Leaves, Absences and

Accommodations

Presented by
Danielle Gonzalez, Director of Human Resources
Kristen MacFarlane, Assistant Director for Benefits and Compensation

October 2020
OBJECTIVES

 Know the basics of all the acronyms: STD, LTD, FMLA, PFL, ADA

 When to take action

 What kind of documentation is necessary

 Who can help

WHAT ARE YOU HOPING TO
LEARN MORE ABOUT?
BUILD A CASE STUDY -
VIOLET BOVINE
 What laws might be impacted?
 Job title:

 Suggested actions:
 Dept:

 Who can help?

 Years in position:

 Workplace issue:
 Disability, Leave and Injuries

Americans with Disabilities Act (ADA)

Family and Medical Leave Act (FMLA)

Worker’s Compensation (WC)

Leaves, Absences and Accommodations

October 2020
 Brief Overview

ADA – protects applicants and employees who are “qualified

individuals with a disability.”

FMLA – sets minimum leave standards for employees for the birth and
newborn care of a child, placement of a child for adoption or foster
care, to care for an immediate family member with a serious health
condition, and for the employee’s serious health condition. New
Military component.

Workers’ Compensation - provides for payment of compensation and

rehabilitation for workplace injuries and minimizes employer liability.

Leaves, Absences and Accommodations

October 2020
 Employee Eligibility

 ADA – Employee (or applicant) who is disabled as defined by the ADA; qualified
for the position; can perform the essential functions of the position, with or
without a reasonable accommodation.

 FMLA – Employee who has worked at least 12 months and 1250 hours prior to
the start of the leave; works at a worksite where there are 50 or more employees
within a 75-mile radius.

 Workers Compensation – Employee who has an injury arising out of or in the

course of employment - state law exceptions possible for willful misconduct or
intentional self-inflected injuries, willful disregard of safety rules, or intoxication
from alcohol or illegal drugs.

Leaves, Absences and Accommodations

October 2020
 Length of Leave
 ADA – No specific limit for the amount of leave that would be
provided as a reasonable accommodation that does not create an
undue hardship on the employer.

 FMLA – 12 weeks in the 12 month period as defined by the

employer.

 Workers’ Compensation – No specific limit for the amount of

leave an injured worker may have.

Leaves, Absences and Accommodations

October 2020
 Medical Documentation
 ADA – Only medical examinations or inquiries regarding an employee’s
disability that are job-related and limited to determining ability to perform
the job and whether an accommodation is needed and would be effective.

 FMLA – Medical certification of the need for the leave not to exceed
what is requested in the Department of Labor (DOL) Medical
Certification Form.

 Workers’ Compensation – Medical information that pertains to the

employee’s on-the-job injury.

Leaves, Absences and Accommodations

October 2020
 Light Duty
Restricted or Light Duty
 ADA – Required to be offered, if it is a reasonable
accommodation that does not create an undue hardship on the
employer.

 FMLA – Cannot be “required”.

 Workers’ Compensation – Ought to be offered if available as it

may eliminate the employee’s entitlement to the wage
replacement benefit.

Leaves, Absences and Accommodations

October 2020
 Fitness for Duty

Fitness-to-Return-to-Work Certification
 ADA –Permitted as long as the medical examination and inquiry is
job-related and necessary to determine whether the employee can
perform the essential functions of the job.

 FMLA – Can only be required under a policy or practice that

requires employees who have been on a similar type of leave of
absence.

 Workers’ Compensation – May be and is typically required.

Leaves, Absences and Accommodations

October 2020
 Benefits While on Leave

 ADA –No specific requirements but cannot discriminate and

must provide same benefits as those provided to employees on
non-ADA leave of absence.

 FMLA – Health coverage must be continued at same level as

prior to the leave.

 Workers’ Compensation – Not required to continue unless run

concurrently with FMLA leave.

Leaves, Absences and Accommodations

October 2020
 Introduction to the FMLA

Topics of Discussion:
 Employer Coverage and Employee Eligibility
 Qualifying Reasons for Leave
 Amount of Leave
 Employer Rights and Responsibilities
 Employee Rights and Responsibilities
 Military Family Leave Provisions

Leaves, Absences and Accommodations

October 2020
 Employee Eligibility

Private sector employers with 50 or more employees

Worked at least 12 months
Have at least 1,250 hours of service during the 12 months
before leave begins – Does vacation time count towards
1,250 hour requirement? - NO
Employed at a work site with 50 employees within 75 miles

Leaves, Absences and Accommodations

October 2020
 Qualifying Leave Reasons
Eligible employees may take FMLA leave:
 For the birth or placement of a child for adoption or foster care
 To care for a spouse, son, daughter, or parent with a serious health
condition
 For their own serious health condition
 Because of a qualifying reason arising out of the covered active duty
status of a military member who is the employee’s spouse, son,
daughter, or parent (qualifying exigency leave)
 To care for a covered service member with a serious injury or illness
when the employee is the spouse, son, daughter, parent, or next of
kin of the covered service member (military caregiver leave)

Leaves, Absences and Accommodations

October 2020
 Qualifying Family Members
Parent - A biological, adoptive, step or foster father or mother, or
someone who stood in loco parentis to the employee when the
employee was a son or daughter. Parent for FMLA purposes does
not include in-laws.
Spouse - A husband or wife as defined under state law, including
common law marriage where recognized.
Son or Daughter - For leave other than military family leave, a
biological, adopted, or foster child, a stepchild, a legal ward, or a
child of a person standing in loco parentis who is either under 18
years of age, or 18 or older and incapable of self-care because of a
mental or physical disability.

Leaves, Absences and Accommodations

October 2020
 Qualifying Leave Reasons:
For the Birth or Placement of a Child

Both the mother and father are entitled to FMLA leave for the
birth or placement of the child and/or to be with the healthy
child after the birth or placement (bonding time).

Employees may take FMLA leave before the actual birth,

placement or adoption – incapacitation.

Leave must be completed by the end of the 12-month period

beginning on the date of the birth or placement.

Leaves, Absences and Accommodations

October 2020
 Qualifying Leave Reasons:
Serious Health Condition

Illness, injury, impairment or physical or mental condition

involving any of the following:

 Inpatient Care, overnight stay in a hospital, hospice, or

residential medical facility

 Continuing Treatment by a Health Care Provider

Leaves, Absences and Accommodations

October 2020
 Qualifying Leave Reasons - Continuing Treatment

 Incapacity Plus Treatment

 Pregnancy

 Chronic Conditions

 Permanent/Long-term Conditions

 Absence to Receive Multiple Treatments

Leaves, Absences and Accommodations

October 2020
 Continuing Treatment Chronic Conditions

Any period of incapacity or treatment due to a chronic serious health

condition, which is defined as a condition that:
 requires periodic visits (twice per year) to a health care provider for
treatment
 continues over an extended period of time
 may cause episodic rather than continuing periods of incapacity –
migraines, asthma, epilepsy, diabetes
 A period of incapacity which is permanent or long-term due to a
condition for which treatment may not be effective – stroke, terminal
disease, Alzheimer's

Leaves, Absences and Accommodations

October 2020
 Intermittent Leave
When leave is needed for planned medical treatment, the
employee must make a reasonable effort to schedule treatment
so as not to unduly disrupt operations.
In such cases, the employee temporarily can be transferred to
an alternate job with equivalent pay and benefits that
accommodates recurring periods of leave better than the
employee’s regular job.

Leaves, Absences and Accommodations

October 2020
 Employer Responsibilities

 Provide notice

 Maintain group health insurance

 Restore the employee to same or equivalent job and benefits

Leaves, Absences and Accommodations

October 2020
 Employer Responsibilities:
Provide Notice of Eligibility

 Within five business days of leave request (or knowledge that

leave may be FMLA-qualifying)
 Eligibility determined on first instance of leave for qualifying
reason in applicable 12-month leave year
 New notice for subsequent qualifying reason if eligibility
status changes
 Provide a reason if employee is not eligible
 May be oral or in writing

Leaves, Absences and Accommodations

October 2020
 Prohibited Actions Against Employees

Employers cannot:
 interfere with, restrain or deny employees’ FMLA rights
 discriminate or retaliate against an employee for having exercised
FMLA rights
 discharge or in any other way discriminate against an employee
because of involvement in any proceeding related to FMLA
 use the taking of FMLA leave as a negative factor in employment
actions

Leaves, Absences and Accommodations

October 2020
 Employee Responsibilities

 Provide sufficient and timely notice of the need for leave

 If requested by the employer:
• Provide certification to support the need for leave
• Provide periodic status reports
• Provide fitness-for-duty certification

Leaves, Absences and Accommodations

October 2020
 Employee Responsibilities:
Notice Requirements

 Provide sufficient information to make employer aware of need for

FMLA-qualifying leave
 Specifically reference the qualifying reason or the need for FMLA
leave for subsequent requests for same reason
 Consult with employer regarding scheduling of planned medical
treatment
 Comply with employer’s usual and customary procedural requirements
for requesting leave absent unusual circumstances

Leaves, Absences and Accommodations

October 2020
 Employee Responsibilities:
Notice Requirements

Timing of Employee notice of need for leave:

 Foreseeable Leave - 30 days notice, or as soon as practicable

 Unforeseeable Leave - as soon as practicable

Leaves, Absences and Accommodations

October 2020
 Employee Responsibilities:
Provide Certification
Employer (not employee’s direct supervisor) may contact health care provider to:
 Authenticate: Verify that the information was completed and/or authorized
by the health care provider; no additional information may be requested
 Clarify: Understand handwriting or meaning of a response; no additional
information may be requested beyond what is required by the certification
form
Second and third opinions (at employer’s cost)
 If employer questions the validity of the complete certification, the employer
may require a second opinion
 If the first and second opinions differ, employer may require a third opinion
that is final and binding

Leaves, Absences and Accommodations

October 2020
 Employee Responsibilities:
Provide Periodic Status Reports

Employee must respond to employer’s request for information

about status and intent to return to work

Leaves, Absences and Accommodations

October 2020
 Example
Employee has knee replacement

Surgery

Employee
contacts HR to FMLA (protected unpaid leave) Cont’d intermittent (protected unpaid leave)
initiate FMLA
paperwork Return to work PT or
Employee STD (paid)
Light Duty

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Weeks
 Example
Pregnant employee
Baby
Bed is
Rest Born
8 weeks 8 weeks

FMLA (protected unpaid leave)

Sick Time Employee STD (paid at 100%) College parental leave policy (paid 100%)

2 weeks Mass Parental Leave

(protected unpaid leave)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
Weeks
 Example
Baby
is Birth / Adoption of a Child
Born
8 weeks 4 weeks

FMLA (protected unpaid leave)

Mass Parental Leave (protect unpaid
leave)

College parental leave policy (paid)

Williams benefited spouse FMLA (protected unpaid leave)

College parental leave for spouse (paid) 8 weeks total, must be used within 6 months

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
Weeks
 FMLA Take-a-Ways

Notify HR, and direct the employee to contact Unum when:

 Individual missed three consecutive days of work
 Consistently late or absent for health related reasons
 Consistently late or absent for a family member’s health related reasons
 Anticipated absence due to pregnancy, illness, or surgery

Leaves, Absences and Accommodations

October 2020
Q&A