Please stand by for real-time captions. Testing, testing, this is a test, just a test. One last check here before the top of the hour, to make sure that everyone is able to hear and we have all of the microphones work. We will begin in about three minutes or so, and get our speakers online here. If you have problems hearing us please let us know by writing into the chat room. If you have a microphone and would like to test you may do so at this time by pressing the control key and release the control key when done speaking. Test, test. Great. I was able to hear you fine, Barry. Just a check, Kathy, we''ve have just been doing a check weve not started the session yet were just about a minute away from the start of the session and just making sure that everyone can hear okay. We are speaking right now. So if you want to affirm that you are able to hear us that would be great. Just want to check, I''m seeing that Kathy Gibbs is letting us know that she can''t hear us, is anyone else unable to hear us? If you are please let us know. We thought we had everything worked out on our end. Between ourselves we are able to hear each other but we want to make sure that everyone on your end. So, just check your speakers on your end, make sure that nothing is muted.
Okay. We are at the top of the hour. Barry is giving you a hint that maybe logging off and back on again can help in the system as an option, as well. We''re at the top of the hour or a little bit past at this point, so I''m going to go ahead and get us started today. Welcome, everyone, to the ADA legal seminar webinar series. Our session this month is titled, Interplay between the ADA and the Family and Medical Leave Act. Our speakers for todays session are Barry Taylor and Alan Goldstein; both of them are attorneys with Equip for Equality, the protection and advocacy organization for the state of Illinois. Both of them have been heavily involved in the ADA employment related issues and have a long history in these various topics. If you want more information and specifics about Barry and Alans background, you can go to the www.ADA-audio.org website and read a little bit more about their background and experience in this particular issue. But I don''t want to take too much time in those introductions. This is the second of our series, our six-part series, for this particular year. We have a number of topics upcoming. Last month we talked a little bit about performance conduct issues as well as the overview of the ADA Amendments Act. All of us are still awaiting to see what the Equal Employment Opportunity Commission is going to do in relationship to the rules and regulations for the ADA Amendments Act. It''s most likely at this point that we wont be seeing anything coming out from the EEOC until after the inauguration next week and some additional positions are named and such, related to the Equal Employment Opportunity Commission under the Obama Administration. The ADA Amendments Act are effective as of January 1 of 2009 even without regulations, we do still have the statue itself, so, just a little bit of clarification there. So as we go forward here, Im going to go ahead and turn over the microphone to both Barry and to Alan. If you want to ask questions along the way, you can do so by inserting, or typing your question into the chat area on the site and we''ll be monitoring that to make sure that all questions are heard. And as well, well be taking time out during the session to let people ask questions and respond to questions, and both Barry and Alan will be doing that as they go through the program today. So, Im going to go ahead and hand over the microphone to Barry and Alan, go ahead.
Thanks, Robin. Hi, everyone. Thank you so much for joining us today. It''s sort of fortuitous that we ended up scheduling this interplay between the ADA and the Family Medical Leave Act because there are new regulations that have been issued by the Department of Labor that go into effect this Friday, of this week, January 16th. And so what weve done is we''ve developed a brief that Great Lakes will be sending you after this session that has more detail about some of the new provisions on the Family and Medical Leave Act. And we will be referring to some of those changes as we go along, talking about this in the outline. The format that were going to do is, Im going to start us off by giving an overview of the FMLA and the ADA, just sort of the core provisions. And then Ill turn it over to Alan, and he will talk about the interplay between the ADA and the FMLA. So, what happens when a person goes on leave and they have ADA rights as well as FMLA rights. And then well take a break for questions, and see if anybody has any questions for what weve presented thus far. And then, with the time that we have remaining, weve put together a case study that does an interplay between the ADA and the FMLA. This is also in the brief. But were going to walk through it as best we can, through this format, and through the time we have remaining, to talk about some real life scenarios that can come up, so that were not just talking about, you know, sort of theoretical things, but instead talk about some real life situations that have happened in other cases and that may happen in the future. And then finally we''ll give you some resources for future reference. So, first were starting with the overview of the ADA and the FMLA. And as most of you who have been working with the ADA know, that the goals of the ADA are broad. And, the ADA is a civil rights law. It was modeled after Title VII, which provided protections based on race, gender, ethnic origin, religious belief. And it really was seeking to encompass all aspects of life and to address the historical discrimination against people with disabilities and provide them with an equality of opportunity, full participation and integration, independence, economic self-sufficiency, and removes barrier and provides national standards that werent in existence before the ADA was passed in 1990. But then when you look at the purpose of the FMLA, it''s much more narrow. The FMLA is limited to employment. It doesn''t cover all aspects of life like private businesses and public services. And it really was focusing on trying to benefit both employers and employees. There were studies that showed a correlation that stability in the family is correlated with productivity in the workplace. And that if you provide people with some reasonable amount of leave to address issues that come up for their own health issues or for family issues that can result in more retention for employees and a more stable workplace. And so, when it was passed in the early ''90''s that was really the goal of this legislation. The FMLA has leave standards. And what it says is that if you are a covered an employee, and which well talk about that in a second, you are entitled up to 12 weeks of medical leave, if you fit within one of the following four conditions. The first is the birth and care of a newborn child, second, placement with the employee of a son or daughter for the adoption or foster care, third, to care for an immediate family member and thats defined as a spouse, child or parent who has a serious health condition, or fourth, to take medical leave when the employee him or herself is unable to work because of a serious health condition. And its this last bullet point that really is where we are going to see the interplay between the ADA and the FMLA. And the serious health condition is one of those examples where the new FMLA regulations have clarified a bit of what that means, and I believe Alan will discussing that more of when we get into the interplay of what these different terms mean. So in order to qualify or what FMLA leave provides on this slide is a 12 weeks of leave within a one year, 12-month period, and the 12 weeks may taken intermittently they dont have to be done consecutively. Youll see there''s a new regulation referenced right under that first bullet point regarding service members or military caregivers. And this is part of the new regulations that provide additional leave for people who fall within this category. Service members who are injured in the line of active service or family members who are caring for them and they would receive up to 26 weeks of leave within a 12-month period. So its still the 12 month period but instead of the12 weeks of leave you would be entitled up to 26 weeks of leave as a military care giver or service member who was injured in the line of duty. Alan will go into the next bullet points in more detail but the FMLA provides for maintenance of healthcare coverage while youre gone, protection of your job. And as well talk about in a second, FMLA leave is usually unpaid, although the employers certainly have the discretion to make it paid. Its not required to have it unpaid but that''s what employers are entitled to do under the FMLA. Next slide. So in order to be covered by the FMLA youve got to meet some conditions and the first one is that you are working for a covered employer. And by covered employer, typically that means the employer has 50 employees within 75 miles. And, when they say that within 75 miles, that might mean, that a particular employer has several offices within a certain geographical area. So, if you have 15 workers and 40 workers and 25 workers all within 75 miles of each other for the same business you could aggregate those together and still be a covered employer, even if you dont have 50 employees in one particular office. So if it''s within the 75 miles geographical area and you have 50 employees that''s sufficient. The 50 employees requirement does not apply to public agency employees or public and private schools. They dont have an employee number requirement to be covered by the FMLA. So, the first component is, you have to have a certain number of employees, and then the other thing is you have to show that youve worked for your employer at least 12 months, and the regulations clarify that doesn''t have to be a consecutive 12 months, but it has to be at least 12 months performing at least 1250 hours of work. So, if you were working for a year but had not worked 1250 hours within that 12 month period you would not be eligible for FMLA. And then also, again there''s that clarification on military obligations that if you take leave for that military obligation you are to be supposed to be credited for the hours of work you would have been performing if you hadnt had left for the military obligations. One thing youll note the between the difference between ADA and the FMLA, if we can go back one second Alan, is that there''s a waiting period for the FMLA. Basically for the FMLA you have to wait a year and work a certain number of hours before you can take advantage of that statute. And as youll see we won''t have that same requirement under the FMLA. Now again, employers are free to waive that waiting period, or to change that 1250 hours if they want and adopt their own version of the FMLA, but this is the base requirement that is set forth in the statute. Now we go the next slide, thanks. So for the ADA, the covered employees are entitled to reasonable amount of unpaid leave due to a disability. And as those of you who are familiar with the ADA, leave is not required if it causes an undue hardship so employers always have that undue hardship defense. And were not going to go through what that means, Im sure many of you have worked on that issue before but, you have to provide, you cant just say it would be an undue hardship, but the employer would have to provide objective evidence to show why it would be an undue hardship to provide the accommodation including the leave. The employee must be qualified for the job at the end of the leave with or without a reasonable accommodation. One thing that we often see is that employees take leave under reasonable accommodation and then they''re ready to come back to work but they need maybe a new reasonable accommodation when they return to work, so maybe modifications to the workplace. And, the EEOC in the case law has been very clear that just because you provide one accommodation, as an employer that it does not mean that you don''t have a continuing need to review potential accommodations as they''re requested by employees. So, if an employee is off on leave as a reasonable accommodation but then in order to return from leave, and to be qualified for the job they need an additional reasonable accommodation that would be something that the employer has to provide again, if it would not cause an undue hardship. One thing that is important to know that is different from the FMLA. FMLA is all about giving one thing, leave. Whereas, here under reasonable accommodation, leave is one of many accommodations that can be provided. So if an employer identifies a different way of accommodating someone, such as reassignment, and finds that the accommodation would be effective that is within the employers discretion to provide that accommodation as opposed to leave. You don''t have an automatic right to leave. Even if it wouldnt be something thats an undue hardship. If an employer identifies a different accommodation that would be something thats effective it''s within the employers discretion to provide the accommodation and the employee does not get the preferred accommodation. Although, certainly one thing the EEOC references is that employers should consult with employees and provide that preferred accommodation, when it makes sense, and have that as part of the process. But it''s not an automatic entitlement. And then the amount of leave must be reasonable. And again, this is really different from the FMLA, which has a specific amount of leave, 12 weeks within a 12-month period. Whereas, the ADA drafters specifically did not put in a specific amount of leave because they have this whole concept of individualized assessment. And to put a specific amount of leave of what would be reasonable amount really would go away from that individualized assessment so, that''s a very different type of thing. One other thing I just want to mention is that unlike the FMLA, which is leave for yourself or to care for a family member, the ADA leave is really only for the employee them self, not for a family member. Now you may remember the ADA has a provision for association discrimination, meaning that employers cant discriminate against you because you have a relationship like a family relationship with a person with disability but the case law is pretty clear that that does not entitle you to receive leave as an accommodation to care for that family member who has a disability if you yourself do not have a disability. That the reasonable accommodation of leave is really limited to the person with the disability under the ADA. Next slide. And again, to be covered under the ADA you have to have a disability obviously as I just mentioned before, it can''t just be a family member''s disability. You are also looking at 15 or more employees, so 15 for the ADA and 50 for FMLA, and that''s for private employers. Whereas state and local governments are all covered, they do not have a 15 employee requirement. And you also may have coverage under local laws, so here in Illinois we have the Illinois Human Rights Act and then county and city statutes that only require you to have only one employee. So some employers are covered by the ADA and local statutes, and others employers are just covered by the local statutes. And again as I referenced before, there is no waiting period to be covered by the ADA like there is for the FMLA. Next slide. And this just lists some of the prohibited acts in the FMLA and what we just wanted to make sure that people understood that basically you can''t prevent people from exercising their FMLA rights. That, in and of itself, if there is some sort of thing hindering people from exercising their rights that also can be a violation of the FMLA. So violations of the FMLA arent simply, you know, not providing leave requested but any kind of effort to prevent people from exercising their rights. Or if you discharge or take adverse action against somebody who opposes the employers unlawful action, that would be deemed discrimination under the FMLA as well. Next slide. And the next slide just goes into this in a little more detail. If you file a charge and theres adverse action taken against you, basically as weve talked about in previously webinars session for retaliation under the ADA. The FMLA has parallel standards. You can''t be retaliated against because you are exercising your FMLA rights, or because you are complaining about employers failure to provide the correct actions under the FMLA. Next slide. And then you see the ADA prohibited acts. And again, one thing that set forth is that reasonable accommodation is a statute requirement under the ADA and not providing that accommodation can constitute discrimination. So under the ADA, discrimination is not limited to firing or somebody with a disability, or failing to hire somebody with a disability but, the failure to provide an accommodation thats reasonable is also discrimination under the ADA. And then the last bullet point, retaliation and harassment can also be a basis of disability discrimination under the ADA. We''ve had sessions on these in the past, as well, but this can really come up a lot in the accommodation section, especially harassment. Coworkers can harass people when they see them, people with disabilities, getting accommodations that theyre not getting and sometimes people harass them because they know that theyre getting them as personal to the ADA and sometimes theyre harassing them because people just think the person is getting treated differently or better in the workplace. And that kind of harassment, if it rises to a certain standard, can be actionable under the ADA, both harassment by coworkers, as well as harassment by supervisors. Next page Slide. Generally leave under the ADA and FMLA is deemed unpaid. Employers can certainly change that policy and have different provisions. But generally there''s not a requirement under the ADA or the FMLA for leave to be paid. There are a couple of buts under the FMLA one is that, under the first bullet point, the employer can require or an employee can elect to substitute accrued time if they have like vacation or personal leave or sick leave to go with the time they''re off, so they are actually paid for the time they''re off because they''ve used the accrued leave that they had. And then also we have a new provision under the new FMLA regulations, the second bullet point that now requires employers to allow employees to substitute their paid leave for FMLA leave when the employee is eligible for that paid leave. And this is something that was more permissive before. And now it''s clear that employers are required to follow this policy if an employee requests it and is eligible. Next slide. And Alans going to go into this in more detail but there are a lot of definitions out there for different laws and weve already referenced that for the FMLA what we''re talking about a serious health condition. For worker''s compensation you are looking at having an on the job injury and different requirements may come up with that and we can have some generalizations about workers compensations but each state has its own workers compensation laws. There''s not a federal workers compensation statute like there is for the ADA or the FMLA. Of course under the ADA your coverage is if you are a qualified individual with a disability, and remember that is talking about people that you can perform the essential functions of the job with or with out a reasonable accommodation. And also remember, now that we now have the new ADA Amendments Act, which takes a much broader view of what qualifies individual disability actually means getting back to congresses original intent. You also have different definitions, such as under social security an ability to engage into substantial gainful activity. You might have different definitions of disability under short-term and long-term under different insurance policies. And then you also have state and local human rights laws that also may have different definitions of disabilities. So, this can be a very challenging area for human resource personal because you are not only talking about different requirements for leave and you are also talking about eligibility differences based on which statute you are talking about. If you are covered by the ADA doesn''t necessarily mean you are covered by the FMLA and vice versa. So it can be rather challenging in trying to do that. And one of our goals today is to hopefully help get through that minefield safely, especially when were talking about the interplay between the ADA and the FMLA. And then just finally on the last slide, some complications to consider. And I think some of these things may come up during the case study that Alan has put together. Is are we talking about a work-related injury or an off the job injury? Because, as I referenced before, the work-related injuries could involve worker''s compensation laws. Also, are we talking about a temporary or permenent injury to be covered under the ADA and the FMLA. Is the employee seeking a temporary or permanent accommodation? Are we talking about a leave thats used 12 weeks consecutively or in some kind of block or are we talking about intermittent leave? And then also is light duty involved? This is another area where the new FMLA regulations come into play. As its referenced on the slide, employers can no longer charge light duty assignments against FLMA leave and some employers were doing that before. And DOL regulations make clear, that is no longer permissible to use FMLA time when somebody is put on light duty. So with that Im going to turn it over for Alan to talk about the interplay between the ADA and the FMLA. And then after he''s finished we''ll open it up for questions and then well look at the case study.
Okay, thank you Barry and Robin and welcome, everyone. I see we have some returning people from prior webinars and some new people, so we''re glad you''re all here. If there are any problems with my microphone, if it fades in and out, or of you stop hearing me just send a little text message and we''ll try to fix it. So I am going to talk about the interplay of the FMLA and the ADA. Sometimes employers think well we provided the 12 weeks of leave that the FMLA provides, we''re done with providing leave, and that''s not necessarily the case, because that could be when the ADA kicks in. So as a reasonable accommodation the under the ADA, FMLA leave may be extended beyond the 12 weeks. It may be given to an employee who is otherwise not eligible under the FMLA and, as Barry eluded, that can be an employee that who has worked at the employer for less than a year or it could also be an employee that for example needs leave to care for a sibling because siblings are not covered under the FMLA leave provisions, well actually I take that back, I guess it would be a reasonable accommodation because the ADA doesn''t require leave for people to care for others. So lets withdraw that statement. It can also be given as paid leave as Barry alluded to before. And under FMLA, unlike the FMLA if a person qualifies for leave they get it automatically, under the ADA its a little more loose, its a reasonableness standard. And while that''s not necessarily vague, our whole system of justice in some ways is based on this concept of reasonableness what it tries to do is to balance the needs of the employee and the needs of the employer. In every situation what is reasonable in a given situation requires an individualized assessment and a facts assessment of determination. You must look at the individual, their job, their medical condition, their job duties, and the employer requirements. Can they fill the spot using temporary workers? Or can they not afford to have this employee take leave? Those are some of the considerations. According to the EEOC and youll note at the bottom of the slide, theres a fact sheet reference which talks about the FMLA, the ADA, and Title VII of the Civil Rights Act. And the EEOC says that the law offering the most protections to the employee should be followed by the employer. And, usually this is the FMLA because the leave is given if the employee qualifies. And, there are different standards for coverage. The definition of disability under the ADA is different than the serious health condition under the FMLA. There are also different requirements for medical certification and notice. There''s issues regarding intermittent leave, timing and disclosure. How much notice does an employee provide. What type of documentation must the employee provide? Can the employer ask for documentation? And in most circumstance, they can ask for documentation to establish the need for the leave OK, I will try to back off of the microphone a little bit. And under both laws there''s no need for malicious intent. If the employer takes an action that denies the employee a right, even if it''s well intentioned, even if they are not intending to deny the employee their right, it could still be a violation of the law. There''s no need for the employer to act intentionally and say Im going to deny you your FMLA and ADA rights thats not a requirement for there to be a violation. So, I moved the microphone, let me know if that''s a little better. And employers have different rights and obligations under the laws weve talked about. The employer can choose any affective reasonable accommodation, which might be something other than leave under the ADA, under the FMLA the leave must be given to the employee, if the employee qualifies. And here''s a case that illustrates that point. Its the Santa Cruz, on these cases that we discuss there''ll be a little citation on the bottom if people want to reference the case later, and these cases will also be mentioned in the brief that will be distributed after the fact and if people want to email me for any information after the fact theyre welcome to do that as well. In the Santa Cruz case, an employer required the employee to use their Family and Medical Leave Act time and sick time to avoid mandatory overtime due to their disability. So the employer said you don''t have to do the overtime, but you have to use your FMLA and sick leave time instead of doing the overtime. The employee didnt want that. The employee he wanted something different. He preferred to just be exempt from overtime due to his disability with out having to use up any of his sick and FMLA time. And the court when they examined that, one this case was under the Rehabilitation Act, this was a federal employee which has the same analysis as the ADA, and the court held that the employer did in fact comply with the ADA, even though it did not provide the employee the accommodation they requested. The court held that allowing the employee to use the FMLA and sick leave time to avoid mandatory overtime was an ADA reasonable accommodation. And the court noted that the person did not use up all of their available sick or FMLA time in this case, but, I wonder what will happen once the time is used up, and they need more time. I think thats probably when the ADA would kick in, and then wed have to look at whether the leave was reasonable in that case. The court also noted that the employer did not discipline the employee in any way for not working overtime, or for using their ADA and FMLA time if, the employer had provided the leave and then disciplined the employee for not doing overtime that could have been an ADA violation as well, possibly retaliation. As we noted, there''s different standard for covered employees. The ADA, an employee must have, as we know, a physical or mental impairment that substantially limits one or more major life activities, or be regarded as having an impairment, or have a record of an impairment. And, it''s important to note that under the ADA Amendments Act all the old law and definition of disability, at least since Sutton will probably not be good law anymore. Congress has made it very clear they want the definition of disability to be liberally construed under the ADA. Under the FMLA the definition is a serious health condition. I think there use to be a fairly wide gap. The FMLA definition of serious health condition is seen as encompassing more types of conditions than the old ADA definition. I think under the ADA Amendments Act this gap will be narrowed. And these two definitions will be closer, although I still think the FMLA definition is a little more broad. And here are some of the language about a serious health condition. Its an injury, impairment, illness which involves a period of incapacity or treatment, connected with in patient care in a hospital or in a medical care facility or continuing treatment under the supervision of a healthcare provider including conditions where treatments not effective, if there is multiple treatments, if the incapacity lasts for more than three consecutive days or if theres a chronic serious health condition. And under the new FMLA regulations, which actually go into effect this Friday, there was some more clarification provided. For example, the two visits to a healthcare provider must occur within 30 days of the onset of incapacity. And the first two visits must occur within seven days of the first day of incapacity. Periodic visits to a health care will be defined as at least two visits per year and also clarifies the first visit to a health care provider must take place within seven days on the first day of incapacity. So there''s more clarification in terms of how the treatment figures into the definition of serious health condition. And here is a case that discusses it, this is the Verhoff case. In this case a cable installer claimed that he was entitled to leave under the FMLA and ADA due to his eczema. This would cause irritations, and he had rashes which would cause him a great amounts of itching and discoloration and he said that the eczema became very distracting just from the itching and the feeling of it, and it made it very difficult for him to sleep and care for himself and also affected his thinking and concentrating. In this case he said that he was sleeping only about five hours a night due to his eczema. And the court interpreting under the old ADA, not the ADA Act found the distractions were not enough to constitute an ADA disability. However the court went on to say that his condition did meet the definition of an FMLA serious health condition. In this case there''s a couple of things that are also interesting, in this case the employee checked the wrong box on his FMLA form. And even though he wanted intermittent leave, he checked the box indicating he wanted block leave and the employer gave him a time of leave, a block time of leave. And then the employee said, well now I need leave on intermittent basis a couple afternoons a week, something like that so that he wouldnt have to work over 40 hours. And when he asked for that intermittent leave the employer said no, you checked block leave, we are not going to give you the leave and almost right there after he terminated the employee. And because of his condition was found to be an FMLA serious health condition his termination was found by the court to be interference with his FMLA rights. One thing to I want to reference is the other items of the new FMLA regulations, it because fits in is if an employee does return to work after a leave employers are allowed to ask the employee to undergo a fitness for duty. But under the new regulations that the employer must furnish the employee with a list of their essential functions, to be given to the medical examiner in performing the fitness for duty exam so that way when they can say that an person is fit for duty, they actually know what that duty entails. The employee qualifications for ADA and FMLA, under ADA an employee with a disability must be qualified to do the job which means to perform the essential functions either with or without reasonable accommodation at the end of the leave. And again the employee must work for an employer with 15 of more employees. So at the end of the leave an employee has some obligation to show the leave will enable them to be qualified for their job at the expiration of the leave. Under the FMLA it seems almost completely different, but it makes sense, because under the FMLA an employee must show that he is unable to perform the essential functions of the job, because that''s why he''s needs the leave, so the ADA is looking at being qualified at the end of the leave, the FMLA is looking at being unable to perform the essential functions in order to get the leave, because thats why the employee would need the leave, and this is for their own health condition. And so under the FMLA an employee must show that they are unable to perform the essential functions of the job, at that time they don''t have to show that the leave will enable them to perform the job later, but that might become an issue when it becomes time for reinstatement. Under the ADA the employee does have to show at least make some type of a prima fascia case why the leave will eventually enable them to do their job. So I hope that''s clear. If you have questions at the end I will try to explain that better. Next we have notice and under both laws it''s pretty much true what it says under the ADA, any language that reasonably informs the employer of the existence of an ADA disability and the need for an accommodation is enough. There''s no magic words under the ADA an employee does not have to say I need an accommodation, that I have a disability, you know just my back hurts when I sit too long might be enough to let the employer know that some accommodation is needed. Likewise, under the FMLA there are no magic words either. As long as the statement reasonably lets the employer know that the employee may need leave due to an illness, or injury or condition. Under the FMLA however, there are timelines involved. The ADA all depends on reasonableness. So the employee should give reasonable notice of leave, etcetera. Under the FMLA, the employee must provide 30-day advanced notice of the need to take leave, or when the need is foreseeable. If the need is not foreseeable 30 days in advance then the employee under the new regulations must let the employer know either the same day they find out they need leave or the next day, which is actually a little tighter than the old regulations and so now if an employee needs leave and its less than 30 days before he needs the start of the leave, he must let the employer know either that day or the next day that he will need leave and again no magic words are required. Well look at the Burnett versus Habitat case. In this case an employee of a property management company, whose job required some lifting and some physical labor had no performance issues. In October of 2003 he informed the company for the first time that he was having some medical difficulties. And around the same time, presumably in an unrelated situation, he was offered a transfer to a different location, presumably due to some personality conflicts with a coworker. When offered that transfer the employee turned it down because the new location would provide less wash room access and he told his employer that that would be bad due to his "weak bladder and he also mentioned that he was going to see a doctor for that condition. So this is October of 2003, when he turned down the transfer due to his weak bladder. And a few weeks later in November the employee received his first disciplinary notice, his first verbal warning regarding performance. And I think one thing is thats very important for employers is that employers can discipline an employee, whether they have a serious health condition or an ADA disability, as long as they discipline other employees for the same violation. But, employers should be very careful if they start instituting discipline immediately after learning of a disability because I think that raises many red flags. I think the employer need make sure that their use of discipline is consistent and that people who reveal disabilities or medical conditions, arent kind of put under a microscope and examined more closely but, if a employee does not perform well, or does have problems after disclosing a disability then the employer should go ahead and discipline them, just make sure that everything is documented well. There was a meeting in December for the employee to provide more information on the medical condition. The employee stated that he felt sick even though he didnt look sick. That he had a fear of prostrate problems, his brother-in-law''s prostrate problems, his brother-in-law had prostrate cancer, I see a little typo there, and he also went on and spoke a bit about his feelings about that and that he saw what his brother-in-law went through and stated that if he had the progressive form of prostrate cancer that if he himself would have some suicidal thoughts because he didnt want to be what he called bedridden. Again a couple weeks after this meeting the employee was again reprimanded for causing disruptions, the court didnt really itemize what those were, Im somewhat curious to see what the disruptions were and shortly there after it was just a verbal reprimand, so there was no suspension or any thing of that kind taken against the employee and a short time later the employee told the company he was going to have the biopsy and then that same day he was reprimanded again for the third time, and this time for substandard work, the same day he stated he would have a biopsy. After the biopsy he was restricted to light duty and he requested that he be placed on light duty and, he also requested a one week of vacation leave, not FMLA or ADA leave, but he wanted vacation leave for the week he was scheduled to get the biopsy results and both the request for light duty, which he substantiated by medical information and the request for vacation leave for which he was qualified for were both denied by the company. He was told to speak to his supervisor about the request, but said that he wasnt feeling well that day and that he needed to leave. They denied him permission to leave, but because he wasnt feeling well he left anyway, and in fact ended up going to the emergency room due to complications from his biopsy. He was terminated for insubordination, for leaving the company, leaving his work without permission. He after being terminated, he gave paperwork to the company, medical documentation showing why he left, showing the complications from the biopsy that he went to the emergency room but the company said they would not reconsider the termination and soon there after, the employee was diagnosed with prostate cancer. He filed suit under the ADA and under the FMLA. And, the court looked at the FMLA first, because that''s the more liberal law and thats what should be examined first and they noticed that there was proper notice under the FMLA, although the court said it is was a close question. They said that if he had just said I feel sick although I dont look sick the court said that alone would not be enough, but here the employee also mentioned he had a weak bladder, he mentioned a brother-in-law with prostrate cancer and, he mentioned his own feelings if he was diagnosed with prostrate cancer, and the court said that looking at all those other statements to and reading into the context of all the statements about feeling sick, the court held that it was enough under the FMLA to give the employer notice that he needed leave. The court said, remember he was terminated before the diagnosis of cancer was given, the court said that even before that point his condition was an FMLA serious health condition due the complications that he had from the biopsy, which required several treatments. As a result of the company terminating him the court held that the company may have committed FMLA interference and retaliation and that there was enough evidence for the case to get to a jury. However, the court held that his condition at the time of termination, before the diagnosis of cancer while it may have been a serious health condition, was not an ADA disability, again under the old analysis pre ADA Amendments Act. So that''s the Burnett case, it actually brings up a few of the issues that we''ve discussed so far. So that''s why I thought it was a good one to include. And now well look at medical certification. The ADA has significant restrictions on disability related inquiries. If youve seen our webinar on this topic, you know pre-employment an employer can ask nothing. After they make a job offer employers can find out information about incoming employees and the main thing is for sitting employees because thats where leave comes in. And for sitting employees, employers are only allowed to seek medical information, one if there is an accommodation request, then either the disability or the need for accommodation is not obvious, or if the employer senses that there''s performance problems and he thinks theyre disability related, or if the employer senses that the employee is posing a significant risk to health or safety of themselves or others in the workplace. As long as there is a reasonable basis for those concerns then the employer may seek limited amounts of medical information related to those concerns and there is no government form provided for ADA medical inquiries. Under the FMLA the Department of Labor does have a medical certification form which is not required, but is used by many businesses and is recommended by many experts in terms of what to use because that way you know as an employer you are not asking for anything you shouldnt. If an employee needs leave under the FMLA the employer is entitled to get certification that there is a serious health condition, and EEOC guidance, they held that such an inquiry does comply with the ADA requirements that a medical inquiry be job related and be consistent with business necessity. And, the Department of Labor has revised their form to meet the changes in the new regulations. A couple of new regulations changes are noted here, employees must submit certification that are complete and sufficient. If not the employer must inform the reasons why in writing and allow seven days for the employee to cure the deficiency and the employer should ask for medical certification within five days of the leave request. And under the ADA also, the employer is allowed to seek additional information, if the information provided by the employee is either vague or contradictory. However, under the ADA there''s no requirement for the employer to inform the employee, in writing the reasons why they need more information, although it''s generally considered a good idea. And under the FMLA, unlike the ADA, the employer may require additional medical opinions at the employees expense or periodic reports not less than every 30 days during leave and also periodic certification. Under the ADA it''s very limited when an employer may seek additional medical information, it''s only if the information provided by the persons doctor is incomplete or has not been cured or its contradictory or if the employer suspects collusion between the employee and the doctor. Under the FMLA the employer''s rights for seeking for medical information is slightly more broad than under the ADA. And here''s a case discussing this. The Sconfienza case, and in this case an employee with migraines claimed that the employer sent forms for recertification to the wrong address and refused to resend them. The employer for their part claimed the employee wouldn''t give us their updated address. It sounds almost like a little bit of a childish type of complaint and unfortunately sometimes in these situations that is what comes up. So the employee said I didnt send the certification because you didn''t send it to me and the employer said we sent it but you wouldn''t give us an address. And the court held that it was indeed the employees responsibility to provide the required medical certification and she did not do that. Also in this case as an aside, there really was the employee was still working there, she was given a verbal warning, presumably the first step of progressive discipline, but that was really the only adverse employment action taken against her. So the court held there wasnt really an adverse action anyway, although I would think that even a verbal warning could constitute an adverse employment action. The employee claimed they forced her to use sick time but she didn''t provide any substantiation of that so the court couldnt even look at that claim and the employee should definitely make sure they comply with the certification requirements. Under the ADA, too, okay, I think I got lost so I will hold down the control key while I talk rather than use the lock button. So I''m not sure where I got lost but the court held it was the employee''s responsibility to provide the medical certification which the employee did not do, and this is similar to the ADA also. Under the ADA, if an employee does not provide information that the employer is entitled to then the employee may be deemed to be responsible for a break down in the interactive process. So under either law the employee should make sure they''ve got their evidence and the certification into the employee into the employer sorry. A look at intermittent leave. Remember leave can be taken for a block of time but also on a smaller basis until it adds up to 12 weeks and the new regulations have some items regarding intermittent leave which I wont go into. It breaks down into what period of leave, can you do it in one minute, one hour increments generally its just what generally what employers use in terms of a timesheet breakdown and can it be used for the increments of leave. Under the ADA an intermittent leave can be a reasonable accommodation if there''s no undue hardship. If there is an undue hardship then the employer must look at other ways, can we reassign nonessential functions from this employee, can we perhaps let them go to part-time, can they be transferred to another position that will enable that they are qualified for, and thats the ADA. The FMLA you either qualify for leave and get it, or they dont qualify for leave and don''t get it. Under FMLA, intermittent leave can be taken when medically necessary. Employees must make a reasonable effort to schedule treatment to avoid disruptions to their employer. And one other requirement under the FMLA, if the leave is foreseeable the employer may require the employee to temporarily transfer during the leave to an available alternative position for which the employee is qualified and which better suits the employees reduced hours. So this allows the employer some flexibility in terms of moving people around when letting an employee take leave. Maybe they can reassign them temporarily, give them part-time leave or have them work part-time, that might work out better. Health benefits under the ADA, the employer must continue health insurance coverage for an employee taking leave. Only if the employer also provides coverage for other employees in the same leave or part-time status. Under the FMLA the employer must always maintain the employee''s existing level of coverage as long as the employee pays his or her share of the premium and the employer must also provide an employee with the same benefits, life, disability insurance, or any other benefits normally provided to an employee in the same leave or part time status, and thats to prevent discrimination. And the health benefits for many people with disabilities, the protection of health benefits is one of the most important aspects of it. One of the key parts also is reinstatement after leave. Under the ADA the employee is entitled to return to the same job they had before the leave, assuming they''re qualified to do it with or without reasonable accommodation as long as there is no undue hardship. If there is an undue hardship and there''s no accommodations that will alleviate that hardship, then the employer is required to look at whether reassignment to another positions is appropriate. Under the FMLA an employee is entitled to return to the same position or to an equivalent position and the FMLA leave cannot result in loss of any benefit the employee earned or was entitled to before using the FMLA leave. And there is some more I want to go into about the FMLA reinstatement. There are some reasons why the employer would not have to reinstate the employee, one if the employee would have been terminated even if not on leave, than the employee does not have a right to reinstatement. This could be if a bona fide reduction in force occurred while the employee was on leave and were going to look at this come up in the case we will look at next. Another exception, this is another one important to the reinstatement provisions is that employees who are termed key employees, and in order to be a key employee they must be among the highest paid 10% of employees within 75 miles of the work site. If such an individual is within the top 10% and restoration to employment would cause substantial and grievous injury to the employer then that employee does not have a right to reinstatement. However, I believe the employer does have to provide them some notification in advance that they will not be reinstated. However, its important to note even if a key employee is going to be denied reinstatement they are still entitled to their 12 weeks of FMLA leave so we are just talking about what happens at the end of the leave. If their a key employee they still gets the leave, it''s just reinstatement thats at issue. At the end of the leave if the employee is unable to perform their job with or without an accommodation unlike the ADA, the FMLA does not require the employer to reinstate the employee or to transfers. But if the employer is also covered by the ADA that''s when the ADA requirements for reassignment would kick in, and then there''s a question who has the burden of proving the employee would have continued working if not on leave. If the employer terminates the employee while they are on leave, does the employer have to show they would have terminated them anyway or, does the employee have to show that the employer would not have terminated them if they were not on leave? And here we have the Smith case that deals with that issue. In Smith, the employee admittedly did not provide staff training as he was required to do. It was not listed as his job duty but he acknowledged that it was something that he was supposed to do, although he did not see it as one of his main job duties more of a peripheral duty, but he was reprimanded for not doing this even though it was not listed as an official job duty. I''m sorry, I said "he" it''s a woman. Soon there after the employee went on six weeks of leave for breast cancer and two weeks before returning from the leave she was terminated for failing to train staff, the same reason that she was verbally reprimanded for before leave. The employer said that they started realizing all the costs that were coming from the lack of training, and how it was really hurting the workplace and they didn''t really realize how big of a problem it was until the employee was on leave, thats what the employer was saying. The court held, the court did not buy it and it went to a jury trial. The jury didn''t buy that argument either. The court held that the employer violated the both the ADA which entitled the employee to punitive damages and it upheld the jury verdict under the FMLA for the employee. The trial court had thrown out the ADA case and the appellate court then reinstated it but, even at the trial court the jury found for the employee under the FMLA. So essentially on appeal the court put back in the punitive damages under the ADA and regarding the burden of who has to show the reason for the termination, the court held it''s the employer''s burden to show they would have terminated the employee anyway even if they were not on leave. And in this case the employer''s reason that it was when she was on leave that we discovered how bad her mistakes were. That did not work and the employee won and again this case shows why consistent discipline is so important. If someone is terminated while on leave, I think that raises red flags to courts, or soon after disclosing a disability. And it''s also important to make sure that job descriptions if an employer wants to argue that, for example that training is an essential function, its much more beneficial to have that in the job description. One more case on reinstatement. In this case an employee was not reinstated, and the court upheld the employer''s position on not reinstating them due to their performance issues. In this case a nurse had been experiencing what was termed mood swings, probably related to her depression, and she went on a period of leave. While on leave the employee continued to show up at work and disrupt the workplace the court went into great depth in telling how she wore very short skirt that was inappropriate, and sat with her legs propped up, and was yelling out stuff to her coworkers, and otherwise behaving inappropriately and again this was while the employee was on leave she just showed up to work without any real acknowledgment that she was not suppose to be at work. And in this case the court found, yes, the employer would have discharged the employee anyway even if she was not on FMLA leave. She was acting inappropriately before the leave and acting inappropriately during leave. And the court articulated that there was no absolute right to restoration, as well as there is not strict liability under the FMLA. You have to look at the facts of each case. So a person does not automatically get the right to restoration, although it is a fairly well protected right but, if the employer can show they would have terminated this employee anyway then this employee does not have to be restored. So again the question I posed earlier, if the FMLA leave is up and the person requests more leave under the ADA, when does it have to be given? When its reasonable and that just means when is it not an undue hardship. So for example, if a company offers long-term medical leave or personal leave policies where you can have a year of leave, then I would think that there''s a strong argument to be made that the person should get one year of medical leave under the ADA. And again, the employee still must show eventually that they meet requirements of the job both in attendance and their other job duties. However, employees that request indefinite leave, those are tough. The courts are very hard on request for indefinite leave often saying theyre not reasonable. What is usually better is if the employee and their doctor can figure out a timeframe where theyll maybe be able to come back, and nothings perfect but if after a month or two months the person is not able to come back then doctor can opine as to how much longer it will be but, indefinite leave and request for indefinite leave are generally not helpful to the employees. In this case regarding extension of leave, the Gibson case, an employer claimed that an employee who is unable to return to work at the conclusion of the FMLA leave was unqualified to perform their job and therefore not entitle to additional ADA leave. And in this case the employer had a policy that everyone who was on leave for a certain amount of time would be terminated if they could not come back at the end of that amount time and, pursuant to this policy this employee was terminated. In this case, one those policies are very much frowned upon in the courts and in this case the court found for the employee, citing the principle that blanket policies such as this may violate the ADA. As ADA requires reasonable modifications of policies, such as termination after a period on leave. And in this case the employer should have engaged in the interactive process to say OK you cannot return to work now your FMLA leave is up, how much more time do you need before you can return to work? Is it one month that would probably be a reasonable amount of leave? Is it three years that would probably not be a reasonable amount of leave? Is it in between its a little trickier and you might have to hire a lawyer? But I think generally there''s no set guidelines but generally a month or two is almost always considered reasonable often even doubling the amount of FMLA leave is reasonable and, of course if the employer has other leave policies that go well beyond 12 weeks up to a year or more, then large amounts of ADA leave may indeed be reasonable for that employer. And then just a word on enforcement. Under the ADA employees must file a case with the Equal Employment Opportunity Commission, depending upon if you have a state human rights law and state enforcement the period for filing is either 180 days if you do not have a similar state ordinance or in state like Illinois where there is the Illinois Human Rights Act and the Department of Human Relations you have up to 300 days to file with the EEOC to file a charge of discrimination. It''s a little different for federal employees. They must report and it can be orally any discriminatory conduct to the EEO officer within 45 days of any ADA discrimination or Rehab Act discrimination. The statute of limitations under the FMLA there is no exhaustion requirement. Cases do not go to the EEOC. You have two years for general FMLA violations or three years statute of limitations if the violation was intentional by the employer. And you have two choices, you can either file with the U.S. Department of Labor, and file a claim with them, or you can go straight to the federal courthouse and file a lawsuit in federal court under the FMLA. It gets a little trickier when people have both claims because the ADA claim needs to be exhausted first and if the EEOC sits on the case to long then you worry about the FMLA statute of limitations, so it is very important to make sure that you have all those dates in mind. State court enforcement depends on the state''s human rights laws, and if you are interested the Department of Labor has info on many states laws family medical leaves and has the breakdown of those. So I am going to take a break here. The case study I kind of intended as a bonus if there werent many questions. The case study is in the brief that will be distributed later. And I think theres 22 questions and the answers to the questions are put in there also, so you kind of have the teachers edition. For the purpose of the power point I just picked out a few questions to put in here in case we have time to discuss it, but at this point Im going turn it back over to Robin and then throw it over for questions.
Thank you, Alan. Hopefully everyone can hear me, I was losing you a couple of times, Alan Im not sure if others did as well but hopefully everything came through OK for everyone. We''ve got a couple of questions that were sent into me but I will also allow for people to submit some questions here using the chat area, or if you have a microphone just raise your hand, we will call on you as well to ask a question. At this point are there any questions that anyone from the audience has that they would like to pose to Alan at this time? Alan, I had question that was sent into us earlier and Ill go ahead and do that now while we''re waiting to see if there is anyone who has other questions. You may feel that you answered this one but for the purpose of the participants that you may have also answered adequately enough but, or not, what if an individual -- is there any option other than key employee, for an employer to deny a FMLA leave. Like you have under the ADA youve got an undue hardship defense for providing a reasonable accommodation, of course which leave is a reasonable accommodation. With the FMLA you have the provisions related to key persons and such, key employees, but if I was not a key employee would there be to your knowledge any other kind of similar defense?
Robin, first I just want to clarify one thing, key employs are still entitled to the leave. It''s only the reinstatement aspect that theyre not entitled to but the key employees still do get leave but other than under the conditions which I talked about before and under the ADA it''s very different. It''s a balancing act. And I hear employers kind of complain about both kinds of well who knows whats reasonable, the ADA its vague its confusing and I kind of see that as a lost attempt to balance the competing interest of the employer and the employee and be fair. Under the FMLA it''s a different analysis. The analysis is really does the employee have a serious health condition? If yes, have they been working for more than 12 months at the employer or have they worked the 1250 hours? If all of those things fit then they get the leave under the FMLA and then the key employee, and they would have fired them anyway, all that stuff, that only goes to reinstatement. But the leave, and feel free to correct me Barry or anyone else, if Im wrong, but my understanding under the FMLA, if you meet the qualification criteria you get the leave and the employer can transfer someone if its intermittent leave but if the person meets the FMLA requirements they get the leave. There is no undue hardship reasonableness type of analysis.
Yeah, I would agree with Alan. That''s absolutely right. The only thing that I was going just to add to that, as far as making sure that you meet the requirements as an employee is the new FMLA regulations are a little bit stricter on employees regarding notice. And, I think it''s arguable if they don''t follow these stricter requirements for notice then the employer could deny FMLA leave on that basis. But so like now it says that if the employee is required to provide 30 days of notice and fails to do so then they have to provide reasons for why the notice wasnt practicable. If the employer asks for it and they dont give good reason, I think its arguable that the employer could say, well you are not entitled to leave. The other thing I wanted to just mention, while I have the microphone, is on the administrative enforcement issue Alan gave the example of someone filing with the EEOC and not getting a resolution in time to file with the Federal court within FMLA two year period. The other thing that can also happen is the person could file with the Department of Labor and have that process take too long, if that lasts over the two year period and the person doesnt file in the federal court theyll lose their FMLA rights too. So the fact is that there isnt an exhaustion requirement. FMLA is very different from the ADA. The ADA says you file with the EEOC and your time to file in federal court is on hold until the EEOC finishes the investigation and then they give you the rights letter. Then you have 90 days. Whereas with the FMLA if you file with the state Department of Labor and are waiting for them to make a decision and two years passes and you dont file in federal court, you could lose your FMLA rights as well.
I saw a couple of questions in the chat section. Im going to go backwards and do the one from Barbara first. I probably didnt explain it well. What Im saying if the employer has policies where people can be on medical leave or personal leave for a year, which many big companies have, then Im saying that under the ADA the person might be entitled to ADA leave for up to a year, because the employer has other leave policies. Therefore it would probably be reasonable for them to provide the same period of ADA leave as they do for personal leave, or other types of leave. And the question from Tanya, key employees, its under the reinstatement act, it''s all under the Family and Medical Leave Act, what Im saying is key employees are protected differently or unprotected differently when it comes to reinstatement. If they do meet the criteria for a key employee the employer gave them the notice that they are considered a key employee then they might not be entitled to reinstatement if, I''m sorry. I took my finger off of the button to check the paper, but if there is a grievous and substantial injury to the employer key employee does not have to be reinstated so they are protected differently, theyre protected get less. They still get the leave, but not reinstatement. And the next question from Salema, there are no ADA forms similar to FMLA forms. If you want to talk too me offline I can probably, we have some sample forms we can probably provide you with. So if she is on long-term disability then it kind of depends in terms on how you want to classify her leave in terms of her work status. I see theres one more question from Michelle. Should employer give notice to the key employee that theyre key, as a matter of course before FMLA is requested? I don''t think so, because you don''t want to guess who has serious health conditions, or whose family members might get sick, or who might decide to adopt or have foster children or get pregnant. But it is important that the person asks for the leave that you look at the FMLA regs and comply with the notice provisions for key employees or then otherwise you will not be able to deny reinstatement. Otherwise, I don''t think doing it in advance of FMLA leave is necessarily necessary. Ill throw it open for me more questions.
This is Robin. And I just want to make sure that people are clear on the fact that the intent in the FMLA regulations the key employee is very narrowly defined, not widely defined. They''re really talking about someone who is a CEO, or is a critical decision maker in the organization, not just someone you may believe a key employee because they happen to do a certain job or certain task. I mean it is somewhat defined narrowly in the FMLA regulations as to who would fit into that category of key employee.
I see the question from Tanya regarding pregnancy. And generally pregnancy by itself has not been deemed a disability under the ADA. There is another law called the Pregnancy Discrimination Act, which would cover adverse action against people who are pregnant. But some related conditions during pregnancy such as, gestational diabetes or some other things that might require bed rest and things like that could be deemed a disability. But pregnancy by itself without other disabling conditions is typically not been deemed an ADA disability. And I think and Alan can correct me if I am wrong but I think that would hold true even under the ADA amendments act.
Right. That''s my understanding, as well. So Ill pause a second, if there are no more questions, Ill start the case study, but lets see if anyone has more question first.
Alan and Barry I have another question that was submitted. Its basically if an employer knows that an employee is taking personal time or sick time or vacation time for a health condition can they designate that leave under FMLA, even if the employee has not requested that a leave be designated under FMLA?
I lost a little, are you asking whether the employee or employer can designate the time. If Robin Im sorry, I lost part of the question. I kind of faded for a second. I think generally the employer can call it FMLA time even if the employee didn''t specifically request it to be FMLA time as long as it meets all the requirements or criteria, if I''m understanding the question correctly. Okay. Well I''m going to move on to the case study. First of all, there''s two pictures here. One is a woman you cant quite kind of tell this but she is stabbing someone. And if anyone can tell me why that picture is there, we''ll give you $10 off of your next webinar. Could we do that Robin, I dont know, well Ill do it out of my pocket if anyone can tell me what that picture is from and why it''s included here and thats the picture on the left. OK on to the case study. This involves Julia and Scarpias print shop. For the last three years Julia has worked for Scarpias printing and copying service as a part-time sales associate working a midday shift. They have 14 stores in a 30-mile radius excuse me, and a total of 46 full-time and 18 part-time employees. Typically she works, Julia, three days a week from 7:00 to 4:00. And paid for nine hour a day. During her first three years of employment Julia was considered a very reliable employee and was rarely late or absent from work. Julia uses a scooter as a result of having Multiple Sclerosis which effects her ability to walk. As her work site is accessible, the only accommodation she''s really only needed so far was to have a reserved accessible parking space near her entrance. Last January Julia started to arrive late for work at least once a week. She would tell her supervisor Ben that she was not feeling well and that she would be on time next time and she would not be late again, but she was late several times, a total of six times of these incidents and at that time Ben her supervisor scheduled meeting with Julia to discuss the issue. At that meeting Ben informed Julia that her lateness was unacceptable because the day shift employees could not take their break until Julia arrived for her afternoon shift. He also informed her that she was being written up for being late and would continue to be disciplined for each time that she was late pursuant to the company progressive disciplinary policy. And she would be terminated if she was late two more times without an excuse pursuant to that policy. Immediately after hearing this Julia told the Ben that her lateness was a result of a problem she had due to medication she takes for depression. The medication makes it difficult for her to fall asleep and makes it difficult for her to wake up and her sleep problems have gotten worse since Julias mother died a couple of months ago. Julia did not give the name of the medication, but indicated that her doctor thought she would need to take six-weeks off from work for therapy and to adjust to medication and she has not used any of her medical leave time up to this point. Okay. So let''s get to the discussion questions. One, is Julia requesting an ADA reasonable accommodation and the second part, is she requesting leave under the FMLA? So Ill pause a second if anyone thinks they knows the answer and wants to pipe in, otherwise I will continue, but I will take a quick pause. Okay. No ones brave enough to step up. I don''t mean to impugn people''s courage. Is Julia requesting an ADA reasonable accommodation? Yes, she is. Theres no, as we mentioned, there''s no magic requests, no formal language as long as the plain meeting of the request reasonably alerts the employer to the need for the leave. Is she requesting leave under the FMLA and the answer is pretty much the same? Yes, she is, there''s no magic words she told the employer enough to know she may need leave. OK let''s look at the next question. Is Scarpias entitled to more medical information? If so, what information should be sought? If her employer is concerned that Julias depression may affect her MS can the company request info on Julias MS? And can the company send Julia to another doctor for a second opinion? Anyone? And then we also have some more such as, can Scarpia use a company doctor, and then what are the requirements under the ADA and FMLA. Cindy pipes in, no inquiry about the MS, absolutely true Cindy. Under both laws the employer is only entitled to information about the disability giving rise to the need for leave, and in this case that is Julias depression so the employer is only entitled to information about that. And again, the information must be limited to that disability and the need for leave. I think there''s another question here. Oh, okay. Why would it be ADA, the depression is not caused by her MS? If I understand your question right, Susan the ADA covers mental impairments and physical impairments so. Even a person with depression and no other types of conditions might be considered covered by the ADA, especially now under the ADA Amendments Act. And then there''s a question about going to the company doctor. Can they send her to the company doctor? And Phyllis is right, the company cannot force her to go to the company doctor. Under the ADA and under the FMLA they can send her for a second opinion but I believe under the new regulations there''s a requirement that the second opinion cannot be for a company doctor. So, good call by Phyllis. Good call also by Cindy. Any other points from this question that people have? Again for the company doctor, no second opinion under the ADA, for the FMLA they can, but it cannot be the company doctor. Okay I think maybe we''ll look at I was going to say one more question and then I see there''s six on the next slide. Maybe well do another question or two and then Robin, you can just let me know when we want to break for the closing comments. Should Scarpias respond to the disclosure and her need for time off work, if so how? Anyone have any thoughts on that? Ok well, under the ADA, Scarpias has a duty to engage in the interactive process to determine whether leave or, if they want to pick another different affective accommodation they can do that or whether the leave or another accommodation would be an effective for Julia. Under the FMLA Scarpias should respond since she did make a bonafide request for leave. They should respond with the medical certification form most probably, and then Julia should get the leave, as long as she''s an eligible employee. Must the company grant the leave? The ADA, I don''t know if we have really have enough information to answer in terms if whether it''s an undue hardship or not the company would have to show some type of reason why it would be an undue hardship. Under the FMLA if Julia meets the eligibility requirements no undue hardship criteria, she gets the leave. Under question E, if Julias is eligible for leave under the FMLA and the ADA, how should the initial leave period be characterized? And that going back to what I said before about from the EEOC guidance that you look at the law that offers the broadest protection to the employee, which is generally the FMLA. So, the initial leave period should be characterized as FMLA leave. Question F. Must the company rescind the discipline that was mentioned prior to Julias disclosing her depression? And the law and the EEOC guidance on this is clear that discipline does not have to be rescinded just because the employer learns after the fact of a disability. If the employer knows of the disability before instituting the discipline and and knows the discipline was related to the disability then the employer may need to look at accommodating the disability. But In this case Julia was disciplined for being late, after that disclosed her issue of depression, but the discipline can still stand. G, may the company monitor her treatment and if so, how? I know I''m going right ahead. If anyone has anything they want to pipe in for these answers please feel free. Under the ADA the employer may request reasonable medical updates. And again, reasonable is not defined, but generally every day would be a little too much and generally monthly is considered reasonable. Under the FMLA the employer can request recertification at reasonable intervals but no more often than every thirty days for an update. I think Ill pause here. I see someone just typed in a question. Barry is indicated that under the new regulations, the employer may contact the employee''s healthcare provider directly for clarifications and authentication of the medical certification if the employee denied the employer permission to contact the provider then the employer can deny leave is theres still an unclear part of the certification And under the ADA to, the employer does have the right to contact an employee''s doctor. However, it''s always important to obtain a release before doing so. But thanks, Barry, for pointing that out. And it seems we only have a few minutes left. I wanted to jump ahead to some of the resources we have very quickly. I lost it, ah here are the resources. One is the sponsor and host for the program, the DBTAC Great Lakes ADA Center. If you have future questions and are in Illinois and you want to contact us at Equip for Equality we''re happy to help. And we also have the Illinois ADA project in Illinois which is funded from the DBTAC and you can contact me if want to contact the ADA project. Again, the Job Accommodation Network is helpful on these issues. And, then there''s some information for a copy of the FMLA, the Department of Labor and some ADA technical assistance. So with that Im going to turn it back over to Robin.
Great, thank you very much. Can you first of all let me verify that you are able to hear me okay because I had a period that I was talking and I guess nobody was able to hear me talking so hopefully you can hear me. Great. Anyway, thank you everyone for your participation today. And, thank you to Alan and Barry for your information. I know there''s a great deal of confusion always on this issue of leave and who it applies to and how does it apply to and the nuances between the FMLA and the ADA because they sometimes appear that theyre minor but yet can be sticking points when dealing with an employee, am understanding, and am I actually working with this person now on FMLA leave even if they are a person with a disability because they would be subject to the FMLA regulations when their leave just because I have a disability and doesnt mean that all my leave is ADA leave so it does become a confusing point of this. You will be receiving a copy of the PowerPoint presentations as well as a legal brief that was prepared by Barry and Alan regarding this particular issue. That will be coming to you via email attachment subsequent to the conclusion of this particular program, along with information related to the evaluation and asking you to please complete the evaluation form, as well. So, at this point I will see if there''s anyone -- to see whether or not there''s any last-minute questions or any comments before we signoff. But we do encourage you to join us. This session will also be archived as soon as we can get the transcriptions prepared and available. We will archive this session for reference back if you are interested as well and that will include the questions and responses as well as the discussion by Barry and Alan and others on this particular topic. So without further ado I will say my goodbyes to everyone. And thank you and I hope you will join us for the next session and Barry and Alan, if you have any other comments I will let you say them at this time before we sign off.
Nothing other than thank you all and we appreciate all your questions and your involvement.
Alan, I think people wanted you to give them the answer to the quiz that you gave them.
Okay. Well, I should put you on the spot Barry because I once asked you this before, Scarpia is I think my favorite bad guy from all of opera. That is a picture from the Opera Tosca where he appears and thats Maria Callas as Tosca. He wants her to give herself to over to him to save her lover''s life and she says yes and, then stabs him and then stands over him screaming. So that''s who Scarpia is, so I got to save my ten bucks.
Great. Thank you everyone and thank you Alan for adding a little bit of cultural context to the program and everyone have a great day, thanks, bye-bye.