MOVING TARGETS

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MOVING TARGETSManaging Employee Leave Issues
(FMLA/ADAAA)

• Ann Holden Kendell
• kendell_at_brownwinick.com
• [phone]

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At-Will Employment
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• Employment may be terminated by the employee or
  employer at any time for any reason.
• Therefore, unless there is a contract, it
• is employment at will.

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Except for
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• Terminations in violation of law or public policy
• State and federal law protects certain classes of
  people from discrimination
• State and federal law protects employees who
  engage in certain activity from discrimination or
  retaliation

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Employer Expectations
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• Employers do have a right to an at work
  workforce
• Employees must be able to perform the essential
  functions of the job with or without reasonable
  accommodation
• Attendance is an essential job function

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Purpose of Webinar
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• Empower you to manage your employees while
  identifying potential problem issues
• Handle potential problem issues in compliance
  with the law and as business needs necessitate
• Focus employment decisions based upon the facts
  of the situation not assumptions and only facts
  necessary to the business needs

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Managing Employee Leave Issues
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• FMLA
• ADAAA

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Family and Medical Leave Act(Protected Activity)
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• Covered Employer 50 employees
• Covered Employee works at a location that has
  50 employees within 75 miles, has worked for
  Employer for 12 months and has worked1250 hours
  over the last 12 months

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Family and Medical Leave Act
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• Employees are entitled to
• 12 weeks of unpaid leave and
• job reinstatement for
• the birth or adoption of a child or placement of
  a foster child,
• serious health condition or to care for a family
  member with a serious health condition.

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Family and Medical Leave Act
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• Military Family Leave Provisions Final Rule
  Published 2-6-2013 implements amendments to the
  military leave provisions made by the National
  Defense Authorization Act for Fiscal Year 2010
• For employees with a family member that is in the
  Regular Armed Forces, National Guard or is a
  Reservist, there is qualifying exigency leave
  under the FMLA. If the family member is a
  service member who became injured or sick in the
  line of duty, the leave can be 26 weeks.
• Similar to the historic FMLA provisions,
  spouses employed by the same employer share the
  leave.

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Family and Medical Leave Act
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• Qualifying exigency leave made available to
  family members of the National Guard and Reserve
  components under the FY 2008 NDAA, is expanded to
  include family members of members of the Regular
  Armed Forces.

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Family and Medical Leave Act
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• Substituted the term covered active duty for
  active duty and defined covered active duty
  for a member of the Regular Armed Forces as
  duty during the deployment of the member with
  the Armed Forces to a foreign country'', and for
  a member of the Reserve components of the Armed
  Forces as duty during the deployment of the
  member with the Armed Forces to a foreign country
  under a call or order to active duty. Prior to
  the FY 2010 NDAA amendments, there was no
  requirement that members of the National Guard
  and Reserves be deployed to a foreign country.

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Family and Medical Leave Act
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• Qualifying exigency leave Employee is allowed
  to take Rest and Recuperation qualifying exigency
  leave for the same amount of time as is provided
  to the military member for the member's Rest and
  Recuperation leave, up to a maximum of 15 days.
• The employee may choose to take the leave in a
  continuous block of time or intermittently over
  the duration of the military member's R and R, up
  to 15 calendar days.

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Family and Medical Leave Act
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• Servicemember Care The definition of a serious
  injury or illness for current members of the
  Armed Forces expanded to include an injury or
  illness that existed prior to service and was
  aggravated in the line of duty on active duty and
  that renders the member medically unfit.

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Family and Medical Leave Act
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• Covered Service Member Broadened to include a
  veteran with a serious injury or illness who is
  receiving medical treatment, recuperation, or
  therapy, if the veteran was a member of the Armed
  Forces at any time during the period of five
  years preceding the date of the medical
  treatment, recuperation, or therapy.

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Family and Medical Leave Act
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• Serious Injury or illness for a veteran An
  injury or illness that was incurred by the
  member in line of duty on active duty in the
  Armed Forces (or existed before the beginning of
  the member's active duty and was aggravated by
  service in line of duty on active duty in the
  Armed Forces) and that manifested itself before
  or after the member became a veteran.''

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Family and Medical Leave Act
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• Final Rule also amends the regulations to
  implement the Airline Flight Crew Technical
  Corrections Act, which establishes eligibility
  requirements specifically for airline flight
  crewmembers and flight attendants for FMLA leave
  and authorizes the Department to issue
  regulations regarding the calculation of leave
  for such employees as well as special
  recordkeeping requirements for their employers.

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Family and Medical Leave Act
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• Final Rule includes clarifying changes concerning
  the calculation of intermittent or reduced
  schedule FMLA leave

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Family and Medical Leave Act
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• Clarifying Changes
• 1) Clarify that an employer may not require an
  employee to take more leave than is necessary to
  address the circumstances that precipitated the
  need for leave.
• 2) Insertion of an example to illustrate that
  when an employer uses different increments to
  account for different types of leave, the
  employer must use the smallest of the increments
  to account for FMLA leave usage.

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Family and Medical Leave Act
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• Clarifying Changes
• 3) Emphasis that an employer may only reduce an
  employee's FMLA entitlement by the amount of
  leave actually taken, excluding any time after an
  employee has returned to work.
• Accordingly, where an employer chooses to waive
  its increment of leave policy in order to return
  an employee to work--for example, where an
  employee arrives a half hour late to work due to
  an FMLA-qualifying condition and the employer
  waives its normal one-hour increment of leave and
  puts the employee to work immediately--only the
  amount of leave actually taken by the employee
  may be counted against the FMLA entitlement.

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Family and Medical Leave Act
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• The FMLA, 29 U.S.C. Section 2615(a)(1), subjects
  an employer to money damages and potential
  injunctive relief for interfering with,
  restraining or denying the exercise of an
  employees FMLA rights. No retaliation!

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ADA and ADAAA (Protected Class)
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• The federal Americans with Disabilities Act and
  recent amendments protect people with
  disabilities from discrimination.
• Fifteen or more employees coverage
• Also, dont forget the ICRA coverage for
  employers with 4 or more employees

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ADA and ADAAA
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• Expansion of ADA Signed into law on Sept. 25,
  2008
• Effective on Jan. 1, 2009
• Purpose Restore intent of the original
  Americans with Disabilities Act and overturn 4
  U.S. Supreme Court decisions that narrowed the
  interpretation of the ADA
• Final regulations approved and published March
  25, 2011

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Americans with Disabilities Act Amendments Act -
ADAAA
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• Retains 3 categories, but requires a broad
  application
• Episodic impairments/impairments in remission are
  a disability if they would substantially limit a
  major life activity when active.
• Modifies the 3rd Category Regarded As
• Regarded as having an actual or perceived
  physical or mental impairment--whether or not the
  impairment limits or is perceived to limit a
  major life activity (Overrules Sutton v. United
  Air Lines, Inc., 527 U.S. 471 (1999) )
• Does not apply to minor and transitory (expected
  to or does last 6 months or less) impairments
• Does not require Reasonable Accommodation

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Americans with Disabilities Act Amendments Act -
ADAAA
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• Substantial Limit on one major life activity is
  sufficient
• Directed EEOC to revise regulations on
  substantially limits

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Americans with Disabilities Act Amendments Act -
ADAAA
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• Added list of MLAs to the Statute Includes new
  ones not in old regulations
• Added the Operation of MBFs (Major Bodily
  Functions) as MLAs

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Americans with Disabilities Act Amendments Act -
ADAAA
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• Formerly, MLAs only listed in Regulations New
  MLAs (not in former regulations)
• Eating, Sleeping
• Standing, Lifting, Bending
• Reading, Concentrating, Thinking, Communicating
• --New Major Bodily Functions (All are new)
• Immune system
• Cell growth
• Digestive, Bowel, Bladder
• Neurological, Brain
• Respiratory
• Circulatory
• Endocrine
• Reproductive

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Americans with Disabilities Act Amendments Act -
ADAAA
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• Burden to prove the individual with a disability
  is qualified for the job remains on the
  Employee/Applicant

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Americans with Disabilities Act Amendments Act -
ADAAA
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• Clarifies that no claims for reverse disability
  discrimination are allowed under the ADA

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Americans with Disabilities Act Amendments Act -
ADAAA
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• Dont forget about Workers Compensation issues,
  too

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Real Life Scenarios
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• Employee has work injury that qualifies as a
  serious health condition but employee doesnt
  want leave counted as FMLA leave.
• Employee is off on FMLA leave and needs time in
  addition to 12 weeks. (1 week, 1 month,
  indefinite)

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Real Life Scenarios
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• Employee is on FMLA leave and is seen out in the
  community or on Facebook.
• Employee has a work injury and has been off work.
  Employee gets new restrictions and we can
  provide light duty work to meet those. Employee
  refuses to come back to work.

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When in Doubt
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• Provide the FMLA notice even if you are not sure
  the time off will qualify.
• Do not make assumptions about employee health
  issues - communicate with the employee but make
  sure that the communication revolves around the
  job (hours, weight restrictions, mobility issues,
  etc.)

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Additional FMLA Resources
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• FMLA final rule fact sheet http//www.dol.gov/whd
  /fmla/finalrule/factsheet.pdf
• FMLA comparison of 2008 and 2013 regulations
  http//www.dol.gov/whd/fmla/2013rule/comparison.ht
  m
• FMLA Notice of Eligibility and Rights
  Responsibilities http//www.dol.gov/whd/fmla/fina
  lrule/WH381.pdf

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Additional ADAAA Resources
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• ADAAA final rule fact sheet http//www.eeoc.gov/l
  aws/regulations/adaaa_fact_sheet.cfm
• ADAAA Questions and Answers on the final rule
  http//www.eeoc.gov/laws/regulations/ada_qa_final_
  rule.cfm

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Thank You! Ann Holden Kendell 666 Grand Avenue,
Suite 2000 Des Moines, IA 50309-2510 Telephone
515-242-2450 Facsimile 515-323-8550 E-mail
kendell_at_brownwinick.com