EMPLOYMENT PRACTICS UPDATE

1. EMPLOYMENT PRACTICS UPDATE MIRMA SPRING TRAINING 2014 Presented by Jane drummond THE FMLA AND THE ADA

2. THE FMLA AND ADA Your obligations under the FMLA: • Protected leave to eligible employees • Employed at least 12 months • Need not be consecutive • Unless break of more than 7 years • USERRA • Worked at least 1250 hours in previous 12 months Your obligations under the ADA: • Accommodate known disabilities

3. THE FMLA AND ADA Leave Entitlement: • 12 workweeks over 12-month period • 26 workweeks for military caregiver • Unpaid (but you should substitute accrued leave) • Intersection with Workers’ Compensation • Intersection with accrued comp time • Husband and wife who work for the same employer are limited to a combined 12 weeks for maternity/paternity leave or to care for a parent

4. THE FMLA AND ADA • Three ways to calculate: • Calendar year • Any fixed 12-month period (fiscal year, anniversary date) • 12-month period calculated forward from leave request • “Rolling” 12-month period counted backwards from a leave request • Best method for managing leave abuse

5. THE FMLA AND ADA Leave Calculation • Must give 60 days notice to change • Cannot disadvantage employees’ current leave rights • Must designate or employee gets to use most advantageous method

6. THE FMLA AND ADA Leave calculation using the rolling or look back method: • Employee makes FMLA request • Determine duration, if known • Determine amount of FMLA leave taken in past 12 months • Subtract from 12 workweek allotment

7. THE FMLA AND ADA Example of the rolling or look back method • Jane requests 8 weeks of maternity leave on April 1, 2014 • Human resource officer reviews Jane’s file • She took 3 weeks of leave from June 2 to June 23, 2013 to care for her mother following surgery. • She took 9 days of FMLA leave for her own serious health condition in October 2013. • She has taken a total of 11 ½ days of intermittent leave for conditions relating to her pregnancy that rendered her incapacitated

8. THE FMLA AND ADA Example of the rolling or look back method How much time can Jane take to care for her newborn child?

9. THE FMLA AND ADA Example of the rolling or look back method • How much time can Jane take to care for her newborn child? • 5 weeks, 1½ days • (12 weeks – 6 weeks and 3 ½ days)

10. THE FMLA AND ADA FMLA-Qualifying conditions • Birth of a child/to care for newborn child • Placement of a child with the employee for adoption or foster care

11. THE FMLA AND ADA FMLA-Qualifying Conditions • Birth of a child/to care for newborn child • Placement of a child with the employee for adoption or foster care • Leave rights expire 12 months after the birth or adoption • Mother can take leave for incapacity due to pregnancy, prenatal care or complications arising from birth • Father can take leave to care for pregnant wife who is incapacitated or has a serious health condition relating to the pregnancy

12. THE FMLA AND ADA FMLA-Qualifying Conditions • Birth of a child/to care for newborn child • Placement of a child with the employee for adoption or foster care • Both parents can take 12 weeks to care for newborn or newly-adopted child with serious health condition • Even if they both work for the same employer

13. THE FMLA AND ADA FMLA-Qualifying Conditions • Birth of a child/to care for newborn child • Placement of a child with the employee for adoption or foster care • Employer must consent to maternity/paternity leave involving intermittent leave or reduced schedule • Unless due to serious health condition of newborn child • Can require them to temporarily transfer to alternative position or alter existing job

14. THE FMLA AND ADA FMLA-Qualifying Conditions • Birth of a child/to care for newborn child • Placement of a child with the employee for adoption or foster care • Parents can take leave for required adoption-related activities • Parenting/counseling classes • Court appearances and to meet with attorney • Travel to another country to complete adoption

15. THE FMLA AND ADA FMLA-Qualifying Conditions • To care for a spouse, child or parent with a serious health condition • If child is older than 18, must be incapable of self-care because of an ADA-qualifying disability • Requires assistance with regular or instrumental Activities of Daily Living • Hygiene, eating, bathing, dressing • Finances, cooking, cleaning, shopping

16. THE FMLA AND ADA FMLA-Qualifying Conditions The employee’s own serious health condition that renders him or her unable to perform the functions of his or her job

17. THE FMLA AND ADA • What is a “serious health condition?” • An illness, injury, impairment or physical or mental condition that involves: • Inpatient care • overnight stay in a hospital, hospice, or residential medical care facility OR • Incapacity and continuing treatment by a health care provider

18. THE FMLA AND ADA Serious health condition • Incapacity = the inability to work, attend school or perform other regular daily activities • For a period exceeding three consecutive days • Except any period of incapacity for pregnancy or prenatal care • Except any period of incapacity for a chronic condition • These do not require treatment, either

19. THE FMLA AND ADA Serious health condition • Continuing treatment = two or more treatments within 30 days of the first day of incapacity • Unless extenuating circumstances prevent follow-up care • Treatment must be in-person • First visit must be within 7 days of the first date of incapacity

20. THE FMLA AND ADA Serious health condition • Continuing treatment = At least one treatment, followed by a regimen of continuing treatment • Such as a course of prescription medication • Therapy requiring special equipment • DOES NOT include a regimen of over-the-counter health aids, bed rest, fluids or other activities that can be done without visiting a health care provider

21. THE FMLA AND ADA Treatment does not include: • Routine physical examinations (including eye and dental exams) • Cosmetic procedures • Unless complications arise • Except after an injury or removal of cancerous growth • Common cold • Flu • Ear aches • Upset stomach and minor ulcers • Headaches • Except migraines • Routine dental or orthodontia problems and periodontal disease • Except restorative dental surgery after an injury

22. THE FMLA AND ADA Serious health condition Chronic Conditions Require at least two visits to a health care provider per year Continue over a period of time (recurring episodes) May be episodic (asthma, diabetes, epilepsy)

23. THE FMLA AND ADA Serious health condition Conditions Requiring Multiple Treatments • Any period of absence for multiple treatments or recovery therefrom for • Restorative surgery after an accident or injury • Conditions that would cause more than 3 days of incapacity but for treatment • Cancer (chemotherapy and radiation) • Kidney disease (dialysis)

24. THE FMLA AND ADA Serious health condition Substance abuse: • Can be a serious health condition if it involves overnight care or period of incapacity followed by treatment • Leave can only be taken for treatment; absences because of use do not count • Leave can be taken to care for spouse, child or parent receiving treatment for substance abuse

25. THE FMLA AND ADA Serious health condition Substance abuse: • Does not prevent employer from taking employment action against employee • Pursuant to established policy • Communicated to all employees • Applied in a non-discriminatory manner

26. Differences between a serious health condition and a disability? • Some conditions could be both • Leave may be an accommodation • May also require additional accommodations

27. THE FMLA AND ADA FMLA-Qualifying Conditions • Any “qualifying exigency” arising from the employee’s spouse, child or parent covered active duty or being called to active duty • i.e., deployment to a foreign country

28. THE FMLA AND ADA Qualifying Exigency • Issues arising from short-notice deployment (seven days or less) • Leave can be taken for seven days • To attend military events and related activities • Official ceremonies or events related to the active duty • Family support or assistance provided by the military or Red Cross

29. THE FMLA AND ADA Qualifying Exigency (cont.) • Certain childcare and school activities • To arrange for alternative childcare • To provide childcare on an urgent, immediate need bases • To enroll or transfer to a new school or daycare • To attend necessary meetings with staff at a school or daycare facility

30. THE FMLA AND ADA Qualifying Exigency (cont.) • To make financial and legal arrangements • To attend counseling • To spend time with the military member who is on short-term, temporary, rest and recuperation leave during the period of deployment • Limited to a period of 15 calendar days

31. THE FMLA AND ADA Qualifying Exigency (cont.) • To attend ceremonies, briefings and other events related to post-deployment activities • Includes activities associated with death of the military member while on active duty • To provide or arrange for parental care to a service member’s parent who is incapable of self care • To address additional activities arising out of the service member’s active status • Employer and employee must agree as to exigency, the timing and duration of leave.

32. THE FMLA AND ADA FMLA-Qualifying Conditions • To care for the employee’s spouse, child or parent who is a covered service member with a serious injury or illness • Also applies when employee is “next of kin” of service member

33. THE FMLA AND ADA Military Caregiver • Covered service member is: • Current member of Armed Forces • Including National Guard or Reserves • Veteran • Discharged within five years of need for leave

34. THE FMLA AND ADA Military Caregiver • Serious injury or illness is: • Injury or illness arising from active duty or • Preexisting condition aggravated by active duty

35. THE FMLA AND ADA Intermittent and reduced leave schedule • Intermittent leave = separate blocks of leave time for a single qualifying reason. • A reducedleave schedule = reduction of working hours per workweek or workday • Must be medically necessary – need for leave must be best accommodated by intermittent leave or reduced schedule.

36. THE FMLA AND ADA Intermittent and reduced leave schedule • Employee must make a “reasonable effort” to schedule treatment so as to not unduly disrupt employer’s operations. • Employee can be temporarily transferred to an alternative position • Must offer equivalent pay and benefits • Can proportionately reduce leave benefits when normally based on the number of hours worked. • Must be restored to same or equivalent job when need for leave ceases

37. THE FMLA AND ADA Calculating intermittent and reduced leave • Leave must be given in smallest increment used to account for other forms of leave • If you use different increments for sick and vacation time, must use smallest increment • Cannot be larger increment than one hour

38. THE FMLA AND ADA Calculating intermittent and reduced leave for part time employees • Determined on a pro-rata or proportional basis • Example: Employee normally works 20 hours per week. He requires a reduced leave schedule of 10 hours per week. Each week he is on a reduced schedule, he is using ½ workweek of FMLA leave. The particular employee can work a reduced schedule for a total of 24 consecutive weeks before using his FMLA entitlement.

39. THE FMLA AND ADA Calculating intermittent and reduced leave for part time employees • If the employee's schedule varies widely, calculate the weekly average for the 12 months prior to the need for leave • If an employee normally works overtime, workweek is calculated by the total number of hours typically worked • Example: Employee normally works 48 hours per week. Due to reduced schedule, can only work 40. The employee is using 1/6 of a week of his leave allotment each week he works this reduced schedule. • If overtime is voluntary, cannot use this method

40. THE FMLA AND ADA FMLA Notice Requirements General: • Poster • Written (electronic) notice to all employees • If handbook provided, must be included • Use text of WHD Publication 1420 or equivalent • http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

41. THE FMLA AND ADA FMLA Notice Requirements Employee Eligibility • Within 5 day of leave request or knowledge that leave may be FMLA-qualifying: • State whether employee is eligible • If not, must say why • Can be oral, or • Use Form WH-381 (Notice of Eligibility and Rights and Responsibility) • http://www.dol.gov/whd/forms/WH-381.pdf

42. THE FMLA AND ADA FMLA Notice Requirements Rights and Responsibilities Notice • Use Form 381 • Should be provided at same time as eligibility notice • Must be written

43. THE FMLA AND ADA FMLA Notice Requirements Designation Notice (Form WH-382) • http://www.dol.gov/whd/forms/WH-382.pdf • Employer responsible for designating leave as FMLA • Based on information received from employee or spokesperson • Can inquire further if insufficient information • Can deny leave if insufficient information provided • Employee need not ask for or refer to FMLA leave • Just needs to state a qualifying reason

44. THE FMLA AND ADA FMLA Notice Requirements Designation Notice • Must notify employee in writing within 5 days of determination • Retroactive designations • Must notify of any requirement to substitute paid leave • Must notify of any fitness-for-duty certification • Include list of essential job functions • Must notify of the amount of time counted against entitlement (if known)

45. THE FMLA AND ADA Employee Notice Obligations • 30 days when leave is foreseeable • Should consult with employer on planned treatment schedule • Reasonable effort required to not unduly disrupt operations • Otherwise, as “soon as practicable” • Can be (an usually is) verbal • Should include anticipated timing and duration • Can require compliance with normal leave request policies • Leave can be delayed/denied if employee fails to provide notice • Presuming employer has advised employee of FMLA rights in handbook

46. THE FMLA AND ADA Employee Notice Obligations • What if employee under leave designation calls in sick? • Employee must respond to inquiry so that employer can determine if leave is qualifying • Some employees don’t want leave to qualify • Only recourse is to deny FMLA leave?

47. THE FMLA AND ADA FMLA Certifications • Can be required annually for leave relating to • A serious health condition • Need to care for service member with qualifying injury or illness • Qualifying exigency relating to service member

48. THE FMLA AND ADA FMLA Certifications Serious health condition/military caregiver • Should be requested when employee requests leave or within 5 days • Must tell employee consequences of failing to provide • Must be returned within 15 days • If insufficient, must advise in writing what additional information is needed • Insufficient if one or more entries incomplete • Insufficient if vague or ambiguous • Employee has 7 days to cure

49. THE FMLA AND ADA FMLA Certifications Serious health condition/military caregiver • Form WH-380E (employee’s own serious health condition) • http://www.dol.gov/whd/forms/WH-380-E.pdf • Form WH-380F (employee family caregiver) • http://www.dol.gov/whd/forms/WH-380-F.pdf • Use Form WH-385 (current service member caregiver) • http://www.dol.gov/whd/forms/WH-385.pdf • Use Form WH-385-V (veteran caregiver) • http://www.dol.gov/whd/forms/wh385V.pdf

50. THE FMLA AND ADA FMLA Certifications Serious health condition/military caregiver • Cannot ask for information not contained on these forms! • Can contact health care provider for authentication and clarification • Assistance with handwriting or understanding meaning of a response • Cannot be done by direct supervisor; must be HR or manager • Must accept invitational travel orders or invitational travel authorizations issued to any family member to join an injured or ill service member at his or her bedside in lieu of any other certification