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ADA/FMLA - Case Studies What the courts can tell us Presented by:

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

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ADA/FMLA - Case Studies What the courts can tell us Presented by:

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  1. ADA/FMLA - Case Studies What the courts can tell us Presented by: Geoffrey Lindley and V. Latosha Dexter

  2. FMLA: Designating the 12-month Period • An employer is permitted to choose any one of the following methods for determining the “12–month period” in which the 12 weeks of leave entitlement described in paragraph (a) of this section occurs: (1) The calendar year; (2) Any fixed 12–month “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 12–month period measured forward from the date any employee's first FMLA leave under paragraph (a) begins; or, (4) A “rolling” 12–month period measured backward from the date an employee uses any FMLA leave as described in paragraph (a). 29 C.F.R. § 825.200(b)

  3. FMLA: Designating the 12-month Period cont’d • “[T]he 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)

  4. FMLA: Designating the 12-month Period cont’d • If an employer fails to select one of the options in paragraph (b) of this section for measuring the 12–month 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)

  5. 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;

  6. 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

  7. 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 individual…Where an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA–protected leave may be delayed or denied.” 29 C.F.R. 825.302(d)

  8. 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 employee’s 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)

  9. FMLA: Medical Certifications cont’d • 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 days…to 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

  10. 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

  11. 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.

  12. 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).

  13. ADA: Interactive Process The interactive process requires communication and a good-faith exploration of possible accommodations.

  14. 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)

  15. 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.

  16. 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 employee’s 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

  17. 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 12–month 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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