January 2007 Office of General Counsel, Washington and Lee University
1
Managing Employee Health/Family Leaves, On the Job Injuries, & Disabilities
Guidance for W&L Department Heads and Managers
Office of General Counsel, Washington and Lee University
2January 2007
SCOPE OF WORKSHOP
Health and Family Related Leaves
On the Job Injuries
Accommodations for Disabilities
Confidentiality of Medical Information
Office of General Counsel, Washington and Lee University
3January 2007
PURPOSE OF WORKSHOP
To help you, as department heads and supervisors / managers, assist faculty and staff as these situations arise.
To promote compliance with University policies and relevant laws and regulations.
Office of General Counsel, Washington and Lee University
4January 2007
HYPOTHETICAL #1
An employee is having a baby middle of fall term. She asks what kind of leave W&L can provide her.
What if employee is faculty?
What if employee is academic year only and baby is due in July?
Office of General Counsel, Washington and Lee University
5January 2007
HYPOTHETICAL #2
Maintenance employee’s job involves heavy lifting. He injures his back on the job, and is out of work completely for two months. Upon return, he can’t lift over 25 pounds and can’t bend or reach overhead.
Office of General Counsel, Washington and Lee University
6January 2007
HYPOTHETICAL #2 (cont’d)
What kind of leave should employee have been on for the two months? How should medical bills be handled?
How to handle restrictions if short-term? Permanent?
How to handle employee request for ½ day off, 3x week for therapy?
Office of General Counsel, Washington and Lee University
7January 2007
APPLICABLE W&L POLICIES Non-Faculty Employee Sick Leave (Paid, up
to 10 consecutive days, for total of six months. Employee must notify supervisor. Doctor’s note required after 3 days - -send to D. Stoner in HR and keep her notified re: # of days.)
Non-Faculty Employee Short-Term Disability (Paid, 11 consecutive days –six months, combined with sick leave. Supervisor should notify D. Stoner in HR after 10 consecutive days absence and advise employee to contact her. Requires written request, with return to work program.)
Faculty Sick Leave (Paid, up to six months.)
Office of General Counsel, Washington and Lee University
8January 2007
APPLICABLE W&L POLICIES (cont’d) Family and Medical Leave - -FACULTY AND
NON-FACULTY STAFF (Unpaid, 12 weeks, paid leave will be substituted in qualifying cases. Must be formally designated by HR - - notify D. Stoner.)
Parental Leave - - FACULTY / STAFF POLICIES (Paid, 8 weeks of lost work for primary caregiver and 2 weeks for other parent. Faculty policy provides for reassignment of teaching duties and extension of tenure review.)
Office of General Counsel, Washington and Lee University
9January 2007
APPLICABLE W&L POLICIES (cont’d)
Workers’ Compensation (meds/wages for on the job injuries)
Accommodating Employee Disabilities Long-Term Disability (Insurance benefit
providing percentage of wages, after six mos. continuous disability with no return. Requires written application - - employee should see D. Stoner in HR.)
Office of General Counsel, Washington and Lee University
10January 2007
YOUR ROLE AS A SUPERVISOR / MANAGER
Make your department employees aware of relevant University leave and/or accommodation policies and their responsibilities (documentation, advance notice, etc.)
Report on the job injuries to Paul Burns, Director of Environmental Health/Safety.
Office of General Counsel, Washington and Lee University
11January 2007
YOUR ROLE AS A SUPERVISOR/MANAGER (cont’d) Keep Human Resources (D. Stoner)
informed of employee health/family related absences to facilitate proper documentation and recording of leaves.
Advise Human Resources of employee requests / apparent need for disability accommodations.
Office of General Counsel, Washington and Lee University
12January 2007
ON THE JOB INJURIES
IMPORTANCE OF REPORTING WITHIN 24 HOURS TO PAUL BURNS, DIRECTOR OF ENVIRONMENTAL HEALTH AND SAFETY, EVEN IF MINOR! (STATE LAW REQUIRES PROMPT REPORTING)
BENEFITS EMPLOYEE IF COMPENSABLE (NO COPAYS, NO DEDUCTIBLES)
Office of General Counsel, Washington and Lee University
13January 2007
ON THE JOB INJURIES (cont’d) STATUTORY WAGE BENEFIT (% OF
SALARY) - - W&L PAYS 100% AND EMPLOYEE SIGNS OVER WC CHECK DURING AVAILABLE SICK LEAVE
W&L WILL BRING EMPLOYEE BACK ON TEMPORARY LIGHT DUTY WHEN POSSIBLE GIVEN MEDICAL RESTRICTIONS - - BUT CANNOT RETURN BEFORE DOCTOR PERMITS.
Office of General Counsel, Washington and Lee University
14January 2007
ON THE JOB INJURIES (cont’d)
Important to document absences and coordinate with Paul Burns/HR for FMLA leave designation if over three days absent.
On the job injuries may or may not constitute a disability that requires workplace accommodation.
Office of General Counsel, Washington and Lee University
15January 2007
FAMILY AND MEDICAL LEAVE (FMLA) Federal law (FMLA) requires up to 12 weeks
unpaid leave for specified events for employees who have worked at least one year and who have 1250 hours in previous 12 months.
Birth / placement of child; care of family member (child, parent, spouse) with serious health condition; employee’s own serious health condition that incapacitates from work.
Office of General Counsel, Washington and Lee University
16January 2007
FMLA (cont’d)
Includes intermittent absences or reduced leave schedule for serious health conditions (including treatment), care of family member, and (if agreed) birth / placement of child.
Guarantees continued health insurance and reinstatement to same or equivalent job by law if employee can return at end of leave.
Office of General Counsel, Washington and Lee University
17January 2007
FMLA (cont’d)
University designates FMLA leave and substitutes applicable paid leave for qualifying parental leave for all employees, short-term disability for non-faculty, and workers’ comp absences for all employee serious health conditions. INFORM D. STONER IN HR.
If other paid leave is not available, employee may substitute vacation for FMLA unpaid leave circumstance.
Office of General Counsel, Washington and Lee University
18January 2007
FMLA (cont’d)
University requires medical certification for serious health conditions. HR (D. Stoner) has the required forms and will handle.
Serious health conditions include pregnancy, chronic/permanent conditions and courses of treatment, situations with inpatient treatment, and conditions resulting in three day or more absence with health care provider treatment.
Office of General Counsel, Washington and Lee University
19January 2007
Americans with Disabilities Act (ADA)
Prohibits discrimination against “qualified persons with disabilities”
Requires employers to provide “reasonable accommodations” to such persons in hiring and employment
Office of General Counsel, Washington and Lee University
20January 2007
ADA (cont’d)
BE CAREFUL NOT TO PRE-JUDGE OR STEREOTYPE INDIVIDUALS.
DON’T CREATE A DISABILITY: ADA can be triggered by an employer assuming or perceiving that an employee has a disability, even if that’s not the case. Don’t inquire into health issues - - address job performance.
Office of General Counsel, Washington and Lee University
21January 2007
Accommodating Employees with Disabilities (Duty)
When does the duty arise and what are the boundaries of W&L’s legal obligation under ADA? Duty to request accommodation rests with
employee UNLESS Employer knows of disability or it is
obvious, AND knows that employee is having difficulty in the workplace
Office of General Counsel, Washington and Lee University
22January 2007
Duty to Accommodate (cont’d)
If there is a performance issue, address performance - - don’t assume there is a disability involved.
Once employee requests accommodation or need becomes obvious, W&L (through Director of HR) must engage in an interactive process with employee to understand functional limitations and propose reasonable accommodation if needed. Refer employee to Director of HR and accommodation policy.
Office of General Counsel, Washington and Lee University
23January 2007
Understanding What Constitutes a Covered Disability (2 part test)
Part I - - Mental or physical impairment (impairment alone does not equal a disability)
E.g., diabetes, asthma, cancer, broken leg, back injury, depression
NOT pregnancy, personality traits, physical characteristics, etc.
Office of General Counsel, Washington and Lee University
24January 2007
Covered Disabilities (2 part test) (cont’d)
Part II - - Impairment must substantially limit a major life activity Compared to whom - - average person Duration - - not short-term Mitigating measures - - may remove
limitation (e.g., medication, hearing aid) Scope of major life activities - -not just
focused on ability to work the particular job at issue
Office of General Counsel, Washington and Lee University
25January 2007
Qualified Individuals with Disabilities
Able to perform essential job functions, including attendance, with or without reasonable accommodations
Not a “direct threat” to self or others (objective medical evidence of substantial risk of significant harm)
Office of General Counsel, Washington and Lee University
26January 2007
Boundaries of Duty to Accommodate
Accommodation must be necessary due to FUNCTIONAL LIMITATION caused by disability
Accommodation must be reasonable, not an undue burden on overall resources and operations
Office of General Counsel, Washington and Lee University
27January 2007
Medical Documentation
Employee will need to provide medical documentation to verify non-obvious disability and assess functional limitations compared with essential job functions.
Director of HR will obtain health provider information as needed, based on job description and focused questions on job-related functionality limitations.
Office of General Counsel, Washington and Lee University
28January 2007
Medical Documentation (cont’d)
Nature/extent of impairment (recent dx) Effectiveness of treatment/meds in
mitigating functional limitations Detailed current functional limitations
and impact on ability to perform job Need for specific accommodation
requested in light of functionality Prognosis and time frame
Office of General Counsel, Washington and Lee University
29January 2007
Medical Documentation (cont’d) As with ALL matters related to employee health
and medical information, such should be maintained confidentially.
Without consent, HR can discuss functional limitations and leave periods with supervisors, but not detailed medical information.
Medical documents should be retained in HR separate from the rest of employee’s personnel file and accessed only by need to know personnel.
Office of General Counsel, Washington and Lee University
30January 2007
Types of Reasonable Accommodations Modifying work equipment/furniture Reassigning non-essential functions to other
employees Providing additional leave Modifying work schedule Modifying work means/methods/training
CASE BY CASE DETERMINATION depending on job duties, workplace operations, costs, etc.- - not a “cookie cutter” approach.
Office of General Counsel, Washington and Lee University
31January 2007
Accommodations NOT Required by ADA
Need not provide personal devices, such as eyeglasses, hearing aids
Need not provide employee’s specific accommodation of choice
Need not hire additional personnel to perform essential functions
Office of General Counsel, Washington and Lee University
32January 2007
BUT . . .
If no other accommodation is reasonable, may need to consider reassignment to vacant or soon to be open position.
ADA does not require bumping or displacing another employee to provide a position for a disabled employee.
Office of General Counsel, Washington and Lee University
33January 2007
ADA / FMLA / WORKERS’ COMPENSATION Designate all workers’ comp. absences
as FMLA if they qualify - - notify HR Designate and explain all “light duty”
work as temporary Periodically reassess and document Light duty jobs will not necessarily
constitute long-term accommodations ADA may require more leave than FMLA
or other policies provide
Office of General Counsel, Washington and Lee University
34January 2007
Discipline of Employees with Disabilities
KEEP THE FOCUS ON PERFORMANCE
Discipline conduct, but may need to address whether reasonable accommodations are necessary prospectively
Document performance and conduct issues for ALL employees
Office of General Counsel, Washington and Lee University
35January 2007
Coordinate and Inform Relevant Administrators
Work with HR, Deans, and Office of General Counsel (as needed), to identify and appropriately handle employee leaves, on the job injuries, and disability accommodation issues
Office of General Counsel, Washington and Lee University
36January 2007
RESOURCES
Employee Handbook:
http://humanresources.wlu.edu/handbook/Employee%20Handbook%2012-5-06.pdf Faculty Handbook:
http://provost.wlu.edu/handbook/benefits.htm#absences
Office of General Counsel, Washington and Lee University
37January 2007
RESOURCES (cont’d)
HR Website (leave policies):
http://humanresources.wlu.edu/Disability/ HR Website (accommodations policy
and request form):
http://humanresources.wlu.edu/other/ADA/ Office of General Counsel site:
http://counsel.wlu.edu