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“If You Leave Me Now…” Not the Same Song and Dance for Mastering Leave and Disability Accommodation

Presented By:

Katheryn Bradley

Lane Powell, PC

(206) 223-7000

www.lanepowell.com

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Most Employees

Have Access to Leave

Source: U.S. DOL Bureau of Labor Statistics, 2011 American Time Use Survey

90% of Employees have access to leave

90

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Most Employees

Have Access to Leave

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59% of Employees have access to paid leave 41

77% of Employees have access to unpaid leave

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Source: U.S. DOL Bureau of Labor Statistics, 2011 American Time Use Survey

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Many Employees

Are Using Leave

21% of Employees took leave during an average week

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Source: U.S. DOL Bureau of Labor Statistics, 2011 American Time Use Survey

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Average Leave Requested

by Employees

15.6 hours

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Most Employees

Have Flexible Schedules

56

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Source: U.S. DOL Bureau of Labor Statistics, 2011 American Time Use Survey

56% of Employees can adjust their work schedules or location instead of taking leave or because they did not have access to leave

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Learning Objectives

How to modify your policies to comply with FMLA, GINA, ADA, USERRA and EEOC guidance

What to do when employees request leave or need accommodation

How to avoid claims for retaliation or interference with leave rights

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HR’s Challenge:

Mastering Alphabet Soup

FMLA

GINA

USERRA - Military Leave

ADA Accommodations

State and Local Leave and Anti-discrimination Laws

EEOC’s Caregiver Guidance

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FMLA Refresher

Employee

Eligibility

• 12 months

• 1250 hours

• Works at worksite with 50 employees within 75 miles

Covered Reason

• Employee or Family’s Serious Health Condition

• Military family leave

• Exigency

• Caregiver

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FMLA Refresher

Duration depends on

reason

Serious health

condition 12 weeks

Exigency 12 weeks

Caregiver 26 weeks

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FMLA Refresher

• Use DOL’s FMLA forms but add GINA safe harbor language

Comply with notice and designation requirements

• Don’t be afraid to provisionally designate FMLA Monitor absences

• In loco parentis relationship based on day to day care or financial support Nontraditional families

• Domestic partners

• Grandparents State law may provide

broader coverage

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FMLA Prohibits Retaliation and Interference

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Pregnancy Discrimination Act

Title VII’s Prohibition Against Sex Discrimination

State Sex and Pregnancy Discrimination Laws

State Pregnancy Disability Laws

Don’t Forget Other Overlapping Laws

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Disability Definition is Broad

ADA Amendments Act makes most disabilities covered

State law may be even broader

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Disability Definition is Broad

Includes having a record or history of disability

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Accommodating

Disabled Employees

• Informal process to clarify employee’s needs and identify reasonable accommodation

• May continue through employment

Employee’s request triggers

interactive process

• Nature of the disability

• Functional limitations

• Medical facts

• Accommodations requested

Employer seeks relevant

information from Employee

and treating provider

Step 1 Step 2

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Accommodating

Disabled Employees

• Must first exhaust process with Employee’s doctor

• Seek only if insufficient information

Second opinion from Employer’s

doctor

• Employer chooses effective accommodation

• Undue hardship difficult to show

• Direct threat requires medical evidence from specialist

Employer provides

accommodation or shows undue

hardship or direct threat

Step 3 Step 4

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ADA Accommodations

re Job Performance

• Continuous

• Intermittent

• Reduced schedule

Leave

• Reallocate or redistribute marginal functions

• No obligation to eliminate essential functions

Job restructuring

Affirmative right without

competing?

Reassignment to vacant position

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EEOC Consent Decrees

$3.2 million

Policy limited leave to one

year and prohibited

returning with any limitations

Supervalu 1/11

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EEOC Consent Decrees

$20 million

No-fault attendance policy charged employees for

disability-related absences, resulting

in discipline or discharge

Verizon (7/11)

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EEOC Consent Decrees

$6.2 million

Policy terminated employee on

workers’ compensation leave after one

year

Sears, Roebuck and Co. (9/09)

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Working mothers

Working fathers

Caregivers of elderly

Caregivers of disabled children

EEOC’s Caregiver Guidelines:

Law Prohibits Stereotyping

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USERRA: Military Leave

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USERRA: Military Leave

All employees covered

Oral notice suffices

Military leaves up to 5+ years

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USERRA: Reinstatement

When Leave Ends

Employee must reapply within statutory deadline

• Typically, up to 90 days depending on length of service

• For service-related illness or injury, extended up to 2 years; beyond that for reasons beyond control

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USERRA: Escalator Rule

Upon reinstatement, Employee is entitled to

• Position he or she would have held but for service

• Favorable personnel actions that he or she would have received

• Promotion, pay raises, benefits

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USERRA:

Service-Related Disabilities

Employee unable to do former job must be offered job of equivalent

seniority, status, and pay that he or she could become qualified to perform

Failing this, Employee must be reemployed in position which is the “nearest approximation” in terms of

seniority, status, and pay

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INTERACTIVE PROCESS VIDEO

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Questions?

Katheryn Bradley (206) 223-7399

bradleyk@lanepowell.com

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