OGLETREE, DEAKINS, NASH, SMOAK

1
CLARIFICATION OR CONFUSION? Employers Litigate
Leave Obligations
Presented by Kathryn Sawtelle Caudle
OGLETREE, DEAKINS, NASH, SMOAK STEWART, P.C.
2005 WORKPLACE STRATEGIES
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Introduction

• The ADA, FMLA and USERRA each provide for Medical
  leaves
• Compliance with these laws is often complicated
  by overlap in the application between these laws
• This presentation is designed to assist in
  understanding the employers obligations
  concerning the overlap between these leave
  statutes

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Coverage

• ADA
• 15 employees
• USERRA
• Applicable to an employee who is
• A member of armed services
• Called for active duty or training
• Injured while on active duty
• Applies to
• All employers regardless of the number of
  employees
• All employees regardless of the number of service
  hours
• FMLA 50 employees within 75 mile radius
• 12 month tenure
• 1,250 hours worked in last 12 months

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FMLA Coverage
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Nature of Illness, Impairment or Other Condition

• The nature of the employees illness, impairment
  or other condition determines the statutory
  protection that the employee receives
• ADA Coverage
• The ADA protects qualified individuals with a
  disability
• The term DISABILITY is defined as
• A physical or mental impairment that
  substantially limits a major life activity
• Having a record of such an impairment or
• Being regarded as having such an impairment
• The term QUALIFIED is defined as
• An individual who meets the skill, experience and
  educationof the position and
• Who with or without reasonable accommodation can
  performthe essential functions of the position
  desired

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Nature of Illness, Impairment or Other Condition

• FMLA
• Serious health condition
• An illness, injury, impairment or physical or
  mental condition that involves in-patient care in
  hospital, hospice or residential care facility or
  continued treatment by healthcare provider

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Nature of Illness--FMLA Coverage
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Interplay and Strategic Approach

• An employers absence policy must be drafted so
  as to require a consideration of ADA, FMLA and
  USERRA coverage and eligibility issues at the
  outset
• For example
• High blood pressure serious health condition
  but not a disability
• Pregnancy serious health condition but not
  disability
• Blindness disability but not serious health
  condition
• Mental disorder disability but may not be a
  serious health condition
• HIV may disability and serious health condition
  (if employee follows course of treatment,
  inpatient care)
• Injuries suffered during military service may
  disability, a serious health condition and
  require additional USERRA considerations

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Nature of Illness, Impairment or Other Condition

• USERRA
• Covers injuries sustained while on active duty /
  physical and mental
• Special considerations
• Greater accommodation requirements under USERRA
  than ADA
• 2-year convalescence period

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Necessity of Providing Leave

• The extent of an employees leave is determined
  by the nature of the medical condition
• ADA requires reasonable accommodations
• Reasonable accommodation
• Does not have to be the best accommodation
  possible
• However, must be effective in addressing the job
  related needs of the employee
• The accommodation often includes some form of
  reasonable leave
• Does not require undue hardship on employer

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Necessity of Providing Leave

• FMLA requires the employer to grant the employee
  leave
• The employer may not force an employee to take an
  accommodation that would require continued work
  by the employee if she/he has not exhausted the
  leave allowable under the FMLA

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Necessity of Providing Leave

• USERRA requires providing a reasonable
  accommodation to injured returning employee
• The deadline for reinstatement may be extended
  for up to 2 years for returning employees who are
  convalescing due to a disability suffered or
  aggravated during military service
• It is not clear whether USERRA requires
  additional leave time for an employee who has a
  recurring medical condition resulting from
  service time
• However, USERRA regulations provide that if the
  employee meets the FMLA eligibility requirements
  and requests leave, the employer can require
  medical certification for leave to ensure the
  leave qualifies under the FMLA (which tends to
  support the argument that an employer may be
  required to provide an employee medical leave
  under USERRA)

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Interplay and Strategic Approach

• Under the FMLA an employer may not demand an
  alternative to leave that would require continued
  work
• However, an employee with a serious health
  condition resulting from work may lose workers
  compensation benefits if she/he does not accept a
  light duty assignment
• In contrast, an employer can require that an
  employee accept a reasonable accommodation other
  than leave under the ADA as long as the
  accommodation is effective in addressing the
  disability
• If the employee is covered by both the ADA and
  FMLA, the employer should err on the side of
  caution and provideFMLA to the employee

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Medical Certifications and Inquiries

• The ADA prohibits employer from making inquiries
  as to
• Existence of a medical condition or
• Severity of a medical condition
• But see medical certification inquiries
• Such inquiries are appropriate when job related
  and consistent with business necessity
• Employers may inquire concerning the ability to
  perform job-related functions

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Medical Certifications and Inquiries

• Like the ADA, the FMLA also limits medical
  inquiries by employers
• Questions concerning the employees medical
  condition should be addressed to the employees
  physician by the employers healthcare provider
• Contact with the healthcare provider should be
  limited to instances where clarification is
  needed

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Medical Certifications and Inquiries

• USERRA
• Under USERRA, if the employee meets the FMLA
  eligibility requirements and requests leave, the
  employer can require medical certification for
  leave to ensure the leave qualifies under the
  FMLA
• An employer/insurer can require medical
  certification of good health to reinstate a
  returning veteran in a disability insurance plan
  if the employer has the same type of requirement
  for the return from other leave of absence

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Interplay and Strategic Approach

• The best approach to ADA and FMLA leave requests
  is to always require medical certification of the
  leave
• If the inquiries are limited to the particular
  condition for which the employee is seeking
  leave, they typically meet the statutory
  requirements of both the ADA and FMLA
• If the certification is unclear under the FMLA, a
  request for clarification should be made through
  the employers healthcare provider
• An employer may seek clarification directly from
  the employees physician under the ADA

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Employees Notice of Need for Leave

• ADA
• An employer is only required to accommodate an
  employees known disabilities
• It is the employees obligation to request an
  accommodation
• FMLA
• Where the leave is foreseeable, the employee must
  provide at least 30 days notice
• If 30 days not possible, notice should be given
  as soon as practicable
• USERRA
• Notice of leave should be given to the employer
  assoon as practicable

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Interplay and Strategic Approach

• Employers must make sure that they do not
  discipline employees for absences that are
  covered either by the ADA, FMLA or USERRA
• In that vein, employers should evaluate
  carefully
• Whether short term absences are covered by any of
  the three statutes
• Whether a short term absence is the result of a
  continuing regimen of treatment for a serious
  health condition
• Whether an employee who has exhausted FMLA leave
  continues to be eligible for leave beyond 12
  weeks by either the ADA or USERRA
• Employers should review policies requiring
  immediate termination for absences beyond a
  certain number of days (typically six months)as
  they may violate the ADA and USERRA

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Length of Leave

• Assuming that leave is to be provided, questions
  may arise as to the appropriate length of leave
• ADA
• No specific length
• The employer is not required to provide leave if
  it creates an undue hardship on the operation of
  the business
• FMLA
• 12 workweeks in 12-month period
• Intermittent leave available
• USERRA
• Military leave up to 5 years plus
• USERRA provides up to 2 years for recovery for
  employee injured while in the military before
  s/he is required to givenotice of intent of
  re-employment

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Interplay and Strategic Approach

• The FMLAs 12 week limit for unpaid leave does
  not mean that an employee is not eligible for
  additional leave under the ADA or USERRA
• Employers providing medical leave to employees
  are advised to count any leave provided against
  the FMLAs 12 week leave eligibility
• Be careful of policies that mandate termination
  of employees who exceed specified leave time
  (typically 6 months) as they may run afoul of the
  ADA and USERRA

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Light Duty Work as an Alternative to Leave

• ADA
• An employer is not required to create a light
  duty job unless the heavy duty task of a
  position are marginal job functions
• Employer should look for other suitable vacant
  positions
• FMLA
• An employer cannot require its employee to return
  for light duty work

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Light Duty Work as an Alternative to Leave

• USERRA
• An employer must provide alternate employment
  which could include light duty work
• If an employee cant perform his/her position,
  the employer must provide a like position and
  training if necessary to become qualified to
  perform the position through reasonable efforts
  by employer
• If the employee cannot become qualified, then the
  employee must be employed in a position that most
  nearly approximates the prior position in
  seniority, status and pay

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Substitution of Paid Leave

• ADA
• No requirement for paid leave that is provided as
  a reasonable accommodation
• FMLA
• Generally unpaid
• May require employee to take sick leave/vacation
  leave at beginning of FMLA leave
• USERRA
• Does not require paid leave
• Many employers choose to provide differential pay

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Providing Benefits During Leave

• ADA
• The ADA requires the employer to continue health
  and/or life insurance coverage if the leave is
  part of a reasonable accommodation
• FMLA
• Employers are required to maintain an employees
  coverage under a group health plan on the same
  basis as would be provided if the employee had
  been continuously employed

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Providing Benefits During Leave

• USERRA
• Absence fewer than 30 days, benefits must
  continue as if the employee is continually
  employed
• Longer leaves
• Employee is treated as if converting to COBRA
  coverage and
• Group health plan coverage
• 18 months for elections prior to 12/10/04
• 24 months for elections subsequent to 12/10/04
• Once re-employed
• Entitled to rights and benefits would have
  obtainedif employment continuous

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Reinstatement Upon ReturnFrom Leave

• ADA
• The employee is entitled to return to the same
  job unless the employer demonstrates undue
  hardship
• If the employer makes an undue hardship
  demonstration, it must provide a vacant,
  equivalent position for which the employee is
  qualified
• If no equivalent position is available, then a
  lower level position is appropriate
• FMLA
• The employee must be returned to the same
  orequivalent position unless the employee
  cannotperform essential functions of job
• Remember that the ADA may apply under this
  situation!

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Reinstatement Upon ReturnFrom Leave

• USERRA
• Leave for 90 days or less
• Entitled to reinstatement
• Longer leaves
• Order of priority for re-employment
• Reinstatement to former position
• If position not available, reinstate to position
  of like seniority, status, and pay so long as
  person qualified or can become qualified through
  reasonable efforts
• If employee cannot become qualified, offer any
  otherposition that most nearly approximates
  original position

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Interplay and Strategic Approach

• When an employee suffers from a disability that
  is also a serious health condition, employers
  must be sure to analyze the situation from both
  the ADA and FMLA perspectives
• Where an employee transfers to another position
  as a reasonable accommodation and then seeks FMLA
  leave, reinstatement is to the job held at the
  time the FMLA request is made

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CLARIFICATION OR CONFUSION? Employers Litigate
Leave Obligations
Presented by Kathryn Sawtelle Caudle
OGLETREE, DEAKINS, NASH, SMOAK STEWART, P.C.
2005 WORKPLACE STRATEGIES