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

Office of General Counsel, Washington and Lee University

38January 2007

QUESTIONS?