Effectively Managing Difficult FMLA (Family and Medical Leave Act) and ADA (Americans with Disabilities Act) Issues

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Today’s Webinar
Effectively Managing Difficult
FMLA and ADA Issues
Hosted by: Presented by:
The Partners Group Jeff Nowak, Partner
Total Absence Management Franczek Radelet

EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Welcome and Introductions
■ The Partners Group (TPG) Overview
■ TPG Absence Management Services
■ FMLA
■ ADA
Today’s Agenda

Employer Services
Retirement &
InvestmentServices
Commercial &
IndividualInsurance
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and Analytics
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Complementary Health & Wealth Management
Services
The Partners Group (TPG)

Patty Borst Jean Shearer Brycie Repphun
TPG Total Absence Management
Practice Leads
80+ combined years of experience and insights:
- Total Cost of Absence Analysis and ROI models
- Policy review, program design and process improvement
- Integrated Absence Management and Population Health Strategies
- Market Analysis, RFP Management, Vendor Selection
- Project and Implementation Management for outsourced and insourced
solutions
- Data Analytics and Performance Benchmarking
- Transitional Return to Work Programs
- Leave and ADA training and communication strategies
- Compliance updates and best practice recommendations
Industry Leading Experts

■ Compliance Risk Assessment
■ Total Cost of Absence Analysis
■ Absence Management Solutions Review
TPG Total Absence Management Services

Why does it Matter?
■ Risk of Non-Compliance
■ Cost of Absenteeism
■ Consistent and Coordinated
Management
Absence Management –
Employer Challenges

Jeff Nowak, Partner, Franczek Radelet
■ Mr. Nowak serves as co-chair of Labor and Employment
practice for Franczek Radelet P.C.
■ Jeff is widely recognized as one of the nation’s foremost FMLA
and ADA experts, regularly counseling clients on compliance
with FMLA and ADA regulations, conducting audits and training
and litigating FMLA and ADA lawsuits.
■ The author of the highly regarded FLMA Insights blog and
serves on the editorial board of the Family and Medical Leave
handbook.
■ Jeff received his B.A. from Indiana University and graduated
cum laude from Indiana University School of Law.
Today’s Speaker
jsn@franczek.com
www.franczek.com
www.fmlainsights.com
http://linkedin.com/in/jeffnowak@jeffreysnowak

Is Anyone Listening to Me?

■ Susie is a supply clerk: has two elderly parents
who require her support and attention
■ Recently:
Employee Notice

■ Pattern:
■ Occasionally, Susie reports her absences late
■ Susie’s supervisor now wants to discipline her
for her poor attendance
Employee Notice

■ “The Employer may find it necessary to inquire
further to determine if the leave is because of a
serious health condition . . .” 29 C.F.R. 825.302(c)
■ Fairly broad right to talk directly to employee
■ Employer has right to know:
What Can an Employer Ask An
Employee?

■ Employee must comply with employer’s usual
and customary notice and procedural
requirements for requesting leave absent unusual
circumstances
■ If employee does not follow, FMLA may be
delayed or denied
Enforce Your Call-In Policy!

■ Jamie: Psychiatric technician for Univ. of Pitt.
■ Awful attendance record: In the three months leading up
to her termination: absent twice, tardy six times and
switched shifts constantly
■ She called her supervisor prior to a scheduled shift and
shared the following:
■ Supervisor wrote in log: “Sick mom”
■ 3rd Circuit: Question of fact as to whether employer had
sufficient information
Lichtenstein v. U. of Pitt., 691 F.3d 294 (3rd Cir. 2012)
Issues Involving Employee Notice

“I Need to Take Leave.
But How ‘Bout We Not Call It FMLA…”

■ Maria seeking leave to care for her father
■ Maria was an FMLA pro: 15 previous leaves
■ Maria: no contact until two weeks after scheduled return;
terminated for no call/no show
Need Leave…But Not FMLA Leave?

■ Maria files FMLA interference lawsuit
■ Key issue: Can an employee decline FMLA?
■ Court: Circumstances in which employee might
seek time off but intend not to exercise his or her
rights under the FMLA
Escriba v. Foster Poultry Farms (9th Cir. Feb 25, 2014)
Need Leave…But Not FMLA Leave?

■ Should We Follow the Escriba decision?
■ Ignore Escriba decision?
■ What do you tell your employees?
How Do We Deal with this Decision?

The Social Media Bust:
What Do You Do When Facebook
Nabs Your Employee?

■ Gia: needs to care for mom in Mexico
■ Continuous leave for 4 weeks; provides certification
■ Two weeks into Gia’s FMLA leave, one of Gia’s co-
workers, Molly, tells HR manager:
Here’s the photo of her new FB profile pic
Gia is the one in front…
The Social Media Bust

Waaaaaahoooooo!!

■ Some courts: job protection can be denied
based on an “honest belief/suspicion” that
the employee was abusing leave
■ Analysis is largely fact-intensive
Honest Belief Defense
“Honest belief/suspicion” test (7th Cir.):
An employer “need not conclusively prove that
[the plaintiff] had misused her leave; an honest
suspicion will do.”

■ Courts look for complete/exhaustive investigation
■ Employers lose when there is no sense of “due
process” or there is a rush to judgment
■ What is a complete investigation of the facts?
Honest Belief: Best Practices

Best Practices in Recertification

■ Fred is one of your direct reports
■ Suffers from irritable bowel syndrome
■ Can we seek recertification? If so, why?
■ What does recertification look like?
Fred Seeks Recertification

■ General Rule:
Recertification

■ Do we have a significant change in frequency?
■ Pattern?
Frequency/Pattern

Where FMLA Ends, ADA Begins

■ Last year, Susie transferred to the position of Asst.
Director, Addictions Services
■ Neck pain, blurred vision, dizziness
■ Diagnosed with spinal cord compression
■ Provide accommodations (time off, staggered
schedule), but condition gets worse
■ Takes FMLA leave; medical certification =
“indeterminable”
■ Don’t hear from Susie
■ Coming up on 10th week of FMLA leave and nervous
she will not return
What do you do?

■ Does employer have obligation to communicate?
■ What are employee’s obligations?
■ What does employer’s communication look like?

As of [date], you exhausted all FMLA leave available to you and presently are on
additional leave provided by [name of employer]. Presently, you have no additional
leave time available. We understand that you currently are unable to work through
___________________. As such, we expect you to return to work the following
workday, ______________. If you fail to report for work on your expected return
date and have not contacted us, we will presume that you have voluntarily resigned
your employment.
If you are not able to return to work by the above date, or if you believe you may
need some assistance or accommodation to resume your normal job duties, or if
there is any other information about your return to work that you wish to call to our
attention, you must contact [contact name / telephone no.] as soon as possible
before this date.
Before returning to work, you will be required to provide a return-to-work
certification from your health care provider confirming that you are able to perform
the essential duties of your position and are able to return to work.
I Just called…to say…I Love You!

■ Susie contacts you: needs another 4 weeks off,
since she’s recuperating from surgery to remove
fluid from her back. “I know I am a burden to you,
but I still am in pain. I miss you guys.”
■ Her doctor will review her status to determine
whether she can return to work at that point
■ How do you respond?
First Extension

■ Medical condition or facts at issue (no diagnosis!)
■ How condition affects employee’s ability to
perform essential job functions; and what job
functions
■ Whether doctor can identify any accommodations
that would help employee perform job functions
■ Expected date upon which employee can perform
essential job functions
■ Will requested leave allow employee to perform
essential functions in near future?
What Information is an Employer
Entitled to?

■ You tell her “OK,” but you need a note in 4 weeks
confirming she can return without restrictions
■ After doctor appointment, Susie avoids you
■ You give her an extra week (for a total of five weeks)
and call her
■ Susie still cannot return to work
■ Requests another four weeks. Pressure in back is
diminishing, but still in pain. Physician wants to meet
with her in four weeks for follow up. (“Doc thinks I
will be ready to return…”)
What do you think?
Second extension…

■ Significant losses in productivity because work is
completed by less effective, temporary workers or last-
minute substitutes, or overtired, overburdened employees
working overtime who may be slower and more susceptible
to error
■ Lower quality and less accountability for quality
■ Lost sales (not here)
■ Less responsive client service and increased client
dissatisfaction
■ Deferred projects
■ Increased burden on management staff required to find
replacement workers, or readjust workflow or readjust
priorities in light of absent employees
■ Increased stress on overburdened co-workers
■ Lower morale
“Costs” to Employer: Undue Hardship?

■ If additional leave is requested (before or
after maximum is reached), an employer
also can request that the employee’s HCP
respond to the following:
■ EEOC Resource: May also request
relevant information to determine undue
hardship
Extension Requests

■ Employers have no obligation to provide leave of
indefinite duration
■ EEOC Resource:
EEOC Position on Indefinite Leave
“Indefinite leave – meaning that an
employee cannot say whether or
when she will be able to return to
work at all – will constitute an undue
hardship, and so it does not have to
be provided as a reasonable
accommodation.”

■ Two other credit analysts and Henry’s boss had taken on
extra work that resulted from Henry’s absence, which in
turn strained the department
■ No other employee in the bank was available to temporarily
fill Henry's analyst position, causing an overload on dept
■ Hiring a temp employee was not an advisable business
practice, due to the confidential nature of the client
information to which the credit analysts have access and
the particularized training involved
■ Analysts’ loan review responsibilities expected to increase
because of increased regulations on the financial industry
■ The Bank was expecting an increase in new loans, creating
further stress on a short-handed staff
Henry v. United Bank

■ Give serious consideration to employee’s request
■ Interview supervisory staff to determine:
■ Document the alternatives you have examined to
extend leave and the undue hardship
■ Don’t Forget about Reassignment!
■ Before termination, justify—with documentation—the
rationale for the decision
But really, how does this work?

■ All participants of today’s webinar will receive a copy
of the PowerPoint and a link to a recording of this
presentation
■ For any questions that we didn’t have time to address
today, we will send a summary Q & A
■ A short survey will follow at the end of this webinar.
Please take a few minutes to reply
Information to follow

Questions?
Please send any additional questions to
Patty Borst at patty@tpgrp.com
and Jean Shearer at
jshearer@tpgrp.com

EMPLOYEE BENEFITS
www.tpgrp.com
800-722-6339
Portland | Lake Oswego
Bellevue | Bend | Bozeman
EMPLOYEE BENEFITS
Thank you for the
opportunity to present to
you today!

Effectively Managing Difficult FMLA (Family and Medical Leave Act) and ADA (Americans with Disabilities Act) Issues

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Effectively Managing Difficult FMLA (Family and Medical Leave Act) and ADA (Americans with Disabilities Act) Issues