ADA/FMLA - Case Studies

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ADA/FMLA - Case Studies What the courts can tell
us Presented by Geoffrey Lindley and V.
Latosha Dexter
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FMLA Designating the 12-month Period

• An employer is permitted to choose any one of the
  following methods for determining the 12month
  period in which the 12 weeks of leave
  entitlement described in paragraph (a) of this
  section occurs
• (1) The calendar year
• (2) Any fixed 12month leave year, such as a
  fiscal year, a year required by State law, or a
  year starting on an employee's anniversary
  date
• (3) The 12month period measured forward from
  the date any employee's first FMLA leave under
  paragraph (a) begins or,
• (4) A rolling 12month period measured
  backward from the date an employee uses any FMLA
  leave as described in paragraph (a).
• 29 C.F.R. 825.200(b)

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FMLA Designating the 12-month Period contd

• The alternative must be applied consistently
  and uniformly to all employees. An employer
  wishing to change to another alternative is
  required to give at least 60 days notice to all
  employees, and the transition must take place in
  such a way that the employees retain the full
  benefit of 12 weeks of leave under whichever
  method affords the greatest benefit to the
  employee.
• 29 C.F.R. 825.200(d)(1)

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FMLA Designating the 12-month Period contd

• If an employer fails to select one of the options
  in paragraph (b) of this section for measuring
  the 12month period for the leave entitlements
  described in paragraph (a), the option that
  provides the most beneficial outcome for the
  employee will be used. 29 C.F.R. 825.200(e)

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FMLA Reasons for Leave

• 1) For birth of a son or daughter, and to care
  for the newborn child
• (2) For placement with the employee of a son or
  daughter for adoption or foster care
• (3) To care for the employee's spouse, son,
  daughter, or parent with a serious health
  condition
• (4) Because of a serious health condition that
  makes the employee unable to perform the
  functions of the employee's job

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FMLA Reasons for Leave

• (5) Because of any qualifying exigency arising
  out of the fact that the employee's spouse, son,
  daughter, or parent is a military member on
  covered active duty (or has been notified of an
  impending call or order to covered active duty
  status and
• (6) To care for a covered servicemember with a
  serious injury or illness if the employee is the
  spouse, son, daughter, parent, or next of kin of
  the covered servicemember.
• 29 C.F.R. 825.112

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FMLA Employer Call-In Policies

• Complying with employer policy. An employer may
  require
• an employee to comply with the employer's usual
  and
• customary notice and procedural requirements for
• requesting leave, absent unusual circumstances.
  For
• example, an employer may require that written
  notice set
• forth the reasons for the requested leave, the
  anticipated
• duration of the leave, and the anticipated start
  of the leave.
• An employee also may be required by an employer's
  policy
• to contact a specific individualWhere an
  employee does
• not comply with the employer's usual notice and
  procedural
• requirements, and no unusual circumstances
  justify the
• failure to comply, FMLAprotected leave may be
  delayed
• or denied. 29 C.F.R. 825.302(d)

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FMLA Medical Certifications

• An employer may require an employee to obtain a
  medical certification from a health care
  provider.
• 29 CFR 825.305(a) and 825.306(a)
• At the time of the request, the employer must
  also advise an employee of the anticipated
  consequences of an employees failure to provide
  adequate certification. 29 CFR 825.305(d)
• The employee must provide the requested
  certification to the employer within 15 calendar
  days after the employer's request, unless it is
  not practicable
• 29 C.F.R. 825.305(b)
• The employee must provide a complete and
  sufficient certification to the employer
• 29 C.F.R. 825.305(c)

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FMLA Medical Certifications contd

• If an employer finds an employee's initial
  response either incomplete or insufficient, the
  employer shall advise her of such and shall
  state in writing what additional information is
  necessary to make the certification complete and
  sufficient and allow seven calendar daysto
  cure any such deficiency.
• 29 CFR 825.305(c)
• If the deficiencies specified by the employer
  are not cured in the resubmitted certification,
  the employer may deny the taking of FMLA leave.
  A certification that is not returned to the
  employer is not considered incomplete or
  insufficient, but constitutes a failure to
  provide certification. 29 C.F.R. 825.305

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FMLA Interference with Rights

• (c) The Act's prohibition against interference
  prohibits an employer from discriminating or
  retaliating against an employee or prospective
  employee for having exercised or attempted to
  exercise FMLA rights. For example, if an employee
  on leave without pay would otherwise be entitled
  to full benefits (other than health benefits),
  the same benefits would be required to be
  provided to an employee on unpaid FMLA leave. By
  the same token, employers cannot use the taking
  of FMLA leave as a negative factor in employment
  actions, such as hiring, promotions or
  disciplinary actions nor can FMLA leave be
  counted under no fault attendance policies.
• 29 C.F.R. 825.220

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ADA Duty to Reasonably Accommodate

• (a) It is unlawful for a covered entity not to
  make reasonable accommodation to the known
  physical or mental limitations of an otherwise
  qualified applicant or employee with a
  disability, unless such covered entity can
  demonstrate that the accommodation would impose
  an undue hardship on the operation of its
  business.

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ADA The Interactive Process

• (3) To determine the appropriate reasonable
  accommodation it may be necessary for the covered
  entity to initiate an informal, interactive
  process with the individual with a disability in
  need of the accommodation. This process should
  identify the precise limitations resulting from
  the disability and potential reasonable
  accommodations that could overcome those
  limitations.
• 29 C.F.R. 1630.2(o)(3).

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ADA Interactive Process

• The interactive process requires
• communication and a good-faith
• exploration of possible accommodations.

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ADA Medical Exams

• (c) Examination of employees. A covered entity
  may require a medical examination (and/or
  inquiry) of an employee that is job-related and
  consistent with business necessity. A covered
  entity may make inquiries into the ability of an
  employee to perform job-related functions.
• 29 C.F.R. 1630.14(c)

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ADA EEOC Guidance - Definition of Medical
Examination

• a procedure or test that seeks information about
  an individual's physical or mental impairments or
  health.
• psychological tests that are designed to
  identify a mental disorder or impairment are
  medical examinations, while psychological
  tests that measure personality traits such as
  honesty, preferences, and habits are not.

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Medical Examinations EEOC 7 Factor Test

• Whether the test is administered by a health care
  professional
• Whether the test is interpreted by a health care
  professional
• Whether the test is designed to reveal and
  impairment or physical/mental health
• Whether the test is invasive
• Whether the test measures an employees
  performance of a task or measures his/her
  physiological responses to performing the task
• Whether the test normally is given in a medical
  setting
• Whether medical equipment is used

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Interaction of FMLA and ADA

• (b) If an employee is a qualified individual with
  a disability within the meaning of the ADA, the
  employer must make reasonable accommodations,
  etc., barring undue hardship, in accordance with
  the ADA. At the same time, the employer must
  afford an employee his or her FMLA rights. ADA's
  disability and FMLA's serious health
  condition are different concepts, and must be
  analyzed separately. FMLA entitles eligible
  employees to 12 weeks of leave in any 12month
  period due to their own serious health condition,
  whereas the ADA allows an indeterminate amount of
  leave, barring undue hardship, as a reasonable
  accommodation. 29 C.F.R. 825.702

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