september 5, 2015deirdre j. kamber, esq.1 deirdre j. kamber, esquire fitzpatrick, lentz & bubba...

April 19, 2023 Deirdre J. Kamber, Esq. 1

Deirdre J. Kamber, EsquireFitzpatrick, Lentz & Bubba

Diversity Chair, SHRM Lehigh Valley

It’s the Law – Changing Laws and the Impact on HR


The Bermuda Triangle of Leaves…


Say Goodbye to At-Will Employment!

• There is really no such thing as at-will employment anymore.

• The days are gone where you can terminate someone simply because you want to…..


What Are We Covering Today?

• Big Stuff (in a nutshell):– The Return-to-Work Leave Laws: USERRA and

FMLA– Health Related Laws and Medical Information –

what can you ask for?– Unemployment Compensation – the New Road to

Litigation for Wrongful Termination Claims

ADDITIONAL QUESTIONS….JUST ASK


Leaves in the Workplace

• Sick leave, Annual leave, Vacation, Holidays and Disability

• Americans with Disabilities Act (ADA)

• Workers’ Compensation

• Military leave• Family and Medical

Leave Act (FMLA)

• UNEMPLOYMENT COMPENSATION


FMLA

• What is the Family Medical Leave Act (FMLA)?– A federal law that entitles eligible employees to take up

to 12 weeks of unpaid, job-protected leave within a 12-month period for specified family and medical reasons.

– The NDAA amends the Family and Medical Leave Act of 1993 (FMLA) to permit a:

• "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a member of the Armed Forces, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."


FMLA

• Employers must grant up to 12 workweeks of unpaid leave during any 12-month period for specific leave reasons.

• Upon return from FMLA leave, an employee must be restored to the his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.


USERRA

• Uniformed Services Employment and Reemployment Rights Act (USERRA), includes EVERYONE IN THE MILITARY

• USERRA applies to every employer• Not dependent on having a certain minimum number of

employees• Not dependent on type of service• Voluntary or involuntary• Peacetime as well as wartime• Does NOT NOT apply to Guard recall for disaster relief, riots, etc.

(State law applies)


Five Conditions of Eligibility

• Must hold a civilian job (brief, nonrecurrent jobs do not qualify)• Must have given notice -- either orally or in writing -- to

employer before leaving for military service (unless precluded by military necessity)

• Military service must not be longer than 5 years, cumulative• Service must be under honorable conditions• Must report back to civilian job in timely manner or submit

timely application for reemployment– Certain time limits on notification to the employer after

the period of service apply


Employer Requirements

• Prompt reinstatement• Accrued seniority, as if continuously employed (escalator

principal)– Status, rate of pay, pension vesting

• Training or retraining, if needed• Cannot be terminated, except for cause, for 180 days (service

31-180 days) or one year (service more than 180 days)


Return to Work Requirements

• Service for 1-30 days: – must return first full regularly scheduled work period on first full calendar

day after return home and 8 hours rest

• Service for 31-180 days:– written or verbal application for reemployment within 14 days after

completion of service (unless impossible or unreasonable through no fault of own)

• 180 + days of service:– must reapply NLT 90 days after completion of service

• Deadlines may be extended for up to 2 years for hospitalization or convalescence for injury or illness arising while serving


What Job Does the Employee Get?

• Service of less than 91 days– Same job would have attained absent service, provided

person is, or can become qualified (escalator principle)– If unable to qualify after reasonable efforts by

employer, entitled to old job (continuation principle)• 91+ days

– Same as above, or– Position of “like seniority, status and pay” if qualified


Reinstatement

• Immediate reinstatement of health coverage upon return to work– Cannot impose waiting period– Cannot exclude employee for pre-existing condition

(other than service-related disability)– Not contingent upon election to continue coverage

during period of service• Cannot be required to use vacation or leave for service,

but must be able to use accrued leave before beginning service if requested

• Sick leave is treated differently. -- Spadoni v. EASD


Documentation Requirements

• If person absent more than 31 days, employer has right to request documentation showing:– Application for reemployment was timely,– Person has not exceeded 5 year limit,– Character of separation was under honorable

conditions

If delay in obtaining documentation, employer must still promptly rehire


If Employee Not Qualified

• Employer must make “reasonable efforts” to qualify the person– Actions, including training, that don’t cause employer

undue hardship• If still can’t become qualified, employer must employ in any

other position of lesser status and pay for which person is qualified, with full seniority


Disability of Returning Member

• Employer must make “reasonable efforts” to accommodate the employee – much like ADA

• If disability cannot be accommodated, must employ in “nearest approximate” position to which the person is otherwise entitled, in terms of status and pay, with full seniority

• Disability need not be permanent (i.e. broken leg)• Eligible for additional two years for rehab due to disability


Employer NOT Required to Rehire IF:

• Employer’s circumstances have so changed that would make rehiring impossible or unreasonable

• For those requiring accommodation, retraining or effort, such employment would impose undue hardship on employer

• The employment was for a brief, non-recurrent period and there was no reasonable expectation of continued employment

• NOTHING ABOUT “CAUSE” in the return to work…..


Other Health-Related Laws

• Other health-related laws in the workplace include:– ADA and ADAAA

– Workers’ Compensation

– HIPAA

– GINA

– Unemployment Compensation

– OSHA

• Issue I: How do you get the information you want without violating private rights?

• Issue II: Because there are retaliation provisions, are you forced to keep them employed?


ADA and the ADAAA

• The ADA prohibits discrimination based on a disability which impacts on a major life function.

• It also requires covered employers to provide “reasonable accommodations” to the known disabilities of qualified individuals to remove workplace barriers.

• The ADAAA, passed in 2009, seriously changed the face of the ADA: far greater coverage for who is disabled……

• Don’t assume that an accommodation doesn’t exist, where one is requested. ALWAYS GO THROUGH THE INTERACTIVE PROCESS!!!!


Worker’s Compensation

• Workers’ Compensation– State law– Statutory grant– No minimum number of employees– Employee must be injured in conjunction with

his or her employment– Unintentional injury


HIPAA and GINA

• The Health Insurance Portability and Accountability Act (HIPAA) is a law that protects individuals with respect to their group health insurance.

• HIPAA also protects against discrimination for medical usage.• HIPAA applies to employers who provide medical services

and/or have contractual relationships with health plan providers (i.e., EAPs, Medicaid, and traditional insurance plans)

• GINA (Genetic Information Nondiscrimination Act) also protects employees from discrimination.


Unemployment Compensation

• Employees can leave a job (by choice or not) due to medical reasons.

• They also can leave because they feel they are in danger.• Such employees may be eligible for UC benefits, even if due to

a voluntary quit, as it can be deemed a “necessitous and compelling” reason.

• A dangerous employee can be an OSHA violation, in addition to creating multiple problems in the workplace.


Medical Information

• You always have the right to ask for sufficient medical information to support a claim in the workplace.

• It also may formulate a new claim (i.e., the ADA) for discrimination.

• You can ask for “Return to Work” forms – it always a good idea to check to ensure that an employee is approved to return.

NEVER ask for medical records!!!! It is a violation of individual privacy.


Workplace Documentation

THIS IS ONE OF THE MOST IMPORTANT SLIDES OF THIS PRESENTATION: DOCUMENT, DOCUMENT,

DOCUMENT!!!!!!!!!!!!!

• Medical information should be processed pursuant to policy and practice.

• You need your:– Handbook– Policies– Job description with “essential functions”

THE KEY: DOCUMENT EVERYTHING AND TREAT EVERYONE EQUALLY


UC

• We’ve already mentioned UC, that it can be used in health-related situations.

• UC has also become a phishing expedition for many terminated employees who are looking to sue their employers in discrimination and wrongful termination claims.

• In a court case, discovery can take years…in UC, it usually takes less than a month. Also, employers frequently don’t take UC hearings as seriously as they do court cases.

THE TIDE IS CHANGING – BE AWARE, BE PREPARED, AND

THINK ABOUT STRATEGY!


THANK YOU!

september 5, 2015deirdre j. kamber, esq.1 deirdre j. kamber, esquire fitzpatrick, lentz & bubba...

Documents

family medical leave

annual leave

hr slide

jobprotected leave

workweeks of unpaid

specific leave reasons

workplace sick leave

military userra