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ADA, FMLA and Legal Issues that Come Up Everyday in the Workplace

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1 ADA, FMLA and Legal Issues that Come Up Everyday in the Workplace
SUPERVISORY BRIEFING SESSION ADA, FMLA and Legal Issues that Come Up Everyday in the Workplace Presenters: Office of General Counsel Employee Relations Office of Inclusion, Diversity and Equal Opportunity

2 Agenda ADA/Accommodation Process FMLA Interaction of FMLA and ADA
Nursing Moms: Break times and Lactation Rooms Avoiding a Retaliation Claim Addressing Harassment in the Workplace GINA

3 ADA/Accommodation Process
Melissa Burrows Office of Inclusion, Diversity and Equal Opportunity

4 Americans with Disabilities Act (ADA)
The Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The law also requires that covered entities provide qualified applicants and employees with disabilities with reasonable accommodations that do not impose undue hardship. An individual is considered to have a disability if that individual either (1) has a physical or mental impairment which substantially limits one or more of that person's major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. Online:

5 Accommodation Process
Employee contacts OIDEO requesting assistance due to a disability; Employee completes paperwork; Employee submits paperwork, along with a doctor’s note; OIDEO contacts and negotiates employee’s request with supervisor; Request granted, modified or denied; Employee and supervisor sent notification of outcome based on request.

6 Accommodation Process
Date of Request: _________________________ Name: _____________________________________________________________________ Last Name First Name  Position Title: ____________________________________________________________________ Department/Management Center: __________________________________________________ Manager/Supervisor/Chair/Dean:____________________________________________________ Departmental HR Representative: ___________________________________________________ Home Address: __________________________________________________________________ _______________________________________Zip Code: ___________________ Home Phone: ( _____)____________________ Cell Phone: (______)__________________ Campus Address: _______________________________________________________________ Location Code: _______________ Campus Phone: (______)____________________ How would you prefer to be contacted? Please select one. Home Phone  Office Phone   Cell Phone   Employment Classification – Please select one. Full-time  Part-time  Other  __________________________________ Employment Category – Please select one. Faculty  Staff 

7 Accommodation Process
Doctor’s Note – Requested Information Diagnosis Status of condition (stable or changing) Duration Effects of diagnosis (review of job description based on diagnosis by the doctor) Recommended accommodation Medication or treatment

8 Accommodation Process
Part B - Interview Questions: To be completed by the employee. This will be reviewed during an in-person interview with the Faculty Diversity Officer or the EEO & Diversity Specialist. What is the nature of your disability, including your diagnosis? Is this a permanent or temporary disability? If temporary, what is the duration of your condition? What work-related limitations caused by your disability are you currently experiencing? What are the essential functions of your job? If possible, please attach your current job description. Describe the accommodations you are requesting, including any adaptive equipment. Be specific as possible. Are you in need of an individual emergency evacuation plan? If so, please indicate what accommodation you would need for this plan?

9 ADA Quiz Questions True or False?

10 ADA Quiz # 1 True or False? The purpose of the ADA is to guarantee jobs to all people with disabilities. False The purpose of the ADA is to prevent covered employers from discriminating against disabled applicants or employees who are qualified to perform the essential functions of their jobs, with or without an accommodation. The ADA requires employers to reasonably accommodate qualified disabled applicants and employees if doing so doesn’t pose an undue hardship to the employer.

11 ADA Quiz #2 True or False? If you think an applicant/employee has a disability, but it is not obvious, you should always ask? False If the applicant/employee doesn’t disclose having a disability, don’t ask. However, if the applicant/employee does have an obvious disability or if the applicant voluntarily discloses a disability, you can then ask if the applicant/employee will require the job to be modified in some way to enable the applicant/employee to perform the job duties.

12 ADA Quiz #3 What is not considered a disability under the ADA?
An applicant/employee with a broken leg from a car wreck. A cancer patient who is in remission. An applicant/employee with a hearing impairment. An applicant/employee with epilepsy. The correct answer is A. A broken bone is a temporary impairment. It is not covered by the ADA. The other options are considered a disability under the ADA.

13 Family Medical Leave Act
Carolyn Washick Human Resources

14 Family and Medical Leave Act (FMLA)
Quick Review What criteria must an employee meet to be eligible for FMLA? How many weeks of unpaid leave does an eligible employee receive? What are reasons that an employee would take a leave? What is a intermittent leave of absence? 50 or more Worked for the university for at least 12 months and at least 1250 hours 12 weeks own serious condition, care for immediate family member with a serious illness, birth/care of newborn, and placement of son/daughter for adoption or foster care. Can be one hour at a time or a day at a time. An employee can take separate, sporadic blocks of leave – few hours or a few days.

15 Tracking FMLA Leave ■ Employers still have obligation to track FMLA leave. -- Failure to provide rights and designation notices may constitute interference with FMLA rights. -- Employers must make, keep and preserve records of FMLA leave dates and notices provided for no less than 3 years. -- FMLA records must be kept as confidential ADA disability records are. 29 CFR (g). -- Remedies: lost compensation/benefits; actual monetary losses, equitable relief (reinstatement, promotion etc). 29 CFR (e); (e).

16 Why is Tracking FMLA Leave Important?
■ Unless an employee’s leave is designated as FMLA leave, employee may be entitled to 12 weeks of leave after designation (unless retroactively designated if no harm to employee). ■ Employees can claim interference with an FMLA leave if leave if not designated as required or adverse action taken during a leave. ■ Tracking leave helps avoid a retaliation claim stating that an adverse employment action was taken in retaliation for taking an FMLA-protected leave

17 What do you think? You hired a full time employee, Burt, in November and he has a heart attack. What kind of leave is Burt eligible to take? Your other employee, Betty, who was hired 5 years ago. She is pregnant and due in March. What kind of leave of absence is she eligible to take? If Betty was hired in November would she be eligible to take a leave of absence? Burt can take a non-fmla leave. FMLA leave and she would be eligible for PPL Yes, she would be able to take a non-fmla for 6 or 8 weeks.

18 Managing Intermittent FMLA Leave
Can the university require certification from a health care provider? Is a supervisor allowed to ask for a note from the employees doctor each time an employee takes intermittent FMLA days? If an employee’s appointments conflict with the business needs can I deny the time off? What should I do if the employee takes more time than the Certificate of Healthcare provider certifies? Can you call an employee at home when they are on a leave of absence? Yes, we can require an employee to submit written certification from a healthcare provider to substantiate that his/her leave is due to a serious health condition of the employee or the employee’s immediate family member. No, you can not ask for doctor’s notes/slips Once the employee has been approved for an intermittent leave, ER has already received the required documentation. The employee should try to work out with their supervisor a treatment schedule that does not disrupt operations. Bottom line is that if an employee and employer can not work out a mutually acceptable scheduled for taking intermittent leave the employee is still entitled to taking leave. If you notice the employee is taking more than their allotment of days per month, contact ER to have them request a re-certification. Reminders: Do not treat an employee on leave differently. Do not repeatedly call an employee on leave to find out when they are coming back. Do not assume FMLA is being abused or is not factual.

19 The Interaction of ADA and FMLA
Tracking Leave

20 ADA Accommodation Process
What does the ADA require for determining reasonable accommodations? If the supervisor has questions about complying with ADA requirements regarding requests for accommodations, where can I go to seek assistance? Individualized interactive process. ODIEO, EEOC and suit in court

21 Cases: Leave Extensions as Accommodations
Supervalu Inc agreed to pay $3.2 Million to former employees to settle a lawsuit based on terminating employees with disabilities at the end of medical leaves, instead of bringing them back with reasonable accommodations. (2011) Sears Roebuck & Co - agreed to pay $6.2 Million to former employees who were automatically terminated after leaves expired. Agreement required notification to employees on leave to inform the workers about options to request a leave extension. (2009) EEOC sued UPS for failure to consider leave extensions as a disability accommodation for employees who could not return from leave after 12 months (2011 – case dismissed on other grounds).

22 ADA Leave or Leave Extension
Positive Corrective Action Attendance(Cont.) Modified work schedule can be ADA accommodation (i.e. part-time). May be FMLA intermittent leave too. A reasonable accommodation may be granting a leave of providing an extension of medical leave of absence. Not have to provide indefinite leave. Look at reasonableness of leave request under the circumstances. Refusal to grant additional leave time can be ADA failure to accommodate. May also result in ADA retaliation claims of leave or for granting leave or extension to some and not others.

23 Interaction of FMLA and ADA
FMLA/Non-FMLA leave request may trigger ADA accommodation process. Employee does not have to say “FMLA leave” or ADA accommodation is needed. Can say need “time off” or “need more time” to return to job. Third person can make request. If both apply, need to follow both process and document both. Before any employee is terminated for exceeding leave limit, consider whether ADA accommodation applies too.

24 Interaction of FMLA and ADA
FMLA Leave Policy says: If an employee is unable to return to work after 12 weeks, employment with the University ends with a voluntary termination, unless employee has requested and is granted additional leave time for a documented disability (via the disability accommodation process by the IDEO Office), or is granted a non- FMLA leave. Non-FMLA leave and ADA accommodation can be concurrent.

25 Nursing Moms: Break Times and Lactation Rooms Colleen Treml Office of General Counsel

26 The Law on Lactation Rooms and Breaks
The Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require: “reasonable” break times for an employee to express breast milk for her nursing child A place where an employee can express milk

27 Requirements for Breaks
For expressing milk for nursing child for 1 year after birth. Whenever mother has need for break. For as long as needed to express milk. Only applies to non-exempt employees Breaks can be unpaid if other breaks are unpaid. Must be completely relieved of duties.

28 Requirements for Lactation Rooms
Rooms for expressing milk must be: A place other than a bathroom Shielded from view Free from intrusion from co-workers and the public

29 Who to Call for Questions
Need to provide breaks and room upon request. If you receive a request and have questions, call Human Resources at Can assist you in coordinating with Lactation Coordinator on campus. Call Office of General Counsel ( ) for legal questions.

30 Understanding and Avoiding Retaliation Claims

31 Why is Retaliation A Big Deal?
■ The Equal Employment Opportunity Commission received 37,334 retaliation charges in 2011, the highest number ever. ■ In 2010, for the first time, retaliation exceeded all other categories of charge filings, including race, sex, age, disability, and religion. ■ The U.S. Supreme Court has expanded who can claim retaliation, the number of these types of claims is expected to rise. ■ Recent retaliation cases have resulted in big claims against employers and supervisors. That equates to 37.4% of all charges

32 Some Examples ■ Sonic Drive-In settled an EEOC Sexual Harassment and Retaliation case for $2 million dollars. ■ A jury issued a $4.5 million verdict for an employee who was fired after reporting sexual harassment of another employee.

33 Retaliation Stands on Its Own
■ For Retaliation to be found, there doesn’t have to be any evidence of any wrongdoing on the underlying complaint. ■ An employer can be responsible for retaliation even if there was no discrimination, sexual harassment or other unlawful conduct.

34 Retaliation Law ■ Title VII – makes it unlawful to discriminate against an employee because he/she has opposed any unlawful employment practice, or made any charge, testified or participated in an investigation of an unlawful practice. ■ Also, non-retaliation provisions exist in many other laws or courts have extended it to these – workplace safety (OSHA); age (ADEA); disability (ADA); family/medical leave (FMLA); worker’s compensation claims etc.

35 Retaliation Law ■ Title VII – makes it unlawful to discriminate against an employee because he/she has opposed any unlawful employment practice, or made any charge, testified or participated in an investigation of an unlawful practice. ■ Also, non-retaliation provisions exist in many other laws or courts have extended it to these – workplace safety (OSHA); age (ADEA); disability (ADA); family/medical leave (FMLA); worker’s compensation claims etc.

36 What Can Supervisors Do?
■ When an employee brings a complaint or concern to you, accept it willingly and do not become upset. ■ Thank the employee for bringing the issue to you. The University has grievance processes because we want to learn what may be wrong so we can fix it. ■ Refer the issue to the right office to review i.e. EEO (OIDEO), Employee Relations etc., or document the complaint and what you did about it.

37 What Can Supervisors Do Before Taking Any Action?
■ Remember that retaliation relates to any kind of supervisor action that could be materially adverse to the employee, i.e., switching job duties, changing schedule, giving performance reviews etc. ■ Consider whether the employee has raised a complaint or concern with you or another University office about an unlawful employment practice such as discrimination, unequal pay etc. ■ If so, think about whether the action you wish to take would be materially adverse for this employee.

38 What Can Supervisors Do Before Taking Any Action?
■ Think about the reason for the action you wish to take, and be sure it is not related to any complaint filed i.e., You consider the person a trouble-maker. ■ Review whether there is information to show that the reason the action is being taken is unrelated to any complaint that the employee has raised. ■ Consider whether you have documented the issue or the need for reorganization prior to the employee raising the complaint. ■ Document performance issues at the time they arise and address them with the employee i.e. reviews ■ Talk to Employee Relations or OIDEO.

39 What Can Supervisors Do Before Taking Any Action?
■ Consider the timing of the action you wish to take in relation to the complaint that has been filed. ■ Could a different action be taken to address the issue or could the action happen over more time or at a later date? ■ If the action must happen now, do you have information to show that the action was planned or addressed before any complaint was filed?

40 University Policies The University has a policy on Non-Retaliation/ Protection for Whistleblower. It encourages employees to report any illegal, dishonest, discriminatory or fraudulent activity to his/her supervisor, Employee Relations or the Integrity Hotline. If the employee is not comfortable in going to his/her supervisor, the employee can go to another named office i.e. Employee Relations, OIDEO etc. Supervisors must contact the OIDEO office about any report of discrimination and Employee Relations about other reports of illegal, fraudulent or dishonest actions.

41 Addressing Harassment in the Workplace

42 Definition Harassment is unwelcome conduct that is based on race, color, sex (including pregnancy), religion, national origin, disability, genetic information, and/or age. Harassment becomes unlawful where (1) enduring the offensive conduct becomes a condition of the continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider it intimidating, hostile or abusive. Equal Employment Opportunity Commission

43 Harassment Harassment can occur in a variety of circumstances, including, but not limited to, the following: The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee. The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct. Unlawful harassment may occur without economic injury to, or discharge of, the victim.

44 Harassment (Cont.) Usually has a physical edge to it such as touching, intrusion into your personal space and damage, done to your possessions. You are the focus of attention because of who you are, for example, a woman, color of your skin, or disabled. Could have occurred a few times or many times. If there is an assault it is usually sexual or indecent nature. There is often an element of being possessive. Offensive language relating to the race, religion or sex is often used. The person sees the victim as easy prey. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance

45 Work Environment Policy (I-7) Professionalism
The following behaviors are not condoned in the workplace: Intimidation (raised voice, yelling, screaming) Verbal abuse, including the use of profanity Humiliation via sarcasm Inappropriate physical contact Threatening-like behavior Invading personal space or privacy.  Employees who engage in these types of behaviors may be subject to corrective action via the Positive Corrective Action policy, up to and including termination.  Employees who feel that they have been subjected to these types of behaviors should report such behaviors to their supervisor, Employee Relations or the Office of Inclusion, Diversity & Equal Opportunity immediately.  All reports of these types of behaviors will be taken seriously and handled appropriately.

46 What do I do? Employees who engage in these types of behaviors may be subject to corrective action via the Positive Corrective Action policy, up to and including termination.  Employees who feel that they have been subjected to these types of behaviors should report such behaviors to their supervisor, Employee Relations or the Office of Inclusion, Diversity & Equal Opportunity immediately.  All reports of these types of behaviors will be taken seriously and handled appropriately.

47 Harassment Against Students
Supervisors may receive complaints of harassment by students or student employees, or encounter others harassing students. The University must investigate and remedy any harassment against students. Title IX: Sexual harassment against students is prohibited, and University must action to identify, investigate, remedy harassment, and prevent future occurrences. University’s Sexual Harassment policy applies. Requires all members of University community to report sexual harassment. Other forms of harassment: i.e. harassment based on race, national origin, disability Refer to Student Affairs and Human Resources any complaint of harassment by a student or student employee so matter can be investigated and corrective action taken for any harassment

48 Genetic Information Nondiscrimination Act (GINA)
Colleen Treml Office of General Counsel

49 GINA – What does it protect?
Genetic Information Nondiscrimination Act (GINA): prohibits discrimination against any employee or applicant based on genetic information in making employment decisions. restricts requesting or requiring genetic information limits disclosure of genetic information/harassment. prohibits use of genetic information in insurance Genetic Information includes information regarding genetic tests, family medical history, disease history, and requests for genetic services by any applicant, employee or family member.

50 Goal of GINA Intent of GINA is so applicants and employees will not be afraid to participate in genetic testing or medical therapies because of fear of discrimination in employment. Prevents requesting or acquiring genetic information, or retaliation or different treatment based on personal medical or family medical history

51 Tips for Avoiding GINA Issues
□ Do not request or require genetic information from applicants or employees. □ Do not treat any applicant or employee differently based on genetic testing or family medical history. □ It is not a GINA violation to obtain medical information related to FMLA leave, approved research studies, workplace health services, or voluntary wellness programs □ Be careful not to follow-up on voluntary disclosures of genetic information by employees or applicants.

52 Tips for Avoiding GINA Issues
□ Employee questions about medical benefits may lead to a discussion of genetic or family history. □ Try to avoid asking any question that may reasonably elicit an answer about family medical history. □ You can make job-related medical inquiries after an offer of employment, but be aware of GINA when doing so. □ If applicant or employee reveals information, keep it confidential and contact HR if provided information.

53 Bob’s Interview Bob interviews with Suzy for a research assistant position involving skin-related allergy research. Suzy asks Bob about his interest in working on this kind of research. Bob indicates that he and his family have a history of serious skin-related allergies, including detergents, chemicals, latex, laboratory glass materials, and mosquito repellent. Can Suzy ask Bob anything further about this? Should Suzy hire Bob? Can Suzy tell the lab manager that Bob can’t use latex gloves?

54 Summary If you have any questions, please contact OIDEO or Employee Relations: Melissa Burrows EEO & Diversity Manager Carolyn Washick Employee Relations Manager Shirley Mosley Interim Director, ODL (dual role with ER) Lori Seabon Employee Relations Specialist Kathy Willson Deborah Polter Leave of Absence Administrator

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