HR Challenges for 911 Districts

1. HR Challenges for 911 Districts Hope Curtis Hicks Ball, Ball, Matthews & Novak 445 Dexter Avenue, Suite 9045, Montgomery, Alabama 36104 (334) 387-7680 hhicks@ball-ball.com

2. Issues to Discuss: • Americans with Disabilities Act including reasonable accommodations • Family Medical Leave Act • Return to Work Issues • Fair Labor Standards Act

3. Americans with Disabilities Act • The Americans with Disabilities Act protects qualified employees with both an actual or a perceived disability • from being discriminated against because of this disability • or retaliated against because they • reported an alleged violation of the ADA • or requested an accommodation.

4. Americans with Disabilities Act:Disability • A disability is a: • Physical or Mental Impairment • That substantially limits • One or more major life activities.

5. Individuals must be qualified • The ADA only protects an individual who has a disability and who is “qualified.” This requires an employer to determine – up front – whether the applicant or employee is qualified under the ADA standards

6. How to determine if they are qualified: • As an initial matter, it is important to remember that, to be qualified under the ADA, an individual must: • (1) have the requisite skills, experience, education, licenses, etc. and • (2) be able to perform the essential functions of the job, either with or without reasonable accommodation.

7. Know the essential functions • To be able to determine whether something is an essential function of the job the employer has to know what the essential functions of the job are. Current and accurate job descriptions including the duties, licenses required, etc. are absolutely necessary!

8. Essential functions cont’d • How much time is the employee actually performing the essential function? • Are they actually performing the essential function? • Have they been accommodated and the employer does not know about the accommodation? • The task must be in the employee’s job description to be essential

9. What are essential functions? • Attendance • Punctuality • Regular Work Schedule • Vision • Consciousness • Speaking • Standing/Walking

10. Licenses and certifications can be required • If an individual does not have the license/certification or background required for the job, then they are not qualified. • If the individual does not have the license/certification or background because of a disability, then the employer must defend why it imposes the requirement. • The employer must explain the need for the standard. • The easiest standards for employers to defend are licenses, certifications or requirements that are unquestionably necessary to perform the job.

11. The licenses/certifications must actually be needed Just because the job description requires the license or certification, if the actual job does not require it then it cannot be required of the employee. Example: A job description that requires a specific license or certification for employees but the job duties can be performed without the license or certification.

12. Employer’s have rights too! • Employers can change the functions of a job for business reasons. • The relevant moment for determining a job’s essential functions is the time of the employment decision, not the long-term employee’s initial hire date. • If physical, educational, license, etc. requirements change, the employee must be able to meet the new requirements • Employers may establish production standards including accuracy with speed

13. The Employer’s Judgment should be considered • The court is not supposed to substitute it’s judgment for the employer’s judgment. • Generally the court will defer to the employer’s determination of the essential functions of a job, it will not completely abdicate independent review. • The employer’s judgment will not be dispositive if the evidence is mixed.

14. Consistency is the key! • Courts have been tough on employers trying to defend a background requirement if the requirement is only selectively enforced. • If an employer makes exceptions they lose the ability to argue that it is a requirement. • If a standard is changed for a job, don’t grandfather in folks because you lose the ability to say the new standards are actual requirements.

15. Americans with Disability Act:Reasonable Accommodations • Must provide reasonable accommodations unless the employer can demonstrate undue hardship. • Burden is on employee to request.

16. Has the employee asked for an accommodation? I My back is too sore to come to work.

17. Has the employee asked for an accommodation? • My back hurts and I need a better chair with lumbar support.

18. Has the employee asked for an accommodation? • I’m really sleepy because I have sleep apnea.

19. Has the employee asked for an accommodation? • I need to come to work 30 minutes late each day because of my sleep apnea.

20. Has the employee asked for an accommodation? • Sally’s perfume is so strong. I have a headache.

21. Has the employee asked for an accommodation? • I have migraine headaches that are often brought on by strong smells or odors. I need my co-workers to refrain from wearing perfume or cologne to work. • I need visitors to the office to refrain from wearing perfume of cologne to work.

22. Has the employee asked for an accommodation? • I need a leave of absence to have heart surgery.

23. This is an interactive process • The EEOC has stated that although an individual generally must request the accommodation needed, the situation can be different if the employee is unable to ask for the accommodation because of the disability. In these situations the employer should initiate an offer of a reasonable accommodation if the employer • (1) knows that the employee has a disability, • (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and • (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.

24. Employees must provide sufficient information • The EEOC has written that an employer may require the individual to go to the health professional of the employer’s choice if the individual provides insufficient information. In such a case, however, the EEOC has cautioned that the employer “should explain why the documentation is insufficient, allow the individual to provide the missing information and pay all costs associated with the visit(s) to the employer-chosen health professional. • Courts have agreed that employers are permitted to ask about a disability when an employee requests an accommodation. Of course, the employer should only ask for information that is truly needed to assess the employee’s disability, restrictions and what accommodations are needed and can be made.

25. Unpaid Leave as a reasonable accommodation • Courts have held that unpaid leave is a form of reasonable accommodation. However, in Carroll v. City of Stone Mountain, 2013 U.S. Ap. LEXIS 23633 (11th Cir. 2013) (unpublished) the court agreed that although leave of absence can be a reasonable accommodation, it was not a reasonable accommodation. Carroll had been employed as a police officer and suffered an on-the-job injury that resulted in a diagnosis of PTSD. After exhausting all of his leave time and FMLA leave he requested an additional unpaid leave of absence to recover. The Court held that he did not provide any evidence that he would ever be able to perform the essential functions of his job.

26. Is the request for an accommodation reasonable? • I need a better chair with lumbar support. • I need a massaging chair. • I need a new wheelchair. • I need a new hearing aid. • I need to come to work 30 minutes late each day. • I need to work from home. • I need some additional time off without pay.

27. Family and Medical Leave: • Eligible employee is entitled to 12 weeks per year for: • Birth or adoption of child; • Serious health condition; • Care for an immediate family member with a serious health condition.

28. Family and Medical Leave Act:Serious Health Condition • Serious Health Condition is an illness, injury, impairment, or physical or mental condition that requires either inpatient care or continuing outpatient care.

29. Family and Medical Leave Act:Serious Health Condition • Continuing care prong: period of incapacity of more than three days requiring treatment either two or more times or at least once resulting in a continuing regimen. • Pregnancy and chronic serious health conditions fall under this prong. • Episodic in nature.

30. Family and Medical Leave Act:Qualifying Exigency Leave • FMLA leave will also be granted to the spouse, parent, or child of an active service member experiencing a qualifying exigency: • Short-notice deployment; • Military events; • Childcare and school activities; • Financial and legal arrangements; • Counseling; • Rest and Recuperation; • Post-Deployment Activities.

31. Family and Medical Leave Act:Caring for Service Members • Employees are also entitled to 26 weeks of leave per year to care for their spouse, parent, child, or next of kin for serious injuries or illnesses sustained in the line of duty.

32. Family and Medical Leave Act:Certification • An employee must give 30 days’ notice if the need for FMLA leave is foreseeable or as soon as possible. • If you become aware that an employee may need FMLA leave, even if the employee has not specifically requested such leave, you need to begin the certification process.

33. Family and Medical Leave Act:Administration • Leave may be taken on an intermittent or reduced-time basis or in a block. • Employers may use one of several methods to measure leave year: measure forward; rolling; calendar year and any fixed 12 month period.

34. Family and Medical Leave Act:Administration • Employers may require paid leave, INCLUDING WORKER’S COMPENSATION LEAVE and FMLA leave, to run concurrently. • Employees must continue to pay their portion of all health insurance premiums while on leave.

35. Family and Medical Leave Act:Administration • Employee returning to work after FMLA leave should be required to present a fitness-for-duty certification. • An employee’s serious health condition may also constitute a disability that will require reasonable accommodations upon return to work.

36. Unpaid leave may be a reasonable accommodation • Will the employee be qualified to perform the essential functions at the end of their leave? • What does the doctor say? • If they need additional leave, when should they be able to perform the essential functions of the job?

37. Undue Hardship • The EEOC has stated that if holding a position open for the needed leave period would pose an undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, be returned to this new position.

38. Will the employee require reassignment? • When an employee seeks a reassignment as a reasonable accommodation, they must be qualified for the reassignment. • There is no requirement to reassign someone without the employee competing for the new job with other employees who are seeking the same position.

39. No duty to create new jobs • Since an employer never has to reallocate essential functions, it never has to create a new job – such as a transitional or light duty job in which the employee is no longer performing his or her essential functions. One common question is whether an employer can create a light duty job for only a temporary period. The EEOC has stated that “an employer is free to determine that a light duty position will be temporary rather than permanent.”

40. Reassignment is available only to current employees, not to applicants or former employees. An employer does not have to bump any employee from a job in order to create a vacancy. An employer does not have to promote an employee as a reassignment. An individual must only be reassigned to a job for which she/he is qualified (with an accommodation if necessary).

41. Employees may file charges with the EEOC • The EEOC is the agency charged with receiving complaints for violations of the ADA and FMLA laws. • The EEOC may investigate the complaint and may require a response from the employer including documentation they believe is relevant. • The EEOC may bring suit on behalf of the employee. • The EEOC may issue a Right to Sue notice. • The EEOC does not have the ability to simply tell the employee they have no claim.

42. Fair Labor Standards Act The Fair Labor Standards Act (FLSA) established standards regarding: • Minimum wage • Overtime pay • Equal Pay (Equal Pay Act) • Record Keeping • Child Labor Standards

43. FLSA and Litigation Today, a successful private litigant can recover: • Payment of any back wages or overtime going back up to three (3) years, • Liquidated damages of up to 100%, • Reasonable Attorney Fees (which can often exceed the actual damages), and • Potential recovery for lost benefits

44. FLSA and Overtime • An employee who works more than 40 hours in any seven consecutive 24-hour period should be paid overtime generally at the rate of 1.5 times the regular hourly rate for each hour worked over 40 hours. Overtime pay is to be paid if an employee actually works more than 40 hours; not if they are paid for more than 40 hours.

45. FLSA and Regular Rate of Pay • The total of all payments, including nondiscretionary bonuses, made by an employer to or on behalf of the employee should be used to calculate an employee’s regular rate of pay. The regular rate of pay is figured before any deductions are taken from the employee’s pay.