Questions & Answers:
Below are the questions submitted during the live webinar, along with the answers provided by Muhannad Malki. If you have questions of your own or require further information regarding Leaves of Absence: FMLA vs ADA,
feel free to contact Landegger Baron Law Group. (see contact information to the left).
Regarding the ADA’s requirement for a face-to-face meeting with employees, what should we do with remote employees? Are we supposed to fly a remote employee over if this employee is disabled?
I should have been clearer that California again is just a little bit tougher. Obviously, when it’s not practical to have a face-to-face meeting and the person, by nature of their position, works remotely, you can certainly do it over the phone. I would not at all say that email is enough. I know this is the age where nobody likes to pick up the phone anymore—even at the dinner table you’re texting each other—but email and text are not enough. Face to face is best. If the circumstances do not allow for it, then you can have the meeting over the phone. But you certainly want to at least be on the phone and take good notes.
Regarding the ADA’s requirements for returning to the original position worked—what if the employee does not want to have that original position? What if they want to try something new? What does the employer have to do?
Whatever benefits the employee most is the way you want to go. If the employee wants to come back to a better position, a different position, and it’s all documented that you had a full conversation or a face-to-face conversation, then you can offer them a different position. If the employee chooses to accept a different position, then certainly that is OK.
But what if the employee doesn’t quality for the different position?
If a person is out on a disability leave of absence, you cannot—because I do get questions like this from my clients all the time—say, “OK, this person’s out on leave, and I really want to get rid of them, so can I just eliminate their position?” The answer is no, because they will say that you did not really eliminate the position due to a business necessity. You eliminated the position because you didn’t want to return them to their original position. People have tried that, and it has failed. So, if you’re going to eliminate someone’s position, it has to be for a very, very clear business justification, and I would advise that you have a very similar position available for the individual at the same pay, and that they are qualified for. You can’t just dismantle a job in order to keep somebody from returning from a leave of absence.
If we have hired someone to assist with the employee’s duties while on leave, what are our options for when they return?
Under regular FMLA leave—ignoring all state laws—when a person returns and it’s not for their own serious medical condition, you can return them to an “equivalent” position. So, if you’ve got somebody that came in to cover their shift, and you happen to like the temporary employee and you want to keep them both, you can move that person around. If the individual took FMLA leave for their own medical condition, that means that they’re disabled under the ADA. So under the ADA, you have to return them to their original position, which means you’ve got to pretty much terminate the temporary employee or move the temporary employee into a different position. And the temporary employee isn’t going to have a cause of action against you because when you hired them, you hired them saying, “We hired you to fill this person’s position while this person is on leave. When that person comes back, we may not have a job for you anymore.”
With a no-fault policy, if the employee does not incur points when on an FMLA leave, does that take away the concern of violating the ADA?
No, because the ADA policy is concerned with the point policy. I’m currently reworking a point policy precisely because that’s the concern. The ADA—and, in California, the FEHA—is concerned with information. Having a no-fault point policy doesn’t make sense, because, as I said, if somebody really is sick 8 days of the year, you’re going to be facing a whole lot more liability if you’re basically requiring the employee to come in sick. That’s essentially what you’re saying—either come in sick, or we’ll fire you. That is unfortunately almost like textbook disability discrimination. It could be considered or construed that way. I know it seems harsh, but if a person is sick, a person is sick. We’ve got to find some other creative ways of managing attendance. A no-fault policy could be problematic, and I just don’t know if you want to deal with that.
As far as penalties go, what happens if you don’t comply, as the employer? Are the penalties different under the ADA versus the FMLA?
Everything’s the same. If you fire an employee while they’re on FMLA leave and they’re disabled, you’re facing a lawsuit for unlawful termination under the FMLA, the ADA, throw in the PDA, and most likely the states where you do business, especially the state of California, are going to have a whole host of other laws. The “penalties” are the same—it’s special damages, general damages, punitive damages, back pay, front pay, and attorney’s fees. It’s the whole gamut, the usual litigation costs.
Does the ADA only cover the employee? If they have a family member who is disabled and needs intermittent care, can they ask that time be covered under the ADA to care for an ill child, for example?
No, the ADA is just for individuals. And that’s why the ADA only comes into play with the FMLA when the individual is taking time off to care for their own serious medical condition.
Would you have the employee utilize the STD in conjunction with the ADA and FMLA?
If it’s employer-sponsored—that is, the employer offers short-term disability, and the employee doesn’t pay for it—yes. Any paid benefit that the employer pays for—and again, I have to qualify this by saying that we’re talking federal and there may be different state statutes—the employer can force the employee to use while the employee is on an unpaid leave of absence. So, you can throw everything at it. But, again, as an example, if we’re in California, we have something called state disability, and that’s 100% funded by the state, and the employee has nothing to do with the employer. For example, a woman who’s pregnant here can take 12 weeks of FMLA leave and the entire 12 weeks will be paid by the state, but also by the employee contribution. I don’t want to confuse people too much, but if it’s an employer-sponsored benefit, the employer can force the employees to use it.
If an employee originally goes on medical leave for a mental health diagnosis and during their time out becomes pregnant, is this ADA or FMLA? What is the employer required to do?
The short answer is that in California, when you’re pregnant, if you’re ever pregnant, you get to come back to your same original position, because California’s PDL and CFRA just over-compensate everything. To those not in California, the answer is that mental health qualifies as one’s own medical condition under FMLA. That means it’s also protected by the ADA, and in California it’s protected by the FEHA, which is for disability discrimination. Then I get pregnant. Even if I’ve exhausted my FMLA, I’m pregnant now, so under federal law I’m protected by the Pregnancy Discrimination Act. I’m not protected by the ADA. But, under the Pregnancy Discrimination Act, you still should not fire me even though I’ve exhausted my FMLA time. Now, jumping back to California, because I am pregnant, I am protected under the California Pregnancy Disability Leave Act, so that means that I get 4 months of job-protected leave. And then once I have the baby, I get three more months under the California Family Rights Act. So, yeah, you can’t fire me ever.
If an employee has been out frequently for migraines and is on intermittent FMLA leave, are they covered by the ADA once their FMLA leave is used? Do we need to keep this employee in her current position when her position includes travelling to client sites, which makes unexpected absences difficult to handle?
You’d want to have a conversation with her. And if it’s not working out, if she’s unable to perform the essential functions of her position, then you can adjust her position accordingly. Just make sure you have the conversation. And if she’s having trouble working, note it, you know, “This is what your issues are. Can we alter your position?” I guess the key takeaway is don’t make any decisions out of hand. Don’t send those final letters that you’re terminated because you’ve been on leave for 12 weeks and 1 day. Just be careful of some of these really interesting and difficult landmines.
I know that FMLA does not require leave to be paid leave. Under both the PDA and ADA, is leave unpaid as well?
Yes. It’s all unpaid leave. The issue of pay only comes up as to whether or not you as the employer, you as the business person, have allowed your employees a benefit of paid time off. So, if you allow a benefit of paid time off, you can require them to use all of that paid time off while they’re on unpaid leave, because the difference is that the FMLA allows you to be away from work for 12 weeks, but it doesn’t allow you to get paid for it. If you’re a really nice business employer, however, you probably give at least 2 weeks’ vacation. So, you as an employer can say, “While you’re away for 12 weeks not getting a pay check, I’m going to give you 2 weeks’ pay. So, 2 of your 12 weeks are going to be paid, 10 of your 12 weeks are going to be unpaid, and that’s the entitlement.”
So are you saying that a better position or a different position can an accommodation?
A DIFFERENT position CAN be an accommodation. Yes. If the employee cannot perform the essential functions of the position he is currently in due to his disability, then you are required to see whether he is qualified for a different position. He is NOT, however, entitled to a BETTER position. A BETTER position is NOT an accommodation—though, if you are OK with giving him a better position (as in better pay and benefits), then of course you can do that.
If an employee takes more than 12 weeks—let's say 16 weeks—can the 4 additional weeks be subtracted from the next year's 12 week FMLA availability?
No, because they won’t be eligible in that 1 year period to start a new FMLA, and so I don’t want you deducting or subtracting at all from the next leave. There’s also no need to. You can’t tap into next year’s leave because they wouldn’t even be qualified for it, because they’ve already been on leave, so they haven’t worked another requisite time, and there’s no need to do it because you’re required to extend the leave of absence as a reasonable accommodation, exclusive of the FMLA.
I have an employee that is having issues with memory and is forgetting how to do to her job—fibromyalgia—and contacting vendors with wrong information. We have offered FMLA disability leave. She refused and then took FMLA after she was written up. We have tried to address work, but she gets angry and is verbally attacking other employees. What can we do?
This really should be discussed one on one. If she’s on FMLA, do nothing. When she comes back, engage in the interactive process and see whether she has any work restrictions. If she has none, and continues to make mistakes, you have to address the performance problems. But give her at least two chances before terminating. Still, I need more information. Call me and we can discuss.
We have an employee who is requesting ADA accommodation to work from home full-time for a year. This employee currently works 2-3 days a week, has cancer, and needs support from their spouse who lives in another state. The employee is not taking FMLA currently and has previously worked from home a few months with permission of manager.
You really just have to make your individual inquiry. Is she able to do the job? Is she able to do the job remotely? Is she able to perform? I think it would certainly be reasonable under the circumstances. Of course, she has cancer, so we have to determine how much time she needs for treatment and whatnot, but I would have the conversation and give it a shot. At the very least, give it a month, give it two months, and then reevaluate. You can’t out of hand say, “This isn’t going to work.” Again, it depends on the nature of the work, but if she’s already working 2-3 days a week, I would say, give her a month or two months, reevaluate, and take it from there. I would not just flat out deny the request, unless it’s really going to be an undue hardship on you. I’d give it a month, you know, and see what happens.
Must FMLA be applied immediately when the event occurs or must an employee request to use sick or annual leave first and then use the FMLA? For example, if a pregnant woman wants to use her sick/annual leave first and then have the FMLA applied thereafter, what are your thoughts on that?
As I mentioned, sick leave is usually a matter of pay. Vacation is usually a matter of pay. FMLA leave is a matter of time. And I’m trying to be as clear about this as possible, and I do understand the confusion that comes up a lot. You’re entitled to 12 weeks of leave under the FMLA. It’s unpaid leave, and the time starts from when you designate it to 12 weeks later, but it’s unpaid. If your employer has a policy of 1 week sick time and 2 to 3 weeks’ vacation time, those 4 weeks do not extend your 12 week leave into a 16 week leave. It just pays for 4 weeks of your 12 weeks.
Pros and cons for employer or employee of running FMLA concurrently with Workers’ Comp time off?
If somebody’s on Workers’ Comp leave, that is still a qualifying event under FMLA, and you designate it, so the time is exhausted. You also COBRA them for their medical benefits, and the only thing that you want to make sure not to do is check the box for termination. You check the box for reduction of hours. So, if somebody’s on Workers’ Comp leave, you designate it FMLA, and at the end of the 12 weeks, you COBRA them.
If an employee requests leave as an accommodation, are we at liberty to request medical certification from their physician to support their request?
Yes. If they come to you and they say, “I need to take FMLA leave for my own serious health condition,” certainly they have to go through the whole medical certification process. So, if an employee comes to you and says, “I’m sick. I need to take my 12 weeks leave,” then yes, you’re going to get medical certification. But the 12 weeks expire and the employee calls and says, “I’m still sick. I still need time.” ADA is triggered, or at least your responsibilities and your thought process about ADA is triggered. And you can absolutely request a doctor’s note.
What happens if the physician continuously extends their leave?
It depends on the nature of the person’s work and what kind of an undue hardship it’s going to be. If the employee says, “I need another 6 weeks,” you should give them another 6 weeks. And if he says, “I need another 8 weeks,” and it’s starting to become a significant burden on your business operations, then you might say, “Hey, 8 weeks may be too long. I’ll tell you what. We’re going to go ahead and fill your position, but we will place you in the next available position when you are able to return to work.” But like I said, in the case law out, a 1 year leave of absence, even if it wasn’t planned to be 1 year, was considered reasonable. So, you want to be careful. I know it sounds like an additional 8 weeks or an additional 3 months is such a pain—I get it; I hear it all the time—but if you make that final blow and you terminate someone, it’s going to end up costing you a lot more than whatever it will cost you just to extend somebody’s leave of absence and just leave them on your books.
Up until what point can we then deem their leave as indefinite if the physician doesn’t actually state that?
Requesting a second opinion? Perhaps. It’s hard for me to put a bottom line on it because the cases are all over the place. If you have a particular issue, call me or call an attorney that works in the state where you’re operating and discuss this particular issue with them. A lot of times, I have seen clients that just want to clean up their books. They say, “I have 2,000 employees and I have 30 people who’ve been on Workers’ Comp leave for 3 years. Can I terminate them?” The answer is no. I know they want their books clean, but if it’s not a hassle, other than just an administrative hassle, then don’t. If it’s more of an intense hassle, then let’s talk.
If an employee has extinguished all of their FMLA hours and Vacation Time, with no return to work date from the physician, when do you terminate the employee? They will probably never be able to return, as they have a severe illness, according to the physician.
If it’s been a year, and you send at least 2 CYA letters saying, “Please provide us with a doctor’s note indicating you have been released to return to work, and we will place you in the first available position for which you are qualified.” Two times, maybe 3 months apart, and then you can say you have considered them to have abandoned their job.
If ADA only covers an employee, is there anything beyond FMLA that covers an employee to support a child or a parent?
No. But I still don’t want you to terminate until you at least engage in the interactive process and find out whether and when he can return.
Would a temporary medical condition, such as a broken leg or some other injury, be covered under the ADA? Would we need to accommodate the employee with leave if it is not covered under the FMLA?
Yes. But it does not need to be paid.
Do paid leave and FMLA run concurrently?
Yes. Yes, that’s the point. Paid leave is just a benefit that runs concurrently with the actual leave time of FMLA.
What happens to other benefits, such as medical insurance, HSA, or Café Plans, during those 12 weeks of FMLA?
You have to continue all the same benefits for the 12 weeks. At the end of the 12 weeks, you COBRA them—for reduction in hours, not termination.