Protecting, Leading, Uniting Since 1893 FSA Headquarters 2617 Mahan Drive Tallahassee, Florida

Protecting, Leading, Uniting Since 1893 FSA EXECUTIVE LEADERSHIP CONFERENCE April 8, 2015 AMERICANS WITH DISABILITIES ACT/FAMILY AND MEDICAL LEAVE ACT OVERVIEW Wayne Evans General Counsel, FSA Allen, Norton & Blue, P.A

Protecting, Leading, Uniting Since 1893 Eligibility 29 C.F.R. § (b) Eligible Employee  12 Months of employment need not be consecutive, provided break in service doesn’t exceed 7 years, unless break in service occasioned by Nat’l Guard or reserve military service obligation; or written agreement exists re: intent to rehire after break, e.g., break for education or childbearing.

Protecting, Leading, Uniting Since 1893 Eligible Employee  FMLA excludes employees if agency employs less than 50 and total number of employees, within a 75 mile radius of worksite is less than 50.  29 U.S.C. § 2611(2)(b)(ii); Tilley v. Kalamazoo Cnty. Rd. Comm’n, 2015 WL (6th Cir. 2015)

Protecting, Leading, Uniting Since 1893 Employee Notice Requirements 29 C.F.R. §, (b)  When employee seeks leave under FMLA for first time for FMLA- qualifying reason, employee need not assert rights under FMLA.  Employee must provide sufficient information to determine if FMLA applies.

Protecting, Leading, Uniting Since 1893 Employer Notice Requirements 29 C.F.R. § (b)  When employer acquires knowledge of FMLA qualifying reason employer must notify employee within 5 business days.  Fitness for duty requirements and job description should be provided.

Protecting, Leading, Uniting Since 1893 Employee Notice Requirements 29 C.F.R. § (b) When employee seeks leave for qualifying reason for which FMLA leave has been provided, the employee must specifically reference qualifying reason or need for FMLA leave. Calling in sick is insufficient.

Protecting, Leading, Uniting Since 1893 Qualifying Reasons for Leave 29 C.F.R. §  Employers covered by FMLA are required to grant leave to eligible employees.  Employees do not have the right to decline FMLA leave.

Protecting, Leading, Uniting Since 1893 The Family and Medical Leave Act – Accrued Leave 29 C.F.R. §  Eligible employees are allowed 12 weeks of unpaid, job-protected leave, and employees may substitute accrued leave.  Sheriff may, but is not required, to separate upon expiration of leave if employee is unfit for duty.

Protecting, Leading, Uniting Since 1893 Interference 29 U.S.C. § 2615(a)(1) Employers burden or deny substantive statutory rights, e.g., leave. Retaliation 29 U.S.C. § 2615(a)(2) Discharge of employee for exercising FMLA right to leave.

Protecting, Leading, Uniting Since 1893  No FMLA violation when “wheels of termination were put in motion before request for leave.” Beno v. United Telephone Co. of Fla., 969 F.Supp. 723, 726 (M.D. Fla. 1997); see also Pashoian v. GTE Directories, 208 F.Supp.2d 1293 (M.D. Fla. 2002)

Protecting, Leading, Uniting Since 1893 Absenteeism 42 U.S. C. § 12112(a)  Disability: Physical or mental impairment that substantially limits a major life activity; record of such impairment; or regarded as having an actual or perceived disability.  Chronic absenteeism is not protected under ADA.

Protecting, Leading, Uniting Since 1893 Perception of Disability 42 U.S.C. § 12112(a); 29 C.F.R. § 16302(g)  Agency prohibited from taking action against employee because of an actual or perceived disability.  Treat performance issues without regard to medical issues unless raised by employee.

Protecting, Leading, Uniting Since 1893 Birth of a Child 29 C.F.R. §§ 825,120,  Unless employer agrees, employee can’t take bonding leave intermittently  Employee must take bonding leave in a continuous block of time

Protecting, Leading, Uniting Since 1893 Accommodation  Moving one employee to permanent day shift placed heavier burden on the rest of plant operators when only rotating shifts available. Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1997)

Protecting, Leading, Uniting Since 1893 Accommodation  ADA doesn’t require essential job functions to be eliminated or the City to continue to accommodate disability with respect to investigation of crime scene- previous accommodation exceeded what the law requires. Holbrook v. City of Alpharetta, Ga, 112 F.3d 1522, (11th Cir. 1997)

Protecting, Leading, Uniting Since 1893 § (11), Fla. Stat.  Law enforcement officer who in the line of duty is maliciously or intentionally injured shall be carried in full-pay status.  Deputy is not required to use leave to supplement W.C. benefit of 2/3 of salary.

Protecting, Leading, Uniting Since 1893  Workers’ comp., leave, and FMLA may run concurrently.  29 C.F.R. § (e)- Serious health condition may result from injury on or off duty.  Paid leave may supplement W.C. benefits (eg. 2/3 salary).

Protecting, Leading, Uniting Since 1893 Retaliation  § Fla. Stat. doesn’t prohibit discharge of employee for any non-retaliatory reason once W.C. claim has been filed.  Pierich v. Climatrol, Inc., 523 So.2d 684, 685 (Fla. 3d DCA 1988).

Protecting, Leading, Uniting Since 1893  Employer has the obligation to obtain physician’s reports and cannot require employee to assume this duty.  § (4)(a),(c), Fla. Stat.; Hornfischer v. Manatee County Sheriff’s Office, 136 So. 3d. 703 (Fla. 2d DCA, 2014).