Leave Issues: ADA, FMLA, Military and Miscellaneous Leaves

Leave Issues: ADA, FMLA, Military and Miscellaneous Leaves GRAND RAPIDS HOLLAND LANSING MUSKEGON SOUTHFIELD STERLING HEIGHTS

The ADA and ADAAA ADAAA Effective January 1, 2009 Created to expand coverage of ADA and overturn Supreme Court decisions Expanded definition of disability EEOC Final Regulations on ADAAA Implement ADAAA Effective May 24, 2011 2011 Warner Norcross & Judd LLP. All rights reserved. Page 2

WHAT IS A DISABILITY? Disability: Physical or mental impairment that substantially limits one or more major life activity OR Being regarded as having a disability If Disabled: Can t discriminate against AND Must reasonably accommodate a request unless it would impose an undue hardship 2011 Warner Norcross & Judd LLP. All rights reserved. Page 3

MAJOR LIFE ACTIVITY? ADAAA significantly expanded definition of major life activity to include: - Caring for oneself - Performing Manual Tasks - Seeing - Learning - Hearing - Reading - Eating - Concentrating - Sleeping - Thinking - Walking - Communicating - Standing - Breathing - Lifting - Bending - Speaking - Working Non-exclusive list 2011 Warner Norcross & Judd LLP. All rights reserved. Page 4

MAJOR LIFE ACTIVITY? ADAAA also added operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions Impairments that will meet definition of disability in virtually all cases Autism - Cancer Cerebral Palsy - Diabetes Epilepsy - HIV or AIDS Multiple Sclerosis - Muscular Dystrophy Major Depression - Bipolar Disorder Schizophrenia - OCD PTSD - Missing Limbs 2011 Warner Norcross & Judd LLP. All rights reserved. Page 5

SUBSTANTIALLY LIMITS? NO STANDARD, JUST RULES OF CONSTRUCTION Compare to most people, not someone in the employee s shoes Focus on extent impairment limits major life activity, NOT what outcomes individual can achieve Only needs to limit one major life activity, does not need to limit other activities EEOC says we should not focus on this 2011 Warner Norcross & Judd LLP. All rights reserved. Page 6

REGARDED AS ADAAA creates major changes Now focus on how employee treated because of impairment even if not substantially limiting Exception: The Act does not prohibit discrimination based on a transitory or minor impairment Employee with minor lifting restriction could be regarded as and thus protected as disabled even though underlying condition not a disability Do not need to accommodate 2011 Warner Norcross & Judd LLP. All rights reserved. Page 8

LEAVE AS A REASONABLE ACCOMMODATION EEOC Guidance on Reasonable Accommodation and Undue Hardship Under the ADA: http://www.eeoc.gov/policy/docs/accommodation.html Permitting the use of accrued paid leave, or providing unpaid leave, is a form of reasonable accommodation. An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to: obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; physical or occupational therapy; recuperating from an illness or an episodic manifestation of the disability; or avoiding temporary adverse conditions in the work environment. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 10

LEAVE AS A REASONABLE ACCOMMODATION Questions in the Guidance: May an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period? No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 11

LEAVE AS A REASONABLE ACCOMMODATION Questions in the Guidance: Does an employer have to hold open an employee's job as a reasonable accommodation? Yes. An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 12

LEAVE AS A REASONABLE ACCOMMODATION Questions in the Guidance: When an employee requests leave as a reasonable accommodation, may an employer provide an accommodation that requires him/her to remain on the job instead? Yes, if the employer's reasonable accommodation would be effective and eliminate the need for leave. An employer need not provide an employee's preferred accommodation as long as the employer provides an effective accommodation. Accordingly, in lieu of providing leave, an employer may provide a reasonable accommodation that requires an employee to remain on the job (e.g., reallocation of marginal functions or temporary transfer) as long as it does not interfere with the employee's ability to address his/her medical needs. The employer is obligated, however, to restore the employee's full duties or to return the employee to his/her original position once s/he no longer needs the reasonable accommodation. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 13

LEAVE AS A REASONABLE ACCOMMODATION Undue Hardship A determination of undue hardship should be based on several factors, including: the nature and cost of the accommodation needed; the overall financial resources of the facility making the reasonable accommodation, the number of persons employed at this facility, the effect on expenses and resources of the facility; the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); 2011 Warner Norcross & Judd LLP. All rights reserved. Page 14

LEAVE AS A REASONABLE ACCOMMODATION Undue Hardship cont. the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; the impact of the accommodation on the operation of the facility. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 15

LEAVE AS A REASONABLE ACCOMMODATION Undue Hardship Remember An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices toward the individual's disability. Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees' ability to work. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 16

FMLA

FMLA BACKGROUND Who is covered by the FMLA? Employers who have: 50 or more employees in 20 or more work weeks per year worked at a site within 75 miles of which the employer has 50 employees Employees who have: worked with the employer for one year or more worked 1250 or more hours in the past 12 months 2011 Warner Norcross & Judd LLP. All rights reserved. Page 18

FMLA BACKGROUND What Does the FMLA Provide? Eligible employees are entitled to: 12 work weeks of leave within a 12-month period 26 work weeks to care for a covered service member Can be intermittent (one day or one hour) Continued benefits Reinstatement to the same or an equivalent position 2011 Warner Norcross & Judd LLP. All rights reserved. Page 19

FMLA BACKGROUND For What Reasons May an Employee Take FMLA Leave? Serious Health Condition Employee s own condition To care for a spouse, parent or child with a serious health condition Birth, adoption or placement of a child for foster care 2011 Warner Norcross & Judd LLP. All rights reserved. Page 20

FMLA BACKGROUND What is a Serious Health Condition? A condition involving inpatient care, including any follow-up treatment or recovery period A condition of incapacity for more than three consecutive calendar days if the condition involves continuing treatment from a health care provider A chronic or long-term condition that requires periodic treatment and continues over a period of time A major medical condition (cancer, HIV, stroke) Treatment necessary to prevent a serious health condition A condition caused by pregnancy or prenatal care 2011 Warner Norcross & Judd LLP. All rights reserved. Page 21

FMLA NDAA AMENDMENTS National Defense Authorization Act created two (2) new categories of leave Military Caregiver Leave Qualified Emergency Leave 2011 Warner Norcross & Judd LLP. All rights reserved. Page 22

MILITARY CAREGIVER LEAVE Eligible employee may take up to 26 weeks of leave in a single 12-month period to care for a covered service member with a service-related serious injury or illness. Eligible employee includes spouse, son, daughter, parent and next of kin of covered service member. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 23

MILITARY CAREGIVER LEAVE Covered service member is: A member of armed forces (including National Guard and Reserves) who is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is otherwise on the temporary disability retired list for a serious injury or illness A veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness and who was a member of the Armed Forces at any time during the 5 years preceding the care 2011 Warner Norcross & Judd LLP. All rights reserved. Page 24

MILITARY CAREGIVER LEAVE Injury or illness must have been incurred in line of duty and must be such that it may render person medically unfit to perform duties of office, grade, rank, or rating Available to spouse, child, parent or next of kin (defined as nearest blood relative to service member) who is needed to care for service member Up to twenty-six (26) weeks of leave during one 12-month period 2011 Warner Norcross & Judd LLP. All rights reserved. Page 25

MILITARY CAREGIVER LEAVE 26 week entitlement is per covered service member and per separate, subsequent injury or illness (subject to 26 week maximum in a 12-month period) Leave is available immediately Employer may require medical certification from employee 2011 Warner Norcross & Judd LLP. All rights reserved. Page 26

QUALIFYING EXIGENCY LEAVE Leave due to an qualified exigency arising out of the fact that son, daughter or parent is on active duty or has been notified of impending call to duty to support a contingency operation Wide list of qualifying exigencies Available to spouse, child or parent of service member Up to twelve (12) weeks of leave during one 12-month period 2011 Warner Norcross & Judd LLP. All rights reserved. Page 27

QUALIFYING EXIGENCY LEAVE Short Notice Deployment To address issues that arise because covered military member receives short notice deployment of impending call or order to active duty in support of contingency operation Short notice deployment is seven (7) days or less notice Leave limited to seven (7) calendar days from date of notice 2011 Warner Norcross & Judd LLP. All rights reserved. Page 28

QUALIFYING EXIGENCY LEAVE Military Events and Related Activities To attend an official ceremony, program or event sponsored by the military that is related to active duty status of covered military member; and To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or American Red Cross and that are related to active duty or call to active duty status of covered military member. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 29

QUALIFYING EXIGENCY LEAVE Childcare and School Activities To arrange for alternative childcare when active duty or call to active duty status of covered military member necessitates a change in the existing childcare arrangements To provide childcare on an urgent, immediate need basis when need arises from active duty or call to active duty status of covered military member To enroll in or transfer child to new school or daycare facility when necessary due to active duty or call to active duty status of covered military member 2011 Warner Norcross & Judd LLP. All rights reserved. Page 30

QUALIFYING EXIGENCY LEAVE Childcare and School Activities To attend meetings with staff or daycare facility (e.g., discipline, parent/teacher conferences, meetings with counselors) when meetings are necessary due to active duty or call to active duty status of covered military member. Child Leave for Childcare and School Activities and for Counseling may be taken for biological or adopted child, foster child, stepchild, legal ward of covered military member, or child for whom military member stands in loco parentis, who is either under 18, or 18 or older and incapable of self-care because of mental or physical disability at time leave is to commence. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 31

QUALIFYING EXIGENCY LEAVE Financial or Legal Arrangements To make or update financial or legal arrangements to address covered military member s absence while on duty or active call to duty (e.g., preparing or updating legal documents, transferring bank account signature authority, enrolling in Defense Enrollment Eligibility Reporting System, obtaining military ID cards). To act as covered military member s representative before a federal, state or local agency to obtain, arrange or appeal military service benefits while military member is on active duty or call to active duty status and for 90 days following termination of active duty status. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 32

QUALIFYING EXIGENCY LEAVE Rest and Recuperation To spend time with a covered military member who is on short-term, temporary rest and recuperation leave during period of deployment. Leave is limited to 5 days or less of leave in each instance. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 33

QUALIFYING EXIGENCY LEAVE Post-Deployment Activities To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by military following termination of covered military member s active duty status, and To address issues that arise from the death of covered military member while on active duty status (e.g., meeting to recover body and making funeral arrangements). 2011 Warner Norcross & Judd LLP. All rights reserved. Page 34

QUALIFYING EXIGENCY LEAVE Additional Activities by Agreement To address other events which arise out of the covered military member s active duty or call to active duty status provided that employer and employee agree that leave qualifies and agree to timing and duration of leave. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 35

MILITARY LEAVE Should now be in your Employee Handbook Policy New FMLA Poster Includes Military Family Leave http://www.dol.gov/whd/regs/compliance/ posters/fmla.htm 2011 Warner Norcross & Judd LLP. All rights reserved. Page 36

EMPLOYEE NOTICE OBLIGATIONS Designation of FMLA Leave Employees need not expressly assert FMLA, but must explain reasons for leave so as to allow employer to determine whether leave qualifies as FMLA leave. If in doubt, employer must inquire further. If employee fails to explain reasons, leave may be denied. If dispute as to whether leave qualifies as FMLA leave, it should be resolved through discussions which must be documented. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 37

EMPLOYEE NOTICE OBLIGATIONS Foreseeable FMLA Leave: Timing If leave is foreseeable, employee must provide at least 30 days notice. If leave is not foreseeable 30 days in advance, employee must provide advance notice as soon as practicable. Employee must only provide notice once for each qualifying reason. If dates of scheduled leave are unknown or change, employee must provide notice as soon as practicable. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 38

EMPLOYEE NOTICE OBLIGATIONS Foreseeable FMLA Leave: Timing If employee fails to provide 30 days notice, s/he must explain why notice was not practicable upon employer s request. As soon as practicable means as soon as both practical and possible under the circumstances. Should generally be either same day employee became aware of need for leave or next business day. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 39

EMPLOYEE NOTICE OBLIGATIONS Foreseeable FMLA Leave: Content of Notice Initial request: employee need not mention FMLA, but must provide enough information to make employer aware that FMLA may apply, along with anticipated timing and duration of leave. Additional leave for existing FMLA condition: employee must specifically reference qualifying reason or need for FMLA leave. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 40

EMPLOYEE NOTICE OBLIGATIONS Foreseeable FMLA Leave: Notice Procedure Absent unusual circumstances, employer may require employees to comply with usual and customary notice requirements and procedures for requesting leave Written notice setting forth reason(s) and anticipated time and duration. Contact specific employer representative If employee fails to comply and no unusual circumstances, leave may be delayed or denied 2011 Warner Norcross & Judd LLP. All rights reserved. Page 41

EMPLOYEE NOTICE OBLIGATIONS Foreseeable FMLA Leave: Planned Medical Treatment Employee must consult with employer and make reasonable effort to schedule treatment so as not to unduly disrupt employer s operations, subject to approval of provider. If employee fails to consult with employer about planned medical treatment, employer can initiate discussions. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 42

EMPLOYEE NOTICE OBLIGATIONS Unforeseeable FMLA Leave: Timing Notice must be given as soon as practicable under the circumstances. Notice may be given by employee s spokesperson if employee unable to give notice personally. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 43

EMPLOYEE NOTICE OBLIGATIONS Unforeseeable FMLA Leave: Content of Notice Employee need not expressly assert FMLA rights or mention FMLA. Employee must at least provide sufficient information for employer to determine whether FMLA may apply. Calling in sick without more information will not be considered sufficient notice to trigger employer s obligations. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 44

EMPLOYEE NTOICE OBLIGATIONS General Notice Every covered employer is required to conspicuously post on its premises the DOL s general FMLA notice. Must be posted where employees and applicants can readily see it. Covered employer must post even if no eligible employees. If any eligible employees, employer must include content of general notice in employee handbooks or other written benefit or leave materials, or distribute to each new employee at time of hire. Electronic posting is appropriate. If significant portion of workforce not literate in English, employer must provide general notice in language which employees are literate. Failure to post = $110 fine per offense. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 45

EMPLOYER NOTICE REQUIREMENTS Eligibility Notice Upon employee request or employer knowledge, employer must notify employee of eligibility to take leave. Absent extenuating circumstances, notice must be provided within 5 business days. Eligibility determined at time leave is to begin for each qualifying reason. If employee is eligible for leave, s/he remains eligible for all absences for that same condition/reason within 12 month period. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 46

EMPLOYER NOTICE REQUIREMENTS Designation Notice Employer must notify employee in writing whether leave will or will not be designated as FMLA leave and counted against entitlement. Must be delivered within 5 business days of when employer has enough information to determine whether leave is / is not FMLA leave. Only one Designation Notice per each FMLA qualifying reason (regardless of how leave is taken). 2011 Warner Norcross & Judd LLP. All rights reserved. Page 47

EMPLOYER NOTICE REQUIREMENTS If employer does not timely designate leave as FMLA leave, employer may retroactively designate leave with notice to employee as long as employee is not harmed. If employer s failure to designate caused harm to employee, employer may be liable to employee for interference with, restraint of or denial of employee s FMLA rights. Employer failure to follow notice requirements may constitute interference with, restraint, or denial of employee FMLA rights. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 48

TRANSFER DURING INTERMITTENT/ REDUCED SCHEDULE LEAVE If an employee needs intermittent or reduced schedule leave due to planned medical treatments of the employee or a covered family member, the employer may temporarily transfer the employee to an alternative position that better accommodates the leave. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 49

INTERMITTENT LEAVE Amount of Leave- Charging Leave An employee may take leave in the shortest increment of time the employer uses to account for other forms of leave, and in no event longer than one hour. Employee may not be charged with leave for time actually worked: E.g., if employer uses 1 hour minimum increment it may prohibit employee who arrives 15 minutes late from punching in for a full hour, and may charge the full hour as FMLA leave. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 50

TRANSFER DURING INTERMITTENT/ REDUCED SCHEDULE LEAVE The alternative position: Must be at the same pay and benefits. Must have the same number of hours at work opportunity. Must not discourage leave, e.g.: White collar to laborer transfer prohibited. Transfer to less desirable shift prohibited. The Preamble makes clear that transfer is not allowed just because the employee is using intermittent or reduced schedule leave. Must be due to planned medical treatment. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 51

EQUIVALENT POSITION - Bonuses An employee who does not meet a qualification standard for a bonus due to FMLA leave is not entitled to the bonus. E.g., an employee who does not have perfect attendance due to unpaid FMLA leave is not entitled to a perfect attendance bonus. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 52

EQUIVALENT POSITION - Bonuses However, if the employer pays the bonus to employees on equivalent leave status for a reason that does not qualify for FMLA leave, the bonus must also be paid for FMLA leave that qualifies for the equivalent leave status. E.g., if an employer pays a perfect attendance bonus to employees who miss time due to paid vacation, the bonus must also be paid to an employee who uses paid vacation for FMLA leave. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 53

CERTIFICATIONS Time for Furnishing Medical Certification Employee must return completed health care provider certification within 15 calendar days after employer notifies employee that certification is required. 15 day period is extended if it is impracticable for the employee to meet the deadline despite the employee s diligent good faith efforts. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 54

CERTIFICATIONS Time for Furnishing Medical Certification In addition to re-certifications (discussed below) the new Regulations say that an employer may require a new certification once each leave year. The DOL had already taken this position in an opinion letter and it is now part of the Regulations. This new provision is significant because second and third medical opinions are allowed for a certification, but not for a recertification. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 55

CERTIFICATIONS Incomplete or Insufficient Medical Certification If the employee provides a medical certification that is incomplete or insufficient, the employee has not met the medical certification requirement. Incomplete one or more of the entries has not been completed. Insufficient form is complete, but information is vague, ambiguous or non-responsive. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 56

CERTIFICATIONS Incomplete or Insufficient Medical Certification Employer must notify employee in writing that the certification is incomplete or insufficient and why, and employee has 7 calendar days from date of notice to correct the deficiency. 7 day period is extended if it is impractical for the employee to meet the deadline despite the employee s diligent good faith efforts. New Form WH-382, Designation Notice, (Appendix E to Regulations) includes blanks to notify employee of incomplete or insufficient medical certification. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 57

MEDICAL CERTIFICATION Authentication and Clarification Employer may contact the health care provider who furnishes certification: For authentication (i.e., to verify the authenticity of the form from the health care provider). For clarification (e.g., to decipher handwriting or to understand the meaning of a response). 2011 Warner Norcross & Judd LLP. All rights reserved. Page 58

MEDICAL CERTIFICATION Authentication and Clarification If the certification is deficient, then before the employer contacts the employee s health care provider, the employer must give the employee the opportunity to correct any deficiencies in the certification (see Incomplete or Insufficient Certification ). 2011 Warner Norcross & Judd LLP. All rights reserved. Page 59

MEDICAL CERTIFICATION Authentication and Clarification The new Regulations delete the requirement that only the employer s health care provider may contact the employee s health care provider. Instead, the Regulation specifies that an employer s health care provider, human resources professional, leave administrator or management official (but not the employee s direct supervisor) may contact the employee s health care provider. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 60

MEDICAL CERTIFICATIONS Second and Third Medical Opinions If the employer has reason to doubt the employee s medical certification, the employer may require a second medical opinion, at the employer s expense (employee must be placed on provisional leave including health care continuation while the second opinion is obtained). Employer may designate the second opinion provider, but it may not be a provider which the employer regularly utilizes. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 61

MEDICAL CERTIFICATIONS Second and Third Medical Opinions If the second opinion does not support the initial certification, the employer may require a third opinion at the employer s expense. The employer and employee must agree on the third health care provider. The third opinion is conclusive. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 62

CERTIFICATIONS - Re-certifications An employer may require recertification from the health care provider no more often than every 30 days and only in connection with an absence by the employee. If the initial certification indicated that the condition would last more than 30 days, the employer may not require recertification every 30 days. E.g., an initial certification that said the employee would be intermittently absent for a year. However, the employer may require recertification at least once each 6 months in connection with an absence. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 63

CERTIFICATIONS - Re-certifications The employer may require recertification in connection with an absence at any time if: The leave is to be extended. Circumstances described in the certification have changed significantly (e.g., if the certification stated that employee would be intermittently absent for a day at a time and the employee is absent for multiple days). The employer reasonably suspects fraud (e.g., the employee engages in actions inconsistent with the leave, or the employee has pattern absences ). 2011 Warner Norcross & Judd LLP. All rights reserved. Page 64

CERTIFICATIONS Fitness for Duty Certification Employer may require an employee on leave due to employee s own serious health condition to furnish medical certification that employee is able to resume work. Requirement must be uniformly applied to similarly situated employees (e.g., same occupation, same serious health condition). 2011 Warner Norcross & Judd LLP. All rights reserved. Page 65

CERTIFICATIONS Fitness for Duty Certification Fitness for duty certification is limited to the health condition for which the employee took the leave. General medical exam not allowed; employer may only require certification from employee s health care provider that employee is able to return. Employer may require certification that employee is able to perform essential job functions if: Employer provided employee with a list of essential job functions no later than the date of the Designation Notice to the employee (825.300(d)) and advised employee at that time that fitness for duty certification would be required. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 66

CERTIFICATIONS Fitness for Duty Certification No second or third opinions. Employer must notify employee of insufficient or incomplete certification and give employee 7 days to cure. Employer may contact health care provider for authentication or clarification (825.307(a)). Employee pays for certification. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 67

ENFORCEMENT Interference, Settlements Retaliation for exercise of FMLA rights is prohibited Interference with FMLA rights is prohibited An employee cannot waive his/her right to FMLA leave An employee may settle an FMLA violation claim, and a release/waiver of employer liability for past violations if the FLMA is permitted as part of such a settlement 2011 Warner Norcross & Judd LLP. All rights reserved. Page 68

MILITARY LEAVES

MILITARY LEAVE Michigan Law MCLA 32.271 No person shall discriminate against any officer or enlisted man of the military or naval forces of the state or of the United States because of his membership therein. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 70

MILITARY LEAVE MCLA 32.272: No employer or officer or agent of any corporation, company, or firm, or other person shall discharge any person from employment because of being or performing his duty as an officer or enlisted man of the military or naval forces of this state, or hinder or prevent him from performing any military service or from attending any military encampment or place of drill or instruction, he may be called upon to perform or attend by proper authority, or dissuade any person from enlistment or accepting a commission in the national guard or naval militia by threat of injury to him in respect to his employment, trade, or business in case of his enlistment or acceptance of a commission. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 71

MILITARY LEAVE MCLA 32.273 An employee who gives advance notice for a period of leave from his or her employment shall not be denied a leave of absence by his or her employer for the purpose of being inducted into or entering into active service, active state service, or the service of the United States, for the purpose of determining his or her physical fitness to enter the service, or for performing service as an officer or enlisted member of the military or naval forces of this state or of the United States in active state service or under title 10 or title 32 of the United States code. If the employee reports to work or applies to the employer within 45 days or, if the service was for more than 180 days, within 90 days following release from service, release from duty, or rejection, the employer shall reemploy the employee.... 2011 Warner Norcross & Judd LLP. All rights reserved. Page 72

MILITARY LEAVE Federal Law The Uniformed Services Employment and Reemployment Rights Act of 1994 is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other uniformed services: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 73

MILITARY LEAVE USERRA The pre-service employer must reemploy servicemembers returning from a period of service in the uniformed services if those servicemembers meet five criteria: The person must have been absent from a civilian job on account of service in the uniformed services; The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable; The cumulative period of military service with that employer must not have exceeded five years; The person must not have been released from service under dishonorable or other punitive conditions; and 2011 Warner Norcross & Judd LLP. All rights reserved. Page 74

MILITARY LEAVE USERRA cont. The person must not have been released from service under dishonorable or other punitive conditions; and The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 75

MILITARY LEAVE USERRA cont. The time limits for returning to work are as follows: Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible. 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible. 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service. Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 76

MILITARY LEAVE Federal Law Health and pension plan coverage for servicemembers is also addressed by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer-sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the servicemember had remained employed. USERRA pension protections apply to defined benefit plans and defined contribution plans as well as plans provided under federal or state laws governing pension benefits for government employees. For purposes of pension plan participation, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 77

MILITARY LEAVE Federal Law USERRA provides that returning servicemembers are to be reemployed in the job that they would have attained had they not been absent for military service (the "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemembers to qualify for reemployment. If the servicemember cannot qualify for the "escalator" position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 78

WORKERS COMPENSATION

WORKERS COMPENSATION Work-related injuries include: Physical injuries and illnesses arising out of and in the course of employment; Mental disabilities, if arising out of actual events of employment; Conditions of the aging process, including heart and cardiovascular conditions, if contributed to or aggravated in a significant manner by the course of employment; and Diseases or disabilities due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arise out of and in the course of employment. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 80

WORKERS COMPENSATION Provides Economic Damages Wage loss benefits Based on 39 highest of the 52 pay weeks prior to the date of injury Benefit is not taxed Weekly benefit rate is capped 2011 Warner Norcross & Judd LLP. All rights reserved. Page 81

WORKERS COMPENSATION Provides Economic Damages Medical Treatment Reasonable and necessary medical treatment for the work related condition Health care providers are paid based on the workers compensation fee schedule Employer controls the medical treatment for the ten days immediately following the injury 2011 Warner Norcross & Judd LLP. All rights reserved. Page 82

WORKERS COMPENSATION Provides Economic Damages Vocational Rehabilitation Up to 104 weeks Claimant may request voc rehab Employer may compel cooperation Typically involves a voc rehab counselor and a formalized plan Success largely depends on commitment of the claimant 2011 Warner Norcross & Judd LLP. All rights reserved. Page 83

WORKERS COMPENSATION Provides Economic Damages Wage loss and medical benefits are potentially life long Discontinued fringe benefits may increase weekly benefit rate Other income may be coordinated 2011 Warner Norcross & Judd LLP. All rights reserved. Page 84

FMLA AND MICHIGAN WDCA Employer may require employee to use FMLA leave while off for work-related injury or illness Create a policy Uniformly enforce the policy May use for physical therapy and physician visits as well as lost time claims 2011 Warner Norcross & Judd LLP. All rights reserved. Page 86

FMLA AND MICHIGAN WDCA Michigan WDCA allows an employer to offer a claimant light-duty work Claimant may chose to take FMLA leave and decline lightduty job Claimant s workers compensation wage loss benefits are suspended but employee remains on FMLA leave 2011 Warner Norcross & Judd LLP. All rights reserved. Page 87

FMLA AND MICHIGAN WDCA FMLA requires an employer to continue to provide health insurance coverage with some qualifications Michigan WDCA does not require continuation of benefits Workers compensation claimant must be treated as well as employee on leave for non-work related injury Cash value of discontinued fringe benefit may increase weekly benefit rate, so notify workers compensation adjustor 2011 Warner Norcross & Judd LLP. All rights reserved. Page 88

JURY DUTY LEAVES

JURY DUTY Federal Law 29 USC 1875. PROTECTION OF JURORS EMPLOYMENT (a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee s jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 90

JURY DUTY Federal Law 29 USC 1875. PROTECTION OF JURORS EMPLOYMENT (b) Any employer who violates the provisions of this section (1) shall be liable for damages for any loss of wages or other benefits suffered by an employee by reason of such violation; (2) may be enjoined from further violations of this section and ordered to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged by reason of his jury service; and (3) shall be subject to a civil penalty of not more than $5,000 for each violation as to each employee, and may be ordered to perform community service. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 91

JURY DUTY Federal Law 29 USC 1875. PROTECTION OF JURORS EMPLOYMENT (c) Any individual who is reinstated to a position of employment in accordance with the provisions of this section shall be considered as having been on furlough or leave of absence during his period of jury service, shall be reinstated to his position of employment without loss of seniority, and shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such individual entered upon jury service. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 92

JURY DUTY Federal Law 29 USC 1875. PROTECTION OF JURORS EMPLOYMENT (d) (1) An individual claiming that his employer has violated the provisions of this section may make application to the district court for the district in which such employer maintains a place of business and the court shall, upon finding probable merit in such claim, appoint counsel to represent such individual in any action in the district court necessary to the resolution of such claim. Such counsel shall be compensated and necessary expenses repaid... 2011 Warner Norcross & Judd LLP. All rights reserved. Page 93

JURY DUTY Federal Law 29 USC 1875. PROTECTION OF JURORS EMPLOYMENT (d) (2) In any action or proceeding under this section, the court may award a prevailing employee who brings such action by retained counsel a reasonable attorney s fee as part of the costs. The court may tax a defendant employer, as costs payable to the court, the attorney fees and expenses incurred on behalf of a prevailing employee, where such costs were expended by the court pursuant to paragraph (1) of this subsection. The court may award a prevailing employer a reasonable attorney s fee as part of the costs only if the court finds that the action is frivolous, vexatious, or brought in bad faith. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 94

JURY DUTY Michigan Law MCLA 600.1348 (1) An employer or the employer's agent, who threatens to discharge or discipline or who discharges, disciplines, or causes to be discharged from employment or to be disciplined a person because that person is summoned for jury duty, serves on a jury, or has served on a jury, is guilty of a misdemeanor, and may also be punished for contempt of court. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 95

JURY DUTY Michigan Law MCLA 600.1348 (2) An employer or the employer's agent who requires a person having jury duty to work any number of hours during a day which, if added to the number of hours which the person spends on jury duty during that day, exceeds the number of hours normally and customarily worked by the person during a day, or the number of hours normally and customarily worked by the person during a day which extends beyond the normal and customary quitting time of that person unless voluntarily agreed to by that person, or as provided in a collective bargaining agreement is guilty of a misdemeanor, and may also be punished for contempt of court. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 96

RELIGIOUS LEAVE

RELIGIOUS LEAVE 42 U.S.C. 2000e-2(a) provides it is unlawful for an employer: to fail or refuse to hire or to discharge or to otherwise discriminate against any individual because of such individual s race, color, religion, sex or national origin to limit, segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual s race, color, religion, sex or national origin 2011 Warner Norcross & Judd LLP. All rights reserved. Page 98

RELIGIOUS LEAVE 42 U.S.C. 2000e(j) states: The term religion includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee s or prospective employee s religious observance or practice without undue hardship on the conduct of the employer s business 2011 Warner Norcross & Judd LLP. All rights reserved. Page 99

RELIGIOUS LEAVE Title VII defines undue hardship as more than de minimis cost or burden a substantially lower standard for employers to satisfy than the undue hardship standard under the ADA. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 100

RELIGIOUS LEAVE Employee s obligation is to make employer aware of both the need for an accommodation and that it is being requested due to a conflict between religion and work. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 101

RELIGIOUS LEAVE Employer should then obtain whatever additional information is needed to determine whether an accommodation is available that would eliminate religious conflict without posing an undue hardship on the operation of business. 2011 Warner Norcross & Judd LLP. All rights reserved. Page 102