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UFOs – Unidentified Flying Objects

Ufology – is a neologism coined to describe the collective

efforts of those who study reports and associated evidence of unidentified flying objects (UFOs).

Ufologist – A ufo investigator is called a ufologist

Ufo Sightings- Some eye witnesses to the UFOs

Roswell Incident- called the Roswell UFO crash

1947

UFO Conspiracy – Worldwide UFO cover Ups and

related theories

Alien- An extra-terrestrial being is called an alien

The Bermuda The Bermuda Triangle of Leave LawsTriangle of Leave LawsTriangle of Leave LawsTriangle of Leave Laws

ADA, FMLA and Workers Compensation

Instructor: Brenda JM Sabin, CBPDirector of Operations and Site Administration for HRSentry, LLC

� Today we are talking about these Federal Leave Laws:�The American’s with Disabilities Act (ADA)

�The Family and Medical Leave ACT (FMLA)

�Workers Compensation (WC)

� We will look at each law separately then

OverviewOverview

� We will look at each law separately then weave them together

Its like putting a puzzle together blindfolded!

� Americans with Disabilities Act of 1990 (Titles 1 and V) pertains to:

◦ Private employers with 15 or more employees,

◦ State and local governments,

◦ Employment agencies and labor unions

◦ The ADA's nondiscrimination standards also apply to federal

ADAADA

◦ The ADA's nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended

� Employees with disabilities must:�have an equal opportunity to apply for jobs and to work in jobs for which they are qualified;�Provides protection from hiring discrimination�Also provides protection from job loss due to disability

�have an equal opportunity to be promoted once they are working;

�have equal access to benefits and privileges of employment that are offered to other employees,

ADAADA

employment that are offered to other employees, such as employer-provided health insurance or training; and

�must not be harassed because of their disability.

� As defined by the ADA, an individual with a disability is a person who:◦ has a physical or mental impairment that substantially limits one or more major life activities; � seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, working, etc…..

What is a disability?What is a disability?

oneself, working, etc…..

◦ has a record of such an impairment; or

◦ is regarded as having such an impairment

� Under the ADA you as an employer are required to make reasonable accommodations unless it creates undue hardship for your business

� A reasonable accommodation is determined by: employee size, revenue and type of business on a case by case basis

ADAADA

� Reasonable accommodation may include, but is not limited to:

◦ Making existing facilities used by employees readily accessible to and usable by persons with disabilities

◦ Job restructuring, modifying work schedules, reassignment to a vacant position;

◦ Acquiring or modifying equipment or devices, adjusting or modifying

Reasonable Accommodations Reasonable Accommodations

◦ Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

� An employer never has to provide any reasonable accommodation that causes undue hardship, meaning significant difficulty or expense. ◦ Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive or disruptive, or

Undue HardshipUndue Hardship

that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business.

� Reinstatement Rights –◦ Must be to the SAME job unless doing so causes undue hardship to the employer

◦ No time limit on reinstatement

◦ Employer is obligated to make reasonable accommodations based on the essential functions of the job

ADAADA

the jobEssential functions are the fundamental job duties performed in a position.

The term "essential functions" does not include the marginal functions of the position. A function may be essential because:

The position exists to perform that function.

There are a limited number of employees available who could perform that function.

The function is highly specialized.

� Family Medical Leave Act (Federal)

� Some states have their own Family Leave Laws

Whichever law is more beneficial to the

FMLAFMLA

� Whichever law is more beneficial to the employee must be followed

� FMLA� Job protection

� 12 weeks unpaid leave in a 12 month period

� Intermittent leave is allowed

� Reasons why:� Birth or adoption

� Check state law definitions for spouse’s working for

FMLA FMLA

� Check state law definitions for spouse’s working for same employer

� Serious health condition � Yourself

� Immediate family member

� Check state laws for difference in definitions of immediate family

H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181.(eff. 01/28/2008)

� Caregiver Leave

� FMLA-eligible employees who are the spouse, child, parent, or next of

kin to a service member who has been seriously injured (including

illness) while on active duty can take up to 26 weeks of unpaid leave

in a 12-month period to care for the service member. Important:

Recent Amendments to FMLA

in a 12-month period to care for the service member. Important:

Where appropriate, all existing provisions of the FMLA apply,

including the intermittent leave, the substitution of paid leave, and the

notice provisions.

H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181.(eff. 01/28/2008)

Active Duty Leave

Under another FMLA amendment, an employee may take FMLA

leave for "any qualifying exigency" arising out of the fact that his/her

spouse, child, or parent is on active duty or has been notified of an

active-duty call. Amount of leave available: up to 12 weeks in a 12-

month period (i.e., the usual FMLA leave allotment).

Recent Amendments to FMLA

month period (i.e., the usual FMLA leave allotment).

According to the DOL, this amendment won't become effective until final regulations defining any qualifying exigency

are issued. In the interim, the DOL advised employers to provide this type of leave. Here, too, the regular FMLA provisions apply, so when the need for leave is foreseeable, employees must provide their employers with reasonable and practicable notice. Also, employers may require that leave requests be supported by certification.

� Private employers with 50 employees, working within 75 miles

� Schools

� Public agencies Must have a written FMLA

FMLAFMLA-- Covered Covered EmployersEmployers

� Government

written FMLA policy

� If an FMLA-covered employer has any eligible employees and has any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA

The Law on Policy RequirementsThe Law on Policy Requirements

employee obligations under the FMLA must be included in the handbook or other document.

� Federal - Worked at least 12 months◦ Do not have to be consecutively

� Federal - Worked 1250 hours in previous 12 months

FMLA Eligible FMLA Eligible EmployeesEmployees

Check your State Laws

VT – 3 laws to consider

� Employee Requirements:◦ Must notify employer as soon as reasonably possible for the need of time off

◦ Employer must notify Employee that their time off is being counted under FMLA (form WH-380)

◦ Employer can require Drs certification if leave is for serious health condition (employees or

NoticesNotices

is for serious health condition (employees or family member) (form WH-381)

� "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:

� any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility; or

� a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or

� any period of incapacity due to pregnancy, or for prenatal care; or

� any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or

� a period of incapacity that is permanent or long-term due to a condition for which

Serious Health ConditionSerious Health Condition

� a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,

� any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

� Entitled to 12 weeks of job protection◦ NOT additional time off

◦ Runs concurrent with other leave of absence policies� Disability

� WC

� Paid Time off (check state laws)

EntitlementsEntitlements

◦ Can be taken intermittently� Time tracking an issue

� Why is it important to track immediately and consistently?

� Accrual of benefits◦ Federal Law –time off benefits cannot be taken away but do not have to continue to accrue◦ Check state law

� Using paid time off◦ Federal Law – you can require your employees to use their time off

FMLAFMLATime Off BenefitsTime Off Benefits

to use their time off ◦ Your employee can choose to use their paid time off

� Check state law

� Maintenance of Health Benefits◦ Keep on insurance – same status

◦ Can require the payment that they normally would have paid

� Pre-tax vs post-tax

� Reinstatement Rights◦ Must be reinstated to the same or equivalent position with same pay and benefits and other “perqs” if returned to work within the 12 weeks.

FMLAFMLA

weeks.

◦ Special rules for educational institutions

◦ Not entitled to reinstatement if out beyond the 12 weeks

� Joyce is pregnant and her baby is due on October 1st.◦ On September 10th Joyce comes to you to say that her Dr has told her she must stop working now before the baby is born.

◦ Assume you have no paid disability policies.

Example/POLLExample/POLL

◦ Assume Joyce has some paid time off available to her to use.

� Injury or Illness that is Work Related.◦ Provides for partial income replacement◦ Provides for medical treatment payments◦ Permanency benefits◦ Vocational Rehab◦ Death Benefits

� Reinstatement rights – check state law –

Workers CompensationWorkers Compensation

� Reinstatement rights – check state law –WC is governed by State Laws. Some have more restrictive laws on reinstatement.

� Illness or Injuries/Serious Health Conditions

� Injury at work may qualify for WC only-if no lost days at work� It may qualify for FMLA and WC if lost work days.� Bronchitis - out sick for three days – FMLA serious health condition� Heart Attack would qualify for FMLA and may qualify for ADA if it substantially limits major life activity

� A injury at work that impairs a major life activity -WC and ADA and FMLA would apply.

� Any time an illness or injury occurs you need to ask yourself:� Does the illness/injury impair the employees ability to perform a

Serious health conditionsSerious health conditions

� Does the illness/injury impair the employees ability to perform a “major life activity”?

� If so, you have a duty to make a reasonable accommodation.

� ADA –◦ a reasonable accommodation may be unpaid leave – and

this would not be limited to the 12 weeks of FMLA.

� FMLA –◦ the employee can take intermittent leave or work on a part time basis for a serious health condition if it is medically necessary, up to the 12 weeks time in a 12 month period

Comparisons of LawsComparisons of LawsReduced time at WorkReduced time at Work

month period

� WC –◦ unable to perform job duties/ may do light duty work if available

◦ ADA – it has to be the same position unless doing so would cause undue hardship to the employer◦ FMLA – same job or an employee can be transferred to an alternative position as long as it’s an equivalent position (pay, benefits)◦ WC an employer may be obligated to reinstate an employee within a specified time frame to any job that they can meet the essential

ComparisonsComparisonsReturning to WorkReturning to Work

any job that they can meet the essential functions – employers do not have to create a job (check state laws)

◦ ADA – open ended /reasonable

◦ FMLA – 12 weeks within 12 months

◦ WC – open ended until medical end result or return to work is medically certified or termination of employment.

ComparisonsComparisonsTime Off Away from WorkTime Off Away from Work

� Reasons for:

◦ ADA – taken only for their own disability –fairly serious health conditions affecting “major life activities”

◦ FMLA – taken for their own serious health condition or family member

Birth or adoption

Comparisons Comparisons Reasons for LeaveReasons for Leave

� Birth or adoption

� Military amendments

◦ WC – work related injury or illness

� Minimum length of employment to be eligible:◦ ADA – none

◦ FMLA -1250 hrs within last 12 months; have worked 12 months in total

ComparisonsComparisons

worked 12 months in total

◦ WC - none

� Joe works in a job that requires him to pick up 50 lb bags from a loading dock and carry them to a storage room.◦ He hurts his back while working and is out of work on WC for three weeks.◦ When he returns to work – medical restrictions

ExampleExample

◦ When he returns to work – medical restrictions apply and he can only lift up to 50lbs to waist level but cannot carry it◦ How does each law apply?

� WC Claim◦ Pays for medical and partial lost wages

� FMLA◦ Start the clock ticking as soon as he goes out of work

� ADA – is there a disability?

How the laws may interactHow the laws may interact

� ADA – is there a disability?

◦ Answer: It depends --- ADA is looked at on a case by case basis.

◦ The medical restrictions– can they be accommodated reasonably?

Case by Case…..Case by Case…..

◦ The essential job function is to “move” the bags, not necessarily carry them….

� Make every qualifying leave an FMLA event

� Revise existing policies of sick, personal, disability etc to run concurrent with FMLA

� Designate and provide notice of such

� Identify essential functions of ALL jobs

� Provide FMLA training especially to front line supervisors and managers

What to do! Best PracticesWhat to do! Best Practices

managers

� Maintain separate confidential records

� Document all time away from work

� Establish a reinstatement procedure and/or return to work program (light duty)

� Have information available – quickly

� Keep up to date and current on law changes and revisions

What to do continued….What to do continued….

� Document all your steps and procedures

� In HRSentry◦ www.hrsentry.com

� Libraries –◦ Federal Employment Laws and Regulations� State Employment Laws and Regulations� Best Practices

ADA ADA –– FMLA FMLA -- WCWC

� Using Search feature:◦ ADA◦ FMLA◦ Workers Compensation

�Q&A

� www.hrsentry.com - take the tour! Browse the site

� support@hrsentry.com(for information on sign up and group rates)

Wrap UpWrap Up

� admin@hrsentry.com (for help inside HRSentry)