THE INTERSECTION OF FMLA AND ADA PHYLLIS JONES ASSISTANT COUNTY ATTORNEY

Agenda Overview of FMLA Overview of ADA Define intersection Discuss practical examples Question

FMLA BENEFIT 12 WEEKS OF LEAVE IN 12-MONTH PERIOD: Birth of employee’s child and care for newborn Foster care or adoptive placement Employee’s serious health condition Serious health condition of employee’s spouse, child, or parent Military family leave entitlements Reinstatement to same job or equivalent job

QUALIFYING FOR FMLA Employee must have worked for the employer at last 12 months Must have worked at least 1,259hours during the preceding 12-month period

EMPLOYER’S OBLIGATION The employer has the obligation to designate leave as FMLA leave Employee calls in sick 3 days in a row Employee misses work because of Dr. appointments Employee misses work to care for child, spouse, or parent Employee is pregnant or expects newborn child Employee adopts a child or accepts a foster child

ADA BENEFITS Accommodation so that a qualified person with a disability is able to perform the essential functions of the job and/or Accommodation so that a qualified person with a disability can enjoy benefits and privileges that employees without disabilities receive

QUALIFYING FOR ADA Employee has physical or mental impairment that substantially limits one or more major life activities; or Employee has a record of such an impairment; or Employee is regarded as having such an impairment

EMPLOYER’S OBLIGATION UNDER ADA Accommodate employee unless its an undue hardship for employer Engage interactive process Employee requests adjustment to job duties because of illness Employee performing poorly and attributes poor performance to medical condition

COMPARE ADA AND FMLA FMLA--- it’s a benefit ADA----it’s a right Serious health condition Leave for employee’s illness, family member’s illness, adoption, newborn, foster care, military 12 weeks leave in 12 months Disability of employee Leave must be related to employee’s disability No set leave time

INTERSECTION Employee qualifies for leave under FMLA and requires some type of accommodation under ADA in order to perform essential function of job ADA FMLA

INTERSECTION A qualified individual with a disability is entitled to additional leave time beyond the twelve weeks permitted under the FMLA so long as that leave time does not constitute an undue hardship for the agency.

PRACTICAL EXAMPLE Dave has exhausted his FMLA leave and requests the County, his employer, provide additional leave beyond what it provides for in its policies. The requested leave is so that Dave can care for his child with a disability.

PRACTICAL EXAMPLE Rebecca has been taking intermittent FMLA leave for chemotherapy treatments. She has exhausted her FMLA leave time, but is at a point in her treatment where she is now able to return to work. However, she has informed the County that she will still need time off intermittently for additional treatments and follow-up appointments.

PRACTICAL EXAMPLE The County has a no-fault attendance policy that provides that employees who are inactive for six months for any reason will be administratively terminated, but are eligible to reapply for any vacant positions in the future. Dan has exhausted his entire 12 workweeks of FMLA leave (approximately three months) for a debilitating back issue. His physician now indicates that he needs an additional surgery. The doctor expects the full recovery period to be six to seven months and that Dan has a very strong likelihood of returning to work at that point.

PRACTICAL EXAMPLE Brian has only been working at the County for six months when he has a car accident (not related to his job). He requests a week off for surgery and another week for recovery. He is not eligible for FMLA leave. The County has a policy that employees who take time off of work without having accrued sufficient paid time off to cover those absences will be terminated (unless those absences are protected by the FMLA).

PRACTICAL EXAMPLE Stephen has been out for three months due to a workers' compensation injury. His doctor has now provided him with a return-to-work release that indicates he will be able to return to work, without restrictions, in one more month. However, he has exhausted his FMLA leave for this 12-month period. Stephen provides the release to the county and asks for an additional month of leave.

QUESTIONS ?