The Family and Medical Leave Act (“FMLA”) and the Americans With

Disabilities Act (“ADA”)Presenter:

Mary M.L. Spiegel

Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.

175 E. Hawthorn Parkway, Suite 145

Vernon Hills, IL 60061

(847) 247-7400

mspiegel@ancelglink.com

www.ancelglink.com

•

Mary M.L. Spiegel, Attorney at Ancel Glink

Basics of:

THE FAMILY AND MEDICAL LEAVE ACT

What is it?

•

The FMLA is a Federal Law that allows eligible employees the right to take up to 12 weeks (workweeks) of UNPAID, but job protected leave in any 12-month period for the birth/care of a newborn, adoption or foster care placement or a serious health condition of the person or family member.

Eligibility provisions:

•

Must have been employed for at least 12 months by that employer.

•

Must have worked at least 1250 hours during the year before leave begins. Applies to private employers and state and local governments.

•

The employer must be a covered employer.

Covered employer:

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All public agencies –

including state, federal and local (including schools).

•

Private employers who employ more than 50 people for at least 20 weeks a year.

Differences for Military:

•

Changes 12 weeks to 26 weeks of unpaid leave.

•

Time that the employee spent on active duty is counted as work time.

So What’s a Serious Health Condition?

•

Illness, injury or impairment that involves inpatient care or continuing treatment and includes the following:−

Inpatient care in a hospital, hospice or residential medical care facility –

including

subsequent treatment in connection with the condition that caused the inpatient care.

Continuing treatment –

that includes:

•

3 consecutive calendar days of incapacity followed by treatment that involves at least:−

Treatment by a health care provider twice (the first within 7 days of incapacity and both treatments within 30 days). Example: follow-up visits –

OR

−

One treatment by a health care provider with a regimen of scheduled follow-up appointments. (Example, physical therapy, chemotherapy) OR

−

Pregnancy bed rest or incapacity, OR−

Chronic health condition which results in incapacity which requires periodic visits to health care provider (at least 2 x per year) –

though a visit to a

health care provider is not necessary during each time of incapacity (example: Chrohn’s disease flare-ups, migraines) OR

−

A period of incapacity that is permanent or long term due to the nature of the condition for which treatment may not be effective –

so no active

treatment necessary (supervision by physician), OR−

Absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.

So What Does the Employer Have to Do?•

Keep the job available (or an equivalent job).

•

Pay health care benefits (employee has to pay his/her share), but if employee fails to return from leave after 12 weeks, employer can seek contribution for sums paid for health insurance.

Required Notice by Employee:•

Foreseeable events (birth/adoption): employee must give at least 30-days notice.

•

Unforeseeable: As soon as practicable under the actual circumstances. Unless really crazy –

the employee is

required to comply with the sick/call- in policies of the employer.

Substantiation Required for FMLA Claim:•

“Sufficient information”

for employer to

determine if request is covered by FMLA guidelines. Employer needs at least enough information to verify that employee is unable to perform the essential functions of the job. However, if it is the 1st

time –

employee need not specifically state that they are seeking FMLA benefits at time of notification to employer.

•

The employer can require “certification”

of the claim. This could be in the form of a second or even third medical opinion (at employer’s expense). The District or Department may not have the employee’s direct supervisor authenticate the medical claims resulting in the leave request.

Return to Work:

•

An employer may, and should have, a requirement that the employee be certified as capable of performing the tasks of the job (must apply to all employees).

The “Final Rule”:

•

The final rule is the changes that were effective past January 16, 2009. It implemented:−

Military caregiver leave: Can take 26 weeks to take care of service members –

injured as a result of

active duty.−

Exigency leave: Available to active and reserve families: Can be used for many different qualifying events (mostly family caretaking activities).

There’s more…

−

If employer fails to properly designate as FMLA leave, employer can be liable for individualized harm to employee.

−

Light duty: If employee is performing light duty, it does not count as FMLA leave.

−

Employer may require employee to use paid time off first.

−

Perfect attendance awards: Can be denied to employees using FMLA.

−

Medical certification: HIPPA driven – establishes specific form, but form is

optional. However, employer cannot ask for any information over and above what’s on the form.

−

Recertification and fitness for duty can be requested by the employer.

The Americans With Disabilities Act (“ADA”)

Goals:

•

To remove barriers to obtaining employment and keeping employment for those who have some type of physical or mental disability so that those individuals could lead more full and productive lives.

What did it do?

•

The ADA essentially created a recognizable and legally protected class of citizens, similar to previous civil right enactments. (Title 9, 1964, etc.)

What entities does it apply to?

•

Any private employer with more than 15 employees and any governmental entity.

Who does it protect?

•

“Qualified individuals with disabilities”.−

A person is considered disabled if she has a

condition that substantially restricts one or more major life activities.

New changes…

•

This definition changed just this year to significantly broaden the definition of disability and it changed some of the original language of the Act to be more narrowly defined. The language, “substantially or severely restricts”

was replaced with

“substantially limits”

[a life activity].

What expanded in the new definition?•

Under the revised Act, a disability can include a condition that

affects a person’s ability to do any of the following:−

Seeing−

Hearing−

Eating−

Sleeping−

Walking−

Standing−

Lifting−

Bending−

Speaking −

Breathing−

Learning

…you get the point!

So what must an employer do?

•

Even though the ADA does not require a written job description, an employer should begin with a good written job description that is very specific about the tasks necessary to perform the job. If there is ever a challenge to the employer, the written job description will be considered evidence.

•

Once the job description is complete, the employer should conduct the hiring process in a fair, non-discriminatory manner with an eye toward filling the position with a candidate who can best perform the required tasks for the job.

•

If the person with a disability is hired or if a person develops a disability while employed, then the employer must make a reasonable accommodation for a KNOWN disability. (Example: ergonomic keyboard for carpal tunnel syndrome.)

Does the employer have to accommodate any disability?•

Nope. An employer need only make accommodations for those individuals who can perform the essential functions of the job. If the person cannot perform the job, then the employer will not be liable. (If an allergy to paper developes, a person cannot continue to be a file clerk.) There is no right to a specific job.

•

The employer can hold the disabled employee to the same performance standards as any other employee. Likewise, if an employer has standard policies related to attendance or leave, these do not need to be modified unless the person requests it as a reasonable accommodation.

•

Because the new language just became effective in January, there have been no cases to test it significantly yet. Over the next few years, we are sure to see changes through the court’s interpretations!

175 E. Hawthorn ParkwayVernon Hills, Illinois 60061

(847) 247-7400

140 S. Dearborn StreetChicago, Illinois 60603

(312) 782-7606

1111 W. Warrenville RoadNaperville, Illinois 60563

(630) 577-1414

4 E. Terra Cotta AvenueCrystal Lake, Illinois 60014

(815) 744-8980

207 W. Jefferson, Suite 402Bloomington, Illinois 61701

(309) 828-1990

www.ancelglink.com