AMBERCARE TRAINING OF MANAGERS

MARCH 11, 2015

1 – 4 PM

How can I sue thee?

Federal Laws:

ADEA-Age Discrimination in Employment Act

ADA-Americans with Disabilities Act

FLSA-Fair Labor Standards Act

FMLA-Family and Medical Leave Act

ADEA

ADEA forbids employment discrimination against anyone over 40 years of age in hiring, promotions, wages or termination of employment and layoffs.

Scenario

Your company is doing lay-offs. The area you supervise must lay off two workers. You decide to lay off the workers who are the least productive. Unfortunately both workers are over 40, aged 57 and 63. They file an EEOC/HRD complaint saying they have been discriminated against because of their age. What is your defense?

SCENARIO (CONTINUED)

While you believe that these older workers are the least productive in your division, you have never actually documented this, although you have talked to them numerous times about problems with their productivity. Is this a problem?

Scenario (cont.)

In the course of responding to the EEOC complaint, you learn that one of the employee’s direct supervisor made disparaging comments about age. This had never been brought to your attention. You are able to establish that indeed the two employees were the least productive.

Americans with Disabilities Act (ADA)

Employers with 15 or more employees are prohibited from discriminating against people with disabilities by Title I of the Americans with Disabilities Act (ADA). In general, the employment provisions of the ADA require:

equal opportunity in selecting, testing, and hiring qualified applicants with disabilities;

job accommodation for applicants and workers with disabilities when such accommodations would not impose "undue hardship;" and

equal opportunity in promotion and benefits.

ADA

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities. The ADA also establishes requirements for telecommunications relay services.

ADA

Hiring Do's and Don'ts - Pre-Job Offer

Basic rule: The ADA does not allow you to ask questions about disability or use medical examinations until after you make someone a conditional job offer.

ADA

Examples of what you can ask:

Whether s/he has the right education, training, and skills for the position.

Whether s/he can satisfy the job's requirements or essential functions (describe them to the applicant).

How much time off the applicant took in a previous job (but not why), the reason s/he or she left a previous job, and any past discipline.

Examples of what you can't ask:

questions about an applicant's physical or mental impairment or how s/he became disabled (for example: questions about why the applicant uses a wheelchair);

questions about an applicant's use of medication;

questions about an applicant's prior workers' compensation history.

ADA

Hiring Do's & Don'ts - Post-Job Offer

Basic rule: After making a job offer, you may ask any disability-related questions and conduct medical examinations as long as you do this for everybody in the same job category.

ADA

Examples of what you can do:

If you want to give a medical examination to someone who has been offered a job that involves heavy labor, you must give the same exam to anyone who is offered the same kind of job.

You may withdraw an offer of a manufacturing job involving the use of dangerous machinery if you learn during a post-offer medical exam that the applicant has frequent and unpredictable seizures.

Example of what you can't do:

You can't withdraw an offer to an HIV-positive applicant because you are concerned about customer and client reactions or because you assume that anyone with HIV infection will be unable to work long and stressful hours.

ADA

Reasonable Accommodation and Undue Hardship

Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities.

Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:

A deaf applicant may need a sign language interpreter during the job interview.

An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.

A blind employee may need someone to read information posted on a bulletin board.

An employee with cancer may need leave to have radiation or chemotherapy treatments.

ADA

Confidentiality

Basic rule: With limited exceptions, you must keep confidential any medical information you learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional.

Example: An employee's request for a reasonable accommodation would be considered medical information subject to the ADA's confidentiality requirements.

ADA

The ADA recognizes that employers may sometimes have to disclose medical information about applicants or employees. Therefore, the law contains certain exceptions to the general rule requiring confidentiality. Information that is otherwise confidential under the ADA may be disclosed:

to supervisors and managers where they need medical information in order to provide a reasonable accommodation or to meet an employee's work restrictions;

to first aid and safety personnel if an employee would need emergency treatment or require some other assistance (such as help during an emergency evacuation) because of a medical condition;

to individuals investigating compliance with the ADA and with similar state and local laws; and

pursuant to workers' compensation laws (e.g., to a state workers' compensation office in order to evaluate a claim) or for insurance purposes.

ADA

Getting Medical Information from Employees

Once a person with a disability has started working, actual performance, and not the employee's disability, is the best indication of the employee's ability to do the job.

Basic rule: The ADA strictly limits the circumstances under which you may ask questions about disability or require medical examinations of employees. Such questions and exams are only permitted where you have a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition.

ADA

When do I have to provide an accommodation?

You must provide a reasonable accommodation if a person with a disability needs one in order to apply for a job, perform a job, or enjoy benefits equal to those you offer other employees. You do not have to provide any accommodation that would pose an undue hardship.

What is undue hardship?

Undue hardship means that providing the reasonable accommodation would result in significant difficulty or expense, based on your resources and the operation of your business.

Fair Labor Standards Act

Fair Labor Standards Act:

The Fair Labor Standards Act (FLSA) prescribes standards for wages and overtime pay, which affect most private and public employment. The act is administered by the Wage and Hour Division. It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. For nonagricultural operations, it restricts the hours that children under age 16 can work and forbids the employment of children under age 18 in certain jobs deemed too dangerous.

FLSA The FLSA establishes minimum wage, overtime

pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.

FLSA Minimum Wage: The federal minimum wage is $7.25 per hour effective July 24, 2009. Many states also have minimum wage laws. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage.

Minimum wage

Be aware of local minimum wage laws. For example, Santa Fe, Albuquerque and Las Cruces all have minimum wage laws that apply to those cities only.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

An eligible employee is one who:

Works for a covered employer;

Has worked for the employer for at least 12 months;

Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and

Works at a location where the employer has at least 50 employees within 75 miles.

FMLA

The 12 months of employment do not have to be consecutive. That means any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement. If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.

FMLA

Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:

The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;

To care for a spouse, son, daughter, or parent who has a serious health condition;

For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or

For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

An eligible employee may also take up to 26 workweeks of leave during a "single 12-month period" to care for a covered servicemember with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. The "single 12-month period" for military caregiver leave is different from the 12-month period used for other FMLA leave reasons.

FMLA

Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer's operations. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval.

Under certain conditions, employees may choose, or employers may require employees, to "substitute" (run concurrently) accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.

FMLA

Notice: Employees must comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees generally must request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practicable under the circumstances.

When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. If an employee later requests additional leave for the same qualifying condition, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.

FMLA

Certification: When an employee requests FMLA leave due to his or her own serious health condition or a covered family member’s serious health condition, the employer may require certification in support of the leave from a health care provider. An employer may also require second or third medical opinions (at the employer’s expense) and periodic recertification of a serious health condition.

Refer to HR! Once an employee mentions a serious health condition or a family member’s serious health condition, refer to HR. Do not get yourself involved with medical conditions—they are confidential!

FMLA

Job Restoration: Upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy. Employers are also required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.

FMLA

Enforcement: It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA.

The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees.

If an employee believes that their rights under the FMLA have been violated, they may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court.

Practice Pointers

Consider FMLA when someone has a serious health condition—whether it be emergent or non-emergent.

Contact HR at the very beginning of the process because there are notice requirements that must be followed.

Keep in mind that the person returns to the same job or one substantially similar.

New Mexico Human Rights Act

It is an unlawful discriminatory practice for: An employer, unless based on a bona fide

occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical conditions, or, if the employer has fifty or more employees, spousal affiliation; provided, however that 29 U.S.C. 631 (c)(1) and (2) shall apply to discrimination based on age or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee’s sexual orientation or gender identity;

Scenario #1

An employee has exhausted their twelve weeks of FMLA. According to the physician, they can’t yet return to work without restrictions. Are there other options for them? What are the options?

Scenario #1

A recent development in the world of EEOC enforcement is an emphasis on accommodation after FMLA leave is exhausted, as opposed to termination. In other words, when an employee’s leave is exhausted, the employer should engage in the interactive process with the employee and determine if accommodation is possible.

Scenario #2

You have an employee who comes to you shortly after being hired and tells you he has a disability and suggests that he needs an accommodation.

What is your first step in the process?

Scenario #2

Assume that the employee tells you he has a mental health disability and that he has difficulty functioning in certain environments. What do you do?

Scenario #2

What if the employee is unclear about what it is that he needs for accommodation?

Who do you consult?

What if he asks for a personal assistant?

How do you determine if it is an undue hardship?

Scenario #3

Employee X comes to you and tells you she needs an accommodation—specifically that she can’t work for a certain supervisor and she wants a new one. Should you accommodate her?

Scenario #4

An employee (who is about ready to get written up for insubordination and failure to follow direction) comes to you and complains that they have been discriminated against based on their gender, age, sexual orientation and race. What do you do?

You had planned to write her that day. Do you write her up then?

Scenario #4

An investigation in conducted…you still haven’t written her up. During the course of the investigation, she complains that you are retaliating against her because you won’t give her Good Friday off.

How do you respond?