Company also has a written light duty policy and can
provide this employee work within her medical restrictions. If the
employee rejects the light duty offer:
A. The Company can deny the employee FMLA leave.
B. The employee is still entitled to FMLA leave and temporary total
disability benefits.
C.
The employee has the option of taking her FMLA leave, but risks losing
temporary total disability benefits for refusing light duty job offered.
D. The employee has the absolute right under the ADA to take the leave
because an offer of light duty can never be a reasonable
accommodation.
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Which of the following statements is true?
A. FMLA and Workers’ Compensation CAN run concurrently.
B. FMLA and Workers’ Compensation CANNOT run concurrently.
C. FMLA stands for “Fred and Meg Like Apples.”
D. FMLA and Workers’ Compensation will be extinct in 5 years.
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An employee who has sustained a work injury and
consequently is disabled for one month is entitled to the
following type of workers’ compensation benefits:
A. Permanent total disability benefits.
B. Temporary total disability benefits.
C. Partial loss disability benefits.
D. Hair loss disability benefits.
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A. With or without the employee’s permission, the employer should contact the
medical professional themselves and ask for a complete copy of the employee’s
medical file.
B. With the employee’s permission, the employer should contact the medical
professional themselves and ask for a complete copy of the employee’s medical file.
C. With the employee’s permission, a health care provider representing the
employer may contact the employee’s health care professional for the purpose of
clarification or to verify the authenticity of the medical certification.
D. With or without the employee’s permission, a health care provider representing
the employer should contact the employee’s health care professional for the
purpose of clarification or to verify the authenticity of the medical certification.
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An employee has a mild hernia due to moving a refrigerator at home
which does not substantially limit the employee’s major life
activities, but it does require an operation.
This employee is protected under the:
A. FMLA because the operation would involve inpatient care at a hospital.
B. ADA because he is disabled.
C. ADA and Workers’ Compensation laws because
he may be unable to work because of the
medical condition.
D. FMLA and ADA because a hernia is potentially a
serious illness.
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For the care of a newborn child, the FMLA permits
up to twelve weeks of unpaid leave for the following
employees:
A. Eligible female employees only with no time limit on such benefit.
B. Eligible female and male employees with no time limit on such
benefit.
C. Eligible female employees only and entitlement to leave expires
twelve months after the birth of a child.
D. Eligible female and male employees and entitlement to leave
expires twelve months after the birth of the child.
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One requirement for a transitional duty or
light duty job offer is:
A. It must be in writing.
B. It must be for a permanent light duty position.
C. It must be for less pay.
D. It must be made at the start of a pay period.
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Steps In Processing The Leave Request
Get it in writing.
Make certain reason is clear.
Is it covered by ADA, FMLA, or W.C.
Respond promptly.
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How do you manage the leave
Changed circumstances.
FMLA certification update.
Policy against other employment or
activities contrary to restrictions.
Monitor activities.
Release to return to work.
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Thank you… Questions?
Presented by:
Jim Kurek
[email protected]
Fisher & Phillips LLP
www.laborlawyers.com