Human Resources Intersecting Leave – ADA, Workers’ Comp, FMLA PRESENTED BY DONNA GABEL Human Resources Manager Alexander City Housing Authority

Disclaimer This presentation, related documents, contents, and comments are for informational purposes only and should not be construed as official interpretation of any laws, regulations, requirements, or compliance; or legal advice or legal opinion. You are urged to consult related government agencies or your attorney concerning your own situation and any specific legal questions you have may have. Donna Gabel is a Human Resources Manager with the Alexander City Housing Authority.

Objectives Identify which law applies and when  ADA  FMLA  Workers’ Comp Discover the interrelationship among leave laws Effectively manage employee leaves of absences without violating the law Principal federal laws are the ADA and FMLA

ADA - Americans with Disabilities Act of 1990 Disability is a physical or mental impairment that substantially limits one or more major life activities ADA applies to employers with 15 or more employees Must provide qualified IWDs equal opportunity to benefits provided to other employees Person with a “serious health condition” eligible for FMLA is not necessarily a “qualified IWD” entitled to ADA protections Cannot treat an IWD less favorably because:  The IWD has a history of a disability  Is believed or known to have a disability

ADA - Americans with Disabilities Act of 1990 Must provide reasonable accommodations (including additional paid or unpaid leave )to the IWD unless doing so would cause significant difficulty or expense (undue hardship) to the employer Substantiated undue hardship is the ONLY basis for a denial of leave as a reasonable accommodation A request for leave is a triggering event with respect to the ADA It is the employer’s responsibility to initiate an informal, interactive process with the IWD

Allows eligible employees of a covered employer to take job- protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned it or accrued it, for up to a total of 12 workweeks in any 12 months because of:  Birth of a child and to care for a newborn  Placement of a child with the employee for adoption or foster care  Employee is needed to care for a family member (child, spouse, or parent) with a serious health condition FMLA – Family Medical Leave Act 29 CFR – Part 825

FMLA Coverage Cont’d.  Employee has a serious health condition and is unable to perform his/her job  Qualifying urgent need or demand arising from military family member on active duty or call to covered active duty status Eligible employees may also, under the same conditions, take up to 26 workweeks in a single 12- month period to care for a covered family service member with a serious injury or illness

FMLA Employer Definition Public Employer o 29 CFR § – “The determination of whether an entity is a ‘public’ agency, as distinguished from a private employer, is determined by whether the agency: 1) has taxing authority, or 2) the chief administrative officer or board, etc. is elected by the voters-at-large or 3) their appointment is subject to approval by an elected official”

FMLA Qualifiers Covered Employer  Employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year  Also includes any public agency (PHA is covered employer) Eligible Employee  Must be an employee of a covered employer for at least 12 months (need not be consecutive months, see § )  Has been employed at least 1,250 hours of service during the 12-month period immediately preceding commencement of leave

FMLA Qualifiers Cont’d. Eligible Employee Cont’d.  Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite  Worksite can refer to a single location or a group of contiguous locations  The # of employees on the payroll determines how many employees are within 75 miles of the worksite Both Covered Employer and Eligible Employee Qualifiers Must Be Met If your employees don’t meet the qualifications, you can elect to generally follow FMLA guidelines, but not be bound by them

FMLA General Guidelines Employer defines the 12-month period (see § )  Calendar year or a “fixed” year such as anniversary year or fiscal year (could have 12 weeks at end of one year and 12 weeks at beginning of next year)  12 months from the first time leave is taken  “Rolling” 12 month period measured backward from the date the employee uses FMLA leave Leave can be taken in a single block of time or in multiple, smaller blocks of time including a few hours at a time, if medically necessary Health insurance must be continued as if the employee was not on leave, including premium payment splits

FMLA General Guidelines Job Protection – must be able to return to the same job (or one nearly identical) if you return before FMLA leave is exhausted Time off under FMLA can’t be held against the employee in decisions such as hiring, promotions, or discipline FMLA leave is unpaid leave Employer can require employee to use accrued leave during FMLA leave Employee must provide employer required notice, such as 30 days for advance knowledge of need, or as soon as need is known if less than 30 days

FMLA General Guidelines The employer doesn’t need to know the diagnosis, but enough information must be provided to make the determination whether FMLA leave applies Both employer and employee must adhere to the communication guidelines while FMLA leave is being used. Employer must notify employee of eligibility within 5 business days of the first leave request If request is denied, employer must provide at least one reason Employer must give notice of rights and responsibilities under FMLA

FMLA General Guidelines The employer must provide employee requests for any certifications required Employee must provide completed certification, at employee’s expense, to employer within 15 calendar days Employer may require employee to:  Correct any deficiencies in the certification identified by the employer within 7 days  Obtain a 2 nd medical opinion, at the employer’s cost, if employer doubts the validity of employee’s certification  Obtain a 3 rd medical opinion, at the employer’s cost, if the 1 st and 2 nd opinions differ

FMLA General Guidelines  If the need for leave continues for an extended period of time, or if it changes significantly, the employer may require the employee to provide an updated certification Employer may deny FMLA leave if employee fails to provide a requested certification Employer must notify employee whether leave is designated as FMLA leave within 5 business days  If not designated – leave is not FMLA-protected  If designated – leave is FMLA-protected On return to work from FMLA leave, employee must be returned to same or nearly identical job

Alabama Workers’ Compensation Law Applies if you have more than 4 employees, either F/T or P/T 3 kinds of benefits – compensatory, medical, death  Compensatory – lost wages Temporary Partial – unable for period of time to do normal work, may be able to do some lesser work. Payment is based on 2/3 the earning capacity before and after the accident. Maximum benefit – 300 weeks Temporary Total – payment based on 2/3 average weekly earnings at time of injury for the 52 weeks prior to Permanent Partial – Amount of compensation based on extent of injury. Maximum payment is $220 per week Permanent Total – payment runs duration of disability equal to 2/3 of total weekly earnings at time of injury. Additional requirements apply. Injury could result in qualifying disability under the ADA

ADA vs. FMLA The greater protection applies to cover the employee  Leave must be provided under whichever statutory provision provides the greater rights to employees 29 CFR, section (a) FMLA permits a returning employee to go to an “equivalent” position ADA requires the employee be returned to their “original” position

Best Practice DOCUMENT, DOCUMENT, DOCUMENT READ, READ, READ SEEK, SEEK, SEEK Review and evaluate all regulations and policies that could apply to a request Follow your policies and state/federal regulations Prompt interactive dialogue with employee Require use of accrued leave for FMLA Provide reasonable accommodations as much as possible Discuss options with your attorney

Donna Gabel Human Resources Manager Alexander City Housing Authority 2110 County Road Alexander City, AL (256) ext. 205 (256) Fax Contact Information