Peter J. Petesch ppetesch@fordharrison (202) 719-2013

1. Good Intentions Gone Awry:What Every Employer Should Know About the Interaction of the ADA and FMLA Peter J. Petesch ppetesch@fordharrison.com (202) 719-2013

2. Topics to Be Discussed: • Employee Rights and Employer Responsibilities under the ADA and FMLA; • Defining “Disability” under the ADAand “Serious Health Condition”under the FMLA; • Reasonable Accommodations for Disabled Individuals who are Otherwise Qualified; • Determining Concurrent ADA and FMLA Leaves • Implementing Light-Duty Policies

3. Employee Rights andEmployer Responsibilitiesunder the ADA and FMLA

4. 50 or more employees Each work day during 20 or more calendar weeks in the current or preceding year 15 or more employees Each work day during 20 or more calendar weeks in the current or preceding year Covered Employers ADA FMLA

5. Covered Employees ADA FMLA • Individuals working for an employer with 50 or more employees within a 75 mile surface radius • Who worked 1,250 hours within previous 12-month period • The employer designates the 12-month period used for FMLA purposes • Eligibility determined at the time of the request and, once granted, may not be revoked because the employee is later deemed ineligible • Any “qualified” individual with a disability • An individual is “qualified” if, • with or without a reasonable accommodation, he or she can perform all essential job functions • Short-term and part-time employees are eligible • Applicants are also eligible

6. Covered Condition ADA FMLA • Recognized physical or mental impairment that substantially limits a major life activity; • Record of such impairment; OR • Perceived to be disabled • Serious health condition of employee or employee’s spouse, child or parent • Birth, placement or adoption of a child

7. Leave Allowed forCare of Others? ADA FMLA • May not discriminate because of association with an individual with a disability • Modified work schedule to care for another not required • Yes, if spouse or child has serious health condition • Modified work schedule required if serious health condition

8. Intermittent / Reduced Leave? ADA FMLA • No absolute right • Undue hardship defense • May lose defense if intermittent leave taken under FMLA • Absolute right for serious health condition • Employer discretion for birth, placement, adoption

9. Notice by Employer ADA FMLA • Post a notice in an accessible format to applicants and employees that describes ADA provisions • Posting FMLA poster • FMLA policy in handbook or manual (written guidance if neither) • Written notice of FMLA rights and obligation upon request for leave • Written notice of designation as FMLA leave • Notice of certification and fitness for duty certification

10. Notice by Employee ADA FMLA • Obligation to request reasonable accommodation • No need to specifically state “FMLA” • Foreseeable leave – 30 days • Unforeseeable – as soon as practicable, usually verbal notification within 1 or 2 business days

11. Medical Exams ADA FMLA • Only to determine ability to do job or for legitimate business necessity (very limited application) • Allowed to certify serious health condition or upon employee’s return to work

12. Requiring Employees to Demonstrate Fitness for Duty ADA FMLA • Allowed to determine if still able to perform essential functions of job • For reasonable accommodation process • Must be job-related and consistent with business necessity • Need uniform practice for all employees, not just FMLA • Only for condition causing FMLA leave • No second or third opinion

13. Accrual or Continuationof Benefits ADA FMLA • On same terms as all other employees • Group health continues if employee continues paying required contributions

14. Length of Leave, Termination, and Compensation ADA FMLA • Indeterminate length • Termination allowed but must not be on account of disability • Compensation on same basis as all other active employees • 12 weeks per year • May be taken intermittently • Termination allowed as long as not related to leave (e.g., layoff) • Not compensated unless paid leave is substituted for FMLA leave

15. Right to Reinstatement or Retention of Job as Part of Leave? ADA FMLA • Not guaranteed • Must satisfy reasonable accommodation requirements • Guaranteed • Same or equivalent position

16. Defining “Disability” under the ADAand “Serious Health Condition”under the FMLA

17. “Disability” Defined An individual is “disabled” if he/she has: a recognized physical or mental impairment - that substantially limits a major life activity; a record of such impairment; OR is regarded as having such an impairment

18. Note on Major Life Activities Caselaw is continually being defined: • 8th Circuit (2005): Lifting restriction is not a substantial limitation on the major life activity of working • 4th Circuit (2006): Ability to eliminate bodily waste • 9th Circuit (2005): Reading • 2nd Circuit (2005): Ability to interact with others • Need severe limitation on the fundamental ability to communicate or connect with other people

19. “Serious Health Condition” Defined Illness, injury, impairment, or physical or mental condition that involves either: In-patient care in a hospital, hospice, or - - - -residential medical care facility; or Continuing treatment by a health care - - - - - provider (HCP)

20. “Continuing Treatment” Defined • Period of incapacity; • Inability to do work, attend school or perform other regular daily activities due to SHC treatment or recovery • For more than three consecutive calendar days; AND • Treatment two or more times by a HCP; OR • Treatment by a HCP on at least one occasion which results in a regimen of continued treatment (e.g. prescription drugs such as antibiotics) • A regimen of continued treatment does not include resting, drinking fluids, taking aspirin or anything else that can be done without visiting a HCP

21. Comparison: ADAvs. FMLA • Serious health condition is more broadly defined than disability • Many serious health conditions are not covered disabilities under the ADA • Substance Abuse – not a disability, but could be SHC • Still not all SHCs are disabilities – temporary nature of pregnancies, hernias, broken bones • Some conditions may be both: continuing treatment for cancer or strokes

22. Reasonable Accommodations for Disabled Individuals who are Otherwise Qualified

23. Where to Begin • Once an employer learns that an employee is a qualified individual with a disability, it must begin an interactive process with that employee to determine the need for a reasonable accommodation: • Meet with the employee • Document the interactive process – potential defense • Gain information about the employee’s disability • Discuss alternatives if an accommodation cannot initially - - be agreed upon • Do not jump to undue burden defense too quickly – very - --high burden, especially if the only burden is cost related

24. Obligations • Only need to accommodate essential job functions • Create written job descriptions before advertising or interviewing applicants • Job descriptions can serve as evidence of essential functions • Process does not require participation of third parties, including employee’s attorney • Maintain a “good faith” effort • Employee has obligations also… • Does not have to specify specific accommodation, but needs to describe problems posed

25. The Term “Reasonable Accommodation” May Include • Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities • Job restructuring, modified work schedules, reassignment to a vacant position, modification of equipment or devices, adjustment or modification of exams, training materials or policies, the provision of qualified readers, interpreters or assistants • Other similar accommodations for individuals with disabilities

26. Undue Hardship • Factors to consider when determining whether an accommodation causes an undue hardship include the: • nature and cost of the suggested accommodation; • financial resources of the particular facility; • overall financial resources of the employer; • type and operation of the entity; • impact of the accommodation on operations; • impact and burdens on other employees

27. Determining ConcurrentADA and FMLA Leaves

28. Employer’s Notice Obligations • FMLA leave and other paid/unpaid leave may run concurrently if employees are notified that: • Paid sick leave, vacation time, WC, personal leave, and ADA accommodations • Can all be “counted” as FMLA leave • Inform employees in handbooks and in response to any employee request for FMLA leave

29. Establishing Concurrent Leave • Request enough information from employee to determine if leave is FMLA-protected • Notify employee that leave is being designated and will be counted as FMLA leave • Provide notification promptly – within 2 business days after learning leave is FMLA-protected • Confirm any oral notice in writing by the next payday

30. Retroactive Designation • Generally cannot retroactively designate FMLA leave • Exceptions: • Learned leave was FMLA-qualifying after employee returned to work; or • Awaiting second or third opinion to confirm leave is qualifying (should preliminarily designate leave as FMLA-qualifying and later confirm or withdraw in writing)

31. Leaves of Absence • Determine which laws are applicable • Is the employee disabled? • Is the requested leave covered by FMLA? • Was the employee injured on the job? • If disabled, determine if leave is a reasonable accommodation. If leave is a reasonable accommodation, is it also the preferred accommodation for the employer? • If it is, grant leave regardless of whether it exceeds 12 weeks allowed under FMLA (assuming not indefinite and no undue hardship) • If it is not, still must grant leave if covered by FMLA (assuming 12 weeks have not been exhausted)

32. Implementing Light-Duty Policies

33. Light-Duty and the ADA • If FMLA leave has been exhausted or is not applicable, an employer can require an employee to accept a light-duty position as a reasonable accommodation

34. Light-Duty and the FMLA • If an employee cannot perform the essential functions of his or her job, then he or she has an ABSOLUTE RIGHT to take FMLA leave and can not be required to take a light-duty position • If an employee accepts on intermittent or reduced-scheduled leave, then the employer CAN temporarily transfer him or her to a similar position with the same pay and benefits to assist granting leave

35. Questions? Peter J. Petesch ppetesch@fordharrison.com (202) 719-2013