Thank you, and good afternoon and good morning to everyone, depending on where you are in the country. I welcome you to this session, which is titled "Leave as an Accommodation, How do I Determine if it is Reasonable". Our guest speaker is Adele Rapport, who is an attorney with the Equal Employment Opportunity Commission (EEOC) and I will introduce Adele in a minute. This is one of our regularly scheduled sessions on the Americans with Disabilities Act and related topics hosted by the Disability and Business Technical Assistance Centers nationally. There are 10 centers. Hopefully all of you are aware of your center that serves your geographic area. If you are not, please contact our office, their office at 800-949-4232, Both voice and tty. Or you also can try to locate the center in your area on the web by going to www.adata.org and locate that one, which would be in your particular state. There is a map on there, as well as a chart that would tell you which center serves your state. As an FYI, this session is real time captioned. If you are interested in following along with the captioning, you can access that from our website, which is www.adagreatlakes.org and follow the links to the real time captioning. This session will be audio taped as well and a transcript, as well as audio version will be made available on our website within following the session once we have had a chance to edit that particular tape. This session is going to be focusing on FMLA and the Americans with Disabilities Act (ADA). We have had a great number of questions. As I said earlier, a loft interest in this program. This is part of a regularly scheduled series of sessions of which next month we will feature the Department of Justice, John Wodatch, who is the chief of the disability rights division who will be responding to a question and answer session on Title ii and Title iii of the ADA. We anticipate in the next month''s session that we will also have an opportunity to discuss the outcome of the U.S. Supreme Court case, Tennessee versus Lane, as the Supreme Court is winding down its current session and we anticipate that a decision in that particular case, if it comes down, will come down in the late part of April, early part of May, which will be timely for our session later in May, which is actually scheduled for Tuesday, May 18th of next month. So if you want more information on that session, please visit our website or contact your local Disability and Business Technical Assistance Center. At this time, so that we have plenty of opportunity and time to continue on with this particular session, I would like to introduce our speaker for today. Adele has been working with our office. She actually resides out of the Detroit office for the Equal Employment Opportunity Commission. We have worked with Adele in our own region, but she has done quite a bit of work on a national basis. I am sure some of you would be familiar with her from other conferences and things you may have attended across the country. She is a University of Michigan Law School graduate and as I said earlier, she is a regional attorney for the U.S. Equal Employment Opportunity Commission office in Detroit. Her office has filed over 60 ADA cases and successfully tried four ADA cases to verdict. She is a member of the labor council of the state bar of Michigan and former public chair of the employment rights subsection of the American Bar Association, labor and employment section. She is currently the public co-chair of the American Bar Association''s labor and employment section, CLE, that is continuing legal education committee and the secretary for the executive board of the ATLA employment rights section. She is also a member of the college of labor and employment lawyers and is adjunct professor of law at the University of Detroit Mercy School of Law, and she teaches employment discrimination and disabilities rights in her role as an instructor. She has a varied amount of experience. She has a lot knowledge and a lot information to share with us today. We will follow up her comments with a question and answer period, for which will give you an opportunity to direct questions to her so that you can have some of those things that may either be triggered by her comment are on or maybe things that you came to the session with as questions based on your own experiences or things in your own workplace related to this particular topic. We welcome them at that time we recognize at times we are not able to get to everybody''s question and we do still encourage you to contact your local Disability and Business Technical Assistance Center for follow-up if we are not able to get to you today. But we will make every effort to do so.To that end, I will stop talking and I will turn over the podium to Adele. Adele, it is yours.
Thank you, Robin. First of all, I would like to give you a little caveat and explanation of where my perspective is. I am not speaking for the commission. I am speaking as, you know, a person who came to the commission to enforce the ADA in particular. That is my forte. I also teach Family Medical Leave Act issues. I am on a lot of panels that talk about the interplay between the two and I was on a task force to develop a policy for law firms and for the courts for the state of Michigan. So I know a lot about the FMLA, but I want to make it clear in my role as regional attorney, I am not in any way responsible for enforcing it, that is done by the Department of Labor. The issue of leave comes up so frequently in what we see in our charges there is always some FMLA implications we refer people who will have both kinds of claims, ADA and FMLA. Sometimes one statute will protect them better than the other. The first point that I would like to make in terms of leave is that employers need to give the employee the most that either statute provides. If the ADA provides greater protection than FMLA, then in order to comply with both, you must comply with the ADA. Perfect example of that is how long is the leave. We are going to get into more details about these. A 12-week leave may be okay under FMLA but under ADA more leave may be required. So employers can''t say well, and this is what they say frequently in charges that we see and cases that we are litigating. Well we gave them the 12-week FMLA leave and that may be enough. It is not enough under ADA and employers are making the mistake to think that it is. So basically to understand how these statutes interplay. One of the things is to go back and see why they were passed and what they were intended to do. In some ways, each is broader and narrower in terms of its protection in a leave situation. The ADA was passed, you know, bipartisan support. It was designed to fully integrate individuals with disabilities into all aspects of life, but it is narrow in terms of the individuals, particularly with the court''s interpretation, who are protected by the statute, a much smaller group of individuals would be protected by that statute in terms of their condition than those who might be protected by the Family and Medical Leave Act. Now, the Family and Medical Leave Act gets a lot of criticism from a lot of HR folks, not because they don''t believe in the principals, and I want to remind you of the principals, but because it is very hard to administer, because it is very specific. If you have very specific questions, even people who specialize, lawyers who specialize in the FMLA can''t answer these sorts of things off the top of their heads because the regulations are very detailed. The case law is contradictory, depending on what circuit you are in. It is just a tough statute to administrate. We have to remember why the FMLA was passed. There was a lot of testimony by individuals who lost their jobs because their children got sick with very debilitating diseases like cancer and they had to take time off to take care of a sick child or because of sick parent. Woman were losing jobs because they needed to take pregnancy leave and they came back, their job wasn''t there. So there was a lot of bipartisan support and there is still a lot of support for the concept of family medical leave. They are proposing legislation to expand it and it to provide for greater opportunities for people to take family leave. But as a compromise, it was drafted to be more narrow in its protection. For example, the ADA covers employers with 15 or more employees. In contrast, FMLA covers employers with only 50 or more. So that is going to be less. Since most employees in this country work for very small companies, most Americans are not covered by the Family and Medical Leave Act. So you can see how it is broader and narrower and you have to keep in mind which statute might provide the greatest protection. So, look at the ADA generally. Employers with 15 or more employees, individuals who have a substantial limitation of a major life activity, very narrowly interpreted by the court. So not as many people are going to be able to rise to that level of protection. You have a duty to accommodate, to make a reasonable accommodation unless it would be undue hardship. That is a very broad duty and it encompasses things other than leave. It encompasses technological devices, changing a job, changing a shift, things that you couldn''t possibly get under the family medical leave act. However, it is narrower in that you have no absolute right to leave under the ADA. If the employer offers an effective accommodation, employee says I want to take leave under the ADA and the employer says no, you don''t need to take leave because I am going to take away this heavy lifting responsibility so that you won''t need to strain your back and you can do the job perfectly without that, then the employee would have to accept an effective accommodation and wouldn''t be able as a matter of right to take the leave. To have a right to reinstatement to the same job under the ADA, it is pretty much the same under the FMLA, although they talk about, you know, a virtually identical job with the same benefits, pay, all the measures of the same, so I would say that even though the ADA is somewhat broader there, that basically the FMLA, employers are understanding that they must return the employee to basically the same job. You look at the FMLA difference in coverage. Public employers are covered. Private employers with 50 or more employees within a 50-mile radius, so in other words, if have you a chain of restaurants close together and they add up to 50, they are going to be covered. Only employees who have worked 12 months, so you know, probationary employees would have to go under the ADA because they wouldn''t be covered. People that have only been working for 90 days, for example, you have to have been working for a year and you have to have worked 1250 hours or more in order to be covered by FMLA. So part-time employees are not going to get coverage. ADA is going to provide greater protection for them. Now, under the FMLA, you are entitled to take a leave for your own serious health condition because of pregnancy, adoption or foster care arrangements, to take care of a spouse, a parent, or a child, a child under 18 or a child who due to a disability is unable to care for themselves. So that is the group of, you know, categories that FMLA is entitled to coverage. What is a serious health condition? Well, a lot more people have serious health conditions than have disabilities under the law, so it is broader in that respect. It is something that requires continuing treatment by health care providers. Three days of incapacity with treatment one or two times by a health care provider. It can be a regimen, you know, like chemotherapy, something that requires constant treatment it can be episodic, like someone with a seizure disorder, may have episodic need for medical treatment or time off. It can be something that requires multiple treatments. It can be, it needs to be something that, you know, an individual is unable to perform one essential function of the job, and, you know, that is their own job. You know, not just, you know, any job. Now, look at who might not be covered by that, that people might think are covered by the FMLA. In-laws, your mother-in-law becomes seriously ill and your husband takes some time off and you want to take time off to care for her, not covered. Adult children over 18, you know, your 21-year-old gets cancer, has depression, needs to have care by a parent, not covered. Grandparents, unless they were in loco parentis, which means they acted as a parent, would not be covered. Stepchildren that have not been officially adopted may or may not be covered. So you can see that even though it sounds like it covers a lot of family situations, there are many family situations that are not covered. Under FMLA, however, if you are entitled to leave, if you meet the eligibility requirements, you get the leave even if the employer offers some kind of alternative accommodation. And have a right to reinstatement to the same or equivalent job except for something we will talk about, which are key employees that need to be designated in the beginning of the leave to say no, you are not eligible because you are a key employee. What does caring for mean? You need to take time off for caring for another individual. That can include health care, transportation, providing comfort, you know, having an individual who is depressed or receiving chemotherapy treatments, even if they have a home nurse, assisting them, they may need to have a child come and take care of them as well. And you do need to provide the same kind of certification as to the condition of that individual, whether it is a spouse, parent or child. You can''t just say they are sick and I need to take care of them. You have got to have the same kind of certification as you would if it was your own serious health condition. So examples of serious health conditions, according to the courts, anemia, cancer, cold and flu generally haven''t been recognized. That is one of the things a lot of the HR folks have been concerned about. What if someone has a cold for a few days and goes to see the doctor and he prescribes some medicine. That would seem to be covered by the regulations, but the courts haven''t been very good in terms of, you know, finding coverage for just a normal cold or flue situation. Sleep apnea has been covered, ulcers, things that have not been covered that you think might be, allergy shots have been held not covered. Carpal tunnel syndrome has been held not covered. Poison ivy, although the way I get it would definitely be covered because it knocks me out for an entire summer. Migraine headaches would not be covered. Migraine headaches might be covered under the ADA, but the courts generally, if you look at the cases, the problem is that the plaintiff hasn''t provided sufficient proof that it meets the regulations, and it may be that these, you know, that another individual with the same condition might be able to prove coverage if they just do a better job of it in terms of the evidence, but I just wanted to give you a feel for how the case law is going in terms of coverage for these serious health conditions and I think basically the courts are trying to cover the kinds of illnesses that there was testimony about the kinds of illnesses that people assumed would be covered by the FMLA and they are being very restrictive as with the ADA in terms of covering things that are less debilitating. Now, let us talk about the nature and length of leave because this is where I get the litigation opportunities, employers who don''t understand the difference between ADA and FMLA in term terms of the length required. In the ADA there is no specific term. It is not 12 weeks. You can''t make an argument that the two statutes are in conflict because they aren''t. The ADA requires greater protection for individuals who can meet that, you know, definition of disability. Case law ranges under the ADA in terms of the length of the leave. It could, it certainly, there are many cases that recognize it to be longer than 12 weeks. When you get to be close to a year, 10 months to a year, the courts start saying that is an awful long time. So they think that maybe, you know, I think around 10 months to a year might be the end of where the courts are going to say you are entitled to have a leave that long. Again, that depends on the jurisdiction. Courts are very bad under ADA about sporadic and unpredictable leave. That is unfortunate because there are a lot of disabilities like diabetes, which is brittle, uncontrollable, may go up and down the person may have no control over it, sickle cell anemia is another thing that has sporadic and unpredictable absences where the person can''t predict. The courts have found that person unqualified because they can''t perform an essential function of the job, that being at work a certain number of days a week, or they have found that it is an undue hardship for the employer to have to tolerate sporadic and unpredictable absences. Now, under the FMLA you are entitled to intermittent leave. You don''t have this sporadic and unpredictable case loss, so the FMLA is going to provide you with greater protection there. Evidence of reasonableness and undue hardship, you know were an employer can say I really can''t afford a leave that long, what kind of evidence do I find persuasive as a prosecutor? First of all, they have to talk about the type of position. If it is a position that everybody else''s job is linked to, you know that, this person has to come in and do their job and they hav-you know, they have to open the store or they have to start a manufacturing process and nobody else can, you know, can do their work unless this person is there, we need to have a person with this specific kind of training there. Or you have somebody who, say, an anesthesiologist and you have only got two on staff. So if one of them is out for, you know, a considerable period of time, the other one just can''t cover. They are going to have to hire an anesthesiologist to come in and it might be difficult or impossible for them to hire a person in that position for a temporary basis. So we look at the type of work they do. The availability of others to cover, and, you know, if it is sort of a job that a lot of people can cover for, somebody in a higher position can cover, a peer can cover, or a temporary worker, then it is probably not an undue hardship. You also look at why other people were granted leave. If you are granting leave so people can pursue a college education, for child care issues, if you are granting the same kind of leave that the individual is asking for under the ADA and you are not giving it to people with disabilities, but you are giving it to people for other reasons, then we have a disparate treatment problem and we have issues there. One thing I always look at is the timing of the backfilling of the position because I can''t tell you how many cases we have had where they have told our employee that we are representing you can''t have four months of leave because it would be an undue hardship for us to have four months of leave and in fact they don''t replace that individual until month five. Our party could have come in, in month four, they would have had somebody who they knew was good, somebody who did the job for many years. So we actually look at when did they actually backfill the position. They have to immediately hire a temporary person to cover for them because that is such a critical position and they demonstrate that, then I am going be less likely to think that it would have been easy for them to let this person off for four, six, 12 months, whatever they needed. Now, we had recent litigation we filed, one against Johnson Controls and current litigation against Nabby where the individual needed an extensive leave beyond FMLA and they had, you know, certain policies and I see this all the time where the policy says that when you reach a certain point, usually six months, sometimes a year, that you are automatically terminated, and they might, you know, send a warning letter to the individual ahead of time saying if you don''t come back, you know, at the end of your six months, then you are going to be terminated. Generally, there is a communication problem there. The employee might send something, but the employer says that is not good enough. I need more detail than that. The employee might have problems getting their doctor to cooperate. The employer might not tell the employee that they are not satisfied with the information they gave them, so they end up firing the individual based on this policy. Now, our office will find a reasonable cause that discrimination has occurred if you just have a policy that says we automatically terminate people who have been on leave for you know, x period of time because that ignores the duty to accommodate. It ignores the individualized assessment responsibility to see whether this particular individual should be, you know, let go so what we had Johnson Control do in resolution of our case on behalf of an individual who needed a kidney transplant and was off for over a year, when he was ready to come back, they had lots of jobs. They hired like around 70 people that could do the same, you know, doing the same job he had been doing for the company for I think something like 17 years. So it was our position they should have let him come back at that point. It wasn''t undue hardship to give him one of those job. We also said at this facility, from now on what we want you to do is make an individualized assessment at the end of the year. Is this a job that we can''t hold open any longer? instead of just saying automatically. I know it is easier for hr people to do that, and I have some sympathy about how difficult it is, even under the ADA, putting aside the FMLA, to make these individualized assessments, but that is what the ADA is all about, individualizing the person''s status and also whether it would be a reasonable accommodation or undue hardship to have that person be on leave for a year, year and a half, whatever it takes. Certainly a person, very sympathetic case a person in renal failure, is getting a transplant, kept them advised all along and then the minute they heard he was getting a transplant, if they would have talked to his doctor, they would have been told a date certain he was coming back. FMLA is 12 weeks. How do you count the 12 weeks? You can count calendar year, work starting anniversary year, you can count it fiscal year. Most employers want to count it a rolling year. In other words, you can''t take more than 12 weeks of leave in any 12-month period. As long as the employer says we use the rolling calendar for calculating it, then that is adequate, you know, the employee''s notice. Intermittently, under both the FMLA and ADA, but the FMLA has certain caveats. First of all is says you can only use intermittent leave for pregnancy, foster care, adoption, if the employer agrees. It is not, intermittent leave is not an automatic right under that situation as it would be under the health condition situations. Also, with intermittent leave, an employer can say I can''t really handle intermittent leave in this position that you are in now, so during the time period that you need intermittent leave, I am going to transfer you to another position. They are taking a day here and a day there, the period of time they are going to be on leave, you know, not constantly on leave, but on leave intermittently is going to be much longer because they will extend that period of time out for a much longer time. That is why the regulations and congress said it is okay to transfer them to a different position under that particular circumstance. Now, benefits, an employee has to be able to maintain the same benefits that they have in their ordinary job while they are on leave and then I will talk about restoration. They need to be restored to the same benefits. Under the ADA, if a person can''t perform the job, you know, there is no reasonable accommodation that would allow them to perform the job, and the employee offers as an accommodation that they transfer them to a different position like a part-time position that doesn''t have any benefits, that is what the ADA says. They get what benefits and salary are provided for that job. You know, assuming that you have met that first very strict burden that there is no way you can accommodate them in the job that they hold. Now, documentation, I don''t want to get too much time into that because we could spend, you know, the entire time talking about documentation and it is boring. But basically, under the ADA, you know, you can, you know, I think I will just refer you to our guide, pages 22-28 deal with the scope and manner of disability-related inquiries and medical examinations, but basically under the ADA, you can make medical inquiries that are job-related and consistent with business necessity. You can make medical inquiries if the employee asks for an accommodation. You can ask for information that, unless the disability is obvious and the need for accommodation is obvious. If it is a hidden disability, you can certainly ask for proof that they have got the disability and that they need the accommodation. Fitness for duty, that is permitted under the ADA if it is job-related consistent with business necessity and you have got reliable information suggesting that that is necessary. Practical issues that arise under the ADA. In terms of documentation, who pays for the medical reports. Now, that is not in the ADA. We will talk later about the FMLA specifies who pay for the report. So let us just say that the, the employee gives the employer a certification from their doctor saying that they need the leave and that they are a person with a disability. And the employer says, well, I don''t really like that. That is not really specific enough for me. Maybe it is or maybe it isn''t. That is a question of fact. Then they say to the employee, go out and get, you know, I want a note from a psychiatrist, not from a, not from this nurse practitioner. I want something, you know, something more substantial than that or I want an occupational medicine doctor to give me that particular information. That is very expensive, and that is time consuming. You can''t just call up an occupational therapist and get an appointment right away. So what we do in analyzing these cases, just to give you a practical view of it, is, you know, if the employee has given the employer enough information so that the employer really doesn''t have a reasonable basis for doubting their disability status and their need for an accommodation, then, you know, I think the, and the employer just wants more information, then the employer really has to pay and we are litigating, you know, a number of cases, not involving leave issues, where, you know, that sort of thing came up, who pays, where it is an expensive and time consuming, and invasive examination that they want to do. But that is something I know comes up on a practical matter a lot. You know, how specific to the reports have to be? Again this is a thing I hear a lot of complaints, legitimate complaints from HR folks about. It is not the employee''s fault necessarily. You know, the doctors are not schooled in the ADA. Nobody trains them in medical school how to write appropriate releases. They don''t understand the ADA. They don''t understand the duty to accommodate in most circumstances. So they just send you a note that says work is tolerated. You know, patient ill, requires treatment. And, you know, HR folks are legitimately saying, wait, that is not enough information. How do I know what their disability is or how lon-you know, the need. I need more information than that. The real tragedy happens and it is even been confirmed in case law where it is blamed on the employee is where in some case if his a doctor doesn''t provide the information, then the employee will be held the employee''s responsibility. Under FMLA, there have been a number of cases where the courts have said, look, the employee, you know, contacted their doctor several times to try to get follow-up, specific information that was requested. And the doctor didn''t follow through and the employee told the employer about this problem. Those circumstances are not holding the employee responsible. So, you know, what I say, is you know, the lesson from both ADA and FMLA is that the employee has to take some initiative to try to get the doctor to give something specific. If they do everything they can, then, you know, the employer, before they make a decision not to grant the leave or not to let them come back from the leave, they really, you know, have to try to work with the employee to find a solution, maybe find another doctor that the employee is willing to see, that will, you know, give them the information that they need. But the employer can''t be stubborn about it that is the main thing that I would advise. How broad can the inquiry be? Under the ADA, certainly, and under the FMLA as well, you can''t say we want a full-blown medical exam before you are allowed to come back. We say we want an aids test, a cholesterol level, all this stuff. Our inquiry provisions under the ADA would preclude you from making that broad an inquiry. So HR folks need to realize the inquiry needs to be as narrow as it could possibly be. My point is why do you want to know more? it is not your business. It is not the information that you would want other people to have about you. Just ask what is the disability, if it is an ADA requested leave or the serious health condition, you know, what is the accommodation that is needed in terms of the leave, how long do you anticipate they will be out. If it is intermittent, you know, some explanation. They need to have so many hours for dialysis, so many times a week, but don''t go beyond that. Just the very basic information. In the FMLA regulations and our guidance on the system, you can see the information you can ask for. You are entitled to reasonable follow-up. Our own guidance says that you can have periodic updates. I wouldn''t do it more than every 30 days unless you granted leave for a set period of time and it is pretty clear that the employee really needs the leave for a set period of time. If you grant leave on a pregnancy basis, you know it is going to be a set period of time before they come back. So, you know, to keep asking for updates every couple of weeks is going to be perceived as some kind of harassment. Now, there has been a lot of litigation under the FMLA about, you know, what is sufficient notice from the employee, and if the employee just says I am sick, I am ill, that is probably not enough. But by the same token are pretty liberal in terms of if the employee has made an attempt, even a third party like a girlfriend or husband has called in, if they say the word depressed, which can be clinical or can be, you know, non-clinical situation, that is probably enough. They don''t have to sa-they don''t have to invoke requests for FMLA in so many words, other than to say I want a reasonable accommodation under the ADA. But they do have to speak somewhat specific. The think the courts have ruled against, in looking at the FMLA cases, they have ruled against the employees where the employee has sort of said some things that, you know, could suggest to the employer that the leave was for some reason other than illnesses. That it could be because they were moving or they were having child care problems or something like that, and truly that is unfortunate because particularly with mental illness, many individuals don''t want to admit they have mental illnesses. Sometimes part of the disease won''t allow them to admit they have mental illness, so they are not going to tell the employer about the specific problems. They may not want to admit they have HiV. If they are hiding it and we can''t prove causation, that the employer knew that they had, the disability and the need for leave and then fired them as result of it, it is going be a problem for us in litigating the case and exercising their rights. Now, the employer has, under the FMLA, some notice obligations as well. They have to say that, you know, this leave is going to be considered an FMLA leave. They have to talk about the requirements for, you know, for certification, and they have to tell the employee what are the consequences of not providing us with the certification. If you don''t give us the certification, we are not going to let you take the leave or we are not going to restore your job, you know, when you are done with the leave. They have to talk about if they wan-that there will be a fitness for duty examination. They have to say that they are going to require it. They have to tell the employee that they have, you know, two busines-they have 15 business days in order to give the certification, but within two days of the employee requesting the leave, the employer has got to say, you know, this is an FMLA leave. Now, there was an interesting Supreme Court case, Ragsdale where the individual had a more generous plan for her employee, 30 weeks of leave. The employer made a mistake, made a technical mistake. They didn''t tell her they were designating part of that leave as FMLA. You can run vacation leave con currently, workers'' comp con currently, all that stuff can be run at the same time so that the employee gets paid leave, and is running at the same time as the FMLA. So say you have six weeks of vacation, six weeks will be paid vacation, you won''t have vacation when you come back and six weeks FMLA. The employer didn''t say anything. The employee said after 30 weeks she still wasn''t able to come back because she had cancer, she said I get another 12 weeks because they violated the statute. The regulation said if the employer doesn''t give notice, they get additional 12 weeks. The court said no. It says 12 weeks, it is unsupported by the statute, giving an employee more than they are entitled to. She got the 12 weeks she was entitled to under the statute and they didn''t-the department of labor''s regulation on that case. Now, what happens if it is late or inadequate certification? Looking at the case law, if the employee doesn''t really have a good excuse for not turning in the certification, the employer gives them a couple of weeks and don''t do anything, they don''t tell them I am having problems getting it or they send something in that the employer says it inadequate, if they just completely ignore the employer''s request and usual repeat requested for certification, then thy say you are not entitled to leave. You know, they can be fired for no-call/no-show under those circumstances. If the employee is making a good effort to try to do it, even if the certification is inadequate or late, the courts have been a little more forgiving. Fitness for duty certifications, employees have to be notified of the requirement, and then the battle of the experts issue. This is where it differs from the ADA. It does talk about who pays. Initially the employee gives their own, you know, certification of the need for the leave, the ability to return to work. If the employer has a question about that, they can send the employee for a second opinion. It can''t be a doctor that they used, you know, that the doctor that does all their examinations for employment, physicals, you know, for hiring, for applicants and for return to work, can''t send them to that doctor, but they can have their own doctor of their choosing, which they pay for, send the employee to that doctor. Let us say that doctor disagrees with the employee''s position, either says they are not entitled to leave or they are not ready to come back, then you go to a third doctor, again, the employer pays. The employer pays for the second and third opinion. That third doctor is jointly selected. What I suggest you do and what I like to do in the ADA cases is we have got a lot of fine medical schools in the Detroit area. I want somebody with integrity who is not going to be biased add. Take someone on staff at University of Michigan Hospital or Wayne State University, an academic, somebody who is a specialist in the field and have that be the third opinion. Generally both sides will agree to that. Now, that is the final opinion. No appeal after that. So that is ho-I think that is a good process that the FMLA put into place there. Talk briefly about reinstatement rights. Under the ADA you get the same job. There is a duty to accommodate first of all, in the same job. There is also a duty under the ADA, which doesn''t exist under the FMLA to reassign if you can''t accommodate in the same job. Let us say you come back and everybody agrees, third doctor says you can''t do this work, you are not ready to come back to do this work, under the ADA, if the person is covered and they probably would be under that circumstance, then the employer has a duty to reassign them to an open position that that individual can do. It is under our guidance that even if it is not the quote, best qualified for that open position, if they have the minimal qualifications for that job, they get that job. And the case law has been somewhat supportive of us on that even though I usually get yelled at when I talk about that position in front of, you know, audiences. But I think it is fair because the ADA was designed to get people back to work and reassignment is specifically an accommodation under the statute. So that was congress saying, you know you are not going to give anybody anything special by saying you are the best qualified person, if you have got the most seniority you can have that job, they have a contractual right to get that job and be free from discrimination. Accommodation requires something more, which is to give them that reassignment position. Under FMLA, you get the same or equivalent position. It has to be virtually identical to the former position. So it is got to be in the same geographic proximity or work site. It has to have the same shift, the same work schedule, the same opportunity for bonuses and profit sharing, the pay has to be the same, it has to be the same in terms of, you know, responsibility and accountability, the same access to bonuses, and, you know, it has to be, you know, something that if they need t-let us just say they have to have a license that has to be renewed every so often in order to do the job, then they also have to be given a reasonable amount of time to renew a license that they already have.
You also get the same benefits. Here is where a problem may arise. The employee has to be restored to same benefits. Let us just say an employee goes on leave and they don''t want to pay or can''t afford to pay because FMLA is unpaid leave, they can''t afford to pay their portion of the insurance benefits, so you know, a lot of employers cover the employee''s share of insurance benefits because it is just a paperwork nightmare to try to restore, which they have to do, those benefit if his there has been a lapse, a break in service or a break in coverage for that period of time and they can''t force the person to re-qualify for the benefits. So the only way to assure that you can restore is to cover the employee''s benefit and maybe you can make arrangements for recapture. Now, the statute does allow if an employee doesn''t come back from the leave and the employer has paid their share of the benefits they would allow them to recapture. Let us say a person is dying of cancer and they take their 12 weeks leave and they can''t come back because they are not getting better, they are getting worse. The employer says you didn''t come back, so now I want to you payback our share of the insurance premiums. I haven''t seen any case law on recapture. I think it is not something that employers do even though they have got a right to under the statute. Now, under the FMLA, there is a key employee exception. No key employee exception under the ADA. The ADA is obviously going to give you greater protection. The highest paid person, you know, the top 10% in terms of pay within a 70-mile access to that individual''s work site can be designated as a key employee, and what the company has to show is that that person cannot be restored, not that the leave would be a substantial and grievous economic injury, but the restoration of that person after the leave would be a substantial and grievous injury. So let us just say that you have somebody who is an executive chef and have you a master chef, it is a very fancy restaurant, big fancy restaurant. You know, the chef needs to take a 12-week leave well you have to have a master chef in place and so you have to hire another master chef to take over because they are not going to work temporarily. There are too few of them in the country. You hire this master chef to take over. If you were to restore that master chef to his position, you would have two master chefs, and, you know, the restaurant really can''t afford to carry two master chefs. It would be something like that. Again, I haven''t seen very many cases on restoration because, you know, listen to that language, substantial and grievous economic injury, you have got to show that it would, something that would jeopardize the business and that you, you have to show that you couldn''t do anything on a temporary basis, that there would be, you know, reinstatement would cause tremendous economic injury with that kind of language, it is going to be very hard to designate those folks. There is no key employee exception, so they are still going to be able to get a claim under the ADA. Let us talk briefly about the non-retaliation and interference provisions. Both statutes have them you know, that you can''t interfere with an individual''s rights under the statute, and you can''t retaliate against them for exercising their rights. Under ADA, we have had some litigation where an individual asks for an accommodation for Turrets Syndrome and it turns out that the Turrets Syndrome wasn''t severe enough to constitute disability under the narrow language, but he was terminated when he told them he had the syndrome, also because I thought, it was our view because he asked for an accommodation. You can''t under the ADA or FMLA terminate somebody who inquires about or tries to exercise their rights. There is always a question of fact there. You have got to prove it like any other. A retaliation claim like any other retaliation claim. You gotta show that the decision maker knew about their protected activity, tag the leave and that that was the reason and just the temporal relationship, the time relationship between the termination, for example and the time that they took a leave probably isn''t going to be enough, particularly if you have got some intervening thing. I know there was a case where when the woman went on leave, somebody took over her job and found out that the woman had''t done the work she said she had done and that was the reason they got rid of her, the fact of poor performance and she had hurt them immeasurably. She hadn''t been following up with correspondence. That was the real reason they got rid of her. Retaliation cases are wonderful. Juries love retaliation cases. The EEOC loves retaliation cases. We can''t allow people to be punished because they try to exercise their rights under our statute. Even if you have got some problems with an underlying case, you have got to be very careful you don''t get a retaliation case. I think the most simple example is let us say that somebody, you know, is going to be promoted in the law firm. They are going to be promoted to be partner. The firm says we are not going to promote you because you took that pregnancy leave this year. They can''t use the fact that you took the leave to deny you a promotion because otherwise, you know, they might as well have not have given you leave which they are required to do under the law. You can''t be punished because you exercised your right. Now, I know we want to do some, some questions.
Yeah, we want to allow enough time to get some good questions in here.
So you want to do that now? I have other interplay play and examples. We can do that now.
How much time would you want to spend?
I just wanted to talk about some examples where, you know, ADA or FMLA might provide greater protection.
Sure. Go ahead. I think that might be valuable for our audience.
Here is some situations where the ADA would provider greater protection. If somebody has been employed for nine months, the individual diagnosed with lymphatic cancer, wasn''t covered by ADA because of short tenure. He need a month leave to get special injections, and then he got laid off in a one person lay off on December 21st. It was an aggregious case, no FMLA protection because he hadn''t works for a year. The other cases we have done, if an individual needs more than 12 weeks, the ADA is going to provide greater protection. Particularly if it is, you know, something between 12 weeks and a year and the ADA will cover it. If they need an accommodation other than leave, the ADA provides greater protection. If the employee would prefer to work instead of taking leave, the ADA is better. If they want their own job back instead of a, quote, virtually identical one or equivalent one, the ADA is better. If the person has a record of, or perceived disability as opposed to an actual disability or, you know, serious health condition, they have no protection for discrimination base order a record of, or perceived disability, although there is a lot of question about whether they are entitled to leave as an accommodation if they only have a record of perceived disability. I am personally of the view that they should be granted leave if they need it, like to, you notice, get a full work-up at Mayo even if they don''t currently have an actual disability. But if they don''t have a current serious health condition, then they may not have FMLA coverage. If you- under FMLA, you get greater protection if the individual has a temporary impairment like a knee injury or something, you know, there is no protection under the ADA for temporary conditions. Current drug years are not covered specifically by the ADA, but if a current drug user says I want to get inpatient care to kick my cocaine habit, then they can get FMLA leave. So I think that is a very big group. Sporadic and unpredictable absences do not have good ADA coverage, but you get intermittent leave under the FMLA. Here is a situation. If a person is, is dying, you know, from cancer, and they won''t be able to come back even if they are given the leave, technically under the ADA, that is not a required accommodation because the ADA only requires accommodation to help people get back to work. You are entitled as a matter of right to the leave. Now, you want to grant the leave and you want to be able to give a personal leave under those circumstances because even though it is unpaid, at least their insurance coverage will continue during that 12 weeks if they are sick and then they will get the Cobra notification afterwards so they can have the Cobra period afterwards, so you won''-the Cobra won''t kick in until after the leave is over. Under that situation, you definitely would want to go to the FMLA. If the employee wants to retain benefits while on leave, the FMLA will provide greater protection. If they prefer the leave to remaining on the job, the FMLA is the way to go. So, you know, I can give you some other examples and get more specific into some of the provisions of both statutes, but I would like to take some questions now so I can deal with-I gave you a lot of information in a short period of time. I want to be able to handle your questions
It is a very complicated topic, so it is obviously, several intricacies and things of that nature. So there is always that, oh, it depends so I think we are all so used to hearing from both the EEOC and Department of Justice (DOJ) and such when it comes to ADA issues. Let us hear from audience participants to see what their questions are and what further guidance they might be able to get from you, from your insight. So if Omar would go ahead and give instructions, we will go ahead and start the Questions and Answers (Q&A) section.
Hello. We have a question. How do you determine if substantial limitation in a major life activity, if you limit your inquiry of the medical doctor or health care provider to as narrow as possible?
Well, if it is an ADA request, I mean you can ask that, in that language. You can say does this person have a substantial limitation of a major life activity? But what I am saying in terms of as narrow as possible is that you don''t wan-you don''t really need to know about all the, you know, the details about the, you kno-you can ask onset date, but you don''t need the details about the onset. You don''t need to know about their broad medical history, what the cause is, you know, what you need to know is whether they currently have a substantial limitation of a major life activity. You can ask it in that language.
I have two questions and I am not sure if they will be answered later or not. One, when they are requesting your medical information, can you limit it only to what pertains to whatever you are off on your disability for? And the second one, is there any difference if the person is a postal worker, United States post office worker?
Well, you can limit it to, you know, because sometimes employers do get carried away. That is what I was talking about with the full blown medical exam, wanting to know cholesterol level and Human Immunodeficiency Virus (HIV) status. You can limit it to if you are returning to work, then you can say, you can limit it to, like if you went off on a knee, you can limit it to your capacity based on the knee because they really don''t have a right to just out of the blue ask any employee under any circumstances to just submit to a full blown medical examination. Postal workers are covered by the Rehab Act. So, you know, I think that it is a very similar provision. It doesn''t really make a difference as far as that goes.
Hi, Robin. This is Kathy Fisher and I apologize because I missed the first half hour of the session, but I am curious under ADA and/or FMLA where it talks about this employers of 15 or more employees and/or 50 or more. Does that include memberships, if have you a membership and you are under the number, but with your membership, you are over?
That is a very interesting question because I, I have a case that I am looking at, I am going to send out for authorization this week hopefully against a union, and unions are covered under the ADA regardless of the number of employees, but, so you don''t count the members. What you count is the number of employees. Members are different than employees in terms of coverage. I mean members, you know, it is a different concept. I mean it depends o-I guess I don''t know your organization, but if they really are employees, but you call them members, some people call associate, titles for people, but if they are members in terms of they are not employee, don''t receive a salary, just members of the organization, they don''t count for coverage purposes. There is also a very interesting case, a Supreme Court case where they talked about whether doctors, you know, in a practice, whether they were owners, you know, whether they were partners or whether they were employees, and the court said, you know, they used a variety of tests and, you know, they said that they looked lik-they looked like employees.
My question, I appreciate the examples between FMLA versus ADA, when to choose which to help your clients if you are working with them to ask for leave. Can you ask for both, like a package deal, kind of thing, or you could go through your FMLA and then begin an ADA process?
Absolutely. I don''t have jurisdiction to bring an FMLA claim along with an ADA claim, but a charging party, in my litigation could intervene and bring an FMLA claim as well. I always, in the beginning, I talked about always get, you know, talk about both at the same time and use whichever statute provides what you want, you know, as you are presenting it. Well, we want this under the ADA and we want this under FMLA because you have a right to both.
Both at the same time?
Or one after the other?
Well, you know, if you are talking about, say the length of leave, fir- for example, you know, you can say you want the 12 weeks of FMLA leave and then after that, you don''t have any more rights under the FMLA, but you we can say he is not ready to come back yet and we want another two months under the ADA.
I was just wondering if color blindness had ever come up as an issue for the ADA being covered under ADA?
Yes, it has, and I actually recommended litigation in the color blind case. Although I think the case I say that I have read, there was one out of California that didn''t support my position. I think that color blindness is a disability, particularly if it is severe, because I think it does exclude people from a broad range or class of jobs, the individual that we worked with was a police officer because he was color blind, they wouldn''t certify him in the State of Michigan, sew sued the Michigan department. This was before, you know, befor-when individuals could still sue, he ended up losing on appeal because of the Supreme Court ruling. But in any event, you know, disability status wise, I think the color blindness can be a disability. I am not sure fits a serious health condition, you know, because I am not sure what you would need leave for because there is no treatment for it really, but in terms of a disability, I think you can make an argument that a severe color vision impairment is because of the limitations on working and the limitations on seeing. I was just looking at it more as occupational safety hazard because if you had an electrician that was color blind and didn''t know he was color blind and found out later on he was color blind because he was wiring houses wrong and created and electrical fire like that, I would think that that would have to be covered under ADA. Well, you know, interestingly, I did have an electrician in a mine that I looked at, and he could-he didn''t know, he couldn''t tell you whether a color was blue or green, but he could tell that it was a different color. What he saw, so that he wouldn''t make mistakes because he knew where to put that color as he viewed it wire. You know, not to make a mistake. And I think that he-I think he did work until they did some tests and found out hat he had been working successfully as an electrician and then they found out he was color blind and wouldn''t let him do it anymore even though he had done it successfully because he could recognize whatever shading that was, that it was a different color and what to do with that color.
I have a question on, under immediate family members, if you have a son who is over the age of 18 or 23 who is disabled living at home and has a serious medical condition.
That individual would be covered because it does say a child over 18 if, you know, you can prove that they have a disability and require care. So if they are living at home and require care, they would be covered. My concern is that, you know anyone would wan- whether a son was disable or not would want to take time off to care for a 21, 22, even a 35-year-old son if they needed you, but they are not covered. The situation described would definitely be covered.
Okay. If a person requests reasonable accommodation and their request indicates they can''t continue to do their job without the accommodation, if they are not qualified for the accommodation, can the employer terminate that individual without it being considered to be retribution?
That is pretty dangerous. Give me like an example, like if they are no-what do you mean they are not qualified for it? Because they are not eligible or it is not a serious health condition or- For whatever reason, but they have indicated that without the accommodation, they can''t continue to do the job. Unfortunately, I think I have seen some cases where the courts have said that the individual wasn''t entitled to the leave they requested, but because, you know, they hadn''t established that they had a serious health condition, but the fact tha-it was a FMLA case. I can''t remember the name of it, but the fact that they had taken the position they couldn''t perform its essential functions of the job gave them no rights, you know, under FMLA, that the employer could terminate them. If they had brought an ADA claim along with that, they would have to prove ADA eligibility, but just being unable to perform an essential function of the job, doesn''t exclude you or allow them to terminate you without looking at what kind of accommodation would allow to you do that. But FMLA provides you with no rights outside of leave.
With regards-regarding the notice requirement for ADA and FMLA, if a person is at the end of their FMLA leave, is the employer responsible or required to notify that employee that they have ADA coverage for leave?
I don''t think ther-there is no legal requirement that they do that. I just think that, you know, it is the type of thing that is most responsible, you know, an employer, particularly if they have got coordinators. You want to be communicating with the employee. This is somebody you want to, you might want to come back and you know the situation, for example, that they say I just need another month, you know, my doctor says I will be ready to come back in another month, you don''t need to tell them they have a right under the ADA, but if you violate it, you know, if you fired them, then you are exposing yourself to liability under the ADA, so you might as well tell them and try to work something out rather than be exposed to litigation. You know, or you don''t even need to tell them. Just give them the extra month, if you can, or make some other kind of arrangement.
Our question has to do with intermittent certification as it applies to HIPPA. FMLA certifications are returned to the hr department. Then when the employee calls off to their own department, can that department staff inquire as to the specific reason for the absence?
I have to confess that HIPPA is not something that I know anything about I mean I know that it is a privacy statute. I know that the ADA has some implications too. The ADA really has limitations in terms of who is allowed to know anything about what is in a confidential medical file. I don''t know why they would need the reaso-you know, supervisors are entitled to know, you know, health care personnel, and the government are entitled to know about what is, you know, in a confidential file, you know, and that kind of documentation, the FMLA documentation would be covered under the ADA as well, and FMLA. So I would say that they really don''t have a right to know the need, you know, why they are absent if it is not their own department. Because all you nee-you just need to have lik-let us just say, whoever needs to approve the leave needs to know the reason, you know, has a right to know whether they are eligible and, you know, whether they need the accommodation, but anybody outside of the person that is approving that leave shouldn''t know. Otherwise, you know, you may have a breach of confidentiality problem under the ADA.
So if they are calling in to their own department for this leave, it is okay for them to ask the reason for the leave?
It depends on whoever they are calling into, you know, whoever is making the approval, you know, who is making the approval, is the person that is entitled to that information. You know maybe I misunderstood your question, becaus-but I thought you were talking about two different departments. You are saying the department that their own supervisor wants to know the reason for the absence?
Yes. They would call under their own supervisor to call off for the day.
Right. Their supervisor is entitled to know. Their supervisor is entitled to know because the supervisor is going to be approving it.
Does that still pertain if the HR department approves the official FMLA leave to begin with?
Well, under the ADA, for example, the supervisors allowed to know. So, we are not that confining. Even if the, you know, HR department does the paperwork part of it and does the official approval of the leave, they need to know because they are the people that are doing the administrative paperwork on it, and the supervisor needs to know because they need to know whether, you know, how long, for example, how long the person is going to be off and, you know, why they are off so that they can cover for them and things like that. The supervisor is one of the groups under our statute that specifically is entitled to get that information. The thing that I worry about and the reason I was hesitant in answering it in the first place is that, you know, if you have got, say, somebody is transferring from department to department and the new department that the person is applying for a job wants to know why they had that FMLA leave, what was the basis for it, they don''t have a right to know because that is not relevant to the approval of the leave or the eligibility. It has already been done, and it''s not something that you, you know, want that information to be shared unless, you know it, comes up in connection with another request for leave.
Basically my question was, I had a call me maybe around December asking, he had been fired from his job and he had worked at the job long and his 12 weeks of FMLA had run out, but I was trying to figure out whether or not he was covered under ADA because after his leave was over, he had a spinal cord injury, but he was going rehabilitate, I had and wanted to return to the job, if not in the same position, maybe in another position where he could work and I was wondering, was he covered under the ADA.
He had got a spinal cord injury, I mean I am sure I coul-I don''t have his medical records in front of me, but I could make an argument that he was substantially limit indeed a variety of major life activities and if he needed additional time for rehabilitation in order to be able to do the job and maybe even job accommodation network or state department of career development, vocational rehabilitation would provide some technological devices that would allow him to return to work, he is absolutely covered under ADA.
Even if he hadn''t been on the job for a year?
Yeah. The ADA doesn''t have the one-year requirement.
So it would just be totally under the ADA.
Right. You said he hadn''t been there long. I assume if he had taken 12 weeks of FMLA,ed ha-to have been there for a year, unless they were more generous than the statute requires. I had a case exactly like that with a spinal cord injury with a person who had only been there for nine months and the state paid for a stand-up wheelchair and they took him back after the litigation.
My question is if someone has a condition that they don''t want to reveal, for example, HIV, Acquired Immune Deficiency Syndrome (AIDS) or psychiatric disorder, is it sufficient notice under FMLA to submit a doctor''s note that doesn''t state a specific diagnosis, but instead uses the language of the statute, you know, serious health condition, requiring ongoing treatment of a physician lasting at least three days.
You know, I haven''t seen any case about this that, but -you know, that is an interesting question. I think that that you know, an employer could probably make an argument that it is not enough information because they can''t, you know, judge the validity of that opinion. You know, you go to that one opinion, two opinion, they may say that is not sufficient and get their second opinion and they are entitled to that under FMLA, so somebody is going to find out what the real condition is with the second opinion.
Well, does that necessarily have to happen? Can the employee agree to go for a second opinion as long as the doctor does not reveal the diagnosis?
You mean their doctor?
That is an interesting point. I suppose, as long as their doctor - if that he was the arrangement and their doctor confirmed or the third doctor confirmed that they are covered and that they need the angry dation, you know-
It is not an accommodation. It is FMLA
Well, the leave is an accommodation. I am using the ADA language, but that they need the leave and that they have a serious health condition. I haven''t seen anything on that, but that would be an interesting way to protect, you know, because, you know, there is really no reason for them to know the label of the condition. All they need to know is eligibility.
And as long as their doctor could confirm eligibility, that would be a great idea.
Well, if you get a more firm handle on that, could you let us know?
Can yo-do you want to maybe e-mail me? My e-mail is firstname.lastname@example.org and then I will know who to send the information back to.
That is a tough one. That''-that brings, again, all those little intricacies into the equation that hav-are different from some of the others and the stigma attached to the HIV status that could create a problem potentially for the employee. Next question, please.
This is a question on FMLA.
Great. Go ahead.
Under psychological bonding for a child, I think the reg reads that the child has to be in either home care or an inpatient if there is a situation which would be episodic or intermittent such as after school on an unscheduled basis, is that covered under FMLA?
The intermittent would be covered under FMLA. You know, I, I misse- I am not sure I followed the first part of it. You know, you still have to meet the serious health condition requirements, but if you could show that the child had a serious health condition and, you know, it did require intermittent care or, you know, whatever, it was a continuing situation, then you would be able to take the time off.
And the reason would be psychological bonding rather than physical.
Yeah, you know, I think that if that''-there is some cases that actually deal with I think with taking care of a parent where, you know, the nurse-I think that the nurse was-the child was not doing the physical care for the parent, but I think there were some cases and might even be some language in the reg that talk about support and comfort, you know, and doing some physical things like transport and stuff like that, but I think support and comfort is one of the things that you can do. And if the doctor will say, as I am sure most doctors would, that, you know, if you are treating a child that has a very, that has a covered situation, and that they need to have, you know, their parent available for psychological reasons for, particularly with a child, you probably could get coverage there.
Hi I. I don''t see anything that would protect an employee who was caught in a lay off during the leave from being laid off. Do you?
No. There is case law on that, and there is language not specifically on layoff, but the employee is not going to be put in a better situation because they were taking an FMLA leave or an ADA leave. The question, and this is a legal law profession question, is who has the burden of showing that they would have been laid off if they had been there and some courts have said that the employee, the employer has the burden of showing that. Once the employee establishe-I think that is probably where the law is going to go. That is kind of the majority rule, that once the employee has established their eligibility for the leave, whether ADA or FMLA, then the employer has got to show, that everybody in that division got laid off and here is the proof of that and then that person would be laid off like everyone else.
Okay. In a case of a person-this is Lorna Bowes from Michigan Rehab Services. In the case of a person who has sickle cell anemia and doesn''t want to reveal it upon hire, it sounds like it would almost be better when she has hospitalizations or illnesses to go with the FMLA because of the intermittent coverage.
Right. Yeah, I think that is true. We had an ADA case on behalf of a person with sickle cell anemia and the-she had the kind of job where they were always bringing in temporaries, she was a file clerk, any job you could do being absent on an intermittent and unpredictable basis, that was it. We were able to convince headquarters and file that lawsuit. But in most jobs, with the case law the way it, is the ADA is not going to provide much coverage and would prohibit them from inquiring pre-offer about sickle cell anemia, but they would probably find out about it in that post job physical.
And, you know, I mean it is like any other disability, experienced on a individualized basis, you know, gap between the sickling events, you know, maybe she would-depending on the job, she would be able to do it with some intermittent leave, but she has got to work a year before she is entitled to it.
This is a question again about FMLA. Can an employer request for intermittent leave for chronic condition such as diabetes, hypertension, et cetera, a recertification as frequently as every 30 days?
I think that you can unless you, you know, for intermittent, you can. It is interesting because, you know, under the ADA, once you have established that somebody has got something like diabetes like that, then, you know, I mean you have got no reason to doubt that they need the accommodation and then the only question is whether the doctor will provide information saying, yes, this leave was, you know, necessitated because of the disability. But I think 30 days is probably reasonable. That is my understanding that, you know, you can ask for recertification unless you have been give-like some people ask for a period of time to ge-they will say I want to get my diabetes under control so I want to take a gap, a period of time and the employer has said you can take these 12 weeks to do that. Then they don''t really need to get periodic updates if they have already decided to give them the 12 weeks, but if it is intermittent, then I think they are in a better basis to do it every 30 days, no more than every 30 days.
My question is whether or not somebody falls, or is qualified under FMLA or ADA, has anyone filed a retaliation claim because of being retaliated by fellow employees?
Under the FMLA?
Because they took a leave or just because they are, they are harassing them o-
Well, under the ADA it, could be because they are receiving an accommodation and the other employees don''t know they have a disability and they are getting special treatment or under FMLA, yeah, because they took leave and, you know, it was never disclosed why, but the fellow employees just really feel like somebody is getting special treatment.
The closest I have seen in terms of the cases have been, I think there is a Fox versus GM and an ADA case, I think that is the name where employees wer-it was an harassment case. I think that there were some facts like that. With any kind of retaliation cases, you know, you have to show that the individual engaged in protected activity and pretty much that the employer, you know, the employer retaliated against them, and, you know, so if it is coworkers, it is not the stamp of approval from the employer. It is more like harassment than, you know, so you would say that the employer was tolerating harassment by the employees.
And, you know, that would be a different causes of action than retaliation.
Well, and I guess really that is kind of where I am going, is that, you know, somebody told their employer that the other employees are treating me such and such and the employer never did anything about it. You would file against the employer because he really allowed the treatment, you know what I mean?
Right. Yeah, an-it is not an ADA, but I had a sex harassment case where the, you know, I argued that theory I was able to settle it I think, and convinced the employer that not onl-it was an harassment case, but they permitted the harasser, who was a coworker to retaliate against the woman who complained about him, and that, you know, that was continuing harassment because, you know, once she complained, then he was really all over her. The other thing is that you might look at a breach of confidentiality. How do these employees know why he is getting the accommodation? if they know anything about the disability, then, you notice, then they have breached a confidentiality provision if they just know the person is getting the accommodation and they are being harassed, I mean the employer should take some action. They might be allowing this to happen because they want to drive the employee out.
exactly. Okay. Thank you.
Thank you. The harassment is always a tough one. We will be able to take one last question. Let us see how the time goes here. We are ticking down on our hour here. Why don''t we take one more at least and see where that goes.
My question is if you are dealing under the ADA with a request for a specific accommodation, can the medical inquiry ask more to the limitations requiring the accommodation so that the employer can explore other possible accommodations that could be made, or are you stuck dealing with just the requested accommodation?
No, and absolutely I think that the employee is much better off, you know, to allow, you know, I mean you are allowed to have, you know, a broader inquiry in terms of the limitations that necessitate an acommodation, not particularly this accommodation, because the problem is the employee, they have an idea that this accommodation is going to work and it might not work. And even the courts have said even if you give the employee what they want, that night not be enough for what the employer does. The employer''s liability, so bloet the employer and the employee want to have, you know, enough information about the limitations so that you can explore a variety of types of accommodations. It is not just limited to saying, you know, I need this particular accommodation. And ADA is a perfect example of the difference between FMLA and ADA. The employee could be saying I have this disability and I need leave and the employer says well, I want to know what the limitations are because maybe we can keep you at work if we can accommodate you in some other fashion and you won''t need to take the unpaid leave.
Thank you. Why don''t we go with one more question here.
Yes. I have got a quick question relating to drugs. Now, say if you, someone discloseses at the interview or at the offer that they have had past history of drug abuse, they are covered under the ADA, is that correct?
That is correct. Reform drug users are covered.
Okay. Now, next question is just want to clarify, if someone is on the job and they have been using drugs in their performance drops, all of a sudden this comes out, hey, I have got a drug problem, just for confirmation, would they be covered under the ADA?
No. Current drug users are not covered. I have had people come in with that issue. What I have suggested is that they go to the department of labor and file an FMLA claim because, you know, the person said I want to go in for inpatient treatment for my cocaine habit and the employer said we don''t allow any drug use here, you are fired. Well, ubld the ADA, there is nothin-I can''t protect somebody who is currently using drugs, but the FMLA has no such exclusion. So no protection under the ADA. Yes, protection under FMLA.
Okay. That, that answered my question. You know, someone tha-you know, if someon- we get a lot of calls from employers and individuals that, and a lot times we refer them to job accommodation networks, but also in a case like that, someone could also request FMLA and take leave or go through rehab.
And they would be allowed to return to work?
Right. Under the FMLA. It is definitely a serious health condition. We haven''t seen cases on it, but I have always thought that was a very good thing because it provides protection for a group that I think needs protection that doesn''t get it from the ADA.
Thank you. Well, thank you, Adele it has been a whirlwind here of nonstop questions going back and forth. You have done a good job of answering them. As we would caution anyone, just remember that the ability for us to answer questions and give you information in this format is really only based on the information that you give to the speaker. So sometimes with all the facts and things of that nature, the issues can be much more complicated than they may appear an-in just a few seconds of responding to questions. We would always recommend that you get further information. If you have a particular situation and such that you are dealing with right now so that all the facts can be definitely looked at and examined. We want to thank Adele for her time today and for being willing to take time out of her schedule to present on this topic, which is not an easy one. You can tell by the questions that were asked today that this topic is one on the mind of many people. If you look at the interplay of one law over another, it can become extremely complicated and this interplay has been probably one of our most frequent questions that come on our 800 numbers and comes through our training and technical assistance efforts as well. We are well aware of the interest and the complexity of this particular issue. We will refer you to the documents that are available to assist in trying to understand this issue. The EEOC has documents on their website that relate to reasonable accommodations of which leave is a reasonable accommodation, as you heard from Adele, as well as a document that discusses a bit of the interplay between the ADA, FMLA and title 7 of the civil rights act of 1964 as well. Those documents can be found on the EEOC website at www.eeoc.gov under their section 4, guidance that they provide. And they have a number of documents on the ADA and the guidance documents listed there. You can also contact your local eeoc office for some questions at 800-669-4000. As I had indicated earlier, you can contact your disability and business technical assistance center in your region at 800-949-4232, both voice and TTY. I highly recommend that if you need additional information that you seek it out. I don''t think that there is a lack of information out there on this topic, maybe just trying to figure out exactly where to go. I would also like to remind that we do have a session next month that will feature a question and answer section with John Wodatch, Chief of the disability rights division of the United States (US) Department of Justice where he will be answering request the for the entire hour and a half on Title II and Title III. As I indicated earlier, we hope to also have some discussion on the Tennessee versus Lane outcome from the U.S. Supreme Court, if they have released their decision by that time and date. Again, the session today is, can be found in archive copy in the next five days or so, on our website as well as a digital recording if you are interested in listening to the session again and reviewing the audiotape. At this time, Adele, do you have any closing comments before we close the session?
I guess, you know, I would just emphasize something that I said earlier, which is to make sure that you understand the breadth of coverage under both acts and try to use both of them to get the best protection for the individual. If you are coming from the employer''s end, just understand that you are going have liabilities under both and the main problem we see that causes litigation is poor communication between the employee and the employer. You have just got to cut through that, you know, don''t fire first and ask questions later. Ask questions, follow up, have a sit-down conversation. You will avoid a lot of these problems
Great. That is good sound advice. I think that anyone could benefit from that. Thank you very much. So once again, I would like to thank everyone for participating today and we will see you hopefully next month or sometime in the future. Thank you very much.