1. Terri C. Davis tcd@shuttleworthlaw.com
Handling Leave Issues
Terri C. Davis

2. Types of Leave Sick Leave/PTO FMLA Workers’ Compensation
Short Term/Long Term Disability
ADA Accommodation
Military Leave

3. Workers Compensation Types of Temporary Leave
TTD – temporary total disability
Receives full benefit
TPD – partial or light duty
Receives partial benefit

4. Workers Compensation Temporary Partial Disability Reduced hours
Limited duty – i.e., “Light Duty”
Fewer hours or Lower pay as a result
Paid, based upon reduction in earnings

5. Light Duty Issues Optional, not required to be offered
If offered, communicate clearly, and in writing if possible
Make sure you have current restrictions from doctor
And follow them!
If refuse, no benefits during refusal
Not required to create a new position

6. Return to Work from Work Comp
Must have doctor release – so you know what restrictions if any
Can’t have blanket 100% requirement (ADA)
Must abide by restrictions
NO retaliation – demotion, cut hours, firing – for filing claim

7. Failed Return to Work Sometimes not ready yet Ask for doctor release
Offer light duty if available
Maybe 4 hours instead of 8 for a short period
Same protections from retaliation if failed attempt

8. Leave for appointments
Must pay regular pay if doctor, PT, etc. during normal working hours
Can’t require employee to schedule outside working hours

9. FMLA Leave Issues Eligibility
Employer – 50 or more employees within 75 miles
By road, as the rationale is whether the employer can easily get someone there to cover it
In 20 or more weeks in the preceding year-time
Must count all employees on the roster of employees, including part-time, seasonal, temp

10. FMLA Leave Employee eligibility 1. work for a covered employer
2. have worked for an employer for a total of 12 months(NOT in the last yr)
hrs in the previous 12 months

11. FMLA Leave
Up to 12 workweeks in 12 month period
UNPAID

12. FMLA Reasons Birth or Adoption
To care for a spouse, child or parent with a serious medical condition
Employee’s own serious health condition
Qualifying exigency related to military service of employee or family member (12 weeks)

13. FMLA Notice What notice is required to Employer?
30 day notice if foreseeable
Or as soon as practicable if not
Can require employee to comply with other employer policies while on leave – i.e., call-in policies

14. FMLA Notice Employee does not need to use magic words –
Must train supervisors/managers to recognize potential FMLA situations and refer employees to HR when appropriate
If employee has told you of a serious health condition, and is missing work, or having difficulty working . . .

15. FMLA Notice What notice is required to Employee?
Posters, policies, training
Advising may be eligible if know of serious health condition and need for leave
Must tell employee if it is being treated as FMLA leave

16. Serious Health Condition
Very specific requirements
Inpatient Care
Continuing treatment
Period of incapacity >3 days with subsequent treatment
Incapacity related to pregnancy
Incapacity or treatment for chronic serious health condition

17. Certification of Health Care Provider
To be completed by employee’s doctor
Employer can get 2nd or 3rd opinion at employer’s expense
Can require periodic recertification
Can get clarification from doctor, but it must be someone other than employee’s direct supervisor

18. FMLA Leave Must maintain health benefits while on leave
Can require them to pay their portion of premium
Must restore to equivalent job when employee returns

19. Intermittent Leave Perhaps the single biggest issue for many employers
Can be taken in increments as small as you allow pay to be broken down
If for planned medical treatment, employee has duty to schedule so as to limit disruption to employer

20. FMLA Leave
Employer CAN require the employee to use paid leave while on FMLA
Sick leave, vacation
But must inform the employee of this policy

21. USERRA
Military Leave
Military deployment can’t destroy FMLA eligibility
Entitled to 26 weeks to care for injured family member with a serious injury or illness
Entitled to same benefits as if had been continuously employed

22. USERRA
Covered Servicemember = current member of the armed forces, including national guard and reserves
Who is undergoing treatment for a serious injury or illness
Defined as injury or illness incurred in the line of duty while on active duty that leaves him unfit to perform duties

23. How is Exigency leave different?
Arises out of fact that family member is on active duty, or is being called up to active duty in support of a contingency operation
Does not apply to family members of military members in the regular armed forces, only guard and reserve

24. After FMLA/Work Comp Leave
Released but has permanent restrictionse
Return to prior job?
Have other positions within restrictions?
Can I terminate?
Can it be accommodated?

25. What are essential Functions?
Job Description is helpful, but not the final determinator
How often is it done?
Is it part of the main purpose of the job, or incidental?

26. ADA
Employer may require an employee who requests accommodation (including leave) to provide medical documentation
Nature
Severity
Duration, and
Extent of impairment

27. ADA No documentation? No accommodation required
Reasonable time to provide

28. ADA
Employer’s obligation is to engage in interactive process to determine if there are any reasonable accommodations that will allow the employee to perform essential functions
Again – employee need not use magic words

29. ADA
If employer has enough information to identify disability as an issue, it has an obligation to inquire further
How can we help you do your job?

30. ADA Obligations What accommodations are reasonable?
reduced work schedule
Regular time off for treatment
Flexible start time
Leave of absence for a definite period, if leave will allow employee to return to work and perform essential functions

31. ADA What accommodations are unreasonable?
Eliminating essential functions
Irregular, erratic, unreliable attendance – if regular attendance is an essential function
Leave of absence for an indefinite period of time
Anything that would create so severe an economic hardship as to threaten continued viability of company – don’t count on this one

32. FMLA/ADA Interaction
FMLA applies if covered entity and eligible employee
ADA if not a covered entity, before employee become eligible for FMLA leave or after employee exhausts FMLA leave
Must always consider which statute applies

33. DECISION POINTS Employee reports injury/illness
Employee requests leave – FMLA/ADA
Employee requests extension of leave
Employee wants light duty work
Employee wants to return to work
Employee has permanent restrictions/limitations

34. Employee Reports Injury or Illness
If claim is accepted –
leave is allowed
Weekly benefits are paid
Cannot require employee to use PTO
If claim is denied –
Don’t have to pay benefits, BUT
Does leave qualify for FMLA?
Is ADA implicated?

35. Requests Leave, Not Work Related
FMLA –
Suggest applying for FMLA leave if the employee is eligible
Assist with paperwork
Intermittent or Full time leave?
STD/LTD benefits available?
Promptly process the FMLA Certification of Health Care provider and notify employee if FMLA is granted

36. Requests Leave, Not Work Related
Can require recertification during leave
Have written policies regarding call-in, recertification requirements
Make sure benefits are continued

37. Requests Extension of Leave
If FMLA, can have up to 12 weeks total per 12 months
You can offer extension, but clearly state that employee might not be returned to same/equivalent job – loses that protection after 12 weeks – must be consistent
You can require additional medical documentation

38. Requests Extension of Leave
STD or LTD to offer at this point?
May be required to discuss additional leave as a reasonable accommodation under ADA
No longer can quibble over whether it is really a “disability”
Assume it is if they have been unable to work, and engage in the dialogue

39. Wants to Return Light Duty
If workers’ compensation injury, then encourage light duty – get release from doctor with clear restrictions
Can be modified duties or hours – be creative
It is to your benefit to have employee back to work, even at light duty

40. Wants to Return Light Duty
If not workers’ compensation
FMLA does not require the employer to offer a light duty option, and employer cannot penalize employee for refusing light duty option
Q: Would it benefit the employer to have employee working in some modified capacity?

41. Full Return to Work Do you want a fitness for duty evaluation?
Cannot require 100%, no restrictions
Are there issues about the employee’s or other employees’ safety?
If FMLA, must be same or equivalent position

42. Full Return to Work What if the position is no longer available?
What is considered equivalent?
Same pay
Same level of responsibility
Same opportunities for advancement
Different shift?
Different department?

43. Employee Has Permanent Restrictions
If workers’ compensation – can you accommodate the restrictions in the position, or modify the position? – do it if you can
If not workers’ compensation – probably need to engage in dialoueg about reasonable accommodations under ADA

44. Scenario 2
Ready to come back to work full time, but still has some restrictions
Can the position accommodate the restrictions? (don’t need to create new job)
Do the permanent restrictions constitute a disability?
Need to accommodate by adjusting job duties, help lifting, etc?

45. Scenario 2
Would an additional leave allow him to return to work and perform the essential functions?
Have any FMLA leave left?
Remember: can’t have blanket policy requiring release of 100%, no restrictions

46. Questions?