Interaction of the ADA, FMLA, and Workers’ Compensation Law York M.

Interaction of the ADA, FMLA, and Workers’ Compensation Law York M. Flik, Esq. Allen, Norton & Blue, PA 121 Majorca Avenue Coral Gables, FL 33134 Phone: 305-445-7801 Fax: 305-442-1578 [email protected] July 26, 2016 1

Coverage of the ADA All employers in interstate commerce and state and local governments Once was 25 or more employees, now 15 Independent contractors are not covered Florida has a state law corollary—Florida Civil Rights Act, Fla. Stat. s.760 et seq. 2

Coverage of the ADA Title II prohibits discrimination by state and local governments against qualified individuals with disabilities in the provision of services, programs, and activities Title III places accessibility standards in places of public accommodation 3

Coverage of the ADA Title I prohibits discrimination against “qualified individuals with disabilities” in all aspects of employment Hiring, firing, pay, promotion Requires reasonable accommodation Qualified individual with a disability is person with a disability who can perform the essential functions of their job with or without an accommodation. 4

Basics of the ADA: Definition of “Disability” Mental or physical impairment that substantially limits a major life activity; severity and Duration of Limitation. A record of such an impairment; or Being regarded as having such an impairment. 5

Prohibited Actions under the ADA Pre-employment (pre-offer) medical inquiries, including questions about existence of a disability or workers’ comp. claim history; Post-offer medical inquiries must be job-related and consistent with business necessity 6

Prohibited Actions under the ADA Taking adverse action on the basis of one’s disability Failing to make a reasonable accommodation to a known disability, absent an undue hardship. 7

Prohibited Actions under the ADA Reasonable accommodations include: Job re-structuring Making facilities more accessible Part time or modified schedules Acquiring or modifying equipment Reassignment to vacant position Leave 8

Prohibited Actions under the ADA Undue hardship defense “significant difficulty or expense” Nature and cost of the accommodation Overall financial resources of the entity, number of employees and effects on resources Type of operations of the covered entity, including composition of work force Impact of accommodation on operations, effect on other employees and business 9

ADA – New Developments “Mitigating Measures” Sutton v. United Airlines (1999) – Supreme Court held that mitigating measures may be taken into consideration in determining if an individual is substantially limited in a major life activity. (i.e., corrective lenses and blood pressure medications). 10

ADA - New Developments “Substantially Limits a Major Life Activity.” Toyota Mfg. Co. of Ky. v. Williams (2002) Supreme Court held very restrictive view of ADA. Substantially limited in a MLA means an impairment that prevents person from doing activities that are of “central importance to most people’s lives.” 11

ADA Amendments Act of 2008 Effective: September 25, 2008. Purpose: To reject the Supreme Court’s holdings in Sutton and Toyota. Mitigating measures are not considered in whether an impairment substantially limits a MLA. Court’s view of substantial limitation is too narrow and inappropriately high 12

ADA Amendments Act of 2008 Creates a Rule of Construction requiring Courts to construe the ADA broadly. The Act mandates that the definition of disability be construed in “favor of broad coverage of individuals under the Act to the maximum extent permitted.” Amendments made it easier for an individual to establish that he or she has a disability in order to obtain protection under the ADA. 13

ADA Amendments Act of 2008 Suggests that conditions of 6 months or less likely not disabilities, but Opens door to temporary conditions becoming disabilities if sufficiently severe. 14

Basics of FMLA Requires covered employers to give eligible employees up to 12 weeks per year of unpaid leave for: birth or adoption of child; placement of foster child; serious medical condition of parent, spouse, or child; employee’s own serious medical condition No state corollary of FMLA in Florida 15

Coverage of FMLA Employers with 50 or more employees, and all public agencies Employee has worked at least 12 months total time with employer Employee has worked at least 1,250 hours during 12-month period preceding the leave Employee works at facility with at least 50 employees within a 75-mile radius 16

FMLA Leave Employees can take leave in various ways: Large, continuous blocks of time at once Multiple intermittent, smaller blocks of time E.g., recovery after surgery E.g., occasional absences due to diabetes Can reduce workload to part-time schedule E.g., after surgery, you are only able to return to work for 4 hours a day or for 3 days a week 17

FMLA Intermittent Leave Intermittent leave must be “medically necessary” per physician: Show 1) Need for leave and 2) best accommodated intermittently E.g., caring for a seriously ill family member, employee’s serious health condition; Intermittent leave for caring for newborn baby or newly adopted foster care child may only be taken with employer’s prior approval –unless serious health condition 18

FMLA Intermittent Leave cont’d Employees must make reasonable efforts to schedule so as not to unduly disrupt operations May permit transfer of employee to alternative position/part-time position during intermittent leave period. Alternative position must have equal pay and benefits Must place back in same or equivalent job 19

National Defense Authorization Act of 2008 2 New Reasons for Leave: 1) Employees get up to 12 weeks of leave for “any qualifying exigency” arising out of a spouse, child or parent’s active duty or impending call in military. Qualifying Exigency: encompasses a wide range of activities, including: attending military events and related activities; arranging for alternative childcare; making or updating financial and legal arrangements; attending counseling; all arising out of an active duty or call to active duty 20 status of a covered military member

National Defense Authorization Act of 2008 cont’d 2 New Reasons for leave: 2) Spouse, Child, Parent, or Next of Kin of covered service member who is recovering from illness or injury in line of duty gets up to 26 weeks in 12-month period to care for injured service member. A combined total of 26 weeks, inclusive of 12 weeks of FMLA 21

Prohibited Actions Under FMLA Interference: failing to allow FMLA leave under covered circumstances; Retaliation: adverse action against employees who take FMLA leave, who file FMLA-related complaints, or who assist in FMLA claim actions. Penalizing employees for taking FMLA leave; 22

Prohibited Actions Under FMLA Issue of Individual Liability Employer defined as any person who acts, directly or indirectly, in the interest of an employer Similar to FLSA 23

Prohibited Actions Under FMLA The 11th Circuit (which includes Florida), has held that there is no individual liability for FMLA violation Nowhere does it say that in law Reasoning that supervisor in public agency lacks sufficient control 24

Prohibited Actions Under FMLA However, the 2nd Circuit (New York, Connecticut, Vermont) recently held that an HR Manager could be individually liable for FMLA violation Joins 3rd , 5th , 8th Circuits imposing individual liability. 25

Basics of PDA Amended Title VII of the Civil Rights Act of 1964. Prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions Women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employmentrelated purposes. 26

Prohibited Actions under PDA An employer cannot take the following actions against a woman if pregnancy, childbirth, or related action was a motivating factor in the decision: Fire Refuse to hire Demote Any other adverse employment action (pay, job assignments, training, fringe benefits, etc.) 27

Prohibited Actions under PDA If woman is unable to perform her job due to a medical condition related to pregnancy employer must treat her in the same way it treats other employees with a temporary disability. May include light duty or leave if provided to other temporarily disabled employees. 28

Basics of FWCL Temporary income replacement for covered employees (4 employees or more) who have job-related injuries or other medical problems. Typically 66.67% of employee’s average weekly wage Law prohibits retaliation or discrimination against employees who are involved in workers’ compensation claims Recent spike in retaliation claims 29

Basics of FWCL No requirement to hold job open for any amount of time 30

Prohibited Actions under Workers’ Compensation Interfering with an employee’s right to file a workers’ compensation claim Discharging or otherwise discriminating against a person who has filed a workers’ compensation claim (Bruner v. GC-GW, Inc., 880 So. 2d 1244 (Fla. 1st DCA 2004) – past employers) 31

Interaction Based on Employee Count Below 15 employees, only workers’ compensation laws are in effect 15 to 49 employees: workers’ compensation, PDA (Title VII) and ADA apply. 50 or more employees: workers’ compensation, ADA, PDA and FMLA apply. 32

Limits on Leave Time Workers’ Compensation – no set limit under the law, but case law suggests that one (1) year is sufficient (to avoid retaliation claim) Consider adopting a WC policy: How/when report injuries or illnesses Benefits Zero tolerance fraud Procedure for returning to work Leave limits (e.g., 1 year). 33

Limits on Leave Time ADA – whatever would be required by “reasonable accommodation” that is not an undue hardship May be in excess of policies or FMLA FMLA – 12 weeks per year National Defense Authorization Act – Up to 26 weeks to care for service member injured in line of duty 34

Limits on Leave Time FMLA – 12 weeks per year Only statute that guarantees protected leave National Defense Authorization Act – Up to 26 weeks to care for covered service member 35

Specific Issues 1 Family member’s medical problem: Only FMLA applies but ADA could apply to protect from discrimination if employee is regarded as disabled due to family member’s problem (i.e., HIV, AIDS, or other communicable diseases) but no reasonable accommodation/leave required 36

Specific Issues 2 Employee’s difficult pregnancy: FMLA – employee gets up to 12 weeks of leave for pregnancy. ADA – normal pregnancy is not a covered disability (problem pregnancy can reveal disability) PDA – receives PDA protections regardless of length of employment, same leave as other temporary disabilities 37

Specific Issues 3 Child with medical problems: FMLA – employee gets up to 12 weeks of leave if serious health condition. ADA – if employer regards employee as disabled due to child’s problems. Protected from discrimination No accommodation rights 38

Specific Issues 4 Job injury: Workers’ Compensation Law applies. If injury is severe, ADA could apply. Even if injury is expected to last less than 6 months, ADA may still apply if severe and the effects of the impairment are substantially limiting of a major life activity. Dykstra v. Florida Foreclosure Attorneys, PLLC. 2016 WL 1644069. FMLA could apply, if injury is a serious health condition 39

Specific Issues 5 Employee unable to perform essential functions of job upon return from FMLA leave: No duty to return employee to same job ADA may well be involved – issue of reasonable accommodation Reasonable accommodation may mean the employee could be offered an alternative position, if one exists. Job reassignment typically last resort 40

Specific Issues 5 Employee unable to perform essential functions of job upon return from FMLA leave: Reasonable accommodation may mean extending leave beyond FMLA 12 weeks Extended leave may permit employee to do essential functions 41

Interplay Health Insurance Coverage: FMLA – requires employer to maintain insurance under same conditions as if employment continued. ADA – No requirement to maintain health insurance (unless employees receive health insurance during similar leaves) PDA – Employer required to treat pregnancy same as non-pregnant conditions for insurance 42

Interplay Part-time Employment under FMLA: Employee on reduced schedule (intermittent leave); Employer required to maintain insurance; Employer can temporarily transfer to another position; same pay & benefits 43

Interplay Part-time Employment Under FMLA cont’d Employer can deduct pay from salaried exempt employee for hours not worked without FLSA violation (special FLSA exemption); Employer required to reinstate to substantially equivalent position at the end of intermittent leave. 44

Interplay Part-time Employment under ADA: May serve as an accommodation; and No requirement that health insurance be maintained; 45

POINT Employee may be covered by one or more laws Employee will receive the benefits of each where better. No requirement to ask for benefit by name Sufficient to put Employer on notice of need 46

POINT An Employer can not require an Employee on FMLA leave to accept a job as an accommodation in order to cut leave short. Employer may require employee to use accrued paid leave to cover some or all of the FMLA leave taken Not if receiving wage replacements through WC or STD. May supplement though 47

POINT Employer can designate leave as FMLA against employee’s will if absence qualifies. Employer can run FMLA and Workers’ Compensation leave together 48

Light Duty - Interplay ADA – if employer has it available, required to offer it as a reasonable accommodation No obligation to create a light duty job, but advisable if feasible ADA does not require accommodation that would cause an undue hardship FMLA – No obligation to offer light duty May offer but employee can decline and elect FMLA If employee refuses light duty, may not be a qualified individual with a disability under ADA, because rejected accommodation. May not be eligible for workers’ compensation benefits. 49

Light Duty - Interplay FWCL – Required to make work available to employee within restrictions (pressure from carrier). Traditional thought: As long as these “light duty” positions don’t exist permanently, they may be “reserved” for workers compensation claimants. EEOC debate – policy has effect of discrimination under ADA? EEOC debate – discrimination under PDA? – guidance says must offer light duty to pregnant employee with work restriction if offer light duty to non pregnant employees with similar restrictions 50

Question: Can you run FMLA concurrently with an employee’s workers’ compensation leave? Yes, if: 1) absence is due to qualifying serious illness 2) employer notifies employee in writing that leave will be counted as FMLA leave. 51

Extended Leave Situations FMLA – Employer must notify employee that leave will be designated as FMLA leave within two days of learning that the leave was being taken for an FMLA-eligible reason, but . Employer may retroactively designate leave as FMLA as long as the designation will not prejudice the employee. only required to give 12 weeks of leave – No More. (Ragsdale case). ADA – Extended leave beyond 12 weeks can be an accommodation. Evaluate under undue hardship No obligation for indefinite leave 52

Return to Work Issues: FMLA – reinstate to same position, or “equivalent position” Equal pay & benefits; and Equal promotional opportunities Must offer even if employee has been replaced. Offer – satisfies obligation. 53

Return to Work Issues: FMLA cont’d: Exceptions to reinstatement: Unequivocal statement that employee is not returning (may stop benefits and fill position immediately). Key Employees 54

Return to Work Issues: FMLA cont’d: Key Employees Salaried, FMLA-eligible employee who is among the highest paid 10% of all the employees employed by employer within 75 miles of employee’s worksite. Employer may deny or delay reinstatement if such denial is necessary to prevent substantial and grievous economic injury 55

Return to Work Issues: ADA – Employer should offer same position upon return. Exception: if holding the position for employee is undue hardship upon employer, then employer does not have to hold the position until employee’s return. If employer cannot hold open the same position, may reassign employee to a vacant, equivalent position 56

Return to Work Issues cont’d Reassignment: Not required to bump another employee. Employee must be qualified for position. Position can be less pay & benefits 57

Repayment of Benefits by Employee FMLA: employer can require repayment of insurance premiums paid on behalf of employee ADA and FMLA: employer can recoup vacation leave advances, even below minimum wage, and sick leave pay advances down to minimum wage Workers’ compensation: no recovery of benefits paid out to covered employees 58

On the Radar: Paid FMLA Leave Employers beginning to find value in paid family leave Assists with attracting employee talent and retaining existing talent, maintain competitiveness President Obama has been urging for 6 weeks of paid family leave, ideally 12. Also part of Hillary Clinton’s campaign 59

On the Radar: Paid FMLA Leave Paid family leave gaining momentum California, Rhode Island, New Jersey, District of Columbia, and recently New York, all have paid family leave laws Massachusetts expected to consider similar law this weekend Currently no significant push in Florida 60

On the Radar: Enforcement Trends (FMLA) DOL increasing FMLA employer audits on its own without employee complaints or violation trends EEOC and DOL also pushing for largescale, “systemic” investigations of workplace bias in all aspects Looking at past employee leave, not just employees currently on leave 61

On the Radar: Enforcement Trends (FMLA) Employers urged to prioritize selfaudits of their leave policies, forms, practices, procedures, and records 62

On the Radar: Enforcement Trends (ADA) EEOC and DOL also increasing systemic investigations for ADA compliance EEOC has filed more ADA lawsuits in recent years than for any other type of discrimination claim 63

On the Radar: Enforcement Trends (ADA) Employers should closely monitor: Flexibility of their leave policies How interactive their process is for handling employee requests 64

Thank You York M. Flik, Esq. Allen, Norton & Blue, PA 121 Majorca Avenue Coral Gables, FL 33134 Phone: 305-445-7801 Fax: 305-442-1578 [email protected] 65