ADA/FMLA WORKERS’ COMPENSATION THE LEGAL BERMUDA TRIANGLE

ADA/FMLAWORKERS’ COMPENSATIONTHE LEGAL BERMUDA TRIANGLE Presented by: Rob Liddell – HR Compliance Coordinator Raquel Peverini – DEO ADA Coordinator Gerard D. Solis – Associate General Counsel

Disability - ADA Title I • Prohibits discrimination against “qualified individual with a disability” • May require employer to provide “reasonable accommodations”

Disability - ADA (cont’d) “Individual With A Disability” • Has an impairment that: • “substantially limits” • “one or more major life activities” • Has a record of such impairment • Is “regarded as” having such impairment

Disability - ADA (cont’d) “Qualified” Individual With A Disability • Satisfied job-related requirements of the position held or desired • With or without reasonable accommodation, can perform the essential functions of that position

Disability - ADA (cont’d) Disability • When determining whether an impairment is a “disability,” courts will take into account ameliorative measures (e.g. medication, medical devices)

Disability - ADA (cont’d) “Regarded As” • Has an impairment that does not substantially limit major life activity but is treated as having such limitation • Has an impairment that substantially limits major life activity only as result of attitudes of others • Has no impairment but is treated by employer as having one

Disability - ADA (cont’d) Prohibited Activities • Singling out workers with disabilities because of their disability • Adhering to standard practices that adversely affect workers with disabilities

Disability - ADA (cont’d) Singling Out Workers With Disabilities • Segregating or classifying • Use of selection criteria that screens out individuals with disabilities, unless: • Job-related, and • Consistent with the needs of the business • Medical inquiries in hiring process – be extremely cautious

Disability - ADA (cont’d) Adhering To Standard Practices • Unlawful to use criteria or administrative methods that have the effect of discriminating on the basis of disability • Employer has duty of providing “reasonable accommodation”

Reasonable Accommodation • Must make “reasonable” changes in workplace policies or environment to accommodate employee’s disability • Not required if accommodation would impose an “undue hardship” on the employer

Reasonable Accommodation (cont’d) May include: • Altering existing facilities • Job restructuring • Work schedule modification • Providing unpaid leave • Reassignment to vacant position • Providing modifying equipment

Reasonable Accommodation (cont’d) Not required to: • Create a new position • Bump another employee to create a position • Provide accommodation that would create direct threat to others • Violate CBA to provide accommodation

Disability-Related Inquiries A “disability-related” inquiry is a question or series of questions that is likely to elicit information about a disability. This same standard is used for determining whether a question is disability-related in the pre- and post-offer stages.

Disability-Related Inquiries (cont’d) The following are examples of questions that arenot permissible: • asking an employee whether he or she has or ever had a disability • how he or she became disabled • inquiring about the nature or severity of a disability • asking an employee to provide medical documentation regarding a disability

Disability-Related Inquiries (cont’d) • asking an employee’s co-worker, family member, doctor or another person about an employee’s disability • asking about an employee’s genetic information • asking about an employee’s prior worker’s compensation history

Disability-Related Inquiries (cont’d) • asking an employee whether he or she is taking any prescription drugs or medications • asking an employee a broad question about his or her impairment that is likely to elicit information about a disability. (i.e. what impairments do you have?)

Disability-Related Inquiries (cont’d) The following questions are permissible: • asking generally about an employee’s well being • asking an employee about non disability-related impairments (i.e. how did you break your leg?) • asking an employee whether he or she can perform a job function

Disability-Related Inquiries (cont’d) • asking an employee whether he or she has been drinking • asking an employee about his or her current illegal use of drugs • asking an employee how she is feeling • asking an employee when her baby is due

Disability-Related Inquiries (cont’d) • Asking an employee to provide the name and telephone number of a person to contact in case of a medical emergency

FMLA • Provides eligible employees of certain employers with up to 12 weeks of unpaid leave for certain family and medical needs

FMLA (cont’d) • Covered Employers • Private employers must employ 50 or more workers for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year to be covered under the Act. This number is calculated when the employee requests leave.

FMLA (cont’d) Eligible Employees • employed by a covered employer for at least 12 months • has provided at least 1,250 hours of service to that employer during the 12 month period immediately preceding the leave • employed at a worksite where at least 50 employees are employed within 75 miles of that worksite

FMLA Qualifying Events (cont.) • The birth of a child of the employee or the care for a child of the employee during its first year of life • The placement of a child with an employee for adoption or foster care

FMLA Qualifying Events (cont.) • To care for an immediate family member if that individual has a serious health condition • A serious health condition of the employee that makes the employee unable to perform the functions of the employee’s position

FMLA – Requesting Leave • If an employee requests FMLA leave, the employer has the right to inquire why leave is needed • Leave may be denied if the employee does not provide the requested information • The request for leave may be oral, and the employee need not specifically mention the FMLA when requesting leave in order to be eligible

FMLA – Requesting Leave (cont.) • If leave is foreseeable - employer can requirethe employee to provide notice of not less than 30 days before the leave is necessary • If leave is not foreseeable, the employee must give as much notice as is practicable • The employer may require proof of the necessity for leave if leave is required due to the illness of the employee or to care for an ill family member

FMLA – Taking Leave Leave may be taken: • in one lump sum • several weeks at one time • intermittently or • by utilizing a reduced schedule of hours (e.g. a schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee)

FMLA – Taking Leave (cont’d) • Unpaid leave is permitted > An employer may require, or the employee may elect, to substitute any kind of personal leave, vacation time, or other type of family leave available, for leave under the Act for any part of the 12-week leave period.

FMLA – Taking Leave (cont’d) • During leave, the employee is required to pay premiums for which the employee would otherwise be responsible, including premium increases or costs associated with plan changes. The employee is subject to plan changes.

FMLA Employee Rights Upon Return To Work • Entitled to return to his or her same position or to an equivalent position with equal benefits, pay, and other terms and conditions of employment • Leave cannot result in any loss of accrued benefits

FMLA Employee Rights Upon Return To Work (cont’d) • FMLA leave does not act as a break in service for purposes of pension or other benefit plans • Not entitled to reinstatement if it would give the employee greater rights than if there had been no leave (e.g. employee who would have been laid off during FMLA leave is not entitled to reinstatement)

Workers’ Compensation • Dual Coverage • MMI • Benefits • Retaliation

ADA/FMLA WORKERS’ COMPENSATION THE LEGAL BERMUDA TRIANGLE