1. An Employment Law Nightmare – Intersection of the ADA & the FMLA Presented at the RIBA 2014 Annual Meeting by Roger W. Hood and Rachelle R. Green 1

2. Family Medical Leave Act (“FMLA”)¹ Basic Rule: Covered employers must allow eligible employees to take up to 12 weeks of job-protected leave in a 12-month period to be used for certain qualifying events.² Special rules apply to families of military service members or veterans, as well as airline flight crew employees. 2

3. FMLA: “Covered Employers” & “Eligible Employees”³ Covered EmployersEligible Employees Company has 50 or more employees Must have worked at company for 12 months Includes part-time workers, temporary workers, and workers on paid and unpaid leave Short breaks in service do not interrupt employee eligibility Employee must work at U.S. location where the company employs at least 50 workers within a 75-mile radius Must have actually worked 1,250 hours during the prior 12-month period 3

4. Methods of Calculating 12-month Period⁴ Employers may select one of four methods to calculate the 12-month period to be uniformly applied to all employees taking FMLA leave: 1.Calendar year: January 1 to December 31 2.Any fixed 12-months: fiscal year, year starting on employee’s anniversary of hire; or any other 12 month period 3.12-months measured forward: measured from the first date an employee takes FMLA leave 4.“rolling” 12-months measured backward: each time an employee takes leave, the remaining leave would be the balance of the 12 weeks not used during the preceding 12 months 4

5. FMLA: “Qualifying Events”⁵  Birth of newborn child  Placement with employee of adopted or foster child  Leave to “care for” a serious health condition of employee’s spouse, child, or parent  Employee’s serious health condition  Event related to covered military service of employee’s family  “qualifying exigency” (12 weeks of leave)  military caregiver leave for service member or veteran’s serious illness or injury (26 weeks of leave) 5

6. FMLA: “Serious Health Condition” Means: Illness, injury or physical or mental condition that involves either:  inpatient care; or  continuing treatment by a health care provider Inpatient care includes an overnight stay at a hospital, hospice, or residential treatment facility. 6

7. FMLA: Qualifying Family Relationships Spouse: husband or wife, as determined by state law Parent: biological, adoptive, or any person who assumed parental duties while employee was a child Child: biological, adopted, foster, step, or legal ward if under 18 years old; also includes child under age 18 for whom employee has assumed parental duties, including financial support. If disabled, includes children over age 18. 7

8. FMLA: Duration of Leave General Rule: Eligible employees may take up to 12 weeks of job-protected, unpaid leave during any 12-month period. Intermittent leave may be taken for serious health condition if medically necessary (e.g. several days or hours per month for chemo or dialysis), but not for birth or adoption. ⁶ FMLA leave is unpaid leave. Employer may require employee to substitute available paid leave for unpaid leave 8

9. FMLA: Prohibits Retaliation for Taking Leave¹³ Employer may not “interfere” with employee’s right to FMLA leave or terminate employee for taking FMLA leave. Consider:  Timing of discipline  Treating employees who have taken FMLA leave differently  Failing to document discipline Employees who cannot perform essential functions of their jobs at the end of FMLA are not entitled to job restoration. However, they may be entitled to additional leave as a reasonable accommodation under the ADA. 9

10. Rhode Island Parental & Family Medical Leave Act¹⁴ Basic Rule: Covered employers must allow employees to take 13 consecutive work weeks of parental leave or family leave in any two calendar years. If leave is covered by both FMLA and RIPFMLA, the leaves run concurrently unless otherwise provided in the employee handbook. In the event of inconsistencies, the employer must apply the provision that is more beneficial to the employee. 10

11. Federal vs. RIPFMLA FMLA¹⁵RIPFMLA¹⁶ Amount of Leave12 weeks unpaid leave in a 12- month period 13 consecutive weeks unpaid leave in any 2 years Leave Year Calculations Can use:  Calendar  Fixed Year  Rolling Forward  Rolling Backward Calendar year “Covered Employer” Employers with 50 or more employees during the leave year or prior year Employers with 50 or more employees 11

12. Federal vs. RIPFMLA FMLARIPFMLA Eligible Employees  12 months of service  1,250 hours of service during the 12 months preceding the leave  at worksite with 50 or more employees within 75 miles of the worksite  12 consecutive months of service  works an average of 30 or more hours per week Covered Relationships  Child (biological, adopted, step, foster, legal ward, or in loco parentis) under age 18 or incapable of self-care due to disability  Spouse (husband or wife, but not domestic partner/civil union)*  Parent (biological, adoptive, foster, step, or in loco parentis)  Child (undefined)  Spouse (husband or wife, as defined by RI law)**  Parent (undefined)  Parent-in-law (mother- or father-in-law) 12 *But see: Windsor v. United States **Rhode Island recognizes same sex spouses. See R.I. Gen. Law § 15-1-1.

13. Federal vs. RIPFMLA FMLARIPFMLA Mode of Leave Usage  Continuous  Intermittent  Reduced schedule Continuous Health Insurance Benefits Employer must continue coverage and pay employer’s share of premium. Employee still responsible for share of premium (if any). Same, except that RIPFMLA requires employee to pay in advance the amount of premiums required to maintain benefits during the leave Reinstatement  Following leave, employee must be restored to the same or equivalent position.  Exception for “key employees” Same, except that RIPFMLA does not have an exception for “key employees” 13

14. Federal vs. RIPFMLA FMLARIPFMLA Pre-Leave Notice Required 30 days prior notice for foreseeable leave, and if leave is unforeseeable, as much notice as practicable  30 days prior notice “unless prevented by medical emergency to provide said notice”  Request for leave must verify the truthfulness of the factual representations made by employee and include a detailed description of employee’s entitlement to leave Medical Certification Employer may require certification of the patient’s medical condition by healthcare provider Employer may require certification of healthcare provider of the “probable duration” of the leave 14

15. Rhode Island Temporary Caregiver Insurance (“TCI”) 17 Effective January 1, 2014, Rhode Island employers must allow their employees four (4) weeks of time off per year to care for a family member with a serious medical illness or to bond with a child within the first 12 months of parenting. Applies to all employers regardless of size. Covers all employees regardless of how long they have worked for the employer. 15

16. Rhode Island Temporary Caregiver Insurance (“TCI”) During TCI leave, the employer does not pay salary, but employees receive temporary disability insurance payments from the state. During TCI leave, the employer must continue to provide health insurance to enrolled employees, but the employee is responsible for its share of health insurance premiums (if any). Employer has no right to request certification of the employee’s relationship to the ill family member or of the family member’s serious health condition. Employee provides documentation to the state. 16

17. Americans with Disabilities Act (“ADA”) 18 Basic Rule: an employer with 15 or more employees shall not discriminate against a qualified individual with a disability. The ADA makes it unlawful to discriminate in all employment practices such as:  Recruitment  Hiring  Training  Job assignments and promotions  Pay and benefits  Leave  Termination 17

18. ADA: What is A Disability? A person has “disability” if he or she has (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of this impairment; or (3) is regarded as having such an impairment.¹⁹ Examples of major life activities include: standing, sitting, lifting, seeing, hearing, eating, caring for oneself, working, walking, reading, concentrating, performing manual tasks, or communicating.²⁰ 18

19. ADA: Substantially Limiting²¹ A person has “disability” if he or she has (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of this impairment; or (3) is regarded as having such an impairment. Ability to perform a major life activity is measured against the average person’s ability. Corrective measures must not be considered, except for ordinary eye glasses and contact lenses. Requires an individualized assessment:  nature and severity of the impairment  impairment’s permanent or long-term impact  transitory impairments are not covered, but episodic or in remission are covered 19

20. ADA: “Record of” or “Regarded” as Disabled 22 A person has “disability” if he or she has (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of this impairment; or (3) is regarded as having such an impairment.¹ Record of impairment:  Document indicates an impairment that would substantially limit one or more major life activities.  Covers those with a history of having such an impairment. “Regarded” as disabled is based on the perceptions of others. 20

21. ADA: Who is qualified? Basic Rule: an employer with 15 or more employees shall not discriminate against a qualified individual with a disability. An individual with a disability is considered qualified if the individual, with or without reasonable accommodation, can perform the essential functions of the job held or desired. 23 Reasonable accommodations to the known physical or mental limitations of a qualified employee or applicant with a disability must be made unless to do so would cause undue hardship on the operation of the employer’s business. 24 Undue hardship includes employer’s cost, onsite resources, overall resources, and nature of operations. 25 21

22. ADA: Reasonable Accommodations Contemplates an Iterative Process Types of Accommodations:  required in the employment process for qualified applicants  make it possible for employees with disabilities to perform the essential functions of the position held or desired  enable employees with disabilities to enjoy the benefits and privileges of employment that are equal to (rather than the same as) the benefits and privileges that are enjoyed by other employees  Time off from work (either a modified schedule or flexible leave policy) may be required as a reasonable accommodation. 22

23. ADA: Prohibits Discrimination/Retaliation Discrimination may include: denying employment opportunities to qualified individuals; failing to make reasonable accommodations for the individual’s known physical or mental limitations; and/or terminating an employee for requesting a reasonable accommodation. Employees with disabilities may be disciplined like any other employee. Employees with disabilities may not be disciplined if the employer has refused to provide a reasonable accommodation and the reason for unsatisfactory performance was the lack of accommodation. Employees with disabilities may not be terminated for requesting a reasonable accommodation. 23

24. End Notes 24 1.29 U.S.C. § 2601 et seq. 2.29 U.S.C. § 2612. 3.29 U.S.C. § 2611. 4.29 C.F.R. § 825.200; see also U.S. Dep’t of Labor Fact Sheet No. 28H (available at http://www.dol.gov/whd/regs/compliance/whdfs28h.pdf). http://www.dol.gov/whd/regs/compliance/whdfs28h.pdf 5.29 U.S.C. § 2612. 6.29 C.F.R. § 825.202. 7.29 C.F.R. § 825.300. 8.29 C.F.R. § 825.305. 9.29 C.F.R. § 825.305. 10.29 C.F.R. § 825.311. 11.29 U.S.C. § 2614(a). 12.29 U.S.C. § 2614(b). 13.29 U.S.C. § 2615. 14.R.I. Gen. Laws § 28-48-1 et seq. 15.29 U.S.C. § 2601 et seq. 16.R.I. Gen. Laws § 28-48-1 et seq. 17.R.I. Gen. Laws § 28-41-34. 18.42 U.S.C. § 12101 et seq. 19.42 U.S.C. § 12111(5)(A). 20.42 U.S.C. § 12102(1). 21.29 U.S.C. § 1630.2(i). 22.29 C.F.R. § 1630.2(k)-(l). 23.29 C.F.R. § 1630.2(m). 24.29 C.F.R. § 1630.2(o). 25.29 C.F.R. § 1630.2(p).

25. An Employment Law Nightmare – Intersection of the ADA & the FMLA Presented at the RIBA 2014 Annual Meeting by Roger W. Hood and Rachelle R. Green 25

26. THANK YOU FOR YOUR ATTENTION! 26