ADAFMLA WORKERS COMPENSATION THE LEGAL BERMUDA TRIANGLE

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ADA/FMLAWORKERS COMPENSATIONTHE LEGAL BERMUDA
TRIANGLE

• Presented by
• Rob Liddell HR Compliance Coordinator
• Raquel Peverini DEO ADA Coordinator
• Gerard D. Solis Associate General Counsel

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Disability - ADA

• Title I
• Prohibits discrimination against qualified
  individual with a disability
• May require employer to provide reasonable
  accommodations

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Disability - ADA (contd)

• Individual With A Disability
• Has an impairment that
• substantially limits
• one or more major life activities
• Has a record of such impairment
• Is regarded as having such impairment

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Disability - ADA (contd)

• Qualified Individual With A Disability
• Satisfied job-related requirements of the
  position held or desired
• With or without reasonable accommodation, can
  perform the essential functions of that position

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Disability - ADA (contd)

• Disability
• When determining whether an impairment is a
  disability, courts will take into account
  ameliorative measures (e.g. medication, medical
  devices)

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Disability - ADA (contd)

• Regarded As
• Has an impairment that does not substantially
  limit major life activity but is treated as
  having such limitation
• Has an impairment that substantially limits major
  life activity only as result of attitudes of
  others
• Has no impairment but is treated by employer as
  having one

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Disability - ADA (contd)

• Prohibited Activities
• Singling out workers with disabilities because of
  their disability
• Adhering to standard practices that adversely
  affect workers with disabilities

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Disability - ADA (contd)

• Singling Out Workers With Disabilities
• Segregating or classifying
• Use of selection criteria that screens out
  individuals with disabilities, unless
• Job-related, and
• Consistent with the needs of the business
• Medical inquiries in hiring process be
  extremely cautious

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Disability - ADA (contd)

• Adhering To Standard Practices
• Unlawful to use criteria or administrative
  methods that have the effect of discriminating on
  the basis of disability
• Employer has duty of providing reasonable
  accommodation

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Reasonable Accommodation

• Must make reasonable changes in workplace
  policies or environment to accommodate employees
  disability
• Not required if accommodation would impose an
  undue hardship on the employer

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Reasonable Accommodation (contd)

• May include
• Altering existing facilities
• Job restructuring
• Work schedule modification
• Providing unpaid leave
• Reassignment to vacant position
• Providing modifying equipment

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Reasonable Accommodation (contd)

• Not required to
• Create a new position
• Bump another employee to create a position
• Provide accommodation that would create direct
  threat to others
• Violate CBA to provide accommodation

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Disability-Related Inquiries

• A disability-related inquiry is a question or
  series of questions that is likely to elicit
  information about a disability. This same
  standard is used for determining whether a
  question is disability-related in the pre- and
  post-offer stages.

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Disability-Related Inquiries (contd)

• The following are examples of questions that are
  not permissible
• asking an employee whether he or she has or ever
  had a disability
• how he or she became disabled
• inquiring about the nature or severity of a
  disability
• asking an employee to provide medical
  documentation regarding a disability

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Disability-Related Inquiries (contd)

• asking an employees co-worker, family member,
  doctor or another person about an employees
  disability
• asking about an employees genetic information
• asking about an employees prior workers
  compensation history

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Disability-Related Inquiries (contd)

• asking an employee whether he or she is taking
  any prescription drugs or medications
• asking an employee a broad question about his or
  her impairment that is likely to elicit
  information about a disability. (i.e. what
  impairments do you have?)

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Disability-Related Inquiries (contd)

• The following questions are permissible
• asking generally about an employees well being
• asking an employee about non disability-related
  impairments
• (i.e. how did you break your leg?)
• asking an employee whether he or she can perform
  a job function

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Disability-Related Inquiries (contd)

• asking an employee whether he or she has been
  drinking
• asking an employee about his or her current
  illegal use of drugs
• asking an employee how she is feeling
• asking an employee when her baby is due

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Disability-Related Inquiries (contd)

• Asking an employee to provide the name and
  telephone number of a person to contact in case
  of a medical emergency

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FMLA

• Provides eligible employees of certain employers
  with up to 12 weeks of unpaid leave for certain
  family and medical needs

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FMLA (contd)

• Covered Employers
• Private employers must employ 50 or more workers
  for each working day during each of 20 or more
  calendar workweeks in the current or preceding
  calendar year to be covered under the Act. This
  number is calculated when the employee requests
  leave.

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FMLA (contd)

• Eligible Employees
• employed by a covered employer for at least 12
  months
• has provided at least 1,250 hours of service to
  that employer during the 12 month period
  immediately preceding the leave
• employed at a worksite where at least 50
  employees are employed within 75 miles of that
  worksite

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FMLA Qualifying Events (cont.)

• The birth of a child of the employee or the care
  for a child of the employee during its first year
  of life
• The placement of a child with an employee for
  adoption or foster care

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FMLA Qualifying Events (cont.)

• To care for an immediate family member if that
  individual has a serious health condition
• A serious health condition of the employee that
  makes the employee unable to perform the
  functions of the employees position

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FMLA Requesting Leave

• If an employee requests FMLA leave, the employer
  has the right to inquire why leave is needed
• Leave may be denied if the employee does not
  provide the requested information
• The request for leave may be oral, and the
  employee need not specifically mention the FMLA
  when requesting leave in order to be eligible

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FMLA Requesting Leave (cont.)

• If leave is foreseeable - employer can require
  the employee to provide notice of not less than
  30 days before the leave is necessary
• If leave is not foreseeable, the employee must
  give as much notice as is practicable
• The employer may require proof of the necessity
  for leave if leave is required due to the illness
  of the employee or to care for an ill family
  member

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FMLA Taking Leave

• Leave may be taken
• in one lump sum
• several weeks at one time
• intermittently or
• by utilizing a reduced schedule of hours (e.g. a
  schedule that reduces the usual number of hours
  per workweek, or hours per workday, of an
  employee)

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FMLA Taking Leave (contd)

• Unpaid leave is permitted
• gt An employer may require, or the employee may
  elect, to substitute any kind of personal leave,
  vacation time, or other type of family leave
  available, for leave under the Act for any part
  of the 12-week leave period.

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FMLA Taking Leave (contd)

• During leave, the employee is required to pay
  premiums for which the employee would otherwise
  be responsible, including premium increases or
  costs associated with plan changes. The employee
  is subject to plan changes.

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FMLA Employee Rights Upon Return To Work

• Entitled to return to his or her same position or
  to an equivalent position with equal benefits,
  pay, and other terms and conditions of employment
• Leave cannot result in any loss of accrued
  benefits

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FMLA Employee Rights Upon Return To Work (contd)

• FMLA leave does not act as a break in service for
  purposes of pension or other benefit plans
• Not entitled to reinstatement if it would give
  the employee greater rights than if there had
  been no leave (e.g. employee who would have been
  laid off during FMLA leave is not entitled to
  reinstatement)

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Workers Compensation

• Dual Coverage
• MMI
• Benefits
• Retaliation