4. About
1. President/Owner, HR Luminary, LLC
2. HR Generalist, SPHR Certified
3. Over 25 years experience in Human
Resources in the private sector
4. Member of SHRM, both national and local
5. BSBA from Arizona State University
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5. Intent of Webinar
1. Inform/educate HR professionals on
the legal consequences surrounding
FMLA and ADA.
2. Focus on the important role of HR
professionals to manage FMLA and
ADA related issues and their
understanding of laws, policies and
practices to ensure compliance.
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6.
7. Learning Objectives
6. Know what is and is not allowed under each act.
7. Understand the basic interplay between
FMLA/ADA/Worker’s Compensation/Disability
HRCI has approved this program
for 1.25 General Recertification
credits for PHR, SPHR and/or GPHR
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8. Family and Medical Leave Act 1993
• Allows employees to balance their work and family
life due to certain family and medical reasons.
• Provided for in a manner that accommodates the
legitimate interests of employers.
• Minimizes the potential for employment
discrimination on the basis of gender.
• Promotes equal employment opportunity for men
and women.
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9. Family and Medical Leave Act
• FMLA requires employers to grant eligible
employees a maximum of 12 work weeks of
unpaid, job protected leave during a 12
month period.
• This applies to all companies engaged in
commerce where at least 50 employees are
employed at the location, or within 75 miles
of the location.
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10. Who is Eligible?
• Full and part time employee who have worked
for the employer for at least 12 months (does
not have to be 12 continuous or consecutive
months)
• Employee must have worked at least 1,250
hours during the 12 months prior to the start of
the qualified leave.
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11. What does FMLA Cover?
FMLA allows employees to take up to 12 workweeks of
unpaid, job protected leave during a designated 12
month period in the following cases:
For incapacity due to pregnancy, prenatal medical
care, or childbirth
To care for the employee’s child after birth or
placement for adoption or foster care
To care for the employee’s spouse, son or daughter,
or parent who has a serious health condition
For a serious health condition that makes the
employee unable to perform his or her job.
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12. What doesn’t FMLA Cover?
The law does not cover:
• In-laws
• Grandparents
• Aunts
• Uncles
• Siblings
• Cousins
• Children over the age of 18 (with exceptions)
• Unmarried domestic partners
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13. Serious Health Condition
“Serious Health Condition” – illness, injury, impairment, or
physical or mental condition:
• Health condition lasting more than three consecutive days, requiring
continuing treatment (e.g., hospitalization), plus two visits
• Any period of incapacity due to pregnancy or prenatal care
• Any period of incapacity due to a chronic, serious health condition that
continues over an extended period of time and requires visits to a health care
provider
• A permanent or long term condition for which treatment may not be effective,
requiring supervision by a health care professional (e.g. terminal cancer)
• Any absences to receive multiple treatments for restorative surgery or for a
condition resulting in a period of incapacity of more than three days if left
untreated, such as chemotherapy or radiation treatments.
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14. Serious Health Condition
In January 2009, DOL issued a new set of regulations to
clarify one of the definitions.
Original definition of Serious Health Condition:
A health condition lasting more than 3 consecutive days requiring
continuing treatment, (such as hospitalization), plus 2 visits to a health-
care provider or 1 visit to a h/c provider plus continuing treatment.
Amendment:
The first health-care provider visit must occur within 7 days of the first
day of incapacity. Where applicable, the two visits must occur within 30
days of the beginning of the period of incapacity.
In addition, for chronic serious health conditions, the employee must
visit a health-care professional at least twice/year.
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15. What is A
Serious Health Condition
• Heart Conditions/Strokes
• Back Injuries
• Injuries caused by accidents
• Pregnancy and related conditions (miscarriages, morning sickness)
• Cancer
• Asthma
• Pneumonia
• Diabetes
• Epilepsy
• Serious Infections
• Alzheimer’s Disease
• Arthritis
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16. What is Protected
• The employee is entitled to be restored to the same or
equivalent position with equivalent benefits, pay, other
terms/conditions of employment
• New position must involve the same or substantially
similar duties and responsibilities, skill requirement,
responsibility and authority
• Attendance based awards must not consider FMLA
based absences
• Company cannot take negative action toward employee,
such as hiring, promotions, or disciplinary action
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17. FMLA Expansion
On January 28, 2008, George W. Bush signed
into law the National Defense Authorization
Act, creating two new qualifying events:
• Qualified Exigency Leave
• Military Caregiver Leave
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18. Qualified Exigency Leave
Qualified Exigency Leave - Provides up to 12 workweeks of FMLA
due to a spouse, son, daughter or parent being on covered active
duty or having been notified of an impending call or order to
covered active duty in the armed forces.
Covered Active Duty
• For members of regular component of armed forces (army, navy,
marines, etc.) – duty during deployment to a foreign country
• For members of the reserves – duty during deployment to a
foreign country under a call or order to active duty in a
contingency operation
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19. Qualified Exigency Leave
Qualifying events as defined by DOL in 2009:
- Short notice deployment - Military Events
- Child Care/School Activities - Financial/Legal Arrangements
- Counseling: rest /recuperation - Post Deployment Activities
Additional activities agreed to by employer and
employee
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20. Military Caregiver Leave
Provides up to 26 workweeks of unpaid FMLA leave during a
single 12 month period for an eligible employee who is the
spouse, son, daughter, parent or next of kin of a covered
service member with a serious injury or illness.
Under NDAA in 2010, “covered service members” was
expanded to include veterans
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21. Requesting FMLA
30 day advance notice of need to take FMLA when the
need is foreseeable
If unforeseeable, notice should be provided as soon as
practicable
If employee was absent for an unknown reason and
wants the leave counted toward FMLA, need to provide
timely notice (within 2 business days)
If employee is absent but doesn’t let the employer know
why, employer is under no obligation to protect the
employee’s job
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22. Employer Responsibilities
To provide written notice designating the leave as
FMLA leave and providing specific expectations and
obligations of the employee
Notice should be provided within one or two
business days after receiving notification of
employee’s request for leave
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23. Employer Responsibilities
– To provide employee
preliminary designation
letter and medical
certification form
– Employee must be allowed
15 calendar days to obtain
medical certification
– Failure to do so may result in
disciplinary action for
unexcused absences
– HR/Responsible Party will
determine eligibility for
FMLA
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24. Retroactive Designation of FMLA
An employer may not designate FMLA retroactively
for more than two business days unless:
- The employer doesn’t learn of the need for leave until
after the leave has begun
- The employer doesn’t know the reason for an absence
and is notified by employee within two business days
after returning to work
- The employer made a preliminary designation of FMLA
leave, conditioned upon providing timely medical
certification
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25. Intermittent Leave
May be taken when medically
necessary to care for a seriously
ill family member or because of
an employee’s serious health
condition
May be taken prior to birth
May be taken to care for a
newborn or newly placed
adopted or foster care child
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26. Intermittent Leave
• Only the amount of leave
actually taken may be charged
to FMLA
• Cannot require employees to
take more FMLA leave than
necessary. Leave must be
tracked in the shortest period
of time payroll system allows
• If disruptions occur, employee
may be transferred to an
alternative job
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27. Two Spouses at Same Company ?
Spouses employed by the same employer may be limited to
a combined total of 12 workweeks for the following
reasons:
Birth and care of a child
For the placement of a child for adoption or foster care or to care
for a newly placed child
To care for an employee’s parent
But they may each take 12 workweeks of FMLA for their own
serious health condition.
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28. Defining the FMLA Timeframe
Employers are required to use one of the following methods:
• The calendar year
• Any fixed 12-month “leave year” (e.g., a fiscal year,
anniversary date)
• The 12-month period measured forward from the date an
employee’s first FMLA leave begins
• A “rolling” 12-month period measured backward from the
date an employee uses any FMLA
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29. Other FMLA Facts
• Holidays – full workweek of FMLA is used even if some
days are holidays
• If “exempt” employee is on intermittent leave, under
FLSA that employee can be “docked” for any unpaid
leave time
• Some employers require employees to use PTO to cover
some or all of the FMLA leave
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30. Other FMLA Facts
• Disability leave and Worker’s
Compensation run concurrent with
any FMLA leave
• A company can suggest, but not force
an employee to return to light duty
• If there is a state family or medical
leave law, employee is entitled to the
most generous benefit
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31. Other FMLA Facts
• If an employee gives notice that they do not intend to
return to work, they lose their entitlement to FMLA
• FMLA makes it unlawful for any employer to interfere
with, restrain or deny the exercise of any right provided ,
or discharge or discriminate against anyone due to
involvement in any proceeding related to FMLA
• Enforced by the Wage & Hour Division of the DOL
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33. Americans with Disabilities Act 1990
• Bring those who have disabilities of one kind or another
into the mainstream of life
• Adds a new category to the Civil Rights Act of 1964:
Disability
• Amended in 2008 by George W. Bush to broaden the
definition of “disability”
• Enforced by the Equal Employment Opportunity
Commission
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34. What is a disability?
Under the ADA, an individual with a disability is a person
who:
1. Has a physical or mental impairment that substantially
limits one or more major life activities
2. Has a record of such impairment
3. Is regarded as having such an impairment
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35. Who is Covered?
The scope of the ADA’s definition of protected disabilities
extends to persons who:
Have mental disabilities that substantially limit their
relations with others
Have a history of a disability
Are perceived as having a disability, even though the
impairment is not substantially limiting
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36. Who is Covered?
The scope of the ADA’s definition of protected disabilities
extends to persons who:
Are recovering or former drug addicts
Are infected with AIDS or HIV virus
Are able to control their disability through mitigating
measures, such as medication but are still substantially
limited in a major life activity
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37. Who is Covered?
The scope of the ADA’s definition of protected disabilities
extends to persons who:
Temporary impairments may or may not be considered
disabilities under the ADA.
Hidden disabilities – AIDS, HIV, Kidney failure, TB
No definitive list of “disabilities”
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38. What Is Not Covered?
Conditions that are not protected disabilities:
Sexual disorders
Compulsive gambling
Current illegal use of drugs
Environmental, cultural, or economic disadvantages
Stress/depression – may or may not be covered
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39. Definition of Impairment
An impairment is a “disability” only if it
substantially limits one or more major life
activities by
1. Its nature and severity
2. How long it will last or is expected to last
3. Its permanent or long term impact or
expected impact
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40. Major Life Activities
• Walking
• Seeing
• Hearing
• Speaking
• Breathing
• Learning
• Caring for oneself
• Working
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41. ADA Amendments Act of 2008
The Act retains the ADA’s basic definition of disability;
however it changes the way that these statutory terms
should be interpreted, most significantly:
1. It directs the EEOC to revise the portion of its regulations defining the
term “substantially limits”
2. Expands the definition of “major life activities” by including two non
exhaustive lists to include 1) reading, bending, communicating and 2)
major bodily functions i.e., immune system, normal cell growth, digestive,
bowel, bladder, neurological, brain, respiratory, etc.
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42. ADA Amendment Act of 2008
3. Clarifies that an impairment that is episodic or in remission is
a disability if it would substantially limit a major life activity
when active.
4. Changes the definition of “regarded as” so that it no longer
requires a showing that the employer perceived the individual
to be substantially limited in a major life activity, and instead
says that an applicant or employee is “regarded as” disabled if
he or she is subject to an action prohibited by the ADA (e.g.
failure to hire or termination) based on an impairment that is
not transitory or minor
5. Provides that individuals covered under the “regarded as”
prong are not entitled to reasonable accommodation.
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43. Who is Qualified?
Individuals with disabilities are protected under ADA
provided they are qualified to perform the essential
functions of the job.
1. Person must meet the legitimate skill, experience,
education, licensing or other requirements for the
position
2. Requiring the ability to perform the “essential
functions” assures that the person will not be
considered unqualified due to inability to perform
marginal/incidental, i.e., “non essential” job functions.
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44. Essential Job Functions
When making this distinction, there are two
considerations:
1. Whether employees in the position actually
are required to perform the function
2. Whether removing the function would
fundamentally change the job
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45. Essential Job Functions
– The position exists to perform the function
– There are a limited number of other employees
available to perform the functions
– A function is highly specialized and the person is
hired for special expertise or ability to perform
– Employee spends most of his/her time performing
the function
– There would be consequences if the function were
not carried out
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46. Reasonable Accommodation
Accommodation means a change to:
• Workplace – ramps, elevators to accommodate
wheelchairs, accessible rest room facilities, parking
spaces
• Work Schedule – allowing time off for treatment,
making up time, unpaid leave, taking breaks,
adjusting start and end times
• Job Structure – Restructuring or redistributing
duties that are not essential functions
• Equipment modifications – raising or lowering a
desk or chair, telephone amplifiers, Braille machine
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47. Reasonable Accommodation
A reasonable accommodation must:
– Be effective – provide an opportunity to achieve the
same level of performance or enjoy the same benefits
or privileges
– Necessary – must be employment related, reducing
barriers to a disabled person’s ability to perform.
A reasonable accommodation may go beyond the ADA’s
requirements
Determining the best way to identify a reasonable
accommodation:
Consult with the person.
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48. Interviewing Individuals with
Disabilities
To have an effective interview,
be aware of “attitudinal
barriers”, have information
about specific disabilities and
understand the
accommodation process.
Some managers may feel
uncomfortable; some may have
negative attitudes towards
people with disabilities.
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49. Attitudes toward the disabled
- Avoid asking questions
necessary to make an
informed decision
- Terminate the interview
prematurely
- Assume potential coworkers
would feel the same
- Conclude the applicant
would not “fit in”
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50. Interviewing Individuals with
Disabilities
Make the interview accessible:
– Accessible location
– A sign interpreter
Etiquette:
– Look directly at applicant
– Speak directly to the applicant
– Don’t assume applicant needs assistance
– Don’t tell applicant you admire his/her courage
– Don’t avoid certain questions for fear of sensitivity
– Ask all questions in a straightforward, matter of fact manner
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51. What Can I ask in the Interview?
– Ask whether the person knows of any reason
he/she cannot perform the essential functions
of the job
– Ask questions about an applicant’s ability to
perform job-related functions
– Describe or demonstrate a job function and ask
all applicants whether they can perform the
function with or without reasonable
accommodations
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52. Performance Issues
If an employee cannot perform the essential
functions of the job, he/she is no longer a
qualified person.
Three components of each employee’s suitability
for employment supervisors should focus on:
CAP = Conduct, Attendance and Performance
If the disabled employee can comply, the person is
qualified.
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53. Key Points for Success
1. Ensure FMLA Posters are displayed
2. Act quickly when you are aware of
a qualifying event
3. Keep accurate attendance records
4. Don’t deny FMLA for an employee
who meets eligibility requirements
5. Don’t ask an employee for doctor’s
notes for intermittent leave. Could
be deemed as harassment
6. Don’t talk to employee’s doctor
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54. Key Points for Success
7. ADA & FMLA are not the
same, but both may be
involved.
8. Some serious health
conditions under FMLA may
be ADA disabilities
9. ADA relates to an
impairment that
“substantially limits one or
more major life activities”.
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55. Next Steps
1. Download this Event at HRLuminary.com
2. View Upcoming Events
• Fair Labor Standards Act
• Patient Protection and Affordable Care Act
3. Check back soon for a recording of this event
4. A brief survey will be sent at the end of the
webinar
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