FAMILY MEDICAL LEAVE ACT (FMLA) AND AMERICANS WITH DISABILITIES ACT (ADA)

1. FAMILY MEDICAL LEAVE ACT(FMLA)AND AMERICANS WITH DISABILITIES ACT(ADA)

2. What is theFamily Medical Leave Act? • Provides certain employees with up to 12 weeks of unpaid, job-protected leave per year for a qualifying event. It also requires that their group health benefits be maintained during the leave. • It also provides certain employees with up to 26 weeks of unpaid, job-protected leave per year to care for an injured or ill member of the Armed Forces and permits an employee to take FMLA leave for “any qualifying exigency.” • FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

3. FMLA Eligibility To be eligible for FMLA benefits, an employee must: work for a covered employer have worked for the employer for a total of 12 months; have worked at least 1,250 hours over the previous 12 months; and have a qualifying event. While the 12 months of employment need not be consecutive, employment periods prior to a break in service of seven years or more need not be counted unless the break is occasioned by the employee’s fulfillment of his or her National Guard or Reserve military obligation (as protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA)), or a written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service. 

4. WHAT IS A QUALIFYING EVENT? • for the birth and care of a newborn child of the employee; • for placement with the employee of a son or daughter for adoption or foster care; • to care for a spouse, son, daughter, or parent with a serious health condition; • to take medical leave when the employee is unable to work because of a serious health condition; or • for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

5. When is FMLA paid? • FMLA is unpaid leave UNLESS the employee uses their sick or vacation leave accruals. • Does your County have a policy regarding FMLA and other Leaves of Absence? • Dallas County will not place an employee on Unpaid status until they have exhausted all accruals.

6. FORMS Request for FMLA This form is the employee’s formal request for FMLA.

7. FORMS Certification of Health Care Provider This form is completed by the employee’s health care provider.

8. FORMS Designation Notice This form notifies the employee of their approval or non-approval of FMLA and of their responsibilities while out and returning to work

9. FORMS Notice of Eligibility and Rights and Responsibilities This form notifies the employee, after you receive their request, of their eligibility and additional information that may be required from them to gain approval.

10. FORMS • The US Department of Labor has available on their website the various forms your office needs to meet the requirements of the FMLA. • http://www.dol.gov/whd/fmla/index.htm

11. What about record keeping? • Create a separate filing system for you FMLA files. Do not keep health information in the “official” personnel file. • WHY??? Because of HIPAA – Health Information Portability and Accountability Act is a federal law that requires employers and health care providers to protect medical records as confidential, separate and apart from other business records. That means we may no longer retain medical information in a personnel file. Here are some examples of information you should extract from your personnel files and place in separately protected files as medical information: • Health insurance application form • Life insurance application form • Request for medical leave of absence regardless of reason • Personal accident reports • Workers' compensation report of injury or illness • OSHA injury and illness reports • Any other form or document which contains private medical information for a specific employee.

12. Is she eligible? • Suzy Creamcheese comes in to the office and states she needs to take FMLA to care for her mother, who is having her right leg amputated due to complications of diabetes. You give her the paperwork and when she returns the medical certification, you learn while talking to her that her “mother” is actually her mother-in-law. Suzy has worked for the office since 7/20/2000, and in her 10 plus years with the office has called in sick only twice and has over 1,000 “Sick” hours accrued. Is she eligible for FMLA?

13. SUZY CREAMCHEESE • Yes, she works for a covered employer. • Yes, she has worked for the employer for 12 months. • Yes, she has worked at least 1,250 hours over the previous 12 months. • NO… she does not have a qualifying event. IN-Laws are NOT eligible family members. • What are Suzy’s options?

14. Is he eligible? • Darryl Dinglehopper is recently divorced, single father. In the past three (3) weeks, he has had to leave work four (4) times, and has called in twice, missing a total of 32 hours of work. When you bring it to his attention, he mentions his son has severe asthma and has to receive breathing treatments at the doctor’s office when the rag weed count is up. He started working for the office as a part time clerk January 23, 2010; promoted to full time May 20, 2010. Is he eligible for FMLA?

15. DARRYL DINGLEHOPPER • Yes, he works for a covered employer. • Yes, he has worked for the employer for 12 months. Part Time work DOES count toward FMLA. • Yes, he has worked over 1,250 hours the past 12 months. • YES, he has a qualifying event. His son’s chronic medical condition, when certified by a physician, is a qualifying event. Time missed due to his son’s illness should be “charged” to FMLA and should not be used against him should your office have a sick time usage policy.

16. Is he eligible? • Bart was raised by his aunts because his parents died when he was very young. Bart’s aunt suffers from lung cancer which requires constant treatment by a nurse. The nurse who cares for the Bart’s aunt has a sick child and has sporadic absences several times a month. On days that the nurse is not available, Bart cares for his aunt. Bart provides a note from his aunt's physician to his supervisor stating that his aunt suffers from lung cancer and needs full-time attendance. Bart includes a handwritten statement that he will substitute for the nurse on days that the nurse is not available.

17. BART SIMPSON • Yes, he works for a covered employer. • Yes, he has worked for the employer for 12 months. • Yes, he has worked at least 1,250 hours over the previous 12 months. • Yes, his aunt meets the definition of parent under FMLA as parent is defined as biological parent or individual who stands in loco parentis. • Yes, Bart’s aunt's cancer is specifically identified in the FMLA regulations as a "serious health condition.,' In addition, his aunt is under continuing care and is covered by FMLA. Bart’s supervisor should request medical certification to the facts.

18. Performance Appraisals • It is performance appraisal time! Bobby has been on FMLA leave for a "serious medical condition" for three weeks. Can his supervisor take his use of leave as an occurrence for attendance purposes?

19. Can you do that? • The employee’s supervisor is prohibited by FMLA from taking into consideration the employee’s use of FMLA leave as a negative factor in any employment action. Whether the employee’s leave is paid or unpaid, it cannot be counted as an "occurrence" under any applicable attendance policy. Any other interpretation would represent discrimination on the basis of FMLA use.

20. Misuse of FMLA • Ima Hogg is on intermittent FMLA, taking turns with her sister, Ura, in caring for their sick father, Jim, who has pancreatic cancer. She has reported that on Mondays, Wednesdays and Fridays, she will be taking her father to his radiation treatments at the hospital in Garland, Texas. • One of your employees, Wyatt Earp, comes to your office Monday morning and casually mentions he ran in to Ima twice at Schlitterbahn in New Braunfels on Wednesday and Friday morning of last week. They even took pictures together at the river. Wyatt was on scheduled vacation with his gang when he saw her there. • You know Ima called in last Thursday morning to report that she was sick and would not be coming in to work. • What, if anything, can you do?

21. What can you do? • Ask Wyatt for a written statement. • Confront Ima with the allegations against her. • If she denies the allegations, you may ask her for documentation from the medical facility that treats her father. • Be careful! You can only truly ask for documentation if you have substantial proof of misuse. If you don’t have proof, but wish to challenge whether or not there is a true need for the intermittent FMLA or FMLA, you can ask the employee for recertification only every 30 days.

22. What is the AMERICANS WITH DISABILITIES ACT? • The ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress

23. Who is protected? • To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. • An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. • The ADA does not specifically name all of the impairments that are covered.

24. What is a major life activity? • Under the ADA, you have a disability if you have a physical or mental impairment that substantially limits a major life activity such as: • Hearing • Seeing • Speaking • Thinking • Walking • Breathing • Performing manual tasks. • You must also be able to do the job you want or were hired to do, with or without reasonable accommodation.

25. What is a “reasonable accommodation?” • A reasonable accommodation is any change or adjustment to a job, the work environment, or the way things usually are done that would allow you to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace. Some of the most common types of accommodations include: • physical changes, such as installing a ramp or modifying a workspace or restroom; • sign language interpreters for people who are deaf or readers for people who are blind; • providing a quieter workspace or making other changes to reduce noisy distractions for someone with a mental disability; • training and other written materials in an accessible format, such as in Braille, on audio tape, or on computer disk; • TTYs for use with telephones by people who are deaf, and hardware and software that make computers accessible to people with vision impairments or who have difficulty using their hands; and • time off for someone who needs treatment for a disability.

26. How to request an accommodation… • When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation • A request for an accommodation does not need to be in writing! An employee may request accommodations in conversation or may use any other mode of communication.

27. Case Study…. • Joe Black is a gay, HIV positive male that recently transferred to your family courts division from the criminal division as a second clerk. He has been placed on the 4th floor in your “Diva” pod. Your “Divas” are women that have worked for your office for an average of 15 plus years. • Joe is very outspoken and does not keep his opinions to himself. Joe has started questioning the Lead, tenured clerks in the pod regarding processing the mail, a job he feels is beneath him. This has caused him to become crossways with some of your experienced clerks. • He comes to you, requesting an accommodation to be moved from the 4th floor pod, basing his request on his HIV status and that it is dangerous to his health to be working on a floor where “snotty nosed kids” come in to the building for hearings with their parents. He produces a letter from his physician supporting his request.

28. Step by step guide: • Gather facts from the employee: Meet with the employee and gather information from them regarding their request. Ask them to identify both the work limitations and a range of various accommodations the employee believes would address those limitations. If input from a physician is necessary, ask the employee to provide that documentation as well. • Identify potential accommodations: Armed with the employee’s specific request and any additional information needed from treating physicians, the employer should then independently – and outside the presence of the employee – identify what you believe are potential accommodations that would address the employee’s limitations. Your list of potential accommodations need not be limited to those proposed by the employee. Indeed, it should encompass the whole universe of options. To identify possible accommodations, you should review the essential job functions of the employee’s current position to determine how and whether the employee may continue to perform those functions.

29. Step by step… • Determine the reasonableness of potential accommodations. Once all of the potential accommodations are identified, review each for its reasonableness. According to the ADA, an accommodation is reasonable if it does not “fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations” of the employer’s business. • An accommodation that would cause an “undue hardship” to the employer is not a reasonable one. However, an “undue hardship” is not simply a generalized conclusion that an accommodation would cost too much. • A determination of undue hardship should be based not only on the cost of the accommodation, but also on the overall financial resources and size of the business, the type of business, and the specific impact of the accommodation on business operations. The ADA requires an employer to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly.

30. Step by step… • Communicate the decision to the employee. An employer is not required to provide the accommodation requested by the employee. If the employee specifically asks for an accommodation that either cannot be provided (or the employer decides not to provide), the employer should explain in detail why the accommodation requested by the employee was not selected.

31. And most importantly… • Document the process. You should draft and retain a confidential, internal file memorandum documenting the above-outlined interactive process, regardless of whether the employee agrees to the accommodation(s) offered. • The memorandum should identify the dates of each meeting with the employee, the accommodations and limitations identified by the employee, and your own efforts to identify and assess the reasonableness of accommodations. The memorandum will memorialize your efforts and be important in the event the employee files an ADA claim against the you!

32. Responding to the request… • Write up your findings and present them to him in memo form so that you have a clear record of your due diligence.

33. Back to Joe Black … Is the request “reasonable?” • The first question to ask is … is his request valid? Can you do anything to help him avoid the “dangers” to his health? • Moving him to a different floor or division will not remove him from the “dangers” he faces. He works in a County courthouse. He will still have to push the same elevator buttons, touch door handles, and be around people who may be sick but have come to the Courthouse for their hearings. • Unless you can provide him with a “boy in the bubble” work environment, his accommodation is not reasonable. • So now what? Draft a letter to him, responding to his request and outline the specific reasons he cannot be accommodated.

35. Questions… • Why the picture of the three cute redheaded girls? • My boss said it would be a great ending!