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Employer Notice Requirements Under the Final FMLA Regulations

Posted by Molly DiBiancaOn May 7, 2009In: Family Medical Leave, HR Summer School

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The FMLA has undergone major change in the past 18 months. First, there was the National Defense Authorization Act (NDAA), an amendment to the FMLA, which took effect in January 2008.  Then, in February, the U.S. Department of Labor (DOL), released its proposed regulations for public comment.  The comments were collected and the FMLA's final regulations were published in November.  Then, on January 16, 2009, the final regulations took effect.  And, since then, employers have been operating under this new--and substantially different--set of regulations.  Whether or not they realize that there's a new set of rules in town is a different question.

For those of you who are aware that the FMLA's final regulations are now in place, you also probably know that the regs impose a set of new responsibilities on employers. I've spoken to Human Resource professionals about the final regulations several times since they were first promulgated, including at our annual employment law seminar last week, where William W. Bowser and I presented an FMLA update twice in the same day to accommodate the large number of attendees.  A single blog post is not the best way to share the many ins and outs of the new law. But I can address one topic that I consider to be critical for employers to understand: FMLA Notices.

FMLA Demonstrative

The final FMLA regs contain substantial changes in the conditions in which an employer can and must give certain FMLA-related notices to employees.  Each of these notices have a great number of complexities that employers are best advised to come to terms with now.  The new regulations are unforgiving when it comes to employer delays.  

Here's the run-down for what employers must know about the required FMLA notices. 

General Notice 

Under the new regulations, this includes the traditional posting requirement.  If the employer has a written policy on leave and benefits or an employee handbook that includes such a policy, the same posting notice must be included.  Employers without a handbook should call me.  Then they should start providing each new employee with the general notice (posting) at the time of hire.

A few points of interest with respect to the General Notice. First, if a significant portion of your workforce is not English literate, the posting must be translated into their language(s).  Second, an employer who is FMLA covered must post the General Notice at all work sites, regardless of whether a work site has any FMLA-eligible employees.

Eligibility Notice and Rights and Responsibilities Notice

Once an employee requests leave, or the employer becomes aware that an employee may qualify for FMLA-protected leave, the employer must give two more notices:  the Eligibility Notice and the Rights & Responsibilities Notice.  Eligibility Notice must be given within 5 business days and must tell the employee whether or not he or she is eligible for FMLA.  If the employee is not eligible, the Notice must provide at least one reason why not.  If the employee has another request for leave in the same 12-month period, the Eligibility Notice need not be issued again unless the employee's eligibility status has changed.

At the same time, the employer must inform the employee of his rights and responsibilities as provided by the FMLA.  Specifically, the notice must state that the leave may be designated as and deducted from any existing FMLA entitlement and it must identify the 12-month period being used when making an FMLA determination.  Most critical, though, is the requirement that the employee be notified of his responsibilities, if any, with respect to providing a medical certification. 

If the employee will be required to provide a medical certification of his or his family member's serious health condition or, in the case of military family leave, certification of a qualifying exigency, he must be informed of this requirement now.  The DOL's certification form can (should) be included with the rights and responsibilities notice. 

Designation Notice

If the employee does not return a medical certification, the employer has no further obligations with respect to notices.  But, if the employee does come back with the certification as requested, the employer's final notice requirement is triggered.  Once the employer has sufficient information to make a determination about whether FMLA will apply to the leave, it must notify the employee of its designation. 

If the leave will not be designated as FMLA, the notice must tell the employee why the leave is not deemed qualifying.  If the leave will be designated, the employee must be notified of the number of designated hours, days, or weeks. 

Key at this stage is the requirement that the notice include information about a fitness-for-duty certification requirement if the employer has one.  And a list of essential job duties if the FFD must address the employee's ability to perform essential job functions. Just to recap this critical requirement, let me point out that, along with a designation notice, the employer must inform the employee that a FFD will be required or waive the ability to require it.  And, to top it off, if you fail to include a list of essential job duties, the FFD will be based on the employee's own description of his or her job duties.  Not ideal.

Summary

In case you missed it, here's what you need to know when it comes to FMLA leave notices.  Using the handy-dandy image, above, here's the timeline.  First, you've got to comply with the General Notice requirements--in the form of a posting and policy.  Second, once the employee gives notice of the need for FMLA leave (or you learn of the need otherwise), you must give an Eligibility Notice, informing the employee of his or her eligibility status.  At the same time, you must provide the Rights & Responsibilities Notice, including a notice to the employee that he must provide a certification if one is going to be required.  Assuming the employee returns the required certification, then you must designate the leave as FMLA, non-FMLA, or inform the employee that you do not have sufficient information to make the designation.  And, if you will require the employee to provide a fitness-for-duty certification, you must put him on notice now. 

These now-or-never requirements of the FMLA final regulations require employers to do some real advance planning.  Employers must determine when they will require an employee to provide a certification and under what conditions a fitness-for-duty certification will be necessary.  As if that's not enough work to do, you must also have the essential job functions prepared and ready to go when you send out the FFD information.  That's a lot of planning so if you haven't gotten started, there's no time like the present.

FLSA 105: Recordkeeping Requirements

Posted by Molly DiBiancaOn January 14, 2009In: Fair Labor Standards Act (FLSA), HR Summer School

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The Fair Labor Standards Act (FLSA), requires employers to make, keep, and preserve records regarding employees and employee compensation.  The FLSA provides a 15-item list of the types of information that the employer has the obligation to obtain.  All primary sources of this information must be preserved for a period of three years for all current and former employees.  All supplementary sources must be preserved for at least two years.  deptoflabor

What Information Am I Required to Keep?

First, you must be familiar with the information for which you are responsible.  The list includes:

  1. Name and SSN;
  2. Home address;
  3. Date of birth if under age 19;
  4. Sex and occupation
  5. Day and time on which the workweek begins;
  6. Hourly rate of pay;
  7. Basis of pay;
  8. Nature of any payment claimed as an exclusion from the regular rate;
  9. Total hours worked for each day and each week;
  10. Total straight (i.e., non-overtime or premium) pay;
  11. Total overtime pay;
  12. Additions and deductions made, including wage assignments;
  13. Total wages paid;
  14. Date of payment and pay period covered; and
  15. The company's sales and purchase records for purposes of determining whether it is an enterprise with an annual business volume of $500,000.

What Are the Primary and Secondary Sources of this Information?

All records that constitute primary sources of the above-listed information must be preserved for a period of three years.  Such records include:

  • payroll records;
  • work certificates;
  • CBAs; and
  • employment contracts.

Supplementary records are the documents that serve as the source documents for other payroll records. Supplementary records may include:

  • time cards;
  • production cards;
  • wage rate tables;
  • piece-rate schedules; and
  • work-time schedules.

What Else Should I Keep and Where Should I Keep It?

Although not required by the FLSA, it is a good idea to retain job descriptions, performance reviews, internal memos, job postings, handbooks, and other materials relating to wage classifications and pay practices that you could use to justify your pay practices during an audit, for a period of at least three years.

The FLSA requires that all records be kept at the place or places of employment or at one or more established central record-keeping offices, where such records are customarily maintained.  If kept outside the place of employment, they must be available within 72 hours of a request by the U.S. Department of Labor.

And, finally, don't forget about your posting requirements.  Employers must post notices in the workplace that state the requirements of the FLSA. 

The Fair Labor Standards Act (FLSA), is a very challenging statute to apply correctly.  For more information about legal compliance with the federal wage and hour laws, see the following posts:

Top 5 FLSA Topics

Executive Exemptions and the Fair Labor Standards Act (FLSA)

5 Words of Warning about Improper Deductions and the FLSA

FLSA FAQ: Overtime and Unpaid Leave

FLSA 101: Who Is Covered Under the Fair Labor Standards Act?

FLSA 102: Minimum Wage Requirements of the Fair Labor Standards Act

FLSA 103: Defining What Constitutes "Hours Worked"

FLSA 104: Overtime and the Fair Labor Standards Act

The Intersection of Worker’s Comp, FMLA, and ADA

Posted by Molly DiBiancaOn November 24, 2008In: Disabilities (ADA), Family Medical Leave, HR Summer School

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The Family Medical Leave Act (FMLA), Americans With Disabilities Act (ADA), and state worker’s compensation laws are not mutually exclusive. By qualifying for one, an employee is not automatically disqualified from the others.

For example, an employee who is hurt on the job is not necessarily ineligible for FMLA leave. He still must be an eligible employee, work for a covered employer, and have a serious health condition. If his on-the-job injury resulted in him being absent from work for two days, though, he would not qualify for FMLA because a serious health condition is defined, in part, as an illness or an injury that incapacitates the employee for more than three consecutive days.

And what about an employee who exhausts all of his FMLA leave but is still on disability leave? Can he be terminated if he fails to return to work at the end of the 12-week period? Certainly an employer can terminate an employee who fails to return to work after exhausting all available leave.

But there is another level to this question. If the employee is on disability under the company’s disability-insurance plan, his serious medical condition may very well qualify as a disability, as well, under the ADA. The ADA requires that employers make “reasonable accommodations” for qualified employees. The U.S. Equal Employment Opportunity Commission (EEOC), and the courts have taken the position that an accommodation may take the form of a modified work schedule, flexible leave policy, or even just additional time off.

Whenever faced with a decision about whether to terminate an employee who is about to exhaust all of his FMLA time but is not expected to return to work, be sure to consider whether the ADA is applicable and what is required if it is.

For more information on legal compliance with the FMLA and ADA, see the posts in the HR Summer School category, which covers these topics in a comprehensive and no-nonsense style.

FLSA 104: Overtime and the Fair Labor Standards Act

Posted by Molly DiBiancaOn November 13, 2008In: Fair Labor Standards Act (FLSA), HR Summer School

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The Fair Labor Standards Act (FLSA), mandates that covered, non-exempt employees must be paid at a rate equal to one and one-half the regular rate of pay for all hours worked over forty in any given workweek.

Compliance with the overtime laws is determined by workweek and each workweek stands by itself.  A workweek is defined as 7 consecutive, 24-hour periods (168 hours), but which 7 consecutive days can be chosen by the employer.  image

The regular rate of pay is determined by dividing total earnings in the workweek by the total number of hours worked in the workweek.  The regular rate can never be less than the applicable minimum wage.  Not everything, though, is included in the calculation of the regular rate.  Excluded from the calculation are:

  • Sums paid as gifts;
  • Payments for time not worked;
  • Reimbursement for expenses;
  • Discretionary bonuses;
  • Profit-sharing plans;
  • Retirement and insurance plans;
  • Overtime premium payments; and
  • Stock options.

To determine the regular rate (RR), take the total straight-time earnings (make sure to exclude any of the above) and divide it by the total hours worked.  The overtime rate is calculated at a rate equal to the regular rate multiplied by .5.  The overtime rate is then multiplied by the number of overtime hours worked.  This amount is the total overtime premium due.  Three examples follow, below.

Example 1:  Hourly Rate and Production Bonus

Total Hours + 48     Hourly Rate = $9      Bonus $10

46 hours x $9 =432 + 10 = $442 / 48 = $9.21 (Regular Rate)

$9.21 x .5 = $4.61 x 8 hrs = $36.88 (Overtime Due)

 

Example 2:  Different Hourly Rates

Lifeguard Rate $8.50   Lifeguard Hours 21 = $178.50

Cabana Attendee $9.00    Cabana Attendee Hours  26   = $234.00

Total straight-time earnings = $412.50 / 47 hours = $8.78 (Regular Rate)

$8.78 (Regular Rate) x .5 = $4.39 (Overtime Rate)

$4.39 (Overtime Rate) x 7 hours = $30.73 (Overtime Due)

 

Example 3:  Tipped Employees

Rate Paid by Employer $2.13

Tip Credit Claimed $3.72

Regular Rate:  $5.85

Additional Half-Time Rate  $2.93

50 Hours  $5.85  =$292.50

10 hours x $2.93 =$29.30

Total Due             =$321.75 (less tip credit)

Tip Credit 50 x $3.72 =$186.00

Total Cash Wage Due = $135.75

 

For more about the basics of the FLSA, see:

FLSA 101: Who Is Covered Under the Fair Labor Standards Act?

FLSA 102: Minimum Wage Requirements of the Fair Labor Standards Act

FLSA 103: Defining What Constitutes "Hours Worked"

FLSA 103: Defining What Constitutes "Hours Worked"

Posted by Molly DiBiancaOn October 31, 2008In: Fair Labor Standards Act (FLSA), HR Summer School

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Employees must be paid wages for all time worked.  Period. That's the law.  It seems simple enough but the seeming simplicity of that statement can be deceptive.  What constitutes "time worked" has remained an elusive concept for many employers.  As a result, the issue of what should be included in a calculation of the total time worked for compensation purposes, has generated a great deal of case law on the issue--some making clearer and others making the issues even more complex.

Work "suffered" is time worked.  Work that was not requested by the employer but that was "suffered" or "permitted" is considered time worked.  Then, of course, the question becomes when has an employee "suffered work."image

Waiting time is counted as time worked when the employee is unable to use the time effectively for his own purposes and the time is controlled by the employer.   Waiting time is not counted as hours worked when the employee is completely relieved from duty; and the time is long enough to enable the employee to use it effectively for his own purpose.

On-call time is time worked when the employee has to stay on the employer's premises or the employee has to stay so close to the employer's premises that he cannot use that time effectively for his own purposes. But, simply being required to wear a pager or to leave word at home or with the employer about where the employee can be reached, is not considered "on-call" time that constitutes "work suffered."

Meal periods are not hours worked when the employee is relieved of duties for the purposes of eating a meal.  But rest periods (include smoking breaks, if permitted), lasting 5 to 20 minutes are counted as time worked and must be paid accordingly. 

When traveling between work and home, employees are not considered to be working and the time spent traveling is not working time.  Travel during the normal working day between job sites is considered working time.

Time employees spend in meetings, lectures, or training, is considered hours worked and must be paid unless:

  • attendance is outside regular working hours;
  • attendance is voluntary;
  • the course, lecture, or meeting is not job-related; and
  • the employee does not perform any productive work while attending.

For more about the basics of the FLSA, see:

FLSA 101: Who Is Covered Under the Fair Labor Standards Act?
FLSA 102: Minimum Wage Requirements of the Fair Labor Standards Act

FLSA 102: Minimum Wage Requirements of the Fair Labor Standards Act

Posted by Molly DiBiancaOn October 29, 2008In: Fair Labor Standards Act (FLSA), HR Summer School

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The Fair Labor Standards Act ("FLSA"), provides that covered employees must be paid no less than the current state or federal minimum wage, whichever is greater, for all hours worked. The Delaware minimum wage is $7.15 trumps the current federal minimum wage of $6.55.  image

Although the concept of minimum wage is not a complicated one, there are some issues that can blur the obviousness of the hourly wage amount.  One such issue is what exactly should be included as compensation when determining whether minimum wage has been paid for all time worked.  Included in the definition of compensation are:

  • Wages (salary, hourly, piece rate);
  • Commissions;
  • Certain bonuses;
  • Tips received by eligible tipped employees (up to $4.42 per hour); and
  • Reasonable cost of room, board , and other "facilities" provided by the employer for the employee's benefit.

The fifth type of compensation, "board and lodging," presents some nuances of its own.  For example, it cannot exceed the actual cost of the facilities provided and cannot include a profit for the employer.  The employer must follow good accounting practices when determining the reasonable cost.  And, if no cost is incurred, the employer may not take a credit.

Deductions from pay can present major problems when they bring an employee's hourly wage below the minimum wage.  Deductions are illegal if:

  • Made for an item considered primarily for the benefit or convenience of the employer; and
  • Reduce the employee's earnings below the required minimum wage.

Some of the most common examples of illegal deductions include:

  • Tools used for work;
  • Required uniforms;
  • Damages to employer's property;
  • Cash-register shortages.

Tipped employees are not as problematic as illegal deductions but can be complex.  To be considered a "tipped employee" under the FLSA, the employee must work in an occupation in which he customarily and regularly receives more than $30 per month in tips.  Tipped employees must be paid at least $2.13 per hour in cash by the employer, who may claim a "tip credit" for the rest of the minimum wage.  The employer may claim the "tip credit" only if:

  • The employer informs each tipped employee about the tip-credit allowance, including the amount to be credited before the credit is utilized;
  • The employer can document that the employee received at least enough tips to bring the total wage paid up to minimum wage or more;
  • All tips are retained by the employee and are not shared with the employer or other employees, unless through a valid tip-pooling arrangement.

An example of the FLSA's minimum-wage requirements in action:

Employee receives $9 per hour for 40 hours plus $5 in commission and $20 in reasonable cost of room and board. 

Total earnings = $360 + $5 + $20 = $385

Total earnings / total hours = $385 / 40 = $9.63

 

See also:  FLSA 101: Who Is Covered Under the Fair Labor Standards Act?

FLSA 101: Who Is Covered Under the Fair Labor Standards Act?

Posted by Molly DiBiancaOn October 28, 2008In: Fair Labor Standards Act (FLSA), HR Summer School

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The Fair Labor Standards Act (FLSA) protects more than 130 million workers in more than 7 million workplaces.  image

There are two types of coverage under the FLSA:

  • Enterprise coverage:  If an enterprise is covered, all of the enterprise's employees are entitled to FLSA protection.
  • Individual coverage:  Even if the enterprise is not covered, individual employees may be covered and entitled to FLSA protections.

To qualify for enterprise coverage, the "enterprise" must have at least two employees and must generate at lease $500,000 per year in business.  For the purposes of the FLSA, enterprises include:

  • Hospitals;
  • Businesses providing medical or nursing care for residents;
  • Schools;
  • Preschools; and
  • Federal, state, and local government agencies.

To qualify for individual coverage, the employee must be engaged in:

  • Interstate commerce;
  • Production of goods for commerce;
  • Closely-related process or occupation directly essential such production; or
  • Domestic service.

Don't underestimate the first possible qualification:  employees engaged in interstate commerce.  This may include even the most minimal activity across state lines, such as:

  • Making telephone calls to other states;
  • Typing letters to other states;
  • Processing credit-card transactions;
  • Traveling to other states.

As a general rule, almost every employee in the U.S. is covered by the FLSA. Some examples of employees who may not be covered include:

  • Employees working for small construction companies;
  • Employees working for small independently owned retail or service businesses.

HR Summer School: FMLA 103 Intermittent Leave Requests

Posted by Molly DiBiancaOn September 22, 2008In: Family Medical Leave, HR Summer School

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FMLA 103, part of the HR Summer School Back-to-Basic Series, addresses the very hot topic of intermittent leave.  Most HR professionals would agree that the FMLA's intermittent leave is one of the most difficult types of employment laws to administer.  In fact, a great number of the FMLA calls I get are, in some way, related to intermittent leave. 

For each question, I start my answer in the same way--with the basics.  Sometimes I find that, even the most knowledgeable HR professionals will skip the basics when there is a particularly unusual set of facts involved.  To make sure we don't overlook the forest for the trees, sometimes it's helpful to start at the beginning.  Slide1

What is Intermittent Leave?

The regulations prove that an eligible employee may take "intermittent leave" or go onto a "reduced leave schedule."

Intermittent leave is multiple instances of leave taken in separate blocks of time as opposed to one chunk of time, such as X days or weeks.  All of the instances of leave, though, are due to a single qualifying reason.

reduced leave schedule is a leave schedule that reduces an employee's
usual number of working hours per workweek, or hours per workday.  A
reduced leave schedule is a change in the employee's schedule for a
period of time, normally from full-time to part-time.

 Leave for Birth of a Child or Placement of a Child for Purposes of Adoption or Foster Care.  In this case, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. But remember that the employer does not have the discretion to "agree" if leave is need for an employee who has a serious health condition related to the birth of her child, or where the leave is related to her newborn's serious health condition. 

Planned Medical Treatments.  Intermittent leave may be taken for a serious health condition that requires periodic treatment by a health care provider.  In this instance, leave could be needed on an occasional basis for medical treatments, i.e., weekly kidney dialysis, or it can involve leave taken in blocks of days spread over a period of months, i.e., chemotherapy.  A common example of leave taken for planned medical treatments is a pregnant employee who takes intermittent leave for prenatal examinations. 

Recovery from Medical Conditions or Treatments.  Remember that time spent recovering from these treatments is also entitled to intermittent or reduced-scheduled leave.  For example, an employee may need a reduced schedule following radiation therapy until he develops the strength to work a full workweek.

Unanticipated Need for Leave.  An otherwise-FMLA-eligible pregnant employee suffering from morning sickness also would qualify for intermittent leave.  Pregnancy meets the standard for a serious medical condition for which the employee is under the care of a health care provider.

Immediate Family Members.  An eligible employee may take intermittent leave to care for an immediate family member who has, is being treated for, or is in recovery from a serious medical condition.  Just like leave for the employee himself, he may need unanticipated leave to care for his family member.  And remember that "caring for" is not limited to providing medical care in the strict sense.  Just providing psychological comfort, as we all know, can qualify as health care. 

Leave Where No Treatment Is Being Provided.  Intermittent or reduced schedule leave may be taken where the employee or the family member is incapacitated or unable to perform the essential functions of the job--even if not receiving treatment from a health care provider.  If an employee's parent, for example, has a terminal illness, the employee can take leave to "care," i.e., to provide comfort for, his parent, regardless of whether or not the parent is still being treated for the illness. 

ADA 104: What Certification May Be Required?

Posted by Molly DiBiancaOn September 4, 2008In: Disabilities (ADA), HR Summer School

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HR Summer School's Back-to-Basics Series is back, after a brief vacation.  This segment, ADA 104, covers the certification issues that commonly arise when an employee with a disability requests a reasonable accommodation.  As always, Course Materials are provided for your reference.

(pdf)

 

I. When May Certification Be Required?

The issue of certification arises most often when the individual first requests an accommodation. On a broad level, employers may ask employees for documentation to support the reasonableness of the request. The EEOC has explained that an employer may require documentation “to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation.” In short, when the disability or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about the claimed disability and functional limitations.

A. What Is “Reasonable Documentation”?

“Reasonable documentation” means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. This means that an employer may not ask for documentation that is unrelated to determining the existence of a disability and the need for an accommodation.

In most situations, an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

B. Who Is an “Appropriate Professional”?

The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

C. What Types of Information Should Be Requested?

In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care professional. The employee may be asked to sign a limited release allowing the employer to submit a list of specific questions to the employee’s health-care professional.

D. What If the Employee Refuses to Provide Documentation?

An employee who refuses to provide the reasonable documentation requested by the employer will not be entitled to reasonable accommodation. On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation. The employee’s desire to retain a level of privacy concerning his disability does not trump an employer’s need for sufficient information. The failure of an employee to provide this information releases the employer from responsibility for knowing information about the disability and providing a reasonable accommodation.

An employer will not be liable where it attempts to interact and the employee refuses to participate or withholds essential information. The employee’s failure to respond to his employer’s repeated requests for documentation concerning his ability to return to work will obviate the employer’s duty to consider the requested accommodation.

Similarly, the employer will not be liable where the employee fails to update his medical records. This may require the employee to return to his health-care provider for an updated evaluation.

But, employers should proceed with caution in requesting documentation. The employer should explain why the documentation is insufficient, allow the employee to provide the information that is missing, and pay all costs associated with any mandated visits.

 

II. Who Chooses the Health-Care Provider?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer’s choice if the individual provides insufficient information from his treating physician (or other health care professional) to substantiate that he has an ADA disability and needs a reasonable accommodation. If the documentation provided is insufficient, the employer should explain deficiency and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.

Any medical examination conducted by the employer’s health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. If an employer requires an employee to go to a health professional of the employer’s choice, the employer must pay all costs associated with the visit(s).

 

III. When May Certification Not Be Required?

An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that he has an ADA disability and needs the reasonable accommodation requested.

Prior Summer School Sessions:

ADA 101:  Who Is Covered?

ADA 102: What Does the ADA Require?

ADA 103: Reasonable Accommodation (part I)

ADA 103: Reasonable Accommodation (part II)

HR Summer School: ADA 103 (part 2 of 2) Reasonable Accommodations

Posted by Molly DiBiancaOn August 8, 2008In: Disabilities (ADA), HR Summer School

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The HR Summer School Back-to-Back Series continues today with the second of two parts of ADA 103. Reasonable accommodations under the Americans With Disabilities Act (ADA), are not easy to manage. To make sure this difficult topic gets adequate coverage, we've split this class into two parts. The outline includes both parts and is provided for your later reference.

III. THE INTERACTIVE PROCESS

The request is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the request, the employer needs to determine if the condition qualifies as a disability under the ADA.

A. PURPOSE OF THE INTERACTIVE PROCESS

The purpose of the interactive process is to clarify what the individual needs and to identify the appropriate accommodation. The employer may ask relevant questions to enable it to make an informed decision. 

The end goal during this process is for the employer to learn what obstacles the employee is facing as a result of his or her disability and then try to craft an accommodation to address those obstacles. Often, the nature of the disability is not relevant to the discussion.

B. WHO MAY CHOOSE THE ACCOMMODATION

The employer may choose the least expensive or burdesome accommodation where more than one exist. As long as it is effective, the employer has the final word on selection. Of course, the employee cannot be required to accept the accommodation if he or she does not want it. But, at the same time, where an employee needs a reasoanble accommodation to peform an essential function of the job or to elminate a direct threat, and reufses to accept an effective accommodation, he or she may not be qualified to remain on the job.

IV. UNDUE HARDSHIP
The only legal limitation on an employer’s obligation to provide an accommodation under the ADA
is when it would cause “undue hardship” to the employer. This is a much higher standard than the
standard appied to requests for religious accommodations made under Title VII.

“Undue hardship” means signficant difficulty or expense. The inquiry focues on the resources and
circumstances of the particular employer as compared to the cost or difficulty of providing the
accommodation.

This term refers not only to financial difficulty, but also to requests that are unduly extensive,
substantial, or disruptive, or those that would fundamentally alter the nature or the operation of
the business. The determination is made on a case‐by‐case basis.

V.  EXAMPLES

EXAMPLE OF THE INTERACTIVE PROCESS
A. FACTS

The employee works as a cashier at a retail grocer. The employee tells her employer that she has a disability that makes her tire easily and requests that she be given two additional 15‐minute breaks per shift to rest. The employee has Lupus but does not reveal this to the employer.
B. INTERACTIVE PROCESS
The request does not sound terribly unreasonable and the employer may be inclined to grant it. But, before concluding whether that this is the appropriate decision, the employer should first engage in the interactive process in an informal discussion with the employee. What the employer needs to know is what obstacles the employee is trying to eliminate. Here, the obstacle is that she becomes fatigued easily. Additional rest breaks may be a reasonable accommodation but there may be others, as well. For example, what if the emloyer offered to provide the emloyee with a stool so she could avoid standing throughout the shift? If the employee agreed that this would help eliminate the obstacle, then it is a reasonable accommodation.

Also, note that the employer never needed to inquire about the exact nature of the disability because the obstacle is all that mattered to the discussion. For example, an employee who works as a cashier tells her employer that she has a disabiltiy that reuqires an accommodation. She  requests that she be given two additional 15‐minute breaks each shift because her disability causes her to become easily fatigued.

B.  EXAMPLES OF COMMONLY REQUESTED ACCOMMODATIONS
 Making existing facilities accessible; i.e., building a wheelchair accessible ramp between two rooms that are adjoined by two stairs.

 Job restructuring; i.e., reallocating marginal job functions that are not necessary to the position but are preventing the employee from performing that job.

 Part‐time or modified work schedules; i.e., allowing an employee to take 45‐minute
breaks to recover from nausea triggered by medication.

 Acquiring or modifying equipment; i.e., providing an assistive listening device to the
employee’s telephone.

 Changing tests, training materials, or policies; i.e., permitting an employee with insulin‐dependent diabetes to eat when needed to adjust her blood‐sugar level despite a policy that employees are not permitted to eat or drink at their workstation.

 Providing qualified readers or interpreters. 

 Reassignment to a vacant position. This is the accommodation of last resort and is
only required where it is first determined that (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position, or (2) all other reasonable accommodations would impose an undue hardship. The employee must be “qualified” for the new position but he does not need to be the best‐qualified individual for the position in order to obtain it as a reassignment.

C. EXAMPLES OF ACCOMMODATIONS NOT REQUIRED
 An employer does not have to eliminate an essential function; i.e., a fundamental duty of the position.

 An employer does not have to lower production standards—whether quality‐related or quantity‐related—that are applied uniformly to employees with and without disabilities.

 An employer does not have to provide personal‐use items needed to accomplish daily activities both on and off the job. For example, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, glasses, hearing aids, or similar devices if they are also needed off the job.

HR Summer School: ADA 103 (Part 1 of 2) Reasonable Accommodation

Posted by Molly DiBiancaOn August 5, 2008In: Disabilities (ADA), HR Summer School

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The HR Summer School Back-to-Back Series continues today with the first of two parts of ADA 103. Reasonable accommodations under the Americans With Disabilities Act (ADA), are not easy to manage. To make sure this difficult topic gets adequate coverage, we're splitting this class into two parts. The outline includes both parts and is provided for your later reference.

I. General Principles

The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities, except when such accommodations would cause an undue hardship. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables the individual to obtain equal employment opportunities.

A. Three categories of “reasonable accommodations”

· Modifications or adjustments to the job-application process;

· Modifications or adjustments to the work environment, or to the manner or circumstances under which the position is normally performed; or

· Modifications or adjustments that enable a covered entity’s employee to enjoy the benefits and privileges of employment.

B. Two types of workplace barriers that can be addressed

· Physical obstacles, such as inaccessible facilities or equipment; or

· Procedures or rules, such as rules about when work is performed or when breaks are taken.

 

II. Employee Must Request Accommodation

In general, it is the empoyee’s obligation to notify the employer that an accommodation is needed. Either the employee or a representative “must let the employer know that he or she needs an adjustment or change at work for a reason related to a medical condition.”

A. Form of the Request

No particular form or phrase is required. The request need not use the phrase “reasonable accommodation” and it need not mention the ADA.

The request does not need to be in writing. The request may be made in conversation. But the employer is well advised to confirm the individual’s request in a letter or memo. Alternatively, the employer may ask the individual to fill out a form or submit the request in writing—but cannot ignore the first request.

B. When a Request May Be Made

The individual may request a reasonable accommodation at any time during the application process or during employment. By not requesting an accommodation at the time of hiring, the employee is not later barred from making a request.

An employer should respond to the request as expeditiously as possible. The interactive process, discussed in the second part of this topic, should also be moved along as quickly as reasonably possible. Unnecessary delays may violate the ADA.

 

Prior HR Summer School Posts:

ADA 102: What Does the ADA Require

Calling All Students, School Is Now In Session! ADA 101

FMLA 102: What Is a Serious Medical Condition?

Posted by Molly DiBiancaOn July 18, 2008In: Family Medical Leave, HR Summer School

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FMLA 102, part of the HR Summer School, Back-to-Basics Program, reviews the conditions that entitle an employee to take FMLA-qualified leave.  The Course Materials are attached for your reference. 

I. Generally

The Family and Medical Leave Act of 1993 (“FMLA”) was enacted primarily to balance the demands of the workplace with the needs of families. It entitles eligible employees of covered employers to take up to 12 weeks of unpaid leave per 12-month period for:

ª the birth, adoption, or assumption of foster care of a child;

ª caring for an eligible family member with a serious medical condition;

ª caring for their own serious medical condition.

In its simplest form, the FMLA requires covered employers to give leave to covered employees for up to 12-weeks per year under any of the above three conditions. Employers must not only permit the employee to take leave, but also cannot take any retaliatory action as a result of the leave or request for leave.

 

II. Childbirth, Adoption, and Foster Children

 

A. Childbirth

Both fathers and mothers of newborns are entitled to take FMLA leave for the birth of a child.

The mother may take leave for childbirth, prenatal care, and to care for the newborn. She also may take FMLA leave for morning sickness and other pregnancy-related conditions that amount to serious health conditions.

The father may take leave for his wife’s serious, pregnancy-related health condition and to care for his newborn child.

If both spouses work for the same employer, the 12-week maximum is calculated in the aggregate. They can split up the leave as they want , and it can overlap, but the total combined leave cannot exceed 12 weeks.


B. Pregnancy-Related

Pregnancy itself is not a serious health condition. But conditions related to pregnancy are automatically serious health conditions under the FMLA if they prevent an employee from doing her job.

The FMLA protects intermittent and long-term leave for:

ª prenatal care and doctor visits;

ª bed rest on a doctor’s or midwife’s orders;

ª morning sickness; and

ª the birth of the child.

If an employee experiences complications from her pregnancy that incapacitate her and amount to a serious health condition, she is eligible for FMLA leave on that basis.

 

C. Adoption and Foster Care

Employees may use FMLA leave before actually getting the child if they must miss work to attend appointments, such as attorney meetings and court appearances that are required for the placement. Leave may also be taken to pick up the child. Employees do not have to wait for the adoption to become final before taking leave—they are eligible when they first begin caring for the child.

 

III. Medically Related FMLA Leave

The FMLA allows an employee to take protected leave to care for his or her own serious health condition. it also allows provides for leave to care for certain family members who suffered from a serious health condition.

A. Covered Family Members

Not all “family members” are included for the purposes of the FMLA. Only a spouse, son or daughter, or parent are considered to fall within this definition. A son or daughter can include a biological, adopted, foster, or stepchild, legal ward, or child for whom the employee stands in placer of a apparent. Parents do not include parent-in-laws.

B. Serious Health Condition

One of the biggest, yet unanswered questions with respect to the FMLA is what exactly is a “serious health condition.” Although there is no comprehensive definition that seems to apply in all situations, it is best to think of whether the condition has a serious effect on the individual employee. There are five categories of illnesses, injuries, impairments, and conditions. If the condition fits into one of the five categories, then it is covered by the FMLA.

Inpatient Care: Conditions requiring an overnight stay in a health-care facility (such as a hospital or hospice), automatically qualify as serious medical conditions. FMLA covers the time in the facility and any subsequent period of incapacity or follow-up treatment in connection with the same condition.

Incapacitation for More than Three Days: Conditions that incapacitate the employee for more than three consecutive calendar days are considered serious provided that he or she is under the “continuous treatment” of a health-care provider. “Continuous treatment” can mean

ª Two or more treatments by a health-care provider within the period of incapacitation; or

ª One treatment by a health-care provider that results in a regiment of continuing treatment under the provider’s supervision.

Chronic Serious Health Conditions: These conditions incapacitate a person but don’t last more than three straight days. It requires periodic visits for treatment by a health-care provider and continues over an extended period of time. The employee need not visit a health-care provider for each absence. Examples of chronic conditions could include diabetes, asthma, and epilepsy. Treatment may include prescription medications. Treatment does not include actions that the employee can do without a visit to a health-care provider, such as taking over-the-counter medications, or bed rest.

Long-Term Incapacity: A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective. For example, Alzheimer’s, stroke, or terminal disease.

Treatment to Prevent Incapacitation or for Restorative Surgery: This category includes absences that are taken to receive multiple treatments by health-care providers for reconstructive surgery after an accident or injury or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days if left untreated. Chemotherapy and radiation treatments are examples.

HR Summer School: The Back-to-Basics Series. FMLA 101: Who Is Covered

Posted by Molly DiBiancaOn July 15, 2008In: Family Medical Leave, HR Summer School

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HR Summer School is back again. We've finished two ADA courses, so it's time for the FMLA.  This is the first of five FMLA "courses" in the HR Summer School series.  The course outline is attached for your reference. 

I. Covered Employers

The easy answer is that private employers with 50 or more employees are covered by the FMLA. Of course, there’s nothing easy about the FMLA, which is why there is a much more detailed explanation of this seemingly simple statement.

The FMLA covers private employers that have:

  • at least 50 employees;
  • for at least 20 weeks;
  • in the current or preceding calendar year.

A. “Employees”

So who actually counts as an “employee” for purposes of determining whether a business is covered by the FMLA?

  • Full- and part-time employees
  • Temporary employees, even if you don’t pay them.
  • Employee’s located at all work sites within 75 miles.
  • Employees with no regular office are assigned to the office to which they ordinarily report.
  • Employees “acquired” as part of the sale of a business.

The last type of employee applies only to “successor employers.” If you’ve acquired or taken over all or part of a business that was covered by the FMLA, you are considered a successor employer and may have to grant FMLA leave to certain employees even if the part of the business you’re operating has fewer than 50 workers. You must honor the leave request of any employee who had provided notice to the previous employers and you must follow the FMLA’s rules on maintaining benefits and reinstating employees who were on leave when you acquired the business.

B. Relevant Time Period

The FMLA covers only employers with 50 or more employees (as defined above). But what about employers who fluctuate just around 50 employees, or who had 50 employees but recently reduced staff? To determine the number of employees for FMLA purposes, employers can’t simply look to one specific date on the calendar, such as the first or last day of the year. A more complicated evaluation is required.

The FMLA applies, even if the employer does not currently have 50 employees, where the employer had 50 or more employees for at least 20 weeks in the current or preceding calendar year. This requires the employer to look at both years, week by week. Any week in which there were 50 or more employees on each working day (usually Monday through Friday), will count towards the 20-week minimum.

 

II. Covered Employees

Once an organization determines that it is covered by the FMLA and bound by its provisions, it will next need to determine whether the specific individual requesting leave is a covered employee.

To be eligible for FMLA leave, an employee must:

  • be employed by the employer for at least 12 months; and
  • work at least 1,250 hours in the 12 months before the leave would start.

The 12 months of employment do not have to be consecutive. And the 1,250 hour requirement must be satisfied by the time the employee would take the leave—not at the time the employee requests the leave.