From the Leaves of Absence Webinar: Navigating the Family Medical Leave Act & Americans with Disabilities Act: Use these slides with handy notes section when navigating the complexities of administering leaves of absence.

1. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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LEAVES OF ABSENCE:
NAVIGATING
THE FMLA & ADA
Presented by Jenny Arthur,
SPHR, SHRM-SCP
Agenda
• What is FMLA?
• What is the ADA?
• Differences and Overlap
• Administering Leaves

2. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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What is the FMLA?
• Clinton Era - 1993
• “Balancing the demands of the workplace with the needs of families”
• Allows employees to take leave for certain protected reasons
• Up to 12 weeks of leave for most purposes
• Provides job restoration and benefit continuation rights
Definition
• 50+ employees within 75 miles
• All public agencies
• Worked for employer for one or more year (and
at least 1,250 hours in the last year)
Eligibility

3. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• Serious health condition
• Serious health condition of a family member
• Caring for a new child
• Military family exigency
• Military family caregiver (up to 26 weeks)
Reasons for Leave
• Incapacity or treatment involving in-patient
care, or requiring an absence morethan 3
days under supervision of medical provider.
• Absences due to Pregnancy/Prenatal Care
• Absences due to ChronicSerious Health
Condition (Asthma, Diabetes, Epilepsy, etc.)
Reasons for Leave 1:
Serious Health Condition
• Long term periods of incapacity, evenif
treatmentsare noteffective(Alzheimer’s,
Stroke, Terminal Illnesses, etc.)
• Intermittent absences for multipletreatments
& recoverytime for conditions that would
most likely result in absences of more than 3
days if left untreated . (Chemo, Physical
Therapy, Dialysis, etc.)
Reasons for Leave 1:
Serious Health Condition

4. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• Same definition of serious health condition
• Family members are:
• Spouses (including legal same-sex marriages),
children (biological, adoptive, foster or step-
child), and parents (biological, adoptive, step,
foster or “in loco parentis”)
• Family members are not:
• In-Laws, siblings, or grandparents
Reasons for Leave 2:
Family Member Care
• AKA Baby Bonding leave
• Covers birth, adoption placement, and foster
placement
• Must be taken within 12 months of birth or
placement
• Available to bothparents
Reasons for Leave 3:
Caring for a New Child
• Employee’s spouse, child, or parent is on active duty or
called to active duty
• Includes items suchas:
• Attending military events
• Arranging child care
• Addressing financial arrangements
• Attending counseling sessions
• Attending post-deployment activities
Reasons for Leave 4:
Military Family Exigency

5. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• Spouse, child, parent, next of kin of service
member or veteran
• Serious injury or illness was duty-related
• Up to 26 weeks of leave during one 12 month
period
Reasons for Leave 5:
Military Family Caregiver
• Unpaid
• Employee may use accrued paid time off
• Temporary Disability Insurance May Apply
(State or Private Plans)
Pay During Leave
• Employee may be required to remit payment for his/her portion of benefits
• Employer may cover benefits and require the employee to reimburse the
employer upon return
• Not COBRA qualifying event unless employee resigns or fails to return
• See Benefits Continuation Letter
Benefits During Leave

6. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• Complete and absolute job restoration required in most cases
• Same or equivalent position
• Exceptions:
• Key employees
• Employee would have been terminated or laid-off regardless of leave
• Shift eliminated
Job Restoration Following Leave
• Request Form
• Certification Forms (WH 380-E, 380-F, 384, 385, 385-V)
• FMLA GINA Safe Harbor Form
• Notification of Eligibility, Rights and Responsibilities
(WHD-381)**- within 5 days
• Designation Notice (WHD-382)**
• Benefits Continuation Letter
FMLA Paperwork
What is the ADA?

7. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• Prohibits discrimination in all employment
practices, including job application procedures,
hiring, discipline, firing, advancement,
compensation, training, and other terms,
conditions, and privileges of employment
• Requires reasonable accommodation (leave is just
one type of accommodation)
Definition
A covered individual is one who:
• Has a physical or mental impairment that
substantially limits one or more major life
activities,
• Has a history or record of such an impairment, or
• Is perceived by others as having such an
impairment.
ADA Disability Defined
• 15 or more employees
• No length of service requirement
• Employee has a disability or perceived
disability
• Employer may require certification (ADA
Medical Inquiry Form)
Eligibility

8. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• Undue Hardship: "action requiring significant difficulty or expense“
• Many factors taken into account
• Case-by-case determination
• Employee does not get to pick most desired accommodation
• Leave is just one possible accommodation
Reasonable Accommodations
• Defined: balancing of employee’s needs vs. employer’s needs
• In practice:
• Meeting to discuss doctor’s recommendations, employee’s suggestions, and
employer’s suggestions
• Letter stating which accommodations have been approved/denied
ADA Interactive Process
• Pay is not required during leave as an ADA accommodation.
• Employer may require the employee to remit payment for both employee and
employer portion of benefits.
• Job Restoration required unless “undue hardship.”
Pay, Benefits, & Job Restoration

9. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• ADA Medical Inquiry Form
• Other Notes from Treating Physician
regarding Required Accommodations
• Accommodation Letter – Approving or
Denying Accommodation Request(s)
following Interactive Process Meeting
ADA Paperwork
Differences & Overlap
• Eligibility requirements and covered conditions (some will trigger both)
• Definitions in general (make sure you are using the correct one!)
• ADA affects non-leave and accommodation issues (hiring, harassment, etc.)
• Overall, ADA affects more areas of the employee lifecycle but the FMLA grants
leave for a broader range of things
Major Differences

10. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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Serious Health Condition (FMLA) Disability (ADA)
Definition
Serious Health Condition
(Broader Definition than Disability)
Impairment that substantially limits a
major life activity
Examples
Appendicitis, Normal Pregnancy, Minor
Broken Bone
Visual Impairment, ADHD
(Any condition for which no leave is
required by treating physician.)
Examplesof Both Heart Disease, Cancer, Serious Strokes, Transplant, Back Surgery, Lupus, etc.
Examplesof
Neither
Cold, Flu, Stomach Virus, Routine Dental or Orthodontia Problems, Headaches
(other than Migraine), etc.
Serious Health Condition vs. Disability
• Will also overlap with ADA and FMLA
• Generally cover same issues as FMLA but are sometimes more generous
• Size of covered employer
• Length of employment before eligibility
• Covered conditions and family member definition
• Always apply rules most beneficial to the employee
Don’t Forget State Specific Leaves!
Administering Leave

11. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• Determine if it is an ADA request, an FMLA
request, or both
• When both apply, FMLA should be exhausted
and then the ADA Interactive Process should
begin regarding further leave as an ADA
accommodation.
Requests for Leave
• Track leave taken
• Continuation of benefits
• Stay in contact with employee
• Certifications as allowed by law
During Leave
• Communicate expected return
• Determine if any other leave may apply
• Require Medical Certification prior to
Restoration
• Reinstate employee to same or an equivalent
job
Returning from Leave

12. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• When FMLA eligibility begins during leave being
taken under ADA (or a state leave)
• When FMLA leave is exhausted but leave under
the ADA may still be a reasonable
accommodation
• “I want to save my FMLA.”
Tricky Situations
Case Scenario 1
A salaried manager has a heart attack which requires eight weeks off work entirely
and another four months of half days only according to his doctor’s
recommendations for recovery.
• Is this FMLA, ADA or both?
• Howwould paywork?
• Howwould benefitswork?
Case Scenario 2
A new hourly customer service representative misses work frequently. The manager
has been tracking her attendance and call-in reasons and they look as follows:
7/1 Date of hire 8/12 Absent, grandmother’s funeral
7/6 Absent 4 hours, car wouldn’t start 8/13 Late 2 hours, travel home from funeral
7/10 Late 30 minutes, traffic 8/24 Late 1 hour, overslept
7/16 Absent, daughter has stomachflu 9/4 Absent, not feeling good/cough
7/17 Absent, daughter has stomachflu 9/5 Absent, stillcoughing and tired
7/18 Absent, now both have stomachflu 9/6 Left early, coughing and tired
7/19 Absent, stillrecovering from stomachflu 9/17 Late, pulled muscle in back at gym
Can the company terminate her due to her attendance?

13. Leaves of Absence:
Navigating the FMLA and ADA
11/9/2015
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• Escribav. Foster Poultry Farms, Inc. (2014)
• Can an employee refuse FMLA and still enjoy job protection?
• Vess v. SelectMedical Corp.(2013)
• Can you ask an employee to perform some work while on FMLA?
• Attiobge-Tayv. SoutheastRollingHills LLC (2013)
• What is undue hardship?
Recent Court Decisions
THANK
YOU!
Jenny Arthur,SPHR, SHRM-SCP
HR Consultant
Jenny has had a distinguishedcareer in the Human Resources
Consulting field. Jenny's work has focused primarily on small to mid-
sized businesses in a variety of industries to reduce exposure to
employment-relatedliabilityand assist clients with employee
relationship issues. Jenny holds a Bachelors of Business Administration
(BBA) degree majoring in Human Resources Management and a
Masters of Business Administration(MBA) degree with a
concentrationin Human Resources Management. She is certified as a
SPHR (Senior Professional in Human Resources) through the Human
Resource CertificationInstitute.Jenny resides in Georgia with her
husband and two children.
Thank You!
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