FMLA Training

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FMLA Training Part IV presented by The Office of
the State Employer Employee Health
Management Toni McFarland Contract
Negotiations/Administration Cheryl Schmittdiel
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• The State of Michigan (SOM) must observe employee
  rights under the FMLA
• The State of Michigan must observe employee
  rights under an applicable collective bargaining
  agreement (CBA) or Civil Service Rules and
  Regulations (CSRR)
• The State of Michigan cannot interpret CBA or
  CSRR to diminish rights guaranteed by the FMLA.

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FMLA BasicsEligibility, Qualifying Reasons
Entitlements
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Employee Eligibility Qualifying Reason FMLA
Entitlement
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Employee Eligibility
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Employee Eligibility

• To be eligible for FMLA leave an employee must
• Work for a covered employer and
• Work for the covered employer for 12 months,
  which need not be consecutive months and
• Actually work at least 1,250 hours within the 12
  months immediately prior to the FMLA leave.
• Paid leave hours do not count however,
• Military leave hours do count toward 1,250 hours
  as time worked.

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• For leave to be designated as FMLA leave, an
  eligible employee need not mention the FMLA
  specifically when requesting leave, the employee
  must simply give an FMLA qualifying reason for
  the leave.

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Qualifying Reasons
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Qualifying Reasons

• The SOM, as a covered employer, must grant an
  eligible employee up to 12 workweeks of
  job-protected FMLA leave within a 12-month period
  for the following reasons
• the birth of an employees son or daughter, and
  to care for the newborn
• the placement with an employee of a son or
  daughter for adoption or foster care, and to care
  for the newly placed child
• to care for an employees spouse, son, daughter,
  or parent with a Serious Health Condition (SHC)
  and
• because the employee's own SHC makes the employee
  unable to perform the essential functions of
  their position.

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Spouse

• Husband or wife, as defined or recognized under
  State law for purposes of marriage in the State
  where the employee resides.
• Common law marriage qualifies in states where it
  is recognized it is not recognized in Michigan.
  Note We have employees who reside in other
  states.

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Parent

• A biological parent or a person who stands or
  stood in loco parentis to an employee when the
  employee was under 18.
• In loco parentis means in the place of a
  parent.
• Parent does not include parents-in-law.

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Son or Daughter

• Son or daughter includes a biological child,
  adopted child, foster child, stepchild, legal
  ward, or a child of a person standing in loco
  parentis.
• The son or daughter must be
• under 18, or
• 18 or older and incapable of self-care because
  of a physical or mental disability.

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Incapable of Self-care

• An employees son or daughter is incapable of
  self-care if the child requires active
  assistance or supervision to provide daily
  self-care in 3 or more activities of daily living
  (ADL) or instrumental activities of daily living
  (IADL)
• ADL include bathing, dressing, and eating
• IADL include cooking, cleaning, shopping,
  transportation, etc.

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Physical or Mental Disability

• An employees son or daughter has a physical or
  mental disability if the child has a physical or
  mental impairment that substantially limits 1 or
  more of the childs major life activities.
• See the Americans with Disabilities Act (ADA) for
  definitions of these terms
• physical or mental disability
• substantially limits
• major life activities

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Serious Health Condition

• A SHC is any illness, injury, impairment, or
• physical or mental condition that involves
  either
• Inpatient care (i.e., overnight stay) or
• Continuing treatment.
• See Section 825.114.

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Continuing Treatment

• 1. Incapacity of more than 3 consecutive calendar
  days with either
• treatment 2 or more times by a Health Care
  Provider (HCP), or
• 1 time with a regimen of continuing treatment
  under the HCP supervision
• Note If this is the reason for FMLA leave, then
  FMLA would also cover any subsequent incapacity
  or treatment relating to the same condition.

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Continuing Treatmentcont.

• 2. Any incapacity due to pregnancy or for
  prenatal care
• Note Need not be 3 consecutive days and need not
  receive treatment during the absence (unless the
  reason for the absence is prenatal care) but must
  be incapacitated.

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Continuing Treatmentcont.

• 3. Any incapacity or treatment due to a chronic
  SHC
• requires periodic visits for treatment by HCP or
  under the supervision of HCP and
• may cause episodic periods of incapacity,
  examples include asthma, diabetes, epilepsy, etc.
  and
• continues over an extended period of time,
  including recurring episodes of a single
  underlying condition
• Note Need not be 3 consecutive days and need not
  receive treatment during the absence but must be
  incapacitated.

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Continuing Treatmentcont.

• Permanent or long-term incapacity due to a
  condition for which treatment may not be
  effective
• must be under continuing supervision of HCP but
  need not be receiving active treatment
• examples include Alzheimers, a severe stroke, or
  the terminal stages of cancer.

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Continuing Treatmentcont.

• Any period of absence to receive multiple
  treatments for, including any period of recovery
  from, either
• restorative surgery after an accident or injury
  or
• a condition likely to result in incapacity of
  more than 3 consecutive calendar days in absence
  of medical intervention or treatment examples
  include chemotherapy for cancer, physical therapy
  for severe arthritis, or dialysis for kidney
  disease.

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Incapacity

• Incapacity is the inability, due to the SHC,
• treatment for the SHC, or recovery from the
• SHC, to
• Work,
• Attend school, or
• Perform other regular daily activities

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FMLA Entitlements
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FMLA Entitlements

• An eligible employee with a qualifying reason is
  entitled to
• Up to a total of 12 work-weeks of job-protected
  FMLA leave in a 12 month period (unpaid/paid)
  and
• Benefits protection during the FMLA leave and
• Job restoration upon return from FMLA leave.

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FMLA Leave
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Up to a Total of 12 Workweeks

• Only the amount of FMLA leave actually taken may
  be counted towards the 12 workweeks.
• The 12 workweeks are based on the employees
  normal workweek.
• DCDS records time in hours, not workweeks.
• For purposes of recording time in DCDS, the
  workweek is converted to hours.

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Up to a Total of 12 Workweeks

• 12 workweeks is always 12 workweeks
• An eligible full-time employee is entitled to up
  to a total of 480 hours of FMLA leave for
  qualifying reasons and every full day of FMLA
  leave used is recorded as 8 hours.
• An eligible part-time employee who works 4-hour
  days, 5 days a week is entitled to up to a total
  of 240 hours of FMLA leave for qualifying reasons
  and every full day of FMLA leave used is recorded
  as 4 hours.
• An eligible permanent-intermittent employee who
  works varying hours each workweek is entitled to
  the weekly average of hours worked over the 12
  weeks prior to the beginning of the FMLA leave
  times 12 workweeks.
• See Section 825.205.

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Limitations

• FMLA leave to care for an employees newborn
  child or a newly placed child must conclude
  within 12 months after the birth or placement.
  See Section 825.201.
• Under the FMLA ,spouses employed by the same
  employer may be limited to a combined total of 12
  workweeks of family leave for
• birth or care of a newborn son or daughter or
• placement with an employee of a son or daughter
  for adoption or foster care, and care for the
  newly placed child.
• If limited, each spouse is entitled to the
  difference between the amount taken individually
  and 12 workweeks within the 12-month period for
  other FMLA qualifying events.
• Note Consult the employees CBA, it may alter
  this limitation.

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Employer Substitution of Paid Leave

• Under the FMLA, an eligible employee is entitled
  to up to a total of 12 workweeks of unpaid FMLA
  leave in a 12-month period for qualifying
  reasons.
• The employer may require accrued paid sick leave
  be substituted for the unpaid leave if the reason
  for the leave is the employees own SHC or the
  SHC of the employees spouse, son, daughter, or
  parent. (See Section 825.207).
• If requiring accrued sick leave to be substituted
  for unpaid FMLA leave, the employer must provide
  notice within 2 business days following the
  employees request for leave, or when sufficient
  information is obtained to determine that the
  leave qualifies as FMLA leave.

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Employee Substitution of Paid Leave

• If the employer requires substitution of accrued
  paid sick leave for unpaid FMLA leave for a SHC,
  the employee may choose to substitute accrued
  paid annual leave or personal leave instead.
• If the employer does not require substitution of
  paid sick leave for a SHC, the employee may
  choose to substitute sick leave for the unpaid
  FMLA leave.
• If the reason for the FMLA leave is other than
  the employees own SHC or the SHC of the
  employees spouse, son, daughter, or parent, the
  employee may choose to substitute accrued paid
  annual leave or personal leave for the unpaid
  FMLA leave.

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Employee Substitution of Paid Leave cont.

• Some CBAs permit an employee to certify the need
  to use up to 2 weeks of sick leave, upon the
  birth of their child, prior to the beginning of
  any parental leave.
• The 2 weeks of sick leave are deemed to be due to
  the SHC of the employees spouse or newborn
  child however, no CS-1789 is required for these
  2 weeks.
• An employee may not substitute paid compensatory
  time, BLT, or deferred hours for unpaid FMLA
  leave.
• If an employee uses compensatory time, BLT, or
  deferred hours for FMLA qualifying purposes, the
  time cannot be counted against the employees
  FMLA leave entitlement.

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A 12-Month Period

• An eligible employee with a qualifying reason is
  entitled to up to a total of 12 workweeks of
  job-protected FMLA leave during a 12-month period
  beginning on the first date the employee's leave
  is taken. The next 12-month period begins the
  first time leave is taken after completion of any
  previous 12-month FMLA period.
• Although the FMLA permits alternate ways to
  calculate the 12-month period, this is the method
  the SOM uses, which is incorporated into CBAs,
  and it cannot be changed by a department.

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Job-Protected Leave

• The employer is to grant FMLA leave to an
  eligible employee with a qualifying reason
  requesting FMLA leave.
• The employer is to restore an eligible employee
  on FMLA leave to their position upon expiration
  of the FMLA leave.
• The employer cannot interfere with an employees
  exercise of FMLA rights.
• The employer cannot retaliate against an employee
  for exercising FMLA rights.
• Note not an absolute, unqualified right

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Intermittent Leave and Reduced Leave Schedule

• Intermittent leave is FMLA leave taken in
  separate blocks of time due to a single
  qualifying reason.
• A reduced leave schedule reduces an employees
  usual number of working hours per workweek, or
  hours of work per workday.
• The leave may be taken in the shortest period
  used to account for absences or use of leave.
• The employer cannot count more FMLA leave against
  an employees entitlement than is actually taken.

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Intermittent Leave and Reduced Leave Schedule
cont.

• FMLA leave may be taken intermittently or on a
  reduced leave schedule when medically necessary
  for
• planned or unanticipated medical treatment of a
  SHC
• recovery from treatment for a SHC or
• recovery from a SHC.
• Intermittent FMLA leave or a reduced leave
  schedule may be taken for absences where the
  employee is unable to perform the essential
  functions of the position because of a chronic
  SHC.
• Intermittent leave or a reduced leave schedule
  may be taken only with the employers approval to
  care for a newborn or newly placed adopted or
  foster care child.
• See Section 825.203.

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Medically Necessary

• Intermittent leave or leave on a reduced schedule
  must be medically necessary.
• Medically necessary means there must be a
  medical need for the leave, which is best
  accommodated through intermittent leave or a
  reduced leave schedule.
• Employees needing intermittent leave or leave on
  a reduced schedule must attempt to schedule leave
  so the employers operations are not disrupted.
• The employee may be assigned to an alternative
  position that better accommodates an employees
  intermittent leave or reduced leave schedule.
• See Section 825.117.

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Alternative Position

• The employer may transfer an employee to an
  alternative position during the period of
  intermittent leave or reduced leave schedule if
• leave is foreseeable based on planned medical
  treatment or
• the employer has agreed to permit intermittent
  leave or leave on a reduced schedule due to the
  birth of a child, or placement of a child for
  adoption or foster care.
• Any transfer to an alternative position must be
  in compliance with an applicable CBA, and state
  and federal laws.

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Alternative Position cont.

• An alternative position need not be equivalent in
  duties.
• The alternative position must
• have equivalent pay and benefits and
• better accommodate recurring periods of leave
  than the regular position of the employee.
• The employer may proportionately reduce benefits,
  such as annual and sick leave accruals, that are
  based on the number of hours worked.
• The employer may not transfer an employee to an
  alternative position to discourage the taking of
  FMLA leave.

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HRMN Notifications

• HRMN is now sending notifications to the
  departments when a date is entered that is not at
  least 9 months from the start date of the
  employees FMLA leave, and when the employees
  FMLA qualifying year has expired and the
  expiration date has not been removed or reset.
• The below employee had an FMLA expiration date
  of entered in HRMN that is less than 9 months
  out from the Date of the "MISCUPDAT2" Personnel
  Action. This action was entered by User000000.
  Please adjust the date to at least 9 months in
  the future.
• The below employee had a FMLA expiration date
  that is over 14 days ago. Please review the
  employee's record, either reset the expiration
  date or remove it, and zero out the FMLA time
  accrual hours.

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Benefit Protection
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Benefit Protection

• During FMLA leave, an employer must maintain the
  employees coverage under any group insurance
  plan (health, dental and vision) the employee was
  enrolled in prior to the FMLA leave.
• While on FMLA leave, an employee is entitled to
  any new or changed group insurance plan benefits
  provided by the employer to the same extent as
  the employee would have been if not on leave.
• The employers obligation ceases if and when the
  employment relationship would have ended if the
  employee had not taken FMLA leave.
• An employee may choose not to retain group
  insurance plan coverage during FMLA leave.

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Job Restoration
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Job Restoration

• Upon return from FMLA leave, an employee is
  entitled to restoration to the same position or
  an equivalent position as long as the employee is
  able to perform all of the essential functions of
  their position. (See Section 825.214)
• An equivalent position must have the same
  benefits, pay, and other terms and conditions of
  employment prior to the FMLA leave.
• A key employee is not necessarily entitled to
  job restoration but this provision rarely applies
  in the state classified service. (See Section
  825.217)

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CS-1790Employee Request Employer Response
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Notifying the Employer

• Notice of the need for FMLA leave may be given
• in writing
• orally
• in person
• by telephone
• by fax machine
• after the employee returns, but within two (2)
  business days
• by the employees spokesperson
• An employee is not required to use the CS-1790 to
  notify the employer of the need for FMLA leave.
• If notification is made in any other manner, the
  employer will complete Sections I and II of the
  CS-1790.

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Notifying the Employer cont.

• Notice for foreseeable leave is to be given
• 30 days or more into the future or
• as soon as practicable, which is within two (2)
  business days of beginning leave.
• Notice for unforeseeable leave may be given as
  soon as practicable
• within two (2) business days of going on leave
  or
• within two (2) business days of returning from
  leave.
• Any employer rules regarding call in or
  notification required when an employee cannot
  work remain in effect and are not relieved under
  the FMLA however, a transgression cannot serve
  as a basis for denial if timely notice of the
  need for FMLA leave is given.

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Medical Certification Documentation Analysis

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CS-1789Medical Certification Documentation
Analysis
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Test Your Knowledge of the FMLA
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• 1. FMLA allows eligible employees to take time
  off to care for the following family members with
  a SHC
• child, spouse, grandparent
• spouse, grandparent, sibling, child
• child, spouse, parent

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• "a" is incorrect!
• "b" is incorrect!
• "c" is correct!FMLA allows eligible employees to
  take time off to care for a child, spouse, or
  parent with a SHC.

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• 2. Kim had minor surgery and was required to stay
  in the hospital overnight. This condition caused
  Kim to miss one day of work. Since Kim was back
  to work the following day and required no more
  subsequent doctor's visits, Kim's leave should be
  documented as FMLA leave.
• True
• False

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• True is correct!Kim had an overnight stay in the
  hospital so this should be handled as FMLA leave.
• The greater benefit.
• False is incorrect!

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• 3. SOM employees must have at least 12 months of
  prior state service and must have worked a
  minimum of 1,250 hours during the previous 12
  months to be considered eligible for FMLA leave.
• True
• False

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• True is correct!Please note that all that is
  required is total SOM service and not a specific
  department.
• False is incorrect!12 months of prior SOM
  service and 1,250 hours worked during the
  previous 12 months are the only two requirements
  for FMLA eligibility.

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• Kim has a chronic serious health condition
  certified by a health care provider that will
  require being off work for treatments one day per
  week for the next two months. Should the leave
  be designated as FMLA leave?
• a. Kim will not miss more than three consecutive
  calendar days from work therefore, the absences
  for the treatments should not be counted as FMLA
  leave.
• b. Although Kim will not miss more than three
  consecutive calendar days from work, the
  condition is chronic. The absence should be
  handled as FMLA leave.

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• "a" is incorrect!
• "b" is correct!Any absence for treatment of a
  chronic SHC condition may be applied to FMLA
  leave. Kim's condition was certified by a HCP
  the absence for treatments of the chronic
  condition in this case may be applied to FMLA
  leave.

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• 5. An eligible full-time SOM employee is entitled
  to how many hours of FMLA leave in a 12-month
  period?
• 340 hours
• 480 hours
• 600 hours
• 1200 hours

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• "a" is incorrect!
• "b" is correct!12 weeks X 40 hours/week 480
  hour
• "c" is incorrect!
• "d" is incorrect!

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CS-1789Medical Certification Documentation
Analysis
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Health Care Provider

• Health Care Providers (HCP) include
• Licensed M.D. or Osteopath
• Podiatrists, Dentists, Clinical Psychologists
• Optometrists, Chiropractors, Clinical Social
  Workers, Counselors
• Nurse Practitioners and Nurse-midwives
• HCP authorized to practice in a country other
  than the U.S.
• Any HCP from whom the State of Michigans group
  health plan will accept certification.

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A Serious Health Condition means an illness,
injury impairment, or physical or mental
condition that involves one of the following1.
Hospital Care

• Inpatient care (i.e., an overnight stay) in a
  hospital, hospice, or residential medical care
  facility, including any period of incapacity2 or
  subsequent treatment in connection with or
  consequent to such inpatient care.

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• Absence Plus Treatment(a) A period of
  incapacity of more than three consecutive
  calendar days (including any subsequent treatment
  or period of incapacity relating to the same
  condition) that also involves (1) Treatment3
  two or more times by a health care provider, by a
  nurse or physicians assistant under direct
  supervision of a health care provider, or by a
  provider of health care services (e.g., physical
  therapist) under orders of, or on referral by, a
  health care provider or
• ---------------------------------
  
• 3 Treatment includes examinations to
  determine if a serious health condition exists
  and evaluations of the condition. Treatment does
  not include routine physical examinations, eye
  examinations, or dental examinations.

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• (2) Treatment by a health care provider on at
  least one occasion which results in a regimen of
  continuing treatment4 under the supervision of a
  health care provider.
• ________________
• 4 A regimen of continuing treatment
  includes, for example, a course of prescription
  medication (e.g., an antibiotic) or therapy
  requiring special equipment to resolve or
  alleviate the health condition. A regimen of
  treatment does not include the taking of
  over-the-counter medications such as aspirin,
  antihistamines, or salves or bed-rest, drinking
  fluids, exercise, and other similar activities
  that can be initiated without a visit to a health
  care provider.

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• 3. Pregnancy
• Any period of incapacity due to pregnancy, or
  for prenatal care.

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____________2Incapacity, for purposes of FMLA,
is defined to mean inability to work, attend
school or perform other regular daily activities
due to the serious health condition, treatment
therefore, or recovery therefrom.

• 4. Chronic Conditions Requiring Treatments
• A chronic condition which
• (1) Requires periodic visits for treatment by a
  health care provider, or by a nurse or
  physicians assistant under direct supervision of
  a health care provider
• (2) Continues over an extended period of time
  (including recurring episodes of a single
  underlying condition) and
• (3) May cause episodic rather than a continuing
  period of incapacity² (e.g., asthma, diabetes,
  epilepsy, etc.).

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• 5. Permanent/Long-term Conditions Requiring
  Supervision
• A period of Incapacity which is permanent or
  long-term due to a condition for which treatment
  may not be effective. The employee of family
  member must be under the continuing supervision
  of, but need not be receiving active treatment
  by, a heath care provider. Examples include
  Alzheimers, a severe stroke, or the terminal
  stages of a disease.

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• 6. Multiple Treatments (Non-Chronic Conditions)
• Any period of absence to receive multiple
  treatments (including any period of recovery
  therefrom) by a health care provider or by a
  provider of health care services under orders of,
  or on referral by, a health care provider, either
  for restorative surgery after an accident or
  other injury, or for a condition that would
  likely result in a period of Incapacity of more
  than three consecutive calendar days in the
  absence of medical intervention of treatment,
  such as cancer (chemotherapy, radiation, etc.),
  severe arthritis (physical therapy), and kidney
  disease (dialysis).

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Employer Options

• Upon review of the CS-1789, the employer may
• Accept the form as submitted
• Determine the form is incomplete
• Determine the form is confusing
• Determine the form looks odd and question the
  authenticity or
• Determine the form looks incongruous and question
  the validity.

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CS-1789 is Incomplete

• The employer may seek only the information
  requested on the CS-1789.
• If the employer accepts an incomplete CS-1789 and
  grants FMLA leave, the employer may not later
  seek further information absent a change in
  circumstances.
• Return the incomplete CS-1789 to the employee and
  advise the employee of the consequences of an
  incomplete form.
• Do not contact the HCP directly.

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CS-1789 is Confusing

• The employer may seek only the information
  requested on the CS-1789.
• If the employer accepts a CS-1789 containing
  confusing information and grants FMLA leave, the
  employer may not later seek clarification absent
  a change in circumstances.
• Return the CS-1789 to the employee with a letter
  of clarification addressed to the HCP and advise
  the employee of the consequences of a form which
  does not substantiate the need for FMLA leave.
• Do not contact the HCP directly.

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Letters of Clarification

• Use the template clarification letters.
• It is a good business practice to attach a copy
  of the employees regular schedule. With
  re-certification please indicate on a calendar
  the dates and times the employee has been absent
  and the reason the employee was away from work.
• It is a good business practice to include a
  signature line on the letter and leave space for
  the HCP to answer specific questions on the
  letter itself.

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Question Authenticity of CS-1789

• The employer may seek only the information
  requested on the CS-1789.
• If the employer accepts a CS-1789 which does not
  appear to be authentic and grants FMLA leave, the
  employer may not later question the authenticity
  of the form.
• Request the employees permission to have a HCP
  representing the employer contact the employees
  HCP for purposes of authenticating the CS-1789
  and advise the employee of the consequences of a
  form which does not substantiate the need for
  FMLA leave.
• Do not contact the HCP directly.

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Question Validity of CS-1789

• The employer may seek only the information
  requested on the CS-1789.
• If the employer accepts a CS-1789 even though the
  employer doubts the validity of the medical
  certification and grants FMLA leave, the employer
  may not later question the validity of the
  certification.
• Require the employee to obtain a second opinion
  at the employers expense and advise the employee
  of the consequences of failing to cooperate.
• Do not contact the HCP directly.

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Second Opinions

• If the employer has reason to doubt the validity
  of the medical certification provided by the
  employee, the employer may require the employee
  to obtain a second opinion.
• The second opinion is at the employers expense.
• The employer is permitted to choose the HCP to
  furnish the second opinion as long as the HCP
  chosen is not employed on a regular basis by the
  employer (unless the employer is located in an
  area where access to health care is extremely
  limited).
• If the employee cooperates in the second opinion
  process, the employee is provisionally entitled
  to FMLA leave pending receipt of the second
  opinion.

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Third Opinions

• If the second opinion differs from the opinion of
  the employees HCP, the employer may require the
  employee to obtain a third opinion.
• The third opinion is at the employers expense.
• The third HCP must be approved jointly by the
  employer and the employee.
• The employer and the employee must act in good
  faith to attempt to reach agreement on the third
  HCP. If the employer does not attempt to act in
  good faith, the employer will be bound by the
  first opinion if the employee does not act in
  good faith, the employee will be bound by the
  second opinion.
• If the employee cooperates in the third opinion
  process, the employee is provisionally entitled
  to FMLA leave pending receipt of the third
  opinion.
• The third opinion is final and binding.

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Employee Consequences

• If an employee fails to satisfy the medical
  certification requirements, the employer may
• delay the taking of FMLA leave until the required
  certification is provided if the need for the
  leave is foreseeable
• delay the continuation of FMLA leave until the
  required certification is provided if the need
  for the leave is unforeseeable however, the
  employers time frame for providing medical
  certification must be reasonable under the
  circumstances.
• If the employee never produces the required
  medical certification, the leave is not FMLA
  leave.

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ADA/FMLA/Workers CompensationWhen More Than
One Applies
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Test Your Knowledge of the FMLA, ADA
Workers Compensation!
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• When might both the FMLA and ADA affect an
  employees leave?  
•  
• When the employees family member has a SHC.
• When the employee has a SHC that requires an
  overnight stay in the hospital.
• When an employee who has been on FMLA leave for
  12 weeks cannot return to work because of a
  continuing SHC.

91

• "a" is incorrect!
• "b" is incorrect!
• "c" is correct!These laws will overlap when an
  employee takes a leave of absence for a FMLA SHC
  that also qualifies as a disability under the
  ADA.
• For example, if an employee who has been on FMLA
  leave for 12 weeks cannot return to work because
  of a continuing SHC, the condition also may be a
  disability.

92

• 2. The ADA requires that all printed material for
  SOM employees or the public be available in an
  alternate/accessible format, if requested.
• True
• False

93

• True is correct!The ADA requires that all
  printed material for SOM employees or the public
  be available in an alternate/accessible format,
  if requested. Materials need not be put into
  Braille or other formats until requested.
• False is incorrect!

94

• 3. The ADA, Title I, requires extensive
  renovation of all SOM buildings to make them
  accessible.
• True
• False

95

• True is incorrect!
• False is correct!As an employer, the SOM is
  responsible under Title I of the ADA for making
  facilities accessible to qualified applicants and
  employees with disabilities as a reasonable
  accommodation, unless this would cause undue
  hardship. Accessibility must be provided to
  enable a qualified applicant to participate in
  the application process, to enable a qualified
  individual to perform essential job functions and
  to enable an employee with a disability to enjoy
  benefits and privileges of employment.

96

• 4. The ADA, Title II, requires extensive
  renovation of all SOM buildings to make them
  accessible.
• True
• False

97

• True is incorrect!
• False is correct!The ADA requires SOM programs,
  not all SOM buildings, to be accessible. "Program
  accessibility" is a very flexible requirement and
  does not require the SOM to do anything that
  would result in an undue financial or
  administrative burden. Not every building, nor
  each part of every building needs to be
  accessible. Structural modifications are required
  only when there is no alternative available for
  providing program access.

98

• 5. FMLA leave must be taken in one lump sum
  period of 12 weeks.
• True
• False

99

• True is incorrect!
• False is correct!FMLA leave may be taken
  intermittently.

100

• 6. FMLA law requires the SOM to return an
  employee to the exact same position held prior to
  taking FMLA leave.
• True
• False

101

• True is incorrect!
• False is correct!FMLA law states that an
  employee may be returned to the same or an
  equivalent position.

102

• 7. FMLA leave, with the SOM, begins when the
  employees accrued leave expires.
• True
• False

103

• True is incorrect!
• False is correct!FMLA leave starts when the
  employee begins missing time due to an
  FMLA-related condition. The employees accrued
  leave will run concurrently with any FMLA leave.

104

• 8. The employee would be required to pay their
  normal monthly premium to maintain their health,
  dental vision coverage if they are on unpaid
  FMLA leave for an entire pay period.
• True
• False

105

• True is correct!The employee will still be
  required to pay their monthly premiums if they
  are on unpaid FMLA leave for an entire pay
  period. The employee would not, however, be
  required to pay the SOM share of the premiums.
• False is incorrect!

106

• 9. If an employee is on workers compensation and
  has an FMLA qualifying absence at the same time,
  and a light duty assignment is identified and
  available, the dept may offer the light-duty
  assignment , but they may not require the
  employee to take it.
• True
• False

107

• True is correct!The employee is able to turn
  down favored work or light-duty while on workers
  comp and FMLA. The employees workers comp
  benefit will be stopped and the employee will be
  required to use sick leave, but may substitute
  annual leave, to continue on payroll. The
  employee will not be allowed to buy back their
  leave credits in these circumstances.
• False is incorrect!

108

• 10. An employee can no longer perform their
  original position because of a work related
  injury. The ADA requires the dept to create a
  new position or bump another employee from
  their position as a reasonable accommodation.
• True
• False

109

• True is incorrect!
• False is correct!The ADA does not require an
  employer to create a new position or to bump
  another employee from their position in order to
  reassign an employee who can no longer perform
  the essential functions of their original
  position, with or without a reasonable
  accommodation.

110

• 11. An FMLA serious health condition is the
  same as an ADA disability.
• True
• False

111

• True is incorrect!
• False is correct!An FMLA serious health
  condition is not necessarily an ADA
  disability. An ADA disability is an impairment
  that substantially limits one or more major life
  activities, a record of such an impairment, or
  being regarded as having such an impairment. Some
  FMLA serious health conditions may be ADA
  disabilities, i.e., cancers and serious
  strokes, and some ADA disabilities, i.e.,
  diabetes and being HIV positive, may be serious
  health conditions.

112
Definitions
113
The Basics
ADA
FMLA

• Requires covered employers to give eligible
  employees up to twelve weeks per year of unpaid
  leave for
• birth or adoption of child
• placement of foster child
• serious medical condition of parent, spouse, or
  child
• Employees own serious medical condition

• No employment discrimination on the basis of
• a mental or physical impairment that
  substantially limits a major life activity
• a record of such an impairment or
• being regarded as having such an impairment.
• Not every unfavorable or difficult condition is
  a protected disability!

114
The Basics

• Workers Compensation
• Temporary income replacement for covered
  employees who have job-related injuries or other
  medical problems.
• Retaliation or job discrimination is prohibited
  against employees who are involved in workers
  compensation claims.
• Injured employee is limited to statutory caps on
  compensation for covered medical conditions.

115
Prohibited Actions
ADA
FMLA

• Counting FMLA leave against employees who take
  it.
• Failing to allow FMLA leave under covered
  circumstances.
• Retaliating against employees who take FMLA
  leave, who file FMLA-related complaints, or who
  assist in FMLA claim actions.

• Pre-employment medical inquiries, including
  questions about workers comp claim history.
• Failure to make a reasonable accommodation of a
  known disability when an employee could do the
  essential functions of the job with the
  accommodation.

116
Prohibited Actions

• Workers Compensation
• Interfering with an employees right to file a
  workers compensation claim.
• Discharging or otherwise discriminating against a
  person who has filed a workers compensation
  claim.

117
Coverage
FMLA
ADA

• Employers with 50 or more employees.
• Employee has worked at least 12 months total
  time with Employer.
• Employee has worked at least 1,250 hours during
  12-month period preceding the leave.

• All Employers in interstate commerce with 15 or
  more employees are covered.
• Any individual, with a disability, applying for a
  job.
• Current employees with a disability. There is no
  limit on length of time employed.

118
Coverage

• Workers Compensation
• Employees of companies that have workers
  compensation insurance.
• Employees of independent contractors borrowed
  servants if under first Employers direction
  and control.
• Job-related injuries and illnesses.

119
Interaction Based on Employee Count

• Below 15 employees, only workers compensation
  laws are in effect.
• With 15 to 49 employees, workers compensation
  and ADA are in effect.
• With 50 or more employees, workers compensation,
  ADA, and FMLA are potentially at issue (With the
  SOM all three should always be taken into
  consideration).
• Independent contractors are not counted or
  covered.

120
Interaction Based on the Situation

• Only a job-related medical problem affecting the
  employee will ever potentially involve all three
  laws.
• A situation involving a family members medical
  problem may involve both ADA (regarded as) and
  FMLA, but not workers compensation.
• Some medical problems may only involve one law.

121
Interaction Between the Three Laws

• Some situations may be covered by all three laws,
  but all the coverage requirements for all the
  laws must be fulfilled.
• Some situations may be covered by two laws.
• In multiple coverage situations, the outcome that
  is most favorable for the employee must occur.

122
FMLA/ADA Interplay
123
SHC and/or Disability
FMLA
ADA

• The ADA generally is not intended to cover
  temporary medical conditions.
• Accordingly, a person is disabled under the ADA
  only if
• he/she has a physical or mental impairment and
• that impairment substantially limits a major life
  activity, such as walking, seeing, hearing,
  speaking, and breathing.

• Generally, most disabilities will qualify as SHC
  under the FMLA.
• For example, cancer can be both a SHC under the
  FMLA and a disability under the ADA. However, not
  all SHCs will also be disabilities.

124
NOT COVERED BY THE ADA
COVERED BY THE FMLA

• Short term medical conditions that will resolve
  themselves following an expected course of
  treatment and recovery
• Examples Appendicitis, Cancer, Gall Bladder
  removal, pregnancy.
• Temporary disabilities
• Examples Broken bones or soft tissue injuries
  that result in no or minimal impairment.

• Short term medical conditions that will resolve
  themselves following an expected course of
  treatment and recovery
• Examples Appendicitis, Cancer, Gall Bladder
  removal, pregnancy.
• Temporary disabilities
• Examples Broken bones or soft tissue injuries
  that result in no or minimal impairment.

125
NOT COVERED BY THE ADA
MAY BE COVERED BY THE FMLA

• A SHC that involves the ongoing treatment for
• Sexual behavior disorders, or
• Compulsive gambling, or
• Psychoactive substance use disorders (from use of
  illegal drugs).

• Current illegal drug users
• Sexual behavior disorders
• Compulsive gambling
• Kleptomania
• Pyromania
• Psychoactive substance use disorders (from use of
  illegal drugs).

126
COVERED BY THE ADA
COVERED BY THE FMLA

• Past illegal drug use is covered.
• Past alcohol use is covered
• Employer may prohibit use of illegal drugs and
  alcohol in workplace

• A SHC that involves the ongoing treatment for
• past illegal drug use, or
• Past alcohol use.

127
Reasons for Leave
FMLA
ADA

• SHC of self or family member ( see definition of
  family member)
• Adoption of a child
• Birth of a child.

• Must be related to the employees disability.

128
Reasons for Leave Time Away from Work
FMLA
ADA

• Obtain medical treatment rehabilitation
  services or physical or occupational therapy
• Recuperating from an illness or an episodic
  manifestation of the disability.

• Obtain medical treatment rehabilitation
  services or physical or occupational therapy
• Recuperating from an illness or an episodic
  manifestation of the disability
• Obtaining repairs on a wheelchair, accessible
  van, or prosthetic device.

129
Reasons for Leave Time Away from Work cont.
FMLA
ADA

• Avoiding temporary adverse conditions in the work
  environment (i.e., carpet cleaning).

• Avoiding temporary adverse conditions in the work
  environment (i.e., carpet cleaning)
• Training a service animal
• Receiving training in the use of Braille or to
  learn sign language.

130
Who is eligible?
FMLA
ADA

• Employee is eligible first day of employment
  regardless if they are full or part-time.

• Employees who have worked for the SOM for 12
  months, need not be consecutive, and
• who have worked 1250 hours within previous 12
  months.

131
How Much Time is Available?
ADA
FMLA

• Up to 12 weeks of leave within 12 month period of
  time.
• Leave may be taken intermittently (under certain
  circumstances)
• Day by day
• Hour by hour
• Multiple weeks or consecutive days.

• Based on what is reasonable.
• May be used intermittently
• Day by day
• Hour by hour
• Multiple weeks or consecutive days.

132
Compensation
ADA
FMLA

• SOM has a policy that would apply accrued sick
  time for SHC, employee may substitute accrued
  annual leave, against the leave time.
• Unpaid leave available beyond use of accrued sick
  leave.

• SOM may allow individual to use accrued vacation
  and sick time toward leave.
• Unpaid leave available beyond use of accrued
  time.

133
Documentation
FMLA
ADA

• Documentation of the need for leave and relation
  to disability are required by the employer.
• The employer has a right to require sufficient
  documentation. There is no formal method of
  resolving conflicts between the employer and
  employee documentation.

• Documentation of the need for leave required from
  medical provider.
• Conflict between employee and employer regarding
  documentation resolved through use of 2nd and 3rd
  opinion process.

134
Protections for Employees
FMLA
ADA

• Position employee held prior to the leave, or
  equivalent position, is available upon return to
  work, as long as the employee can perform the
  essential functions of the job.
• Employer must maintain benefits during leave
• Group Health, dental vision Insurance.

• Position employee held prior to the leave is
  available upon return to work.
• Employee responsible for any Group Health
  insurance payments related to maintaining
  benefits during leave.
• Employer may fill the position if able to
  demonstrate business necessity.

135
Reassignment
FMLA
ADA

• Considered when qualified individual is not able
  to do current position with other reasonable
  accommodations
• Do not need to create a position.
• Promotion to a higher position is not a required
  form of reassignment.
• Reassignment not to violate collective bargaining
  agreement

• Temporary transfer to an alternative position
  that better accommodates recurring absences may
  be consider when intermittent leave is
  foreseeable because of planned medical treatment,
  i.e., physical therapy or chemotherapy.
• Must be within employees qualifications.
• Reassignment not to violate collective bargaining
  agreement.

136
Michigan Supreme Court Decision

• ADA identifies reassignment as reasonable
  accommodation for qualified individuals.
• Michigan Rules that Reassignment not required,
  Rourk v Oakwood Hospital Corporation, under
  Handicappers' Civil Rights Act, now known as the
  Persons with Disabilities Civil Rights Act, MCL
  37.1101 et seq. MSA 3.550(101) et seq.

137
Considerations for an ADA Reasonable Accommodation

• The ADA does not require an employer to eliminate
  the essential functions of the position. If the
  functions an employee cannot perform are
  marginal job functions they may be delegated to
  co-workers, as part of the reasonable
  accommodation.
• If there is already a vacant position for which
  an employee is qualified, it may be a reasonable
  accommodation to reassign the employee to that
  position. Reassignment not to violate collective
  bargaining agreement.

138
FMLA/ADA/Workers Compensation Interplay
139
FMLA/ADA/Workers Compensation

• Being awarded Workers Compensation benefits, or
  being assigned a high compensation disability
  rating, does not automatically establish that an
  employee is protected by the ADA, however, the
  employee will be considered to have a SHC under
  the FMLA if their injury results in time away
  from work or the inability to work their regular
  hours.
• Workers Compensation and FMLA will run
  concurrently if the employee has not exhausted
  their FMLA leave.
• An employee must be substantially limited in one
  or more major life activities, or be regarded as
  a person with a disability, or have a record of
  disability under the ADA.

140
FMLA/ADA/Workers CompensationConfidentiality of
Medical Records

• Medical information must be kept confidential and
  not shared with other employees .
• Disclosure limited to individuals who need to
  know in order to implement accommodation, safety
  concerns, state or federal reporting, and
  insurance.

141
FMLA/ADA/Workers Compensation
ADA
FMLA

• Once a request for an accommodation has been
  made, the ADA contem- plates an interactive
  process between the employer and the employee.

• Once the employer is alerted to the need for FMLA
  by an employee, or their representa-tive, the
  employer needs to let the employee know if they
  qualify for leave and what will be required,
  within two business days.

Workers Compensation

• Once the employer is made aware of a work related
  injury or illness, for which the employee is
  seeking medical treatment, the employer has the
  right to direct the medical treatment for 10 days
  from the inception of medical care.

142
Favored Work?
ADA
FMLA

• Light Duty, Modified Duty or Disability
  Management Transitional Employment Program
  positions are not required as an accommodation by
  the employer.

• Participation by the employee in Light Duty,
  Modified Duty or Disability ManagementTransitiona
  l Employment Program positions is not required.

Workers Compensation

• Participation by the employee in Light Duty,
  Modified Duty or Disability ManagementTransitiona
  l Employment Program positions is required.

143
Discrimination Claims
ADA
FMLA

• A workers compensation claim does not prevent an
  employee from asserting rights under the ADA or
  from filing a discrimination charge with the
  EEOC.

• A workers compensation claim does not prevent an
  employee from asserting rights under the FMLA or
  from filing a discrimination charge with the DOL.

Workers Compensation

• A workers compensation claim does not prevent an
  employee from asserting rights under the ADA or
  FMLA or from filing a discrimination charge with
  the EEOC or DOL.

144
Things to Remember

• If an employee is receiving workers compensation
  and the Civil Service 2/3 supplement the employee
  is entitled to a an LTD benefit when the 2/3
  supplement ends.
• In order for the employee to be eligible for the
  LTD Rider, file a LTD claim for the employee as
  soon as possible but no later than near the end
  of the 50/100 weeks. The Rider will cover 6
  months of Group Health Insurance Premiums.
• (The employee must be enrolled in the LTD Plan
  prior to their injury to be eligible for LTD
  benefits and the LTD Rider.)

145
Scenarios
146
Scenario I

• An employee you supervise has just told you, in
  confidence, that their spouse has been diagnosed
  with HIV. They are concerned about others at work
  finding out because one of their co-workers saw
  some HIV brochures on their desk a couple of
  months ago. The employee has also told you that
  since then all the other co-workers are behaving
  strangely.
• What should you do next???
• Which, if any, laws apply???

147
Scenario I

• Family members medical problem
• FMLA and ADA would be at issue.
• FMLA is the primary law at issue
• Employee should be given the CS1789 and CS1790
  forms.
• ADA could be at issue if employer regards
  employee as disabled due to family members
  problem (HIV, AIDS, or other communicable
  diseases). If you think there may be an issue
  here give the employee the CS1668 form and a copy
  of CS Reg 1.04.

148
Scenario II

• Your employee is having a difficult pregnancy.
  She or her significant other have called in all
  week saying that she is unable to come to work.
  She is due to have the baby next month.
• Her significant other called today and said that
  the employee most likely will not be back to work
  until after the baby is born. The employee was
  being considered for a promotion.
• What should you do next???
• Which, if any, laws apply???
• What is Title VII????

149
Scenario II

• Employees difficult pregnancy
• FMLA involved Employee gets up to 12 weeks of
  leave for pregnancy. The CS 1789 1790 forms
  should be sent to the employee. The employee may
  be entitled to other leave.
• ADA normal pregnancy is not a covered
  disability. If the employer regards employee as
  disabled, ADA is involved.
• Problem pregnancy can lead to or reveal
  disabilities. If the employer becomes aware of a
  disability they should provide the employee with
  the CS1668 form and a copy of the CS Reg. 1.04
• Dont forget Title VII of the Civil Rights Act of
  1964!

150
Scenario III

• Your employee has just adopted a child with
  medical problems. They have let you know that
  they will need time off to take the child to the
  doctor and to treatment. They are requesting
  Intermittent Leave.
• How much time do you think the employee is
  entitled to??
• Can you request that the employee reschedule
  appointments??
• They are the only employee doing this job right
  now but Joe could do the job and you need someone
  there full-time. What could you do??? What or who
  would you need to consult before doing
  anything???

151
Scenario III

• Employee gets child with medical problems
• FMLA involved Employee gets up to 12 weeks of
  leave for new family situation. They may be
  entitled to more leave through their CBA or CS
  Rules.
• If an Employee request Intermittent Leave the
  employer may ask them to reschedule appointments
  so that they are least disruptive to the
  employer. The employer may temporarily reassign
  an employee to a position that better suits the
  need for Intermittent Leave. Intermittent
  Leave for bonding purposes is at the discretion
  of the employer. Always consult the employees CBA
  before reassigning.
• ADA if employer regards employee as disabled
  due to having a child with problems, ADA is
  involved

152
Scenario IV

• Your employee has a work related injury and is
  off work. They have requested a Reasonable
  Accommodation so that they may return to work.
  It does not look like their restrictions are
  permanent. They are going to be re-evaluated in
  6 months. Workers Compensation just called and
  asked if you had favored work for this
  employee.
• What would you do next???
• What, if any, laws apply???
• Is this a SHC???
• What is Favored Work and if you have it how
  long will you allow an employee to work in it???

153
Scenario IV

• Work Related Injury
• The employee should be notified that their FMLA
  will run concurrently with their time away from
  work for the work related injury. This would be
  considered a SHC if the injury prevents the
  employee from being able to return to work.
• Temporary medical problems are not protected
  disabilities under the ADA. Give the employee the
  CS 1668 and a copy of the CS Reg 1.04.
• Favored Work has many names such as Light Duty,
  Modified Work, Disability Management-Transitional
  Employment. Typically favored work is no longer
  than 6 months. Consult the employees CBA to see
  what is available.

154
Scenario V

• It is 730 am and your employee has just shown up
  at work from an FMLA leave and told you they can
  no longer perform the essential functions of
  their job, but they have a full release to return
  to work. The only reason they returned is
  because their insurances were going to stop and
  they were going to be placed on a medical layoff.
  
• What do you do next???
• What laws, if any, apply???
• Should you let them stay at work???
• Should you send them home??? for an IME?? If so
  what would support this???

155
Scenario V

• Employee just showed up at work from leave
• Under the FMLA there is no duty to return
  employee to the same job.
• ADA may well be involved. Reasonable
  accommodation may mean the employee could be
  offered an alternative position, if one exists
  within their restrictions.
• Go hom