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MANAGING LEAVES UNDER THEADA, FMLA, AND WORKERS’ COMPMARK WILETSKYHOLLAND & HART LLPOCTOBER 12, 2017
TODAY’S PRESENTERMark WiletskyHolland & Hart employment lawyer2
WE WILL EXPLORE: Limiting FMLA Abuse DisabilityAccommodations Interactive Process Overlap with Workers’Comp When FMLA Ends andADA Leave Begins Effect of MedicalMarijuana on Leavesand Accommodations3
IMPORTANT INFORMATIONThis presentation is similar to any other seminardesigned to provide general information on pertinentlegal topics. The statements made and any materialsdistributed as part of this presentation are provided foreducational purposes only. They do not constitute legaladvice nor do they necessarily reflect the views ofHolland & Hart LLP or any of its attorneys other than thespeakers. This presentation is not intended to create anattorney-client relationship between you and Holland &Hart LLP. If you have specific questions as to theapplication of the law to your activities, you should seekthe advice of your legal counsel.All Presentations and Materials 2017 Holland & Hart LLP4
LIMITING FMLA ABUSE5
RED FLAGS FOR ABUSE Use of intermittent leave increases overtime Use of leave exceeds what wasanticipated in certification Pattern of use suggests abuse New information suggests fraudulent useof leave (e.g., co-worker sees employeeskiing while on leave for a bad back)6
TIPS FOR LIMITING ABUSE - POLICIESAttendance PolicyTight call-in procedureNo Moonlighting PolicyProhibit working another job while on FMLA leaveSubstitution of Paid LeaveAll accrued paid time off must be used to run concurrently with FMLA (where permitted by law)Provide Job DescriptionsHave employee provide job description showing essential functions to health care provider whencompleting medical certification7
TIPS FOR LIMITING ABUSEUse MedicalCertificationsClarify incompleteor illegiblecertificationsSeek secondopinion8
SECOND (AND THIRD) OPINIONS Permitted when employer “has reason todoubt the validity of a medical certification” Employee is provisionally entitled to FMLAleave while second/third opinion sought Employer may select health care provider tofurnish second opinion, but cannot beemployed by employer Third opinion permitted if first two differ –becomes binding Second/third opinions at employer’s expense9
TIPS FOR LIMITING ABUSERecertifications: 30-day rule: No more oftenthan every 30 days If original certification wasfor longer than 30 days,must wait until that periodexpires At least every 6 months,regardless of duration10
TIPS FOR LIMITING ABUSERecertifications in less than 30 days: If employee requests extension of leave If circumstances significantly change– E.g., medical certification stated that 1-2 daysleave needed whenever employee suffersmigraine, but employee’s absences for migraineslast 4-5 days each If you have reason to doubt validity of reasonfor leave– E.g., employee on 4 weeks of FMLA leave forknee surgery is seen playing soccer11
ADA REASONABLE ACCOMMODATIONS Must accommodate a “known” disability– obvious disability (e.g., in a wheelchair, etc.)– upon request by applicant or employee – No“magic words” must be used Triggers Interactive Process12
INTERACTIVE PROCESS FOR DISABILITIESDiscuss with employeeEvaluate essential jobfunctionsIdentifylimitations/restrictions13
INTERACTIVE PROCESS CONTINUEDDetermine range of possibleaccommodationsEvaluate, considering unduehardship and direct threatTell employee and document14
EXAMPLES OF REASONABLE ACCOMMODATIONS Change to job applicationprocess Leave of absence Part-time or modified jobschedule Job restructuring Acquiring or modifyingequipment or the workplace Changing non-essentialpolicies Reassignment to a vacantposition15
RESPONDING TO AN ACCOMMODATION REQUESTRespondpromptlyBe interactivewithemployeeBe patient –process cantake awhile16Keep medicalinformationconfidentialDocument
ADA, FMLA & WORKERS' COMP 3 independent laws Some overlap ofcoverage Different benefits andprotections17FMLAADAWC
DISTINGUISHING WHEN EACH APPLIESADA Employers with15 employees Disability:Physical ormentalimpairment “Regarded as”disabled Record ofdisability18FMLAWorkers’ Comp Employers with50 employees Birth/placementof a child Employee’sserious healthcondition Family member’sserious healthcondition Qualifying militaryexigencies Service memberor veteran care All employerswith 1 employee On-the-job injury Occupationaldiseases
ADA, FMLA AND WC – WHICH APPLIES? Did Health Condition Arisefrom an on-the-Job Illnessor Injury? Is Employee’s HealthCondition and Need forLeave FMLA Qualifying?If No, FMLA Doesn’t ApplyIs Employee SubstantiallyLimited from Major LifeActivity by HealthCondition?If No, ADA Doesn’t ApplyIs Disabled EmployeeQualified to PerformEssential Functions of Jobwith or withoutAccommodations?If No, ADA Doesn’t Apply 19If No, WC Doesn’t Apply
EEOC – LEAVES AS ACCOMMODATION20
WHEN FMLA ENDS . . .If employee cannot return after 12 weeks ofFMLA is exhausted: Does employee have a disability?– If no disability, no job protections (unlessprovided by state laws or your own policies)– If disabled, employee may be entitled toadditional accommodations21
WHEN FMLA ENDS FOR DISABLED WORKER Engage in interactive process to determinepossible reasonable accommodations May need to offer additional time off– Leave need not be for indefinite time22
PARAMETERS OF LEAVE AS AN ACCOMMODATION Multi-month leave is unreasonable (SeventhCircuit) Short term or intermittent leave probablyreasonable (Seventh, Tenth, and othercircuits) Six month leave (provided under employer’spolicy) need not be extended as anaccommodation (Tenth circuit) EEOC: definite period of leave can bereasonable accommodation if would enableemployee to return to work23
DIFFICULT DECISIONS Return-to-work date continues to bepushed back – how much is enough? Employee returns for short periods of timebut then needs to take more time off ongoing problem Are you setting a precedent that must beoffered to other employees?24
MARIJUANA – ACCOMMODATIONS?25
ANTI-DISCRIMINATION PROVISIONSAt least eight states include some type of banon employer discrimination against legal usersof medical marijuana: Arizona Connecticut Delaware Illinois Maine Nevada New York Minnesota26
DISABILITY ACCOMMODATION Some states with legalized medicalmarijuana require anaccommodation– Nevada: employer must reasonablyaccommodate the medical needs of anemployee who uses medicalmarijuana, absent undue hardship,direct threat of danger or prohibitemployee from fulfilling duties– New York: “certified patient” under NYmedical marijuana law deemeddisabled27
MASSACHUSETTS CASE (2017) Employee suffered from Crohn’s disease Permitted to use medical marijuana underMassachusetts law Fired under her employer’s policy whenshe tested positive for marijuana MA Supreme Court: employee can sueemployer for disability discrimination– the fact that marijuana use violates federallaw does not make off-site use per seunreasonable as a disability accommodation28
COLORADO CASE (2013) Employee suffered from hepatitis C, osteoarthritis andpain He used medical marijuana off-duty in compliance withCO law He was fired after he tested positive which violatedemployer’s written drug policy Federal court rejected his claim for disabilitydiscrimination under Colorado law– “anti-discrimination law does not extend so far as to shielda disabled employee from the implementation of hisemployer’s standard policies against employeemisconduct”Curry v. MillerCoors, Inc., No. 12-cv-02471 (D. Colo.Aug. 21, 2013).29
WHAT DO YOU THINK? Hospital has very detailed attendancepolicy, including specific call-in procedures RN was approved for intermittent FMLAleave for migraines but failed to meet callin requirement Can the hospital discipline or terminate herbased on attendance policy for absencesthat otherwise qualify as FMLA leave?30
ANSWER THOSE EMAILS? Physician’s assistant broke her foot andcan’t work while on crutches Hospital asks if she can keep up with heremails from home, including requests forRx refills, responding to patient calls,reviewing lab tests, and sendingmessages PA didn’t object Interference with FMLA leave?31
THANK YOU!QUESTIONS?Mark WiletskyMBWiletsky@hollandhart.com303-473-286432
Have employee provide job description showing e ssential functions to health care provider when . Different benefits and protections FMLA ADA WC. 18 DISTINGUISHING WHEN EACH APPLIES ADA Eh wsteroymipl . employer's standard policies against employee misconduct" Curry v. MillerCoors, Inc., No. 12-cv-02471 (D. Colo. Aug. 21, 2013). 30
