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Administering the Family Medical Leave Act in Vermont

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October 03, 2018
Author: Kristina Roomet Brines, PHR
Organization: Paul Frank + Collins


I. FMLA Interplay with other laws including ADA and Worker’s Compensation

a. Eligibility overview for ADA and Worker’s Compensation
i. ADA Eligibility

- The Americans with Disabilities Act ( 32 U.S.C. § 12101 et. seq.) is a federal law enacted to provide protections for individuals with disabilities or those perceived to have a disability

- Covers employers employing more than 15 employees for each of 20 or more calendar weeks in the current or preceding calendar year
o (However, Vermont Fair Employment Practices Act also prohibits discrimination on the basis of disability- no size of employer limitation)

- The ADA prohibits discrimination against qualified individuals with a disability, and requires employers to provide reasonable accommodations in certain circumstances
o Also prohibits any sort of retaliation against individuals with disabilities

- ADA is enforced by the Equal Employment Opportunity Commission (EEOC)

- What is a qualified individual with a disability?
o An individual with a disability (defined below) who meets the skill, experience, education or other job-related requirements of a position who, with or without a reasonable accommodation, can perform the essential functions of a job
o An employee must be able to perform the essential functions of a job with or without an accommodation
o Reasonable accommodations must be made, in the absence of undue hardship, after an individualized inquiry into the situation

- Other definitions:
o Disability: (Under the ADA)
- A physical or mental impairment that substantially limits one or more major life activities, OR
- A record of such impairment; OR
- Being regarded as having such an impairment
o Essential functions:
- Defined as more than a job description, but the actual core functions of a specific job position
o Major Life Activity:
- The list is expansive, and includes, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
- Impairments that are episodic or in remission are considered a disability if the impairment would “substantially limit a major life activity when active.”

- What does all this mean for the employer?
o If an employee lets an employer know that he/she needs a some form of workplace adjustment due to a medical condition, the employer has the duty to engage in an interactive process to determine what accommodation that employee might need
- Request does not need to come in the form of a formal request for an accommodation, and does not need to include the words “reasonable accommodation” or “disability”
- Employer may request medical certification regarding the employee’s condition and the expected severity and duration of the condition
• May request an opinion as to whether the employee can perform the essential functions of their job with or without a reasonable accommodation, and can seek recommendations as to what accommodation might best serve the employee
o The employer is not obligated to give an employee any accommodation they ask for, must be “reasonable” and not cause an undue hardship for the employer –
- Must not be too costly, disruptive, or fundamentally alter the nature of the employer’s business

The big question- is leave considered a reasonable accommodation under the
ADA?
o No automatic leave rights under the ADA
o However, leave may be considered a reasonable accommodation, but must not provide an undue hardship on the employer (see above)
o If leave is considered a reasonable accommodation, there is no specific cap on the amount of leave – again, look to undue hardship requirement
o Required to reinstate the employee to the previous job position upon return from leave
- If undue hardship to hold the job open, employer must consider whether there is a vacant, equivalent position that they could provide the employee upon return
• Employee must be qualified for this position
o Leave does not need to be paid, beyond what paid leave would be given to similarly situated employees (more on this later)

- What types of leave might you see under the ADA?
o Leave for obtaining medical treatment (dialysis, surgery, substance abuse treatment)
o Leave for obtaining repairs on necessary equipment, such as wheelchair, prosthetics, etc.
o Leave to train a service animal

- Employer may not penalize employee for taking leave as a reasonable accommodation- this would be considered retaliation under the ADA

ii. Workers’ Compensation Eligibility
- Vermont Workers’ Compensation Statute (21 V.S.A. § 601 et. seq.) governs in the state of Vermont, each state has slightly different laws and rules regarding workers’ compensation eligibility and process
- Purpose: to provide wage continuation and medical benefits during a period of permanent, temporary, partial or total disability
o To provide compensation when an end medical result is reached and some impairment remains
- Employee must have been injured “arising out of and in the course of employment by an employer”
o Employer must have been deriving substantial benefit from the activity the employee was engaged in when injury occurred- in some instances this can cover actions outside of the workplace

- Employers can also be responsible for the aggravation or acceleration of an existing medical condition, if that aggravation or acceleration arises out of the course of employment

- Reporting requirements: employee must notify employer of injury upon becoming aware of injury, and must file a claim for compensation within six months- notification form known as “first report of injury”

- Employee is eligible for the coverage of all medically necessary care for workplace injury, and other reasonable expenses

- Also eligible for wage replacement where necessary
o When injury causes total disability, employee is eligible for 2/3 of their average weekly wages
o Employee will be out on leave until medically cleared to return to work

- Anti-retaliation provisions- cannot take adverse action against anyone who files for workers’ compensation or who utilizes benefits under the act

- Reinstatement rights:

- If employer has ten or more employees and employee is able to recover within two years, right to be reinstated to the next available, suitable job
o If employer has hired a replacement, cannot require that person be terminated, but the employer must find the next appropriate and available position for the returning employee
- Position must match employee qualifications

b. Differences and overlap between ADA/WC/FMLA

- Size of employer
o ADA requires 15 or more employees; FMLA 50 or more (but remember state PFLA); workers’ compensation has no employer size requirement, but reinstatement rights only apply when employer has more than 10 employees

- Triggering events:
o Under ADA, protections triggered by notice that employee needs accommodation- as above, this does not have to be a formal request
- Leave can, in some instances, be a reasonable accommodation
- In some instances, “constructive notice” applies
o Under FMLA, employee must provide at least verbal notice to make employer aware of need for FMLA leave for qualifying reason- does not have to specifically ask for FMLA
- In some instances, “constructive notice” applies
o Under Workers’ Compensation statute, either employer or employee must provide a first report of injury as soon as aware
- Burden on employee to prove eligibility for compensation

- Under all three statutes, physician certification can be requested- the clearer the information the better! The more information, the better position the employer is to comply with the law and provide the accommodations/leave/benefits the employee may need or be entitled to
o Also prevents employer from providing leave/benefits/accommodations employee is not actually entitled to or may not need

- Overlap and differences between FMLA “serious health condition” and ADA “serious disability”
o Are they the same thing? No!
o A disability under the ADA is an impairment that substantially limits one or more major life activities
o A serious health condition under FMLA may be in some instances, but is not always, also a disability under the ADA
- (remember- a serious health condition under FMLA is “an illness, injury impairment or physical or mental condition that requires either (I inpatient care in a hospital or other health facility, (ii) continuing treatments by a health care provider, resulting in either a period of incapacity of more than three consecutive days absence from work plus any subsequent treatments for the same condition . . .”
- Intermittent FMLA leave may be a reasonable accommodation appropriate for certain recurrent ADA disabilities
• Example: chemotherapy treatment that requires a day away from work for treatment and recovery

- FMLA and ADA Coverage Overlap and Differences
o ADA has no length of service requirements
o ADA only applies to the employee; does not cover leave or other needs for the disability of a child or other family member
o FMLA requires that an employee be employed for the previous 12 months by the employer, also has yearly hourly requirement
o If leave is considered reasonable accommodation under ADA, no clear length of time that leave must be granted as with FMLA
??Remember, FMLA is limited to twelve weeks within a twelve month period
??EEOC guidance has established that leave under the ADA as a reasonable accommodation does not need to continue forever and may be discontinued if an employer can show that additional leave would impose an undue hardship on the business
•?EEOC has made clear this is no bright line cut off for when leave is considered an undue hardship, and case by case analysis must be made
o Intermittent leave:
??Under ADA, qualified individual with a disability may work parttime in current position or take occasional time off as a reasonable accommodation
•?If this is undue hardship, employer must see if there is a vacant but equivalent position the employee can be assigned to and the undue hardship would not occur
??Under FMLA, employer may require employee to transfer to equivalent position (including equivalent pay and benefits) if needed to better accommodate intermittent leave
o Medical Certification
??Under ADA, limitations to what an employer can ask of an employee regarding a potential or actual disability
??However, if employee requests FMLA leave and required to complete FMLA certification form, this does not violate the ADA
??Requiring certification for FMLA serious health condition in order to approve FMLA leave not considered an inquiry into whether an employee has a disability

- FMLA, ADA and Workers’ Compensation Overlap and Differences
o Workers’ compensation only provides benefits and potential leave for injuries that occur on the job; does not cover non job-related injuries or illnesses
o Some workers’ compensation injuries may also be considered a disability under the ADA
o Again, look to statutory guidance and definition to determine if this is the case; reasonable accommodation may be required

- Reinstatement Rights: Comparison between statutes
o ADA: employee entitled to return to same job unless whenever able unless employer can demonstrate that holding the job open would impose an undue hardship or that the employee cannot perform the essential functions of the job with or without a reasonable accommodation
o FMLA: After return to work, employee must be reinstated to same or equivalent position
??Not obligated to give entire 12 weeks in one shot, can require medical certification to confirm that leave is still required monthly
o Workers’ Comp: In Vermont employee has right to reinstatement for up to two years – this does not mean position is held open, but can reapply and must be given first available position

c. Classifying various types of leave
- According to the EEOC, if an employee requests time off for a medical condition that may also be considered a disability, the employer should also consider this both a reasonable accommodation request under the ADA and a FMLA leave request
o If this is the case, an employer may require FMLA medical certification, but may also make reasonable accommodation inquiries
o However, if an employee affirmatively states they are only seeking coverage under FMLA, should not make/continue reasonable accommodation inquiry
- What happens if statutory guidance or rules conflict? What rules must I apply to the employee?
o If an employee is eligible for protections under more than one statute, the terms that provide the employee with the most rights should govern


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