IN THE TRENCHES: : The Ultimate Guide to FMLA / CFRA ... · Medical Leaves and ADA Accommodations with Performance Management Challenges. Beth B. Brascugli Principal MBA, SPHR-CA

LEAVE MANAGEMENT SOLUTIONS

An Integrated Medical Leave and Accommodation Management System

IN THE TRENCHES: : The Ultimate Guide to FMLA / CFRA Medical Leaves and ADA Accommodations with Performance Management Challenges

Beth B. BrascugliPrincipal

MBA, SPHR-CA & SHRM-SCP

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Leave Management Solutions & HRM Consulting, founded by Beth Brascugli De Lima, helpcompanies understand and comply with the many regulations and issues within the complicatedrealm of Medical Leave and Accommodation Management.

Beth is a certified senior professional member of the Society for Human Resource Management(SHRM) with a California specific certification SPHR-CA & a SHRM-SCP. She has been providingconsulting services to the business community, state, federal and county government as well asnon-profits and school districts regarding ADA (Americans with Disabilities Act) and FMLA (FamilyMedical Leave Act) since 1993.

With a specialization in compliance with ADA, FMLA, Pregnancy Disability and Workers’Compensation compliance requirements, Ms. De Lima focuses on reducing potential liability andfocusing on pro-active management of Controlling Medical Absences.

Ms. De Lima is also regularly called upon to provide testimony for employment law litigation onHuman Resource Standards of Care as it relates to ADA, FMLA, PDL, Wrongful Termination,Retaliation, Harassment, and Discrimination cases for both federal and state plaintiff and defensecases.

H R M C O N S U L T I N G , I N C .

Copyright 2013-Present Wolf Creek Holdings, LLC. Used under license by Leave Management Solutions, LLC

DISCLAIMER

This publication is for informational purposes only and is not intended to substitute for particularized legal counsel

concerning specific legal issues or matters. Background information is available upon request.

Beth Brascugli De Lima, MBA, SPHR-CA, SHRM-SCPFounder and PrincipalHRM Consulting, Inc.

LMS’s Proven Method for Integrated Medical Leaves and Accommodation Management System™

& Controlling Medical Absence

Page 3 of 19Copyright 2013-Present Wolf Creek Holdings, LLC. Used under license by Leave Management Solutions, LLC

01

02

03

04

06

05

Compliance

Integration

Communication(Key)

Consistency

Performance Management

Follow-up

Page 4 of 40

COMPLIANCE


FMLA, ADA & Workers’ Compensation all have different compliance

requirements IMPLEMENT ALL OF THEM – concurrently, when ever possible.

Don’t forget about your company policies, union contacts and MOU’s

Taking care of FMLA does NOT protect you under ADA

When FMLA ends, ADA begins, when they both end / in-active status WC, or

termination

Provide employee timely eligibility & leave designation notices

Inform the employee of your reporting requirements, if you require a RTW

release, how leave is calculated, and notification of exhaustion of benefits

Page 5 of 40

COMPLIANCE Designation / Conditional Designation Notices

Page 5 of 31Page 5 of 31Copyright 2013-Present Wolf Creek Holdings, LLC. Used under license by Leave Management Solutions, LLC

Certificate Must Address both State and Federal Definitions

FMLA/Pregnancy defined qualifying Serious Health

Condition may lead to qualifying event under ADA

KEY

ADA defined disability may lead to qualifying event

under FMLA leave.

Leave is FMLA;

Working with an

Accommodation is

ADA (including leave)

Page 6 of 40


Requirement to provide medical certification – include medical certification

form

Job restoration rights upon expiration of FMLA leave

How to pay premiums for continuing benefits

Right/requirement to substitute employer-provided paid leave

Taking unpaid FMLA leave if they do not comply with the terms and

conditions of the employers' paid leave policies

Whether an employer requires fitness-for-duty report or release to return

to work form, THEN INCLUDE the MEDICAL form

Statement of the employee's essential job functions required if the

employer will require fitness-for-duty certifications *

The Right and Responsibilities notice must

include the specific expectations and obligations

of the leave -can be sent via e-mail BUT NOT

RECOMMENDED… *THIS IS AN IMPORANT STEP EVEN IF NOT REQUIRING FITNESS FOR DUTY BUT JUST A RELEASE TO RETURN TO WORK AS YOU PREPARE FOR THE TRANSITION TO ADA IF THE FMLA IS EXHUASTED AND THE EMPLOYEE STILL REQUIRES LEAVE AND/OR AN ACCOMMODATION

*KEY

*

Page 7 of 40

FMLA COMPLIANCEDesignation / Conditional Designation Notices

FMLA COMPLIANCE STRATEGIES

RETROACTIVE FMLA


Once the employer is aware leave has been taken (vacation/sick/PTO) for a FMLA qualifying purpose, employer must notify employee

“promptly” (within two business days) barring extenuating circumstances that the leave will be designated as FMLA

If an employer fails to timely designate

leave as FMLA leave (i.e. within the five

day notice window), retroactive

designation is allowed where no harm or

injury is caused. (when can no harm occur

when cutting benefits?)

The employer may be liable; however, if

the employee can show that he or she has

suffered harm or injury as a result of the

failure to timely designate the leave as

FMLA.

In all cases, employer and employee

can mutually agree to retroactively

designate.

030201

Page 8 of 40

COMPLIANCE

FMLA / ADA MEDICAL CERTIFICATIONS


Best practice is to make the employee solely responsible at all times

to provide ongoing medical certification regarding the need for

leave. The supervisor should not be calling the health care provider.

DO NOT ACCOMMODATE

UNDER FMLA -

ACCOMMODATE UNDER

ADA

Seek recertification every 30 days if the original health care provider’s certificate doesn’t specify how long the condition

is expected to last.

Some exceptions to the 30-day recertification rule. If the circumstances of the employee’s condition change significantly

or if you receive information that casts doubt on the stated reason for the absences, you can ask for recertification even if

it’s been less than 30 days since your last request.

THEN YOU CURE YOU DO NOT RECERTIFY

Page 9 of 30

CURING DEFICIENT MEDICAL CERTIFICATES (CURE!)


Ask employee to “Cure” the medical certificate – state in writing info needed to cure, due within 7 calendar

days, additional 7 days is granted if employee notifies employer within first 7 days unable to obtain info with

diligent effort

Post 7/7 days, Company representative, not employee supervisor, can speak to the employee’s health care

provider, with employee’s permission/HIPPA type form signed first/ no form, no info, can deny the portion of

leave requested that exceeds existing certificate if medical certificate not “cured”

CURE FIRST then Seek 2nd and 3rd opinions if there are doubts regarding the certificate. Keep clear, written

records regarding why there is doubt.

If you may also require a second medical opinion for the employee’s own SHC:

ER can request a second opinion and obtain a third opinion if the second opinion is different from the first opinion regarding

EE’s need for leave - DO NOT ACCEPT LESS THAN ADEQUATE MEDICAL CERTIFICATES – justify in writing your need to cure

Page 9 of 31Page 9 of 31Page 10 of 30


Medical Providers tend to check the need for single continuous, reduced work schedule and intermittent and fail to

include - frequency, duration, timing of episodic leave

*KEY* this will become a very important factor when evaluating the ability to accommodate the same SHC under

the ADA once the FMLA is expired

Leave Management Solutions has created a medical certificate that is more user friendly and limits confusion based around

the medical certificate. The form is easier to follow and even their medical staff can complete without causing confusion.

*KEY* As a general SOP do not allow the EE to choose the days or hours of a request for a reduced work schedule – stay

in control – unless the medical certificate indicates SPECIFIC TIME FRAMES

Page 11 of 30

CURING DEFICIENT MEDICAL CERTIFICATES (CURE!) cont.

ADA COMPLIANCE STRATEGIES

01Proactively respond to employees who may need an

accommodation—If you know, or should have known

(including transitioning from FMLA)

02Understand what the restrictions are to performing

the Essential Functions

03 Require Existing Employee to provide a Return to

Work Certificate and post Medical Leave participate

return to work assessments (if required for position)

Page 11 of 19Copyright 2013-Present Wolf Creek Holdings, LLC. Used under license by Leave Management Solutions, LLCPage 12 of 30

According to the ADA an individual with a disability is a person who:

01Has a physical or mental impairment that substantially

limits one or more major life activities; (Taking care of

oneself, communicating, learning, working, includes bodily

functions)

02 Has a record of such an impairment; or

03Is regarded as having such an impairment (actual or

perceived physical or mental disability)


WHAT IS A DISABILITY

What is a Qualified Individual with a disability?


Qualified Individual with a Disability is able to perform the Essential Functions of the Job WITH the Accommodation.

If the EE is unable to perform the Essential Functions of the Job WITH the Accommodation, they are NOT a Qualified Individual with a Disability

Page 14 of 30

WHAT IS A QUALIFIED INDIVIDUAL W/ DISABLITY


01Temporarily Designate the ADA Accommodation if you believe the medical condition qualifies the

employee as a Qualified Individual with a Disability. Be mindful of the ADAAA, ALWAYS err on the side

of the employee.

02 HR professionals are NOT doctors. Require the employee to get clarification from their medical

provider if you need more information. Be specific about exactly what additional information you need.

03Designate the ADA Accommodation, temporary or not, upon receipt of the medical certification

AND/OR,

04ENGAGE IN AN INTERACTIVE GOOD FAITH MEETING TO DETERMINE YOUR ABILITY TO

ACCOMMODATE.

Then document results and send notification.

*KEY* Employer is not required to accommodate work restrictions under the FMLA. FMLA is LEAVE, notaccommodation. If there is a medical accommodation required, this is an ADA issue NOT a FMLA issue.

Page 15 of 30

WHAT IS QUALIFIED INDIVIDUAL W/ DISABLITY

GOOD FAITH INTERACTIVE MEETINGS

Schedule a meeting with the employee as soon as you are aware of the

need for a potential accommodation. IN PERSON

Conditionally designate the accommodation if appropriate.

Require medical evaluation, analysis, and certification that will confirm

the need for the accommodation as a result of a qualifying disability

• Get specific and send the job description WITH physical and

mental requirements of the job, do addendum if not on

your current job description

• Ask for clarification regarding what tasks the employee can

do with or without an accommodation

• This is includes confirming a reasonable expectation of the

ACTUAL DATE they will return to work


UNDUE HARDSHIP ANALYSIS


Part of the information needed to engage the EE in an Interactive Process is to analyze with OBJECTIVE DATA

an Undue Hardships to requested, identified, or potential reasonable accommodations

Document the conversation with supervisors and managers, consultants, and safety

Determine who is indicating WHY an accommodation is an undue hardship

The ADA has specific criteria:

• # of EE’s available on shift to help

• Serious consequences of not performing the job function

• SOP of current and previous incumbents

• Eminent harm to self or others, etc.

The documentation will be important records the employer objectively engaged in an “Undue Hardship Analysis”

and acted in good faith

Page 17 of 30

INTEGRATION


Leave Policies Consistent

Policies indicate leaves run concurrently where

applicable - FMLA, ADA, Workers’ Comp, medical,

personal, Pregnancy Related Disability , etc.

Employment Application with ADA language

Job Description has essential functions, Mental -

Physical

All Medical Leaves require RTW release – post 3?

IIPP Code of Safe Practices is Addressed in EFJA if

applicable

Integrating FMLA, ADA, Workers’ Comp, Pregnancy..


COMMUNICATION(documentation)

is the KEY

Page 19 of 30


COMMUNICATION is the KEY

Communicate the TRANSITIONS BEFORE THEY HAPPEN

Employees will hold you solely responsible for being impacted by your company’s compliance

with these regulations especially if they are not informed before they are impacted

You will never want to place an employee in the position of having their leave become

unpaid, losing medical benefits, and/or losing a return to work opportunity because you did

not communicate to them what the next step would be.

Page 20 of 30

COMMUNICATE, INFORM, DOCUMENT


Communicate the transition to employee BEFORE FMLA expires

Provide an ADA specific medical certification form

Engage in a Good Faith, Interactive Processes

Hold a Good-Faith, Interactive Meeting with your employee in-person when at all possible

Think twice about having the supervisor in the room for the meeting, NOT recommended

Do not make decisions without employee’s participation

Research, look at the Job Accommodation Network

Discuss what you find with employee, ask for their input

Take detailed notes, and have them sign BEFORE they leave the meeting

Keep in contact and keep detailed records

Use the 3 step method to TERMINATION if employee is not acting in Good Faith

Let the employee know they will be fired or lose their protection

When FMLA Ends ADA Begins….

Page 21 of 30

COMMUNICATE, INFORM, DOCUMENT


Medical certificate expiration dates

Return to work dates

How to call in or document intermittent leave usage

Intermittent leave use is not meeting medical certificate guidelines

Concurrent use of or transition from one leave to another including FMLA, Workers’ Compensation, ADA, your company’s

policies, union or school policies

Transition from FMLA to ADA

When FMLA and ADA no longer apply with Workers’ Comp, use inactive status designation

THE EMPLOYEE OF EACH CHANGE - Before it Happens!

WHEN FLMA ENDS ADA BEGINS ALL THE TIME EVERY TIME UNLESS EE IS NOT A QULIFIED IDIVIDUAL WITH A DISABLITY OR IT IS

AN UNDUE HARDSHIP TO ACCOMMODATE

As soon as FMLA ends, and an accommodation is needed (including leave),

temporarily designate accommodation as ADA

Page 22 of 30

Document, Document, DocumentCOMMUNICATE, INFORM, DOCUMENT


THE EMPLOYEE OF EACH CHANGE - Before it Happens!Document, Document, DocumentCOMMUNICATE, INFORM, DOCUMENT

You must document your research to attempt to identify an accommodation as well as whether the accommodation will be an undue hardship or not. This document will not be provided to the employee, but will be kept in their employee file.

HRM Consulting created a form to document this process with handy guidelines to help you determine the correct conclusion.

During each Good Faith Interactive meeting someone from the company should be taking notes• Everyone in attendance, including the employee, should sign these notes prior to ending the meeting

Page 22 of 19Page 23 of 30

FOLLOW-UP


WITH EE RE: ALL IMPACTED LEAVE AND COMPLIANCE REQURIEMENTS

Medical certificate expiration dates

Return to work dates

Calling Off Work Procedure and documentation of intermittent

leave usage

Intermittent leave use is exceeding medical certificate

Concurrent use of or transition from one leave to another

including FMLA, Workers’ Compensation, ADA, PDL, CFRA-BB,

Company’s policies, Union Contract or School Policies

Transition from FMLA to ADA

When FMLA and ADA no longer applY with Workers’ Comp and

using inactive status designation

On Medical Leave? You Can’t Touch This Employee?

WRONG – but Don’t Retaliate

PERFORMANCE MANAGEMENT

Compliance with Policies, Procedures, Productivity,

Professionalism… (unless part of Accommodation)


With Disabilities / Serious Health Conditions

Performance management with FMLA: EE is not

complying with the criteria of the Medical Certificate

”CURE”

Under ADA: Evaluating Performance with

Accommodation requires a different strategy

• Identify “Essential Functions” AND “Meets

Expectation” Requirements during Good Faith

Interactive Meeting

• Establish criteria with Supervisor and Employee

• Consistently evaluate effectiveness of

Accommodation for both EE and Supervisor


Is there anything impacting your ability to

perform the Essential Functions of your job?

COMPPERFORMANCE/POLICY

VIOATON: w/accommodation, Implement Performance

Management System

OR COMPLAINT: Start an investigation

Page 27 of 30

PERFORMANCE MANAGEMENT • Develop a joint plan of action that will result in removing the barrier (mental/physical) impacting function/performance

• Be prepared to identify alternative accommodation (job) IF THE FIRST ONE DOES NOT WORK

• Always identify performance required - even when the employee has a medical condition / disability - WITH the

accommodation/leave

• Set goals for the next assessment (or performance review if in a Performance Improvement Plan – NOTE: no PIP for

accommodation, only if OTHER non-related performance issue IMPORTANT)

• If EE Leave consider waiting until the employee returns to work (RTW) to impose the performance management system

(if performance problem outside of job function accommodation), unless they are on ongoing intermittent leave


Performance Improvement w/ Accommodations - Intermittent –Recued Work Schedule FMLA /ADA

• Can deny leave if FMLA fraudulently obtained

• Document performance, terminate for cause!

• Require the same compliance with all policies regardless of whether the employee is on

leave, being accommodated, or had a Workers’ Compensation injury.

• Employers can terminate employees on leave (intermittent, reduced work scheduled) or with

accommodations if they discover that an employee has violated company policy,

performance problems, insubordination, prohibited behavior or fraud OR it is determined

the accommodation does not in fact allow the employee to perform the functions of their

• Focus on the behavior and ask the employee if there is anything impacting their

ability to perform the functions of their job.

ALASY THROUGHLYINEGSTIGATIONANY REPORTED

COMPLAINTS

CONSISTENT IMPLIMENTATION


ALWAYS LET THE EMPLOYEE KNOWN WHEN THEY ARE ABOUT TO LOSE

THEIR JOB AND WHAT THEY CAN DO TO PREVENT IT BEFORE IT IS TOO LATE

Don’t be afraid to use the “F” word…as in “You will be FIRED”

Page 25 of 30

CONSISTENCY


Medical leave related policies need to be consistent regarding

medical certificate requirements and return to work release,

whether Workers’ Compensation claim or not (could include

physical ability assessment)

Verify that company letters and requests for information are

consistent for all types of medical leaves

Apply the time frames for providing and clarifying medical

certificates

Require consistent rules for reporting of FMLA and ADA leave for

call-ins or leave requests

Application of performance management consistently for ALL

employees, no special consideration unless a documented part of

the reasonable accommodation

Zero Tolerance for Retaliation

SUMMARY – LMS’s Integrated Medical Leave and Accommodation Management System™

Compliance

Integration

Communication

Follow-up

Performance Management

Consistency

Comply with ALL leave regulations and document, document, document!

Integrate your medical leave/accommodation policies (FMLA / ADAAA / PDL / Workers’

Comp / Company Medical Leave / personal leave / Sick / Vacation / PTO)

Communicate when benefits and leaves end, including when (FMLA) and ADA begins -

engage in the interactive process

Follow-up and maintain contact / calendar all dates

Consistently apply all leave policies in regard to medical certification, return to work

release, and medical benefits

Copyright 2013-Present Wolf Creek Holdings, LLC. Used under license by Leave Management Solutions, LLCPage 30 of 30

LeaveManagementSolutions.com provides forms, letters, checklists, flow charts, training and HR LeaveAdministration / Accommodation training through one-on-one coaching, policy and procedure development,management training, and implementation support services via on-line meetings/webinars.

Need Simple and Effective pre-written FORMS & LETTERS with EZ step-by-step instructions?LeaveManagementSolutions.com provides a membership site to provide the ADA and FMLA, pregnancy, and WorkComp resources, tools, checklists, flowcharts, and mentoring/coaching/training support you need.

Want to take the confusion and stress out of Medical Leaves/Accommodations? Go On-line or Call us to arrange a 15minute DEMO Discovery Consultation so you can see if our tools, resources, coaching, and training fit your needs!

FOR TIMELY ANWSERS TO YOUR MOST PRESSING QUESTIONS

BEST PRACTICE MEDICAL LEAVE/ACCOMMODATION GUIDANCE AND TIPS

JOIN US FOR MONTHLY COACHING/MENTORING MEETINGS THE 2 & 4 WED OF EVERY MONTH, 10 AM, PST see “Training”

EMAIL [email protected] up to 24 HRCI /SHRM (IPMA in process) CERTIFIED CREDITS per year

Reseller of

For More Information / Services Provided

www.hrmconsulting.com or www.leavemanagementsolutions.comW

[email protected]

866.838.7188P

Live training throughout CA!

2 day FMLA/ADA/PDL/WC

CA Integrated Medical Leave and ADA Accommodation Management System

Ontario. 8.8-9.19Modesto. 10.17-18.19San Diego 10.24-25.19San Jose. 11.7-8.19Oakland 11.21-22.19

http://www.hrmconsulting.com/

http://www.leavemanagementsolutions.com/

mailto:[email protected]

Documents

IN THE TRENCHES: : The Ultimate Guide to FMLA / CFRA ... · Medical Leaves and ADA Accommodations with Performance Management Challenges. Beth B. Brascugli Principal MBA, SPHR-CA