1. Presented by: Josh Waltman
You Can’t Make Me Come To Work! Case Studies re Protected Leaves of Absence Under the ADA and FMLA
Presented by: Josh Waltman
October 28, 2016

2. Presented by: Josh Waltman Associate Littler, Phoenix

3. Disclaimers! We will go fast. We won’t cover everything.
This training does not substitute for the advice of counsel.

4. FMLA, ADA, WC

5. What’s New?

6. Hot off the Press. Luis Castro-Ramirez v. Dependable Hwy Express Cal
Hot off the Press! Luis Castro-Ramirez v. Dependable Hwy Express Cal. Ct. App. Case Nos. B and B (April 4, 2016)
The Holding: A California Court of Appeal, for the first time, has decided that an employer has a duty to reasonably accommodate an applicant or employee who is associated with a disabled person who needs the employee’s assistance.
The Justification: Determination under California’s Fair Employment and Housing Act (FEHA); “The very definition of a physical disability … includes a perception … that the person is associated with a person ‘who has, or is perceived to have’ a physical disability." Accordingly, when FEHA forbids discrimination based on a disability, the court reasoned that the FEHA also forbids discrimination based on a person’s association with a person who is disabled, making a non- disabled employee disabled by association.

7. Hot off the Press. Luis Castro-Ramirez v. Dependable Hwy Express Cal
Hot off the Press! Luis Castro-Ramirez v. Dependable Hwy Express Cal. Ct. App. Case Nos. B and B (April 4, 2016)
So what? California’s crazy, that’s why I live in Arizona.
This decision was unprecedented.
Should more have been done from a Family Medical Leave standpoint?
Whatever the law, how would this play to a jury?
Train your supervisors.
Never underestimate the value of the interactive process (even if it may not be strictly required).

8. Disability Data Is Sobering
Department of Labor: 33 million people in U.S. (aged 16-64) have disabilities
Of those, 19 million are employed
Bureau of Labor Statistics: U.S. unemployment rate is 5.1%
Unemployment rate for people with disabilities: 44.2%

9. FMLA Cases on the Rise
FMLA litigation has increased in recent years, a trend which is expected to continue.

10. Damages Can be Surprising
Walters v. Mayo Clinic Health Sys.-EAU Claire Hosp., Inc., 91 F. Supp. 3d 1071 (W.D. Wis. 2015): $543k judgment + $393k atty fees/costs, totaling $936,000
Kidd v. Charter Communications LLC, 1:13- cv (WD. Mich. 2016): awarded $661,000 in damages, including liquidated damages, prejudgment interest, $147k front pay, $286k atty fees/costs.
But see Hasenwinkel v. Mosaic, 809 F.3d 427 (8th Cir. 2015): FMLA claim failed where plaintiff did not identify monetary losses as a result of her suspension

11. DOL Enforcement of FMLA: You Don’t Have to be Sued to Face FMLA Cases
DOL has jurisdiction over FMLA enforcement and can investigate employee FMLA complaints
A recent example – DOL WHD in Las Vegas found that The Mirage wrongfully terminated the employment of a banquet server based on his use of medical leave, and employee was owed $74k in back wages.

12. Recent FMLA News
New FMLA forms posted to the DOL’s website in May 2015 (with little pomp and circumstance)
Available at
GINA language added

13. More FMLA News Defining “Spouse” For FMLA Purposes
FMLA: leave to care for a spouse with a serious health condition
The original rule: place of residence
The modified rule: place of celebration
What the United States Supreme Court ruled in Obergefell v. Hodges, 135 S. Ct (2015).
States must now license
States must now recognize

14. Does Threatening To Shoot Your Supervisor Make You Unqualified To Do Your Job?

15. A Welder Is Depressed
Welder of aircraft parts is diagnosed with “Major Depressive Disorder.”
With medication and treatment, he works without significant incident for 11 + years.

16. New Supervisor A new supervisor is assigned.
Employees complain that the new supervisor is bullying them and making their lives miserable.
Meeting held with HR to discuss concerns.

17. The Welder’s Response
Shortly thereafter, employee tells his co-workers:
“I feel like coming down with a shotgun and blowing his head off.”
“But don’t worry, because you won’t be working the shift when the killing would occur.”
“I plan to come on day shift to take out
management.”
“I want to bring a gun down and start
shooting people.”

18. And Still More
“All I would have to do to shoot the supervisor is to show up at the Company at 1:30 in the afternoon because that’s when all the supervisors have their walk-through.”

19. The Investigation Co-workers eventually report to HR
During investigation, employee is asked: “do you plan to carry out your threats?
Employee replies: “I can’t guarantee I wouldn’t do that.”

20. The Investigation
Employee is suspended and barred from Company property.
The police are informed.

21. Knock and Talk
That evening, the police visit the employee at his home.
Employee admits to making the threats, and admits that he has several guns at home.
Officer: “Do you plan to go to the Company and start shooting people?”
Employee: “Not tonight.”

22. Next Up: FMLA! Employee remains hospitalized for seven days
Employee goes home, asks for and is granted FMLA.

23. Accommodation?
Eventually he is cleared to work by a treating psychiatrist, who states “he is not a violent person.”
Psychiatrist recommends a new supervisor be assigned.

24. No, Thanks Employee is terminated. Brings an ADA claim
His “disturbing statements and comments” were the symptoms of and were caused by his disability.

25. The Ruling We assume the employee has a disability
But, the employee is not a “qualified individual with a disability.”
He cannot perform essential functions of the job
“An essential function of almost every job is the ability to appropriately handle stress and
interact with others.”
Mayo v. PCC Structurals, Inc.,
795 F.3d 941 (9th Cir. 2015)

26. So What You’re Saying Is . . .
“An employee is not qualified when workplace stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions (here, at least five times).”
It is not a reasonable
accommodation to require
assignment to a different
supervisor.

27. Lessons Learned
The topic of workplace violence involves far more than the duty to provide a safe workplace:
The legal “rights of the perpetrator” must also be considered

28. Lessons Learned
The broad wording of the ADA allows for creative lawyering

29. Lessons Learned
“Mental illness is a serious problem that affects millions of Americans, including many lawyers and judges.”

30. Lessons Learned
Employer’s response to threats of violence was methodical and effective
One significant concern here is delay in reporting by employees. Suggestion: training

31. Please, Tell Me More!

32. Is Inability to Get Along With Your Boss a “Disability”?...
Clinical assistant at hospital alleged she was “disabled” because employer would not transfer her away from a particular supervisor, and terminated because of her disability
Claimed stress, panic attacks due to interactions with management
Employer granted LOA for months, but set deadline to return to same position or be fired…

33. …Difficult Boss Does NOT = “Disability”
Employee refused to return to work with same boss, and sued
Motion for Summary Judgment (“MSJ”) for employer affirmed
Holding: Anxiety or stress related to supervisor’s standard oversight of job performance is not a “disability”
Higgins-Williams v. Sutter Medical (Cal. App. Ct. 2015)

34. How “Reasonable” Must Accommodations Be?...
Employee claimed employer refused to engage in interactive process to accommodate disability – ulcerative colitis, causing sleep loss
Employer granted modified schedule (start at 9 am instead of 6 am), and LOA
Trial court granted MSJ for employer…

35. …Employer Cannot “Chill” Employee’s Right to Request Accommodations
On appeal, Ninth Circuit troubled by supervisor’s comments that he disliked employee, accommodations
Comments could have “chilled [employee’s] right to accommodation”
Judgment for employer reversed, court noted that MSJ seldom appropriate in discrimination cases
Anthony Nigro v. Sears (9th Cir. 2015)

36. Did You Notice?
To establish a claim for FMLA interference or entitlement, employee must show he or she gave notice of need for FMLA leave
Amon v. Union Pac. Distrib. Servs. Co., 2015 U.S. Dist. LEXIS (D. Neb. Mar. 26, 2015) (referencing a “condition” insufficient when employee indicated he was taking a vacation day and was not sick)

37. However . . .
A well-known health condition may be enough, even if employee simply calls in “ill”
Brown v. Lester E. Cox Med. Ctrs., 2016 U.S. Dist. LEXIS (W.D. Mo. Jan. 22, 2016) (fact issue as to whether plaintiff gave adequate notice of FMLA for migraines when employer’s log describing employee’s call-in states plaintiff was absent for “ill” and “headache” where it was well-known plaintiff suffered from migraines.)

38. What is a serious health condition?
We know what Courts have said is not sufficient
Not: Stage One Chronic Kidney Disease, apparently – just a warning that kidneys were working too hard, not an “advanced disease” or abnormality. Dalton v. ManorCare of W. Des Moines IA, LLC, 782 F.3d 955, 957 (8th Cir. 2015)
Not: generalized abdominal pain or renal colic, where no in-patient care was necessary and source of pain was unknown. Smith v. Mayo Clinic, 2016 U.S. Dist. LEXIS 6676 (D. Minn. Jan. 19, 2016)
Not: prescription of medication and sending patient on his or her way – it doesn’t constitute a regimen of continuing treatment. Johnson v. Wheeling Mach. Prods., 779 F.3d (8th Cir. 2015)

39. What is a serious health condition?
What if the employee visits the hospital?
Maybe.
Employee left his job early because he was having breathing problems and chest pain.
Later that evening, he went to an emergency room and was admitted to the hospital shortly after midnight.
He was discharged from the hospital 18 hours later.
District Court held that employee did not receive inpatient care, which requires an “overnight stay” in the hospital (admission from sunset to sunrise). Third Circuit affirmed but on different reasoning – holding instead that an overnight stay means a stay for a substantial period of time from one calendar day to the next calendar day
Bonkowski v. Oberg Indus., Inc., 787 F.3d 190 (3d. Cir. 2015).

40. Can you rely on the Certification Form? A Caselaw Study
January 11– Employee submits FMLA application for absences due to back pain for four days of absences
Feb. 5 – Employee injures back plowing snow and leaves early when he could not perform the lifting required
Feb employee calls in absent due to back pain, and states his absences should be covered by his previous FMLA application
Employee discharged for too many absences under absence policy
After termination, employee provided a certification form for his Feb. absences, noting his incapacity would last for 3 days

41. Parties Agree to a Bench Trial
Employer argued employee did not meet qualifications for FMLA because certification provided for a period of incapacity that was not longer than 3 full days

42. Court Finds in Plaintiff’s Favor
Court held employer was not entitled to rely on the information in certification to the exclusion of all other evidence it had at the time
Plaintiff wins on FMLA interference claim
Smith v. AS Am., Inc., 85 F. Supp. 3d 1046 (W.D. Mo )

43. The “An Estimate Is Just That” Case – Hansen v
The “An Estimate Is Just That” Case – Hansen v. Fincantieri Marine Group, U.S. App. LEXIS (7th Cir. 8/18/14) 43

44. You Cannot Fire When Intermittent Leave Exceeds the Estimates
“We reject the argument that the estimates in the certification act as limitations on the frequency and duration of episodes for which an employee may be entitled to intermittent leave under the FMLA.... If the certified frequency and duration were limits on the employee’s entitlement to leave, there would be no need to request recertification when the employee’s requested leave exceeded the frequency or duration stated in the certification; the employer could simply deny FMLA leave.”

45. Cracking Down on Leave Abuse

46. Attendance-Based Discipline and Terminations
Trend in crackdown in the context of ADA context
2011: A record-breaking $20M EEOC settlement involving a major cellular provider for rigid application of an attendance points policy (largest ADA settlement in EEOC history)
Started a trend of EEOC enforcement in this arena that continues today
In November 2015, a major food service company settled with EEOC for $1.7M for the same issue
Dozens of class action lawsuits against employers for rigid application of neutral absence control policies
What this means for employers

47. FMLA and Vacation Abuse
Employee planned a week long vacation in Seattle and traded shifts to avoid penalties under employer’s absence policy.
The day before she left, she took FMLA pursuant to intermittent certification related to an ovarian cyst condition.

48. I’ll just take FMLA…
During her time off, the employer could not find her shift trade request, and the employee was told she would have to take a personal day, which would accumulate negative attendance mark.
Employee responded that she wanted to take FMLA leave that day.

49. Back from Vacation Employee later claimed she was on bed rest for FMLA
But her Facebook page showed photos of Seattle and an update that read “So, had a nap, about to get in the hot tub and watch the bonfire. Straight chillin’!”
Employee discharged based abusing her right to sick leave by taking FMLA.

50. Court Holds…
Summary judgment granted to employer based on legitimate reason for termination (abuse of the company’s sick leave policy)
Coates v. Sw. Airlines Co., 2015 U.S. Dist. LEXIS (E.D. Ark. Feb. 5, 2015), aff’d 627 Fed. App’x 581 (8th Cir. 2016); See also Eason v. Walgreen Co., 2015 U.S. Dist. LEXIS (D. Minn. July 15, 2015) (ADM/SER) (SJ for employer where it had good faith belief plaintiff was being dishonest about absence from work)

51. Be Tough on FMLA Abuse... But Don’t Get Cocky
Employee requested FMLA to take her terminally ill mother on a “make a wish” type trip to Las Vegas. Employee said she would be absent for six days to care for her mom during the trip and asked for FMLA—employer denied the request.
Employee went anyway, and was fired.
In addition to administering her mom’s medicine and generally looking after her while in Vegas, employee also “spent time with her mother playing slots, shopping on the strip, people-watching, and dining at restaurants.”
Employee acknowledged that her mom was not heading to Vegas for medical care, therapy or any kind of treatment.
Court said that FMLA doesn’t require medical treatment—it just requires care— which employee had to provide (bathing, feeding, assistance moving, etc.).
Judgment for the plaintiff—affirmed by the Court of Appeals.
--Ballard v. Chi. Park Dist., 741 F.3d 838 (7th Cir. 2014)

52. Is it Intermittent Leave?
Employee made request to work from home 2 days per week
Employee also submitted FMLA leave application, requesting “Intermittent. 2 days working from home” to care for her disabled son
Employee later told that she was needed at work 5 days per week and her telecommuting was revoked

53. Court Says:
Crux of the dispute was whether employee’s request to work from home was a request for FMLA leave that was denied, or whether it was simply a request to work from home
Ultimately, a dispute of material fact that prevented summary judgment
Wink v. Miller Compressing Co., 2015 U.S. Dist. LEXIS (E.D. Wis. June 1, 2015).

54. What Can We Do About Intermittent Leave?
Nothing. Just kidding. Well, sort of.
Require employees to schedule absences to minimize disruption
Enforce call-in procedures and other policies
Require use of paid time off
Consider requiring employee to report/verify FMLA absences in writing
Check those certifications—expired?
Recertification for other reasons—abuses, patterns, exceeding limits?

55. Intermittent and Reduced Schedule Leaves: What You CANNOT Do
Employers may not:
Require the employee to visit the doctor for each absence
Require explicit verification from health care provider of each day missed if certification is sufficient

56. Leave Under The ADA
Wait...What Do You Mean LEAVE Under the ADA?!?!

57. Employee Medical Conditions May Trigger Both FMLA and ADA Obligations
An employee’s own serious health condition is one basis for leave under the FMLA
If that serious health condition also constitutes a disability under the ADA, that employee may also be entitled to accommodations

58. So is the ADA Just More FMLA? Pushing Back When FMLA is Over
FMLA: No undue hardship, no operational argument, no flexibility—if an employee qualifies for the leave, he/she gets it
ADA:
Leave is just one form of reasonable accommodation
Other accommodations may be effective—and employees don’t get to just dictate their preferred accommodation
The employee has asked for leave—but will other accommodations enable him/her to return (ex: modified schedule, modifying non-essential job duties, etc.)?

59. Case In Point
Even if extending FMLA leave was a reasonable accommodation under the ADA, plaintiff must carry her burden of showing that she could perform the essential functions of her job with that accommodation. 
Scruggs v. Pulaski Cnty., 2016 U.S. App. LEXIS 5970 (8th Cir. Apr. 1, 2016) (request for additional time to obtain new FMLA certification not a reasonable accommodation; because plaintiff could not perform an essential function of her job, defendant did not violate FMLA by terminating her employment when FMLA leave expired).

60. Leave as an Accommodation The Good News, and the Bad News
Accommodations other than leave may also be effective
Employers do not have to provide indefinite leaves of absence or non-recuperative leaves
The Bad News
There is no set duration of leave that will always be enough, and generosity is not the standard
Individual analysis and the interactive process are required
Undue hardship remains a high standard

61. “Working from Home” ─ The Previous Test
“An employer is not required to allow disabled workers to work at home ... it would take a very extraordinary case for the employee to be able to create a trial issue of the employer’s failure to allow the employee to work at home.” Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538 (7th Cir. 1995). “The reason working at home is rarely a reasonable accommodation is because most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” Rauen v. United States Tobacco Mfg., 319 F.3d 891, 896 (7th Cir. 2003).

62. “Working from Home” – The New Test?
“[A]s technology has advanced … and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.” The burden is on the employer to prove that physical presence is an “essential function” of the position. “We are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommunicating arrangements.” EEOC v. Ford Motor Co., 752 F.3d 634 (6th Cir. 2014)

63. Mistakes To Avoid (using this picture again?)

64. FMLA/ADA Mistakes We Are Seeing Every Day
“We don’t do that here”
“That’s our policy”
“You can come back to work once you have a full release”
“His doctor released him, but we can’t take that risk”
“We can’t have someone with a history of [insert condition here] in this job”
“What prescriptions are you taking?”
Not designating WC leave as FMLA

65. 1. No Undue Hardship Defense for FMLA
An employer can’t simply argue that accommodating an employee’s leave would be an undue hardship. FMLA leave is an employee entitlement, so even if the leave does complicate things, or make them difficult, the employee still has a right to the leave.
Wages v. Stuart Mgmt. Corp., 798 F.3d 675 (8th Cir ) (SJ for plaintiff where employment terminated on same day she requested leave, and employer stated it was unable to accommodate her restrictions, i.e. FMLA request for reduced hours schedule)

66. 2. FMLA Mistake: Commenting on Frustrations about FMLA Leave
May provide evidence of retaliation when combined with timing
Severe v. O'Reilly Auto. Stores, Inc., 92 F. Supp. 3d 892, 909 (N.D. Iowa 2015) (fact issue where messages suggested that plaintiff was physically unable to continue in his job, and that the company would be “better off” without him).

67. Comments About FMLA Leave
But may be disregarded as a stray comment not related to decisionmaking process
Burciaga v. Ravago Ams. LLC, 791 F.3d 930 (8th Cir. 2015) (summary judgment for employer even though manager testified that he was “probably a little frustrated” about plaintiff’s need to be absent from work)
Darden v. AT&T Corp., 2016 U.S. Dist. LEXIS 4689 (E.D. Mo. Jan. 14, 2016) (remark that manager had it out for those on FMLA leave not direct evidence when termination occurs 4 months later)

68. 3. Confidentiality Issues
FMLA, ADA and GINA all require that employee medical information be kept confidential
Under lock and key—whether virtual or physical
Separate files, do not keep with personnel file
Share on a need-to-know basis only
Authorization for medical information can only be requested. An employee can always decline, though it may impact entitlement to leave due to lack of certification or clarification.
What medical information are we entitled to?
FMLA: what is on the DOL forms
ADA: job related and consistent with business necessity (i.e., individualized analysis)

69. 4. Outsource and Forget It
Increasing number of employers moving to Third Party Administrators (TPAs) to administer FMLA leave because of complexity and administrative burden
TPA is employer’s agent, but employer cannot outsource liability, so TPA’s actions should be audited/monitored
In addition, significant FMLA-related obligations remain with the employer

70. 5. Failing to Manage the FMLA / STD / WC / ADA Interplay
“Silo” approach to FMLA creates risk in many ways, e.g.:
“Forcing” FMLA leave where ADA accommodation sought.
Not considering ADA accommodations when employee seeking leave is not FMLA- eligible.
Not designating workers’ compensation absence as FMLA leave, when applicable.
Not recognizing FMLA’s protection of employees’ right to refuse light duty assignment.
Treating STD benefits as approved leave and not designating related absences as FMLA.

71. 6. FMLA Policy Not Complete, Customized and/or Compliant
Leave year not designated
Notice requirements (for foreseeable and unforeseeable leave) not included
Interplay with paid leave policies not accounted for
Improper minimum increments of leave
DOL’s FMLA Poster not attached
Waiving eligibility requirements and still calling it FMLA leave

72. 7. Failing to Confirm Delivery of FMLA Forms
Lupyan v. Corinthian Colleges, Inc. (3d Cir. Aug. 5, )
Employee requested leave to deal with her depression.
CCI gave her the medical certification form, and her doctor returned it.
CCI then mailed her the FMLA designation form since she was off work.

73. Failing to Confirm Delivery of FMLA Forms
Her 12 weeks of FMLA–protected leave expired, and neither she nor CCI discussed the end of her FMLA leave.
14 weeks after her leave began, she tells CCI she can return with restrictions, but CCI cannot accommodate those restrictions.
18 weeks after her leave begins, she tells CCI she can return. CCI tells her due to her expired FMLA leave and low enrollment, her job is eliminated.

74. Failing to Confirm Delivery of FMLA Forms
Employee claims CCI interfered with FMLA rights by not providing FMLA notice of rights and then terminating her.
CCI swears it mailed the FMLA notice of rights form, and, under the Mailbox Rule, it can presume she received it.
The Third Circuit rejected CCI’s reliance on the Mailbox Rule.

75. Failing to Confirm Delivery of FMLA Forms
Must be able to prove employee receipt of notice of rights.
The “negligible cost and inconvenience” of sending notes via a traceable means is “dwarfed” by the unfairness of relying on standard business practice to prove receipt.
Court also notes that employee’s simple statement that she would have structured her leave differently creates a jury issue re prejudice.

76. 8. Failing to Require Complete and Sufficient Certifications
Certification is the source of most information needed to address FMLA fraud
Is the employee unable to perform any of his/her job functions due to the condition: ____ No ____ Yes.
If so, identify the job functions the employee is unable to perform: __________________________

77. 9. Not Acting on Independent Reason for Termination During Leave
Employee taking FMLA leave has no greater right to reinstatement than if he/she had been continuously employed rather than on leave.
Examples:
Layoffs
Discovery of misconduct during leave

78. Lessons Learned
Review and update handbook policies related to FMLA/ADA
The Details Matter
Do not use technicalities as a “gotcha” to fire or discipline an employee.
Tell them the consequences of non- compliance. Then tell them again and tell them in writing.
Send the communications via some traceable method.

79. What Might We Be Discussing Next Year?

80. FMLA Issues on the Horizon
Individual liability for HR managers?
Graziadio v. Culinary Inst. of Am., U.S. App. LEXIS 4861 (2d Cir. Mar. 17, 2016) (HR director could be held individually liable for FMLA violations because had enough control over employee’s job and input into termination to qualify as an “employer”)

81. FMLA Issues on the Horizon
Joint employer issues?
Zolner v. U.S. Bank National Association., 2015 U.S. Dist. LEXIS (W.D. Ky. Dec. 1, 2015) (TPA not a joint employer)
Whitney v. Franklin Gen. Hosp., 2015 U.S. Dist. LEXIS (N.D. Iowa Apr. 21, 2015) (fact issues as to joint employer status of hospital staffing management and personnel services company)
Stay tuned...

82. Strategies For Curbing FMLA Abuse
Medical certification process:
Check for completeness
Clarify certification ambiguities
Seek recertification (when appropriate)
Seek second and third opinions
Seek new certifications (where appropriate)
Require advance notice before approving “foreseeable” absences for treatment
Require normal call-in procedures to have time- off be considered protected and not considered under attendance or tardiness policies

83. Other Strategies To Curb Abuse
Enforce established, non-discriminatory policies for providing advance notice of leave.
Establish a moonlighting policy ─ prohibit outside employment, or at least prohibit such employment while employee is on paid or unpaid leave during which benefits may be retained (but allow exceptions not inconsistent with need for leave – i.e. out of town family care).

84. Practice Tips
Every request for accommodation requires an individualized assessment or careful evaluation of the restrictions, duration, and job assignments within the applicable department. DO NOT MAKE ASSUMPTIONS ABOUT WHAT ACCOMMODATIONS AN EMPLOYEE NEEDS. 

85. Practice Tips A request for accommodation may be made at any time.
A request for accommodation need not include legal words, such as “reasonable accommodation, “ADA,” “FMLA,” etc. 
A request for accommodation may be written or oral. 
Other people may seek accommodation for a co-worker, and no request may be needed in some extraordinary circumstances.  

86. Practice Tips
All assessments of requests for accommodation, including medical leave, require cooperative communication from the employee and the employee’s medical providers so the employer may clearly understand the employee’s needs.
Incorporate into the certification paperwork a copy of the applicable essential job functions, including specific physical requirements, to ensure that the employee’s medical provider has sufficient and accurate understanding of essential job duties.

87. Practice Tips (cont.)
Post-request, communications regarding requests for accommodations should be sufficiently detailed and in writing at all steps of the process. If possible, utilize standard forms.
If the accommodation requested is a leave of absence, provide FMLA paperwork as appropriate.
Notify employees, in writing, that unreasonable delay or refusal by the employee to participate or cooperate in the interactive or FMLA-certification process can result in forfeiture of rights. Provide plenty of opportunities for participation and cooperation, and document carefully.

88. Practice Tips (cont.)
Accommodations are not one and done. Accommodation may not work, or condition may change.
If it is clear that a disabled employee is still having difficulties even with accommodation, consider initiating a discussion about alternative accommodations.
Consider implementing a procedure for soliciting feedback from the employee to monitor accommodations.

89. Questions?

90. FMLA and ADA Update
October 28, 2016