"Good Intentions Gone Awry: What Every Employer Should Know About the Interaction of the ADA and FMLA" Presented by: Peter Petesch >> JACQUIE: Good afternoon everyone and welcome to the webcast good intentions gone awry what every employer should know about the interaction of the ADA and FMLA. My name a Jacquie Brennan and I'm with the tech southwest center at ILRU. I will be moderating today's webcast and posing your questions to the presently. You can submit questions throughout this webcast, however, I want to encourage you to submit questions you already have at the beginning. You can submit questions by clicking the submit question button at the bottom of your RealOne Player screen or simply address an E-mail to webcast@ilru.org. We have worked out our speaker's question answer preference and Peter has asked me to interrupt him with questions and I'm telling the audience so you know I won't be rude interrupting him. You E-mail the questions and they travel in the magic way they travel and they go to my sidekick Maria, she prints them and slides them under my door. Don't be dismayed if your question doesn't immediately interrupt Peter. We will do that quickly now. If anyone has difficulty during the webcast call us at (713)520-0232 and dial 0 for the operator. This number is both voice and TTY capable. As previously mentioned, today's webcast is good intentions gone awry, what every employer should know about the interaction of the ADA and FMLA. It is being presented by Peter Petesch who is a managing part with the Washington D.C. office of the management side labor law firm Ford & Harrison, LLP. Peter represents a wide variety of businesses in labor and employment matters. He's admitted to practice in Maryland, the District of Columbia, worked with the federal appellate courts nationwide and the U.S. Supreme Court. He counsels employers on problem solving and employment policy matters, litigates employment in labor cases and negotiates collective bargaining agreements. He teaches employment law to both human resource professionals and attorneys in continuing education courses. He was counsel for the Society of Human Resource Management on SHRM's amicus curiae in four landmark Supreme Court ADA cases. He served on their possible of corporate responsibility. He's been a presenter at several of SHRM's many conference and other employment law issues. He's public languished numerous articles on the ADA and other employment issues in HR magazine, HR legal report and often appeared on SHRM's HR Newsscan. Mr. Petesch has been interviewed and published on PBS, CBS, NPR, "The Wall Street Journal", "U.S.A. Today," "HR Magazine," "HR News," "Daily Report," "Money," "Workforce" and the business sections of newspapers nationwide. All of that was mere prelude to what he will surely count as the pinnacle of his career presenting this webcast today and with that Peter, I turn the webcast over to you. >> PETER: Thank you very much. I am very pleased to be here. One thing I haven't done a lot of in my career is webcasts and telecasts where I'm the only one speaking. And so I'm already getting lonely. Again, as we've encouraged you, please, please send in your questions and I am more than pleased to break up the presentation and get your questions. I'm coming in here from a management perspective from an employer's perspective. And I try to see things both ways as best I can and I've seen from the website that you have a lot of presenters, including two very distinguished lawyers from the Equal Employment Opportunity Commission Sharon and Chris both who I consider to be not only excellent attorneys but also friends and I have a large amount of respect for them. As you go through the past presentations, click on their presentations because they have a lot of really valuable things to say. What we're addressing today is a very complicated sometimes interchange between two different laws. One is the Americans with Disabilities Act and the other one is the Family and Medical Leave Act. I'm going to assume for the purposes of this presentation a certain amount of background knowledge of the participants on both laws. I will get back to the essential elements, too just to keep everybody up to speed as best I can. Just by their very, very nature the ADA and the FMLA are quite different laws and the FMLA has a lot of very, very what seems to be exacting regulation. The basic requirements are considerably less fluid than the ADA and we get to the ADA, which is fluid by very necessity both with respect to what's the reasonable accommodation as well as who is even covered by the law. Over 15 years into the law, we're still trying to figure out exactly who is protected. It's always going to be done on a day by day basis as our reasonable accommodations and that's what makes the interchange between the two laws just so challenging. Before I get into topics to be discussed on my next slide I also want to say it would have been real easy if we had one law that was a one stop shopping law or leave of absence and another law that was your one stop shopping for reasonable accommodation. But as we know, it's never that easy and this is certainly one area where there has been an -- and will continue to be -- a great detail of controversy on how far the employer's obligation goes. On my topics here we are going to talk about employer rights and responsibilities under both laws and I do want to stress that employees also have a great amount of responsibility under these laws (indiscernible) and to follow up responsibility to document their condition. We're going to go over defining disability under the ADA and we're going to talk about the serious health condition under the Family and Medical Leave Act. We're going to talk about reasonable accommodations, of course, because that's what a leave of absence can be. We're going to go over concurrent leave under back and forth the ADA and FMLA. We're going to talk about light duty policies and sometimes the blended accommodations that I will refer to later where a person may be on leave and then come back either or transition back to their full-time position or transition back to perhaps another position. So the leave maybe part of a blend of a variety of different accommodations. And finally, I want to get to something that stems from a very, very recent 4th circuit decision on releases and settlement agreements. We can save that to the very end but I think that any seminars taught this week on the Family and Medical Leave Act would be not up to date if we didn't (indiscernible). Let's go to the next slide on employee right and employer responsibilities under the ADA and FMLA and then talk about in the next slide who is even covered by these laws. Let's take a look at a category in the next slide under ADA. In the ADA covers employers of 15 or more persons. What you need to look at is in the current or preceding years are the 20 weeks and we will find the employers are covered by the ADA. It gets pretty much overlapped with Title 7 of the Civil Rights Act same threshold number of employees. As we're talking about that let's also remember that employers, even if they are not covered by the ADA, they would be covered by state or local fair employment laws, which in many, many cases have a lower threshold of employees in order to for the employer to be covered. Very, very low flesh hold in the District of Columbia. Now the FMLA is a little bit different and let's also remember that the distinction between those two laws, the ADA is married, in a way, to Title 7 of the civil rights account and let's talk about enforcement mechanism ifs for both. ADA is enforced, the administrative complaint of the Equal Employment Opportunity Commission. EEOC interrupts standards under the ADA. Whereas the FMLA is administered by a regulation that comes out of the Department of Labor and if anything the FMLA follows more the theme of wage hour laws, which is actually significant when we start talking at the very, very end, hopefully, about waivers and releases under that law. The FMLA covers employers with 50 or more employees and I will get to in a moment on the next slide, it's a little more complicated than that because in the next slide under covered employees it talks about individuals working for employers with 50 or more employees and it's only going to apply when they have 50 or more employees within a 75 mile radius. So an employer may have a couple of hundred employees around the country, but FMLA may not apply if the employer doesn't have a CIL mass of employees within a 75 mile radius. Once again, just like when you talk about the ADA, even with the FMLA you have to ask one more question which is: What about state laws and local laws? Once again where I'm broadcasting from is the District of Columbia we have our own Family and Medical Leave Act that is somewhat parallel to the federal one but there are differences. As you go down the column in the slide we are in, the federal FMLA will cover employees, who have worked 1,250 hours. Again a different threshold and that 12-month period and now on a different subject when you can start taking the leave that you are entitled to under that act and how often you can take leave. Let me skip ahead and also focus on when you're eligible under that act. When you ask for it and once it's granted, you can't revoke it because the employee is later deemed ineligible. The theory that was created by regulation of the labor department. There have been cases that have taken issue with that saying that the regulation can't create a bright statutory right where congress sits. So that's a little bit up in the air. Let's go to who is covered by the ADA. We can spend a whole hour and a half talking about that but we won't. Any qualified individual with a disability. That's just great. 15 years and once again, we're fighting over who is covered by the ADA and we have qualified and we have disability and disability, of course, is physical or mental impairment that's substantially limits one or more major life activities of the individual. That's a mouthful and that has been dissected by lawyers on all sides of the coin with a lot of theories bearing results. Let's also look at the term "qualified" because that's what we're going to talk about in the leave of absence theme. They qualified with or without reasonable accommodation if he can perform the essential function of the job. Every word I use has been a battleground. The important thing to remember in comparing and contrasting the ADA and FMLA for this is you don't have to serve requisite tenure of time in order to be A, protect bid the law; and B, entitled to a reasonable accommodation if in fact you are protected and qualify for the job. So an individual who maybe protected or covered under the ADA would conceivably be entitled to a leave of absence at a reasonable accommodation on day two or day three of the job in contrast with somebody who may be taking leave under the Family and Medical Leave Act and that's something that employers don't always take into account. Of course, the ADA also covers out of a job. To the next slide on this and talk about covered conditions. I also want to backtrack. We don't have to backtrack on the slide but I want to put in your head the concept of different kinds of leave available really under both acts. We can talk about straight blocks of leave of absence as a reasonable accommodation under the ADA and FMLA. But let's also put our back of the minds the concept of intermittent leave. Which is leave of small span black with time working interspersed with that or sporadic that may be covered under either law. That's where things can get really complicated and, frankly, really frustrated for everybody concerned. Now on the slide that says covered addition, it should be in front of you. ADA let's first talk about that. Talks about, again, physical or mental impairment that substantially limits a life activity. A record of such impairment or someone who is regarded or perceived to be disabled, have a disability. There was a recent case coming out of the 3rd circuit that was circuit because we assumed in the past that it was only people with actually disabilities who were entitled to reasonable accommodations in the first place. There was a 3rd circuit case that started casting some doubt on that that there was really no distinction on the discussion of reasonable accommodation between people with actual disabilities versus those who were protected under the perceived act. So people perceived as having a disability may in some circuit have an entitlement to a reasonable accommodation if the need is there. It's kind of interesting -- like I say it's split among the circuits and one of these days it will be to the Supreme Court but we don't know. Let's also get to the Family and Medical Leave Act what the covered condition that might necessitate leave there. Well we have got serious health condition of the employee or employee's spouse, child or parent. That's what we're going to be talking about more than first placement of adoption of a child because there's really not much interaction between the ADA and FMLA on that. Pregnancy and the like is not a disability under the Americans with Disabilities Act and that's very consistent with cases that also talk about temporary conditions not being a disability under the Americans with Disabilities Act. But I do want to backtrack and talk about serious health conditions of the employee, the employee's spouse, child or parent because there are certainly leave issues that may confront caregivers and at least under the ADA while caregivers may have certain protection against job discrimination as persons associated with people with disabilities, the short-term for that is vocational discrimination. They do not get people protected under the ADA in that manner do not have the same right to a reasonable accommodation. For example, time away from work to care for the person. But by the same token, it is very likely that if they have paid their dues and paid their requisite hours and met the statutory and regulatory rules under the Family and Medical Leave Act that individuals may have a right to leave to care for an individual under the Family and Medical Leave Act, at least individuals numerated under that law, spouse, child or parent. Once again, they have to ask for stuff and I want you to get in the habit doing that. What about state law, local law? Once again I will compare my own jurisdiction District of Columbia. It's a wider range of people you can care for including a person with whom you share a committed relationship. So once again, broader circle of people to care for. Going to the next slide, it just poses the question I posed before. To allow the care for others. Again, ADA as far as associational discrimination but there's no reasonable accommodation right. So at least under the ADA, there's no right to a modified work schedule to care for another. Raises a good question under this, though. What if you're providing flexible schedules to everyone else in the world in the workplace to do any variety of things. For child care purposes or continuing education and that if you have that general of a scheduling policy and you have a person who is a caregiver or a person with a disability asks for the same flexibility, not extra flexibility, would that person have a right to care for an individual assuming that they did have rights under the Family and Medical Leave Act. And I think you can probably make out the case of associational discrimination if you said no and treated that person differently from other. So theoretically you may have something there. >> JACQUIE: Can I interrupt you? >> PETER: Absolutely. >> JACQUIE: We have several questions and they have to do with the ADA and the FMLA but not so much the interaction between the two. So I don't know if we want to take those at the end if we have time but this one if a person does not meet the ADA definition of disability because the limitation isn't enough, is it legal to fire the person while they are on FMLA leave? >> PETER: Well, I get the typical lawyer answer to that. It depends. It's legal to fire that person while they are on leave if it's for reasons unrelated to their leave. A couple of great examples come up and one of those might be termination under a reduction in force and that person may have met the criteria for termination by reduction of force whether being minority or whatever is being applied. It shouldn't have been because they haven't been there lately but clearly that would be a legal termination. That it wasn't motivated by the leave. Another one might be a person going on FMLA leave and the facts come out that the person has been pilfering or stealing from the petty cash and it's pretty clear that termination is warranted. Once again, you don't have to wait for the person to come back in order to terminate them. Those would be two classic examples. >> JACQUIE: The other one is a clarification that a person wrote in. Her employer told her that they need to be 50 employees in that particular department for her to be able to take FMLA and paid leave and she wants clarification about whether that's correct. >> PETER: That question raises the question of paid leave and I really can't comment so much on that. That's going to be a matter of policy because the FMLA provides for unpaid leave. >> JACQUIE: She said unpaid leave. I'm sorry. >> PETER: But not on a departmental basis. People on the payroll and that employer within that 75 mile radius. Somebody may have, for example, a number of small stores, which collectively employ the 50 people and like the coffee bar. Assuming it's not a franchise thing and they work for the same company, it's going to be covered. Similarly you're going to have 25 people in one department, 15 in another and then another 15 people in another department and all within the same 75-mile radius, they're going to be covered and those employees are going to have rights to leave under the FMLA. >> JACQUIE: Thanks. >> PETER: Sure. >> JACQUIE: Okay, go ahead. >> PETER: And again, if another question comes in and it's appropriate to ask, just fire away. I'm already tired of listening to myself talk. Getting back to the FMLA on care for others. That's really what the FMLA is about. Absolutely, if you're spouse, child or parent has what's called a serious health condition and we'll talk about that in a bit. It can also address the work issue. -- intermittent leave can be just about anything. Sometimes sporadic absence, which are, as I said, unpredictable absence is a challenging issue but it can also plans of caregiving, time to deal with a serious health condition and could mean periodic doctor appointments and what have you. Certainly much easier to manage from an employer's perspective but that all falls under the category of intermittent leave. And again the next slide entitled intermittent/reduced leave addressing that very issue. Under the ADA category, there's no absolute right to intermittent leave. There's no absolute right to any leave of absence under the ADA but it's presumed that a leave of absence may be a reasonable accommodation. We have got to go through that equation. There's always an undue hardship that's met. Keep in mind from an employer's perspective that the employer bears the burden of showing an undue hardship and that can be an issue later on. Again, it's really an academic issue if the person is entitled to and taking intermittent leave under the Family and Medical Leave Act until of course, that person's 12 weeks run out and in the case of intermittent leave is hard to do. But certainly can be done. Under the FMLA, there is an absolute right when you are dealing with the -- with the intermittent leave when you are dealing with the leave and parent spouse child and there's some employer discretion if there for replacement option of child. Again, that's an area that we're really not addressing for purposes of this webcast. Going to the next slide start talking about collective responsibilities between employer and employee. Let's talk a little bit about the initial notice requirements of an employer. Under the ADA, there's that poster you often see if break rooms where the pictures go find to read anything in it but an improved poster to talks about people's rights under Title 7 and the ADA. There should be a notice posted in an accessible format to both applicants and employees to describe ADA provisions. Also smart from an employer's perspective to have a policy that describes the accommodation process not only what the employee's rights are, but what the employer's level of commitment is and what the employer's expectations of other employees with respect to their conduct or colleagues who have disabilities. The expectations providing medical information when it is needed in a reasonable accommodation process and the like. I strongly believe that employers and employees alike benefit a lot from having a very, very clear policy describing procedures of obtaining a reasonable accommodation. Who should you go to, who should you talk to? It's sometimes, in the case of employees asking for reasonable accommodation, it can be a very, very scary process. There's a lot of anger associated with that, especially with employees who have, what I refer to as invisible disabilities and especially disabilities that many people consider to carry a stigma. There's a reluctance for people to come forward and talk about needs for accommodations for their disability because it often involves putting all your cards on the table and requires a great deal of faith. Once again, it's very good to have that policy, employer policy to hopefully set people at ease over coming forward and encouraging people to come forward and ask for accommodations. Notice by employer under the FMLA is predictably a lot more regimented. There is a required posting that is supposed to be up in the workplace. It is strongly encouraged, if not mandated, to have a FMLA policy in employee handbook or other written policy and once again, the benefits the employers have. Giving that policy states certain expectations as well as certain employer rights in designating -- I made a reference earlier to what's a 12-month period because the law provides taking 12 months of leave within a 12-month period. What 12-month period is that? A rolling 12-month period? Starting when you took leave and when can you take 12 weeks again. Is it going to be on a calendar period or a fiscal year or employee's anniversary with the employer? It's an opportunity in the written policy to make that specification. Then we also have other notice requirements. For example, notice of FMLA rights that is provided to the employee when they make a request for leave and then there are different forms that a lot of you have undoubtedly seen not only with the designation of the employee's right, but making the designation to the employee that you have or have not been approved for FMLA leave, whether returning and all that. Of course, certification. Once again, on certain approved form -- forms approved by the Department of Labor and the information you will see on a certification like that is really very limited to the serious health condition for which an individual is taking leave. It's not a case of taking FMLA leave going to be an open book of a person's medical history. >> JACQUIE: I have a couple of questions that fit in good here. >> PETER: Wonderful. >> JACQUIE: I am HIV positive and for many reasons I refer not disclosed that to my employer. If I need to take FMLA, do I have to disclose my HIV status? >> PETER: Well the answer to that is you may. The employer has a right when the employee is requesting a reasonable accommodation to then follow up and get documentation on the needs for this accommodation. And both the EEOC as well as a lot of people representing employers have come out and said that it can include the diagnosis, the underlying condition participating the need for leave. The employer has to make the determination of whether this person has a disability. In other words, does this just go into the hands of a third party position, the treating physician saying this person is a disability and they are required to an accommodation. The employer can have a right to get that information. But I got to say, once you have that information from an employer's perspective, you have got some obligations, some very, very serious one. One is nondiscrimination and in the case of the question on HIV, which has been a stigmatized condition and disability over the years, I've done a lot of work on HIV issues with the labor response to AIDS program and I have been active in that for way too many years. And this epidemic has been in place in our country and the world. The employer has this responsibility A, to provide that accommodation, and B not to discriminate. So if things start changing when the information is disclosed. That's a bad sign and might be used to document or prove a discrimination. Finally, there is an obligation to keep that medical information confidential in a small circle of management of people who need to know the underlying the condition in order to make the determination op making that leave of accommodation. So I know it was a short question and I had a long answer, but unfortunately at least in the context of reasonable accommodation the condition may need to be disclosed. There are conditions that come with disclosing that. >> JACQUIE: Right. The next question is if a person cannot work mandatory overtime and mandatory overtime is an essential function of their job, but they bring in a note from their physician that says that they cannot work in excess of 8 hours and the person referred to this as a FMLA note, can you terminate their employment because they cannot do the essential functions of their job or can you place them off totally on FMLA leave? >> PETER: That's a great question. It's a great question because in the car guys on their radio show -- that's been litigated and there are varying results on that and it almost sounds like the question is loaded with full notice of what some of those cases have said. ADA in isolation if indeed working mandatory overtime is an essential function of the job truly and essential function of the job, that's going to be determined on a case by case basis. But let's assume for the sake of that question that it is indeed an essential function of the job and the person can't do it. It may render the individual not qualified for that particular job and once again, you don't have to throw out the expectation that the -- the essential function of the job in making an ADA accommodation. So if a person can't perform essential functions of the job, that person may no longer be qualified for that job. But they would still be qualified for reasonable accommodation of reassignment, for example, to an open parallel position or lateral position. Let's talk about lateral position where an individual is qualified to work that job and maybe working mandatory overtime is not an essential function of that job. It's not like the employer is going to make up a position where mandatory overtime isn't required but that maybe an option out there, too. Now let's complicate things more with FMLA and taking off at least on a temporary basis that extra time as intermittent leave under the Family and Medical Leave Act and you raise a much, more complicated issue. I don't know if I can give you, sitting here right now, a definitive answer on that. But I would think in many cases of documented serious health conditions under the FMLA, you may be able to, again, on a temporary basis, be able to take intermittent leave to cover that. But that's highly unresolved and that's really a brilliant question. >> JACQUIE: Okay. I have one more that just came in while you were talking. This one is similar to the one we had an HIV but there's a different twist in it. If a person is on an as needed medication for mental health issues and needs to take time off, do they have to disclose the reason that they need to time off, which I think you answered that one pretty well, but do they have to disclose the type of medication they are taking? >> PETER: Not necessarily under both the ADA and under FMLA. It's at least worth trying to say that it's a period -- you can get medical certification under both whether it's an accommodation or dealing with a serious health condition. I would think that because it involves a continuing course of treatment with a health care professional. The condition would at least fall understood serious health condition under FMLA that they render the individual unable to work for a period of time. But you wouldn't necessarily have to -- not necessarily have to disclose the medication, although you may be in a safety sensitive job where the employer has required employees to disclose, for example, side effects of medications. Well I look at policies that require specific disclosures of medications with kind of a jaundice eye. There might be instances where it may need to be disclosed because there might be side effects to affect the person doing the job safely. I favor a job, in that instance, the disclosure of side effects of medication without disclosing the medication itself and sometimes by association disclosing the diagnosis. Once again, it's not a simple issue. >> JACQUIE: Okay, go ahead. >> PETER: All right. We're getting a lot of good questions, by the way. Let's talk a little bit about notice by the employee. Responsibilities of the employee, that's on the next slide. If falls on the employee to get the process going, to request that reasonable accommodation and to come forward unless it's obvious to an employer that an accommodation is needed. Employers are generally apt at keeping that spot with the employee. Sometimes jumping in and saying what can we do as reasonable accommodation for you. They really backfire on the employer and lead to claims that a person is regarded as having a disability when, in fact, they don't have a disability. That can cause problems for the employer and lead to later discrimination claims. It's just much better to keep it on the employee. Once the request is made the employer has to get involved in that process. As I'm going to talk about later on, to make it safer. By the way both with ADA and FMLA, there's no magical incantation that's required of the employee. You don't have to use the word reasonable accommodation. There are cases that talk about employees coming forward and saying, I have a medical condition that is going to require me to attend medical appointments, can we talk about this. That's at least getting the process started in requesting reasonable accommodation. You don't have to use those words. Similarly with the Family and Medical Leave Act you don't have to say FMLA. I need time off to deal with my son's medical condition. That's it. You got the ball rolling on requesting FMLA leave and employer gets starting with the form and the ball starts rolling with that. The employee also has responsibilities under the FMLA, but also the ADA. But reasonable is more defined in the FMLA and that is when the need for leave is foreseeable, you need to give at least 30 days notice. A lot of times with medical condition, it's not so easily foreseeable and then as soon as practical. Usually within one or two business days of knowing of the leave. Also in the next slide talking about medical information. This relates a little bit to the question on the topic of HIV. And employer's ability to make medical leave is highly definitive by the ADA. Let's look at different stages. It's got the application stage. That's the forget about it stage. Don't ask any questions unless it's very obvious that the individual comes forward and asks for a reasonable accommodation to get the application process. Then there's the allowed followup. Next stage it opens up quite a bit. Although, there are dangers in asking. You can ask a whole variety of questions, medical related questions, but you really have to be careful what you ask for because once again, it varies with the responsibilities to maintain confidentiality and once you know about an individual's medical condition and if god forbid you change your mind on revoking the offer, presumption has to be because you knew about the medical condition and you have possibly a discrimination claim on your hands. Keep it job related. Once the relationship begins, the inquires can be job-related with business necessity, which is really what you aught to be doing at this stage, too, in my opinion. And that is focusing on the ability to do the job, different safety concerns and also the medical inquire can be done in the reasonable accommodation process. Under the FMLA, there is also a right on the employer's part and obligation of the employee's part to provide medical certification of the period of condition or later on on the employee's ability to return to work. And once again, the information that can be requested and that is furnished is set forth carefully on the Department of Labor. Let's move on to requiring employees to demonstrate fitness for duty. Under the ADA, as I said before, you can make these medical inquires to determine if a person's able to perform essential functions of the job. But I really caution employers to, if there's a concern about job performance and there's at least a suspicion that it may be due to a medical problem, I frequently counsel employers don't ask for medical information at that point because once again, it can, although not always, set you up for regarding a person as having a disability when, in fact, they don't. It's just human nature among us as human beings, we're curious. When we see something happening, we want to know why it's happening. So it's very natural for people to ask if performance is deteriorating oh, it must be a family problem or medical problem and then ask about that. What I strongly urge employers to do is to simply document the performance problem and talk about the performance problem with the employee, points out what they are and saying is there anything we can do to get your performance back on track? You haven't mentioned medical inquires, you haven't made any medical inquires there. You haven't even said can we make reasonable accommodations. You just asked for the fact. The employee can either come back and ask for a reasonable accommodation or to point out what anybody else might point out being tools to get a person back on track for performance. A much more neutral way of answering things. The next bullet talks about job-related with necessity. Under the ADA, you can certainly require people to demonstrate fitness for duty in returning to a job if there's a concern about the ability to do the job safely. That can be a much wider inquiry than the bare bones certification for an employee returning to leave under the Family and Medical Leave Act. So where you may not have the right to ask certain information under the FMLA, employer actually may have a broader right under the ADA. And then in the column I have on the FMLA, once again, there's a very specific form fitness for duty form under the FMLA that's pretty straight forward but you also need to consider as an employer having uniform practices on returning to work and not singling out or making it difficult for an employee taking leave under the FMLA to return to work. It's all about equal treatment on that. And if you are discriminating and making it harder for people taking FMLA leave to return then one may get a FMLA retaliation claim. Let's talk about rights and once a person is on leave and once again, let's assume we're making leave of absence for reasonable accommodation. Next slide talks about benefits FMLA. Very straightforward on benefits. On group benefits at least, on the same terms and conditions if the person were still working. The person is contributing or a portion of their health insurance, that can continue on the FMLA leave period. Let's say under the ADA a person is taking a leave of absence. It's a little bit different. Yeah, it's on the same terms as all other employees taking a leave. In other words, you don't want to single out the person getting an accommodation for any worse treatment than anybody else. But if your policy is taking for example, a personal leave of absence, you don't otherwise have that right to continue group health insurance benefits that's provided under FMLA. You don't qualify for FMLA because you haven't been there long enough or it's a smaller employer. Again, same terms and conditions as other employees, which might mean the employers could be reasonable in asking all employees taking time off to their full share of health care benefits during that leave period. Perfectly legal and equal treatment. Let's move over to length of leave and compensation. That's where it becomes really, really gray is in the next slide under the ADA. FMLA in contrast, 12 weeks a year taken intermittently and there's a very exacting formula for determining on intermittent leave what the week, really easy when you are taking a block of time off. A week is a week. But you would be surprised what a week is when taking intermittent leave. Unless a person is working the same amount of hours every week and week out, it's a much more difficult mathematical formula to determine what the week is. Again, relating to a question that was asked before on termination, a person can be terminated while they are out on FMLA leave as long as it's not related to the leave or motivated by the leave. And FMLA leave is, again, unpaid leave unless and regulations allow it and the policy should cover it that the employer has what's going to be the approach of applying paid leave that's not necessarily required by law but most employers have it. Are you required to have paid vacation and will that go concurrently with your FMLA leave. The policy should address that and most well-written policies do address that. Now let's go to the age game, which again, is going to be a much grayer area and much more flexible area and what's the length of leave that's allowed under the ADA as a reasonable accommodation and that's really the $64,000 question. Once again, you can terminate while a pen is out on leave but just like the FMLA, it can't be related to their disability, can't be related to their getting a reasonable accommodation of taking a leave. Compensation, again, same terms and conditions of everybody else. But the real, real difficult question is how much leave is a person entitled to under the ADA as a reasonable accommodation? Well, we've got two areas where we can be reasonably certain of what the answer is. A person covered by FMLA, then we know absolutely for sure that person has a right to take their 12 weeks under the FMLA and that may also be a reasonable accommodation. That's our one certain thing. Then we have another certain thing, which is I don't know if I'm ever going to babe to come back. An individual asked for unlimited or indeterminate amount of leave and there have been an increase number of cases that have talked about indefinite leaves of absence. Most have said that if continuous to become a litigated issue that unpaid leave of an indefinite duration is not a reasonable accommodation. Why did the courts say that? A lot of courts are saying that a reasonable accommodation is an adjustment that enables the person to do the essential functions out job. And generally speaking the person has to be there performing the job. Maybe they can perform some jobs from home, but we will get to that later. But it's not enabling the person to perform their job or become ready in the foreseeable future to perform their job, then it's really not a reasonable accommodation that they are asking for and that's the basis on which a lot of cases have said an indefinite leave of absence is not a reasonable accommodation. But I got to say there are cases out there where the EEOC -- I know three or four of them in the litigation process. I'm involved with one of them so I'm not going to talk about the case, where the EEOC is contending that leave policy is to draw a specific line of when the leave is expired and either he's off the role or return to work. If those policies violate the ADA. I think in response to that, serge if you are in a position of an employer. Say you have 18 weeks of leave something more generous than the FMLA. And an individual comes back and gets in touch with you at the ends of those 18 weeks and says my doctor says I can return in soot two to three weeks and I'll be able to transition back into work. I think an employer would be foolish if they said your 18 weeks would be up and you can't return if in fact the individual has a disability under ADA. It's shown that individual is only covered under the FMLA and their 12 weeks are up and they lose their right for reinstatement of their job and the employer has freer range to decide what to do. But in the case of the ADA, the individual says I only need a couple more weeks and they have medical documentation and as an employer you would be taking a lot of risks in saying, nope, sorry. That's not a reasonable accommodation. In that case, the employer would have to show undue hardship. This one maybe the employer could show that but it's a difficult burden. Now the EEOC has been taking the position, like I said, of saying that the no fault attendance policy is violating the ADA. In cases where the individual is requesting an indefinite leave of absence. But they are argue that the employer shares the burden of showing undue hardship. That issue, like I say, that maybe over the next several years we'll get more clarity on that. But that's where we are right now. A lot of the courts are weighing in and saying that certainly for a request for an indefinite length of time is not a request for a reasonable accommodation. But like I say, there is really no break line there. >> JACQUIE: I have another question. >> PETER: Yeah. >> JACQUIE: This person understands the documentation requirements and the reasons behind those for FMLA, but if a person is just applying for a job and at the job interview the person says that they have a disability, does the employer have a right to ask for documentation of the disability? And along with that I'm going to read another question because the answers will be related. Recently I completed an application. The application included a question asking if I needed an accommodation to perform the function of the job. It was an on line op indication and leaving it left was not an option. I would discuss accommodation in a job interview. Should the employer ask this kind of question at this stage of the employment application process? I wonder if this is a way of screening out people with disabilities? >> PETER: Again I hope the employer isn't one I represent. The question was should they ask that in the application process? My answer to that is I would strongly frown upon that. If asking if you need an accomodation for the job you are basically asking if the person has a disability. We know in the free employment process, at least the EEOC may regard that as an unlawful inquiry and I would have to say that an employer would be duly challenged to defend that practice especially in the application process is not an option. I would have to say you don't want to be asking that question. I would strongly discourage that. I would also say in response to the first question, when the issue of accommodation is brought up, I think that's what the question asked. The individual has come forward -- >> JACQUIE: In the question it doesn't say that. It says do they have a right to ask for documentation if the person says they have a disability. So I guess, explain the accommodation piece of that and how that plays into the answer. >> PETER: Right. I will give you the safe approach on that, which is if I were the interviewer, I think the ideal response to that would be -- let's say the applicant freely and voluntarily comes forward and says I have this condition and I may need an accommodation. That's -- well once the hiring process is finished we can discuss accommodations. We have a policy on that. It may later provide for providing medical information, which we will keep confidential but that will be at a later stage and you would want to request medical information later on. The EEOC do talk about that situation where once that information is freely volunteered, you can have the conversation if you are tailoring conversations to the ability to perform the essential functions of the job. I wouldn't be making additional medical inquires at that stage and while the regulation for the EEOC guidance recognized that the employer doesn't have to suddenly have to turn and run or hide under the desk when the issue is first raised, you have to be real careful with the followup inquiry at that stage. In the interview process, focus on the ability to perform the job. If they have a concern about the ability to perform the job go over the job requirements. What is it you are concerned about not being able to do and having that conversation. But you really want to have that conversation at a later stage. >> JACQUIE: Okay. That's it for right now. >> PETER: All right. What I want to do is skip over a little bit some of the slides I have on defining disability. Let's skip over that. I reference, at least in the regard as having a disability or a parent that limits. There's a case within the last 18 months that talks about people in that category of ADA coverage perhaps having that right to a reasonable accommodation. If I had a note on major life activities, what's the major life activity, we could take the whole afternoon to talk about that and that's not the purpose of this webcast. It's covered at great lengths in my ADA chapter, which is attached that you can click on to from the website, which I encourage you to read later on. We have a slide on defining what a serious health condition is and that, which is significant under the FMLA because there's not always a perfect overlap between the two. I think it is pretty fair to say that most disabilities would constitute the serious health condition under the FMLA. But not all serious health conditions under the FMLA would constitute a disability. That's pretty simple because we know that a disability has to substantially limit a major life activity and that's not just on a temporary or extremely finite basis. It's on a much longer basis. You may have a serious health condition that requires treatment where the individual is going to be -- after a period of time and get FMLA or may not be entitled to an accommodation. But once again, we have these FMLA rules that have (indiscernible) I think about 1500 -- have been submitted to the labor department commenting on their regulation. A lot of them have focused on what the serious health condition. It sets forth as describing an illness, injury, physical or mental condition involving inpatient care or continuing treatment by a health care professional and it would also involve a certain period of capacity from work. It's a much, much more generous definition than disability under the ADA. And we have applied the definition of continuing treatment is and I want to jump to the slide that has the FMLA and ADA and once again stress the serious health condition is a lot easier standard to meet than having an actual disability. And also, it bears noting that the ADA has specifically excluded certain conditions from ADA coverage. One of them pertains to a current drug user. But current users of drugs are not covered under the ADA but may have to go to rehab and be covered under the FMLA and maybe considered a serious health condition and maybe have both that qualifies for both. There was a recent 3rd circuit case -- 3rd circuit seems to be issuing a fair amount of opinion on the ADA and it looked at a worker's temporary depression anxiety condition as not being a disability under the ADA. This was a case called Ashton v. AT and P and that was decided last February. It looked at a temporary condition against the anxiety condition even if the impairment lasts for six months not amounting to a long-term substantial limitation of a major life activity. Certainly that condition may very well be a serious health condition under the Family and Medical Leave Act. A lot of times on the part of the employer. We move on to the next slide. But there's a lot of guessing involved in deciding does the employee have a disability that qualifies under the ADA and that's going to be a judgment call. I always tell employers when in doubt don't set a course on deciding on whether a Bern has a disability. When in doubt go through the accommodation process. You might find an accommodation that's both effective, that's relatively cost effective that enables a good employee to keep working or an employee who has had performance the opportunity to correct those performance problems. Go through that process. As an attorney who defends employers, I would much prefer that employer went through the process, tried it in good faith and be open to more defenses in wasn't an accommodation that was effective or reasonable. Or you can go to the undue hardship process with that. But just saying you don't have a disability, we're not going to accommodate you carries a lot of risk. I encourage the employers to go through the process. There's a line of cases that talk about the interactive process of developing a reasonable accommodation and I want to talk a little bit about those and where the obligation lies. There's been a line of cases that almost look at the front beds of the process saying if you don't engage in the process per se you violated the ADA and then there are the no harm no foul cases from other jurisdictions, which will say if there wasn't a reasonable accommodation in the first place, then there's no harm in not going through the process, which I think is probably the correct analysis although it's certainly risky behavior on the part of the employer not do go through the process of looking for reasonable accomodation because it involved a lot of creative thinking and interaction with the employee in determining the employee's functional limitation and real needs and you are much better off going through that process. It's an ongoing process. It's not one stop shopping. Conditions change over time. Functional limitations change over time and their needs may change over times and the essential functions of the job change over time. Very few jobs are that static where they never change. So it's an ongoing process in going through that. One of the obligations, you only need to accommodate essential job functions and not the marginal job functions. And a lot of times in determining what's an essential job function, the first step is to look at the job description but really it does go beyond that and a lot of the times it's important to the employer and employee alike that at the review stage and interview stage to go over the job description and at the review stage, certainly, seek the employee's input on what the essential functions of the job are and I'm not just talking about going over it with an employee asking for reasonable accommodations. But it's getting feedback on the employee on what the job description aught to say. That person is doing the job everyday so their input is vital to that process. The process doesn't necessarily involve giving the employee a right to bring their attorney in to discuss accommodation. It really just talks about making that good faith effort. There have been a line of cases that have talked about responsibility in interactive process in coming forward and putting blame on whoever drops the ball. Now if the employee, for example, refuses to provide medical information or refuses to participate -- I'm sorry. I'm going free form on you, rob, I apologize. But this line of cases has looked to who is to blame when the process breaks down. From the employer's perspective, I always like to keep the door open and invite the employee to come back with more ideas, more suggestions in the process. Never refuse to reason. You don't necessarily have to take their suggestions. It's kind of like the Cadillac and Chevy. The employee is demanding a Cadillac of accommodations but a Chevy would work. But you should go through the process. But always attempt to get input from everybody on that. Once again, cases do look at the process. When the process breaks down and the employee is responsible for that, that's usually the employer who wins the case. When the prosecutor breaks down and the employer is responsible for that and yes, there is an actual reasonable accommodation out there that could have been developed by going through the that process, the employer may have a problem on their hands. As I said before and we're going to the next slide, the term reasonable accommodation can include a lot of things. We know it can include a leave of absence but we also know that the leave is also to get that employee back to work. Collides a lot of other things. Making facilities accessible or usable by employees with disabilities, job restructuring, reassignment to a vacant position and the like. It's part of policy. I said before, certain policies draw a strict no exceptions line on leaves of absence maybe problematic when the employer -- asking additional time off. I'm not say to -- I think under the category of best practices, policies should say that or refer people to the reasonable accommodation that ought to be in the employee handbook. But it doesn't necessarily have to. Certainly when the individual comes forward and requests an additional finite time to return to work that ought to be considered in the return to work process. I also want to blend accommodation. Blended accommodation is a combination of things. Let's say a person takes a leave to deal with both a serious health condition as well as a disability. The individual upon return may not necessarily be able to perform all of the essential functions of their job. We know that the employer A, doesn't have the obligation to create a whole new light duty job for that person. So we can eliminate that. Although, perhaps, there maybe an obligation for a finite period of time to modify the job in order to enable to individual to transition back. FMLA is a little more strict because if you can't return back to your job when the 12 weeks expire, you have lost your right to reinstatement under the FMLA. But some of the transitional time might be a reasonable accommodation under the ADA. Or maybe the individual just is not going to be able to return to their job, then there's an obligation or at least a possibility that a reassignment would be appropriate. >> JACQUIE: Peter, I have one last question and we're just about out of time so I have to ask for a quick answer to it and maybe that we need to E-mail that person with more information. The question is an employee went off on medical leave for a nonrelated work related injury and used the full 12 weeks of FMLA and upon return to work is having difficulty working full-time, is there anything that the employer is required to do? Are they required to offer unpaid medical leave in addition to the 12 weeks that's already been taken even if the employee has no annual or sick leave left to use? >> PETER: The answer is, I give you that lawyer's answer. It depends. If that person's back position rises to the level or The Depression rises to the level of the disability and we don't know that from the information provided. If it does there maybe an obligation to provide some additional leave or transitional time as a reasonable accommodation. Again, you don't have to completely waive or throw the essential functions of job out the window. That's not what the ADA an object. It's about job performance. It's about equalizing and enabling people to meet the employer's work expectations. That's a good way to wind up the presentation. The ADA is not about indefinitely providing people leave of absence when they can never return to work. By getting people to return to work and enabling them to the same performance expectations of everyone else. Equal opportunity statute. That's with the ADA. >> JACQUIE: Thank you so much, Peter. I know that everybody listening here today learned a lot from the webcast. I also want to tell everybody that this webcast will be archived on ILRU's website that you can visit by going to ilru.org. Because of some difficulties we were having, you might have had a hard time viewing the PowerPoint presentation. In the archive there will be a link to download the PowerPoint. I want to acknowledge the National Institute on Disability and Rehabilitation Research, NIDRR who funds the Southwest ADA Center. I also want to thank the in-house staff at ILRU. Without their effort this webcast would not be possible. Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen and Maria del Bosque as well as the technical expertise of Rob Dickehuth and our realtime captioner, Lauren Kellmann. For upcoming webcasts visit ilru.org. Have a dazzling day.