Questions & Answers:
Hello, in regards to the benefits. If an employee has not submitted their portion of their premiums while on fmla leave you have indicated it be safe that we continue their coverage until they return. What if they do not return, can we terminate their benefits retroactive to the date that payments were not received? Of course with appropriate notice?
The FMLA provides that if an employee does not return to work after the leave has exhauster (and the reason for the failure to return to work is not due to a continuation of the illness or another illness, or circumstances beyond the employee’ control), the employer can recover the premiums paid by the employer to maintain the coverage. The coverage responsibilities of the employer do not change, so the employer cannot terminate the benefits retroactively. In other words any existence claims must be paid.
Does marriage counseling apply if it impacts their ability to perform their job? (Depression, anxiety, etc)
Health care providers include clinical psychologist. If the employee is receiving marriage counseling through a psychologist or licensed therapist, the marriage counselor should be able to provide the necessary certification.
ADA/FMLA - what if employee would rather have the'equivalent' position? Can the employer honor that preference?
There is no obligation to honor that preference, but it would be at the discretion of the employer.
What is considered a "reasonable accommodation" under ADA for an employee who has exhausted FMLA and still cannot work due to a disability? How long do we have to keep their job open as a reasonable accommodation?
It depends on the specific circumstances. Provided the employee continues submit a health provider’s certification that it’s not indefinite, my general rule is 6 months to 1 year. Once the employee has exhausted FMLA leave, employer has no obligation to continue health benefits under the ADA. Also, the longer the amount of time the employee is out on leave as a reasonable accommodation, the easier it becomes to show undue hardship to maintain the job available.
If an employee was on intermittent FMLA leave and has exhausted his 12-weeks of FMLA protected leave, and during the interactive process the employee still needs intermittent leave and may fall under ADA, are we required to ask for a timeframe or schedule of leave needed as an accommodation.
Yes, you should ask the employee to submit a certification from his medical provider indicating how long the employee needs the accommodation. Based on the medical provider’s certification, the employer can then assess the impact on the business to determine whether or not it causes undue hardship.
Is there a time limit for medical documentation to be received from the employee requesting ADA?
The employer should request the documentation as soon as employee requests the leave of absence as a reasonable accommodation or the employer realizes there is a need for a reasonable accommodation.
what constitutes an "undue hardship"
A requested accommodation would impose an “undue hardship” where it requires “significant difficulty or expense”
I am wondering about unpaid LOA, what is the response from employers? Do they have to offer the same job again?
Under the ADA, the employee is entitled to return to the same/original job he held unless the employer can demonstrate that holding the job open would impose an, 'undue hardship.”
Is a surgery of some kind to be considered under ADA?
The question is whether the surgery constitutes a “serious health condition.” Definition of a “serious health condition”-
Illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a HCP for a condition that prevents the employee from performing their job.
Question: A FT employee goes out on FMLA to care for his wife. During his leave the Manager discovers that the work he has been completing is not a FT positoin and would like to reduce the hours to 20 hours per week. Is there any legal exposure
Employee could argue that he is being retaliated against for exercising his right under the FMLA. I would not recommend you reduce the hours until you have an opportunity to speak with the employee to try to figure out why he is only working 20 hours of work instead of 40 hours, and you have any opportunity to reassess the situation.
What are we supposed to do in regards to insurance benefits once FMLA is exhausted but employee continues to be off work due to a disability under ADA? Our insurance contracts state "active" employee working 30+ hours per week.
Employer has no obligation to maintain health care benefits once the FMLA leave has expired. ADA does not require that health care benefits be maintained. Once the employee is out on a leave of absence under the ADA, the employer can send a Cobra notice and remove the employee from the plan.
if the employee refuses to provide dr note to support his medical appointments under ADA interactive process, how to we validate it?
If the employee is not providing you the documentation from his medical provider, then you inform the employee you cannot provide him with a reasonable accommodation without information from his doctor, he cannot work, and you are placing him on a leave of absence. The reasonable accommodation is denied, if any was available. Make sure you document all the requests for the doctor’s note and conversations with Employee concerning his failure to provide the medical information.
If a doctor sends a letter stating the employee will continue his leave of absence indefinitely, can we terminate him at 12 weeks.
Yes. Make sure there is no question the doctor’s note is indefinite.
What if the employee has morning sickness.
IF the employee is eligible for FMLA, then the employer needs to provide the time off under the FMLA. After 12 weeks have expired, you grant her a leave of absence as a reasonable accommodation. You should request the employee to bring a doctor’s advising you that the employee needs an accommodation.