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									                  FMLA CHECKLISTS FOR EMPLOYERS AND EMPLOYEES

                                               June 25-28, 2006

                                           Darrell R. VanDeusen
                                          Kollman & Saucier, PA
                                       20 South Charles St., 8th Floor
                                        Baltimore, Maryland 21201
                                              (410) 727-4300
                                          dvand@kollmanlaw.com


                               TASK ASSISTANT FOR EMPLOYEES

This checklist is designed to assist attorneys advising employees on their obligations and rights under the

FMLA.

EMPLOYEE ELIGIBILITY

Is the individual an employee, as opposed to an independent contractor?

G       Check pay stubs. Are payroll taxes withheld?

G       Is there an employment agreement or contract?

Is the individual employed by more than one employer, so that a “joint employer” relationship may exist?

G       Does the individual work for a temporary agency or other entity acting in the interest of an
        employer?

G       Check pay stubs.

Is the individual employed by a public entity?

Is the individual employed by a “local educational agency?”

Has the individual worked for the employer for at least 12 months?

G       Check employee’s work record or personnel file if available.

Has the individual worked for the employer for at least 1,250 hours in the past 12 months.

G       Check employee’s work record or personnel file if available.

Does the employer have at least 50 employees within a 75 mile radius of the individual’s worksite?

G       Check with individual or others who may have knowledge.

Is the individual subject to a collective bargaining agreement that contains an FMLA provision?

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G      Ask the individual if he is represented by a labor union. If so, get a copy of the collective
       bargaining agreement.

NOTICE OF RIGHTS

Has the employer provided notice of employees’ FMLA rights?

G      Check to see if the employer has posted the required notice.

G      Check to see if the employer has provided an FMLA policy in an employee handbook, or has
       otherwise provided written guidance to employees of the way in which the employer handles
       requests for FMLA leave? Get a copy of the policy.

Has the employer provided a medical certification form to the employee for completion by the
        employee’s health care provider?

QUALIFYING REASONS FOR LEAVE

Does or did the employee need leave for one or more of the following reasons:

1.     Birth or adoption of a child, or placement of a child with the employee for foster care.

G      If so, the employee must plan to take leave all at once and within 12 months of the event, unless
       mutually agreed to with the employer.

G      Does the employee’s spouse work for the same employer? If so, they may split the total amount
       of FMLA leave between them, but they are not both eligible for the full amount of available
       leave.

G      Obtain any paper work evidencing the event.

G      Advise the employee to notify his or her employee of the desire to take leave, if no notice has
       been given.

2.     To care for the employee’s spouse, son, daughter, or parent due to a serious health condition.

G      Is the employee needed to care for this family member?

G      If the family member is a son or daughter 18 years old or older, is that individual incapable of
       self care because of a physical or mental disability?

G      Obtain medical documentation to support leave; check to see if the individual 18 or older meets
       the ADA definition of disability.

3.     For a serious health condition that makes the employee unable to perform the essential functions
       of his or her job.

G      Obtain medical documentation of the need for leave.



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G       Obtain job description.

G       Obtain workers’ compensation information if leave is the result of an on the job illness or injury.

SERIOUS HEALTH CONDITION

Does the employee or a family member have a serious health condition?

G       Is there a requirement for inpatient care in a hospital?

G       Is there a continuing course of treatment that requires more than one visit to a health care
        provider and, if left untreated, would mean an absence from work of more than three days?

G       Does the serious health condition preclude the employee from performing the essential functions
        of his or her job?

FORESEEN OR UNFORSEEN LEAVE

Is the employee’s need for leave foreseeable?

G       If so, has the employee provided the employer with at least 30 days notice of the need for leave,
        or at least as much notice as practicable under the circumstances? Get verification in writing.

G       If so, has the employee made a reasonable effort to ensure that he will not unduly disrupt the
        employer’s operations as the result of taking leave?

G       Has the employee obtained and completed any necessary forms requesting leave, and provided
        the necessary forms to his health care provider to confirm the need for leave?

Is the employee’s need for leave unforeseeable?

G       If so, has the employee (or someone acting on his behalf) provided the employer with notice of
        the need for leave as soon as practicable, but within at least one or two days of when the need for
        leave arose?

G       Has the employee provided medical certification of the condition that requires leave due to
        unforeseen circumstances?

AMOUNT OF LEAVE AVAILABLE

How does the employer calculate leave entitlement -- rolling 12 month period, fiscal year, or calendar
year?

G       Check FMLA policy.

Has the employee taken FMLA qualifying leave in the past twelve months?

G       Check employee’s personnel records. Was the employee notified that prior leave was counted as
        FMLA qualifying leave?


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How much leave does the employee need?

G      If less than three days, the leave typically will not be FMLA qualifying unless it involves
       inpatient care.

G      Has the employee’s health care provider indicated an anticipated return to work date?

G      If the health care provider is uncertain of how much leave is needed, has this fact been discussed
       with the employer?

G      Has the employee discussed with the employer how his job will be done in his absence, or how
       he can avoid unduly disrupting the workplace?

G      Is the employee a “key” employee -- paid in the top 10% of the employees in my company?
       Check pay records.

INTERMITTENT LEAVE OR REDUCED LEAVE SCHEDULE

Does the employee need intermittent leave, or a reduced leave schedule?

G      Obtain medical documentation to support the leave request.

G      How often will the employee need to be absent from work for FMLA qualifying reasons?

G      Can the employee plan absences for medical visits (e.g., doctor appointments) other than during
       scheduled work hours?

G      Has the employee discussed the way in which he can take intermittent leave or work on a
       reduced schedule with minimum disruption to the workplace?

G      Has the employee explored possible transfer to an alternative position while taking intermittent
       leave or working on a reduced leave schedule?

G      Is the employee exempt or non-exempt under wage and hour laws? If exempt, the employer may
       still reduce my pay for time spent on intermittent leave or on a reduced leave schedule without
       converting the employee to an hourly worker under wage and hour laws.

G      Check pay stub. Is the employee eligible to receive overtime?

MEDICAL CERTIFICATION AND BENEFITS

Has the employer provided a medical certification form to the employee for completion by the
employee’s health care provider?

G      If not, it may be that the employer is not seeking medical certification.



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G       If so, make sure that the health care provider has received the form and understands that it is to
        be returned to the employer within 15 calendar days.

Has the employee returned the completed medical certification form within 15 days of receiving that
form from his employer?

G       Check the contents of the medical certification form.

Has the employer accepted the information contained in the health care provider’s certification as a basis
for FMLA leave?

G       If not, has the employer contacted a second health care provider to obtain, at the employer’s
        expense, a second opinion?

G       Does this second opinion confirm that the employee’s health care provider is correct?

G       If not, has the employer retained the services of a third health care provider, at the employer’s
        expense, to determine which assessment is correct?

Has the employer notified the employee that leave has been granted, and told the employee the amount of
FMLA leave available?

G       Make sure that the employer has done this in writing.

Has the employer informed the employee of any policies or procedures regarding notification, on going
communication or continuing obligations of medical certification?

Is the employee entitled to any paid leave?

G       Check company personnel policies.

G       Does company policy provide that paid leave must be exhausted before unpaid leave is provided,
        and that all leave runs concurrently?

G       Is the employee receiving workers’ compensation benefits?

G       Is the employee receiving short term disability benefits?

What benefits are available during leave?

G       How will the employer continue group health benefit coverage while the employee is on leave?

G       Check FMLA policy and other employer policies.

G       If the employer is taking paid leave, will there be deductions from pay?

G       If the employee is taking unpaid leave, will he have to send in premium payments during leave
        absence?



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G       Is the employee receiving workers’ compensation benefits?

G       Is the employee on short term disability?

RETURN TO WORK

Is the employee ready to return to work?

G       Has the employee notified the employer that he will be able to return to work by a certain date?

G       Obtain written confirmation of the return date.

G       Check requirements of FMLA policy and other personnel policies.

G       Has the employee kept in touch with the employer during the leave about any changes in
        condition or in the anticipated return to work date?

G       Is the return to work date within 12 weeks of when leave began (or within the remaining amount
        of FMLA leave that was available)?

G       Has the employee followed all company policies including notice, on going communication, and
        medical certification?

G       Is the employee required to provide medical certification or participate in a fitness for duty
        examination?

G       Will the employee return to the same position or to an equivalent position?

G       If not, is this because the employee can no longer perform the essential functions of the position
        or an equivalent position?

G       If not, is this because of a layoff or reduction in force that would have occurred even if the
        employee had not been on leave?

INTERACTION WITH OTHER LAWS

Is there a state or local Leave Law that also provides possible rights to the employee?

Is there a workers’ compensation claim available to the employee due to a work related illness or injury?

Is there a possible claim under the Americans with Disabilities Act?

POSSIBLE ACTION AGAINST THE EMPLOYER

Does the employee think that the employer has taken adverse action against him for exercising FMLA
rights?

G       Has the employee been terminated as a result of taking leave or requesting leave?



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G       Has the employee been denied the right to return to his position or to an equivalent position?

G       Has the employee opposed action that he believes violates the FMLA?

G       Has the employee participated in an investigation or provided testimony related to an FMLA
        matter?

Did the possible violation occur within the past two years, or three years if there appears evidence that
the potential alleged violation was willful?

Has the employee contacted the local Wage and Hour Division of the Department of Labor?

Is the employee a member of a union with terms and conditions of employment covered by a collective
bargaining agreement?

Is the employee covered by any agreement that requires the arbitration of employment disputes?

QUICK VIEW OF TASKS AND QUESTIONS WHEN ADVISING EMPLOYEES

G       Is the company covered?

G       Does the company have the required notice posted?

G       Does the company have a separate FMLA policy in its Handbook or otherwise disseminated to
        employees?

G       Is there an employee in Human Resources trained on FMLA requirements?

G       Is the employee eligible for FMLA leave under the 12 months/1250 hour requirement?

G       Is the employee at a worksite where there are 50 employees within 75 miles?

G       Was there a request for foreseeable leave?

G       Was the request for leave made at least 30 days in advance, or as soon as practicable?

G       Was there unforseen leave taken?

G       Did the employee, or someone on the employee’s behalf, provide sufficient notice to suggest that
        the absence might be due to an FMLA qualifying reason?

G       Has the company provided medical certification forms to the employee?

G       If there is a question as to the validity of the leave, has the company made arrangements for a
        second and, if necessary, a third opinion?

G       Has the company provided documentation on use of available paid leave?

G       Has the company provided information on the continuation of benefits during leave?


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G   Did the employee make a request for intermittent leave?

G   Has the employee sought to return to work within 12 weeks of taking leave, or before available
    FMLA leave runs out?

G   Has the employee provided sufficient information upon return to work?

G   If the company has indicated that it does not intend to permit the employee to return to work, is it
    for a reason that would exist if the employee had not taken leave?

G   Can the employee perform the essential functions of his position?

G   Was there a job elimination that would have occurred even if the employee had not taken leave?

G   Has the employee complained to the employer about perceived FMLA violations?

G   Has the employee contacted the Department of Labor’s Wage and Hour Division?

G   Has the employee initiated action in court?

G   Did the alleged violations of the FMLA occur more than two years ago, or three in the event of
    an allegation that there were willful violations of the FMLA?

G   Is there any agreement between the employee and the company that employment disputes are to
    be settled through arbitration?

G   Is there any other law that may also provide coverage to the employee -- a State leave law;
    workers’ compensation; or the Americans with Disabilities Act?




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                                 TASK ASSISTANT FOR EMPLOYERS

This checklist is designed to assist attorneys in advising employers on their obligations under, and

compliance with, the FMLA.

COVERAGE OF THE EMPLOYER

Has the company employed at least 50 people in 20 weeks in the current or preceding calendar year?

G       Check payroll data. Every employee is counted.

G       Remember that the workweeks need not be consecutive.

G       Employees on layoff are not counted.

Does the employee’s supervising entity act in interest of an employer (an employee leasing agency, for
example)?

G       Check payroll information for 50 employee threshold.

Is the employer a public agency?

Is the employer an “integrated” or “joint” employer?

Is the employer a “local educational agency?”

EMPLOYEE ELIGIBILITY

Do the 50 employees work within 75 miles of each other, such that there are 50 or more employees
within 75 miles of the work site of the employee requesting leave?

G       The 75 miles are typically “as the crow flies.”

Has the employee worked for the company for at least twelve months?

G       The twelve months are cumulative. Check employee file.

G       Is the individual an employee or an independent contractor? Check file.

Has the employee worked at least 1,250 hours in the past twelve months?

G       Check payroll records.

Is the employee who is absent, or who will be absent, from work taking time off for a reason related to
family or medical conditions?

G       Is there a possible joint employment relationship with another company regarding this
        individual?


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Is there a collective bargaining agreement that governs the terms and conditions of the employee taking
leave?

G       If so, check the requirements of the agreement.

NOTICE AND FMLA POLICY

Has the company posted an FMLA notice in all work sites?

G       Ensure that the FMLA notice is the one required by law.

Has the company created and distributed an FMLA policy through an employee handbook or other
means, in language in which the employee is literate, that explains how leave requests will be handled?
Does the policy include the following:

G       that the leave will be counted against the employee’s annual FMLA leave entitlement;

G       any requirements for the employee to furnish medical certification of a serious health condition
        and the consequences of failing to do so;

G       the employee’s right to substitute paid leave and whether the employer will require the
        substitution of paid leave, and the conditions related to any substitution;

G       any requirement for the employee to make any premium payments to maintain health benefits
        and the arrangements for making such payments, and the possible consequences of failure to
        make such payments on a timely basis (i.e., the circumstances under which coverage may lapse);

G       any requirement for the employee to present a fitness-for-duty certificate to be restored to
        employment;

G       the employee’s status as a “key employee” and the potential consequence that restoration may be
        denied following FMLA leave, explaining the conditions required for such denial;

G       the employee’s right to restoration to the same or an equivalent job upon return from leave; and,

G       the employee’s potential liability for payment of health insurance premiums paid by the
        employer during the employee’s unpaid FMLA leave if the employee fails to return to work after
        taking FMLA leave.

AVAILABLE FMLA LEAVE AND THE TAKING OF LEAVE

Has the company explained in its policy how it determines the calendar for FMLA leave -- is it a rolling
12 months, fiscal year or calendar year?

G       Check the handbook and the FMLA policy.

Has the employee taken FMLA qualifying leave in the past 12 months?



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G       Has the company designated prior leave taken as FMLA leave? Check personnel file and other
        employment records.

G       If so, how much leave does the employee have remaining? Check personnel file and other
        employment records.

What is the reason the employee is requesting or taking time off? Is it for one of the following reasons:

1.      Birth or adoption of a child, or placement of a child with me for foster care.

G       If so, the employee must plan to take leave all at once and within 12 months of the event, unless a
        different leave is mutually agreed to with the company.

G       Does the employee’s spouse also work for the company? If so, they can be required to split the
        total amount of FMLA leave for this reason between them. They are not both eligible for the full
        amount of available leave.

2.      To care for a spouse, son, daughter, or parent due to a serious health condition.

G       If for a son or daughter, is that individual under 18 years old or, if 18 or older, incapable of self
        care because of a physical or mental disability?

G       Check to see if an individual 18 or over meets the ADA definition of disability.

3.      For a serious health condition that makes the employee unable to perform the essential functions
        of his or her job.

Is there documentation that the employee or the employee’s family member has a serious health
condition?

G       Is there a requirement for inpatient care in a hospital?

G       Is there a continuing course of treatment that requires more than one visit to a health care
        provider and, if left untreated, would mean an absence from work of more than three days?

G       Does the serious health condition preclude the employee from performing the essential functions
        of his or her job?

G       Is the employee needed to care for a family member with a serious health condition?

Is the employee requesting leave that is foreseeable?

G       Has the employee provided at least 30 days notice of the need for leave, or as much notice as is
        practicable under the circumstances?

G       If not, is there a reason to deny the employee leave until 30 days after the notice has been
        received?

G       Has the employee made reasonable efforts to ensure that the leave will not unduly disrupt the


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        company’s operations?

Has the company provided the necessary medical certification forms to the employee requesting leave?

G       Has the company provided a leave certification form (Form WH-380 or something similar) for
        the employee and the employee’s health care provider to complete?

Is the employee taking leave that is unforeseeable?

G       Has the employee failed to appear for work? Has the employee provided a note from a health
        care provider accounting for the absence?

G       Has the employee (or someone on the employee’s behalf) notified the company of the need for an
        absence from work that may be related to a family or medical condition that could qualify the
        employee for FMLA leave?

G       Has the company made an effort, through informal means, to determine whether the employee’s
        absence from work may be due to a serious health condition or other qualifying reason?

G       Has the company provided a leave certification form (Form WH-380 or something similar) for
        the employee and the employee’s health care provider to complete?

Has the employee requested intermittent leave or a reduced leave schedule?

G       How often will the employee be absent from work for FMLA qualifying reasons?

G       Has there been a discussion with the employee about the ways he or she take intermittent leave or
        work on a reduced schedule with minimum disruption to the workplace? For example, can the
        employee plan absences for medical visits (e.g., doctor appointments) other than during
        scheduled work hours?

G       Does the company wish to consider transferring the employee to an alternative position while he
        or she takes intermittent leave or works on a reduced leave schedule?

G       Is the employee exempt or non-exempt under wage and hour laws? If the employee is exempt,
        the company may still reduce pay on an hourly basis for time spent on intermittent leave or on a
        reduced leave schedule without converting the employee to a non-exempt hourly worker under
        wage and hour laws.

MEDICAL CERTIFICATION AND BENEFITS

Has the company received the health care provider’s certification within 15 days of providing that
certification to the employee?

G       Check the contents of the medical certification form.

Is the company willing to accept the employee’s health care provider’s certification as a basis for FMLA
leave?



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G       If not, contact a second health care provider to obtain, at the company’s expense, a second
        opinion.

G       Does this second opinion confirm that the employee’s health care provider is correct?

G       If not, retain the services of a third health care provider, at the company’s expense, to determine
        which assessment is correct.

Has the company notified the employee that leave has been granted, and told the employee the amount of
FMLA leave available?

G       Make sure that the company has done this in writing.

Has the company informed the employee of any policies or procedures regarding notification, on going
communication or continuing obligations of medical certification?

Is the employee entitled to any paid leave?

G       Check company personnel policies.

G       Does company policy provide that paid leave must be exhausted before unpaid leave is provided,
        and that all leave runs concurrently?

G       Is the employee receiving worker’s compensation benefits?

G       Is the employee receiving short term disability benefits?

Has the employee been notified as to how group health care premiums will be paid during any unpaid
leave?

G       Check company personnel policies.

G       Have written confirmation to the employee of the arrangement.

RETURNING TO WORK AFTER LEAVE

Is the employee ready to return to work?

G       Has the company been notified of the employee’s intent to return?

G       Will the company require certification or a fitness for duty examination?

G       Is the return to work date within 12 weeks of when leave began (or within the remaining amount
        of FMLA leave that the employee had available to him or her)?

G       Has the employee followed all company policies including notice, on going communication, and
        medical certification?

Will the employee return to the same position or to an equivalent position?


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G       If not, is this because the employee can no longer perform the essential functions of the position
        or of an equivalent position?

G       If not, is this because of a layoff or reduction in force that would have occurred even if the
        employee had not been on leave? Is there documentation to this effect?

G       Is the employee a “key” employee who has been notified that he or she will not be returned to the
        same position because of the “substantial and grievous economic injury” to the company’s
        operations?

Has the employee been denied the right to return to work?

G       Has the employee failed to follow company policy regarding notice, medical certification or on
        going communication?

G       Is this because the company had a good faith belief that the employee could not or would not be
        able to return to his or her position?

G       Is this because the employer determined in good faith that the employee had abandoned his or her
        job?


INTERACTION WITH OTHER LAWS

Is there a state or local Leave Law that also provides possible rights to the employee?

Is there a worker’s compensation claim available to the employee due to a work related illness or injury?

Is there a possible claim under the Americans with Disabilities Act?

CLAIM OF FMLA VIOLATIONS

Has the employee complained of a belief that FMLA rights have been violated?

G       Has the employee been terminated as a result of taking leave or requesting leave?

G       Has the employee been denied the right to return to his or her position or an equivalent position?

G       Has the employee opposed action that I believe violates the FMLA?

G       Has the employee participated in an investigation or provided testimony related to an FMLA
        matter?

Did the alleged violation occur within the past two years, or three years if the employee contends that the
violation was willful?

G       Check personnel file for information relating to alleged violation.

Has the employee contacted the local Wage and Hour Division of the Department of Labor?


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G       If so, is there interest in an attempt to resolve the matter at this level.

G       Compile information from company and present a statement of the company’s position to the
        investigator, with supporting documentation.

Has the employee threatened or initiated litigation?

G       Check employment documents to see if there is an arbitration clause that might require
        arbitration of FMLA claims.

G       Check termination documents to see if there was a waiver or other agreement by which the
        employee released FMLA rights.

QUICK VIEW OF TASKS AND QUESTIONS WHEN ADVISING EMPLOYERS

G       Is the company covered?

G       Does the company have the required notice posted?

G       Does the company have a separate FMLA policy in its Handbook or otherwise disseminated to
        employees?

G       Is there an employee in Human Resources trained on FMLA requirements?

G       Is the employee eligible for FMLA leave under the 12 months/1250 hour requirement?

G       Is the employee at a worksite where there are 50 employees within 75 miles?

G       Was there a request for foreseeable leave?

G       Was the request for leave made at least 30 days in advance, or as soon as practicable?

G       Was there unforseen leave taken?

G       Did the employee, or someone on the employee’s behalf, provide sufficient notice to suggest that
        the absence might be due to an FMLA qualifying reason?

G       Has the company provided medical certification forms to the employee?

G       If there is a question as to the validity of the leave, has the company made arrangements for a
        second and, if necessary, a third opinion?

G       Have you advised the company not to contact the employee’s health care provider directly?

G       Has the company provided documentation on use of available paid leave?

G       Has the company provided information on the continuation of benefits during leave?

G       Was there a request for intermittent leave?


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G   Has the employee provided sufficient information upon return to work?

G   If the company does not intend to permit the employee to return to work, is it for a reason that
    would exist if the employee had not taken leave?

G   Can the employee perform the essential functions of his position?

G   Was there a job elimination that would have occurred even if the employee had not taken leave?

G   Has the employee complained about perceived FMLA violations?

G   Has the employee contacted the Department of Labor’s Wage and Hour Division?

G   Has the employee initiated action in court?

G   Did the alleged violations of the FMLA occur more than two years ago, or three in the event of
    an allegation that there were willful violations of the FMLA?

G   Is there any agreement between the employee and the company that employment disputes are to
    be settled through arbitration?

G   Is there any other law that may also provide coverage to the employee – a State leave law;
    workers’ compensation; or the Americans with Disabilities Act?




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                    Intersection of FMLA, ADA and Workers Compensation Laws

                                                June 25-28, 2006

                                              Elizabeth Bunting,
                                         University of North Carolina
                                         buntinge@northcarolina.edu

I.        Introduction
           sometimes there is overlap
           sometimes they are “either one or the other”
           sometimes one pre-empts another
           sometimes there are conflicts

II.       Distinctions
           different purposes and different outcomes
           different definitions
           different triggers for coverage

III.      Benchmarks of the Three
           ADA protects qualified individuals with disabilities with the underlying purpose to get them
             in the workplace
           FMLA permits the taking of leave because of serious health condition of employee or family
             member or because of the birth or adoption of a child
           workers comp laws compensate employees who have job-related injuries and who therefore
             are unable to return to work (also covers occupational diseases)
           remember the ADA is a “go to work” law while the FMLA and workers comp are “go home
             to recuperate” laws

 IV.      Eligibility Differences
           ADA covers all employers with fifteen or more employees; no limit on time of service for
              employees
           FMLA covers all employers with fifty or more employees; employees must have been
              working for twelve months or have completed one thousand, two hundred and fifty hours of
              service
           workers compensation laws generally cover all employers and employees; no limit on
              numbers or time of service

     V.   Coverage Differences
           ADA applies to employee who has an impairment that substantially limits one or more major
             life activities, who has a record of such a impairment or is regarded as having such an
             impairment; employee must be able to do the essential functions of the job with or without
             reasonable accommodation
           FMLA applies to employee who needs leave for one of four conditions: birth of a child;
             adoption of a child; the serious health condition of a child, spouse or parent which requires
             care from the employee; or the serious health condition of the employee himself or herself
             which causes him or her to be unable to do the job
           workers compensation applies to employee who is injured at work and needs time and money
             to recuperate (both physical injuries and mental injuries resulting from the physical injury
             are covered) (the benchmark is loss of earning potential, not a physical or mental condition)

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 VI.    Medical Conditions: Coverage Differences
         ADA covers a wide range of physical and mental impairments, but they must be
           “substantially limiting”; and a major life activity must be so limited; thus the individual must
           be prevented or severely restricted in the performance of tasks that are of critical importance
           to most people’s daily lives; thus temporary or short-term conditions are not covered (for
           example: broken leg or strep throat); note also “mitigated” or “corrected conditions” are not
           covered; remember also the long list of conditions not covered: for example, stress; test
           anxiety, certain phobias (no coverage of birth and adoption per se)
         FMLA covers “serious health conditions”: two types of conditions qualify
           o illness (and/or recuperation) requiring hospital stay
           o continuing treatment by a health care provider if one of the following is met
                 illness under care of providers that requires three work day absences
                 incapacity due to pregnancy
                 incapacity because of chronic serious health condition
                 incapacity that is long term
                 absence for treatment after accident, injury or serious illness
                 absence for exams to check health condition
           o exclusions: cosmetic surgery, voluntary surgery, preventive exams, short term common
                illnesses, dental care, common stress
         workers compensation: covers lost pay and medical bill coverage for injuries occurring on
           the job; no limitations as to severity or long-term nature of injury

VII.    Documentation Differences
         ADA: permits institution to require current documentation of diagnosis, extent of disability
           and the necessary accommodation; if employer questions accuracy of documentation, may
           get second opinion, but must pay; if situation changes, new medical documentation may be
           required; failure to submit: no accommodation
         FMLA: permits institution to require certification from a health care provider that
           establishes illness, etc. is due to serious health condition; if employer doubts accuracy of
           medical documentation, may get second and third opinion, but must pay; failure to submit:
           no FMLA
         workers compensation: permits employer to require examination if employee seeks
           compensation

VIII.   Leave Overlap and Differences
         ADA: requires reasonable accommodation for a covered disability; reduced work or
           modified work schedules may in appropriate cases be reasonable accommodations (but
           remember, person must still be essentially qualified and must be able to perform the duties of
           the job) (accrued leave may be used to provide the work schedule modifications)
         FMLA: provides for twelve work weeks of leave in a twelve month period; the leave can be
           continuous, intermittent (short periods of time on a continuing basis) or reduced-time (a part-
           time schedule); if so designated, FMLA can run concurrently with vacation, personal or sick
           leave, it can also run concurrently with workers comp and short-term disability (note: once
           FMLA twelve weeks of leave is used, no obligation under that law to give more leave, but
           the ADA may require the leave if it would be a reasonable accommodation)
         workers’ compensation: no mandated time frame; employee is permitted to take leave for
           treatment and recuperation, but leave is counted according to specific workers’ comp rules
           (no right to intermittent or reduced time leave)


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IX.   Specifics as to Notification
       ADA: no notice requirements, but employee must request accommodation (in most
         circumstances employer cannot ask about disability until such a request is made) (if leave
         requested as accommodation and condition meets FMLA requirements, employer should
         designate leave as FMLA-covered)
       FMLA: thirty days notice if leave foreseeable (if an emergency, notice as soon as
         “practicable”); employee must attempt to schedule leave when not disruptive to employer;
         once notice given, employer must designate leave as FMLA-covered
       workers’ compensation: most states require written notice to employer immediately after
         workplace injury (North Carolina puts thirty day limit on notice) (if injury meets FMLA
         definition of “serious health condition”, absences should be designated by employer as
         FMLA-covered)

X.    Coming Back to Work
       ADA: employee entitled to come back to same job unless no longer essentially qualified or
         if holding the job open would cause undue hardship; may offer “light duty” as an
         accommodation; any request for new or different accommodation will permit employer to
         seek new medical documentation; remember any post-leave request for
         assistance/accommodation should be accompanied by “interactive process” and
         “individualized inquiry”
       FMLA: employee entitled to come back to same or equivalent position if he can do the job
         (if he cannot, no requirement to put him back to work); fitness-for-duty report can be
         required when employee returns to work
       workers’ compensation: no right to same position, but watch anti-retaliation claims under
         these laws; note: employer can require that employee take light duty assignment (if
         employee refuses, most states say benefits may be thereafter denied)


XI.   Some Trigger Points to Watch
       occurrence of medical issue
         o is it a “disability”? (ADA)
         o is it a “serious health condition”? (FMLA)
         o these two are not equivalent: some SHC’s are not D’s (broken hip; hernia; pregnancy);
            some D’s are not SHC’s because no incapacity or continuing treatment
         o did it occur on the job or because of the job? (workers’ comp)
         o some WC’s are not D’s (no substantial limitation); the WC’s may not be SHC’s, but
            often they are (likely will meet the incapacity requirements if the person cannot come to
            work)
         o total or permanent disability under workers’ comp does not necessarily mean person is
            not essentially qualified under ADA; if reasonable accommodation will enable him to
            work, he may have ADA right to do so
         o look at “occurrence” through the three different lenses
       inquiry and notification issues
         o for all “occurrences”, better to assume FMLA covered and give appropriate notice
         o remember not to ask about ADA disabilities, even though you can inquire about FMLA
            conditions or workers’ comp injuries (watch pre-hire questions: no need to even ask
            these)
       medical documentation issues
         o try to get fullest explanation possible so you can predict FMLA leave issues, FMLA
            restoration issues, ADA accommodation issues

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    o any second or third opinion under these laws will be our responsibility as to cost
   pregnancy
    o always covered by FMLA
    o rarely covered by ADA unless serious complications
    o workers’ comp? (sexual harassment?)
   adoption
    o covered by FMLA
    o not covered by ADA
    o not covered by workers’ comp
   care for family member
    o may be covered by FMLA
    o not covered by ADA
    o not covered by workers’ comp




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                                               20
             THE FMLA, THE ADA AND WORKERS’ COMPENSATION LAWS

                                          June 25-28, 2006

                                      Darrell R. VanDeusen
                                     Kollman & Saucier, PA
                                  20 South Charles St., 8th Floor
                                   Baltimore, Maryland 21201
                                         (410) 727-4300
                                     dvand@kollmanlaw.com




Issue                  FMLA                           ADA (Title I)                 Workers’ Comp.
Primary purpose of     To balance the                 To eliminate the              Pays benefits and
the Act.               competing obligations          stereotype that the           medical expenses to or
                       of the workplace and           disabled cannot               on behalf of an
                       family. Provides               perform in the                employee who suffers
                       (unpaid) leave to an           workplace in the same         an illness or injury at
                       employee to care for a         manner as non-disabled        work.
                       new child, a family            employees.
                       member with a serious
                       health condition, or the       Prohibits discrimination
                       employees own serious          against “qualified
                       health condition for up        individuals with a
                       to 12 weeks in a 12            disability who can
                       month period.                  perform a job with or
                                                      without a reasonable
                                                      accommodation.
Number of employees    50 or more employees           15 or more employees          One or more
for coverage.          for 20 weeks in the            for 20 weeks in the           employees, depending
                       current or preceding           current or preceding          on state statute. Most
                       calendar year.                 calendar year.                states provide coverage
                                                                                    with one employee.
Individuals eligible   Current Employees              Applicants, and               Employees who suffer
for protection.        who meet the 12 month,         employees who are             an illness or injury
                       1,250 hour work                “qualified individuals        arising out of and in the
                       requirement and who            with a disability.”           course of employment.
                       are employed at a work
                       site with 50 or more           Applicants and                Survivors may receive
                       employees within a 75          employees who have a          benefits from a fatal
                       mile radius.                   record of a disability or     work-related illness or
                                                      who are regarded as           injury.
                                                      having a disability.




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Coverage for            No.                            Yes.                          No, except that an
applicants.                                                                          individual injured
                                                                                     during an application
                                                                                     process (e.g., physical
                                                                                     agility testing) may be
                                                                                     eligible to receive
                                                                                     benefits.
Terms of art most       Employee must have a           Individual must be a          Benefits are available
often at issue.         “serious health                “qualified individual         only where the
                        condition” that                with a disability” who        employee’s illness or
                        precludes performance          is “substantially             injury “arises out of
                        of “essential functions”       limited” in one or more       and in the course of
                        of the job to take leave       major life activities, but    employment.”
                        for their own condition.       who can perform the
                        Essential functions are        “essential functions” of
                        the same as those under        the job with or without
                        ADA.                           “reasonable
                                                       accommodations” that
                        Where leave is to care         do not create an “undue
                        for family member, the         hardship” for the
                        same definition of             employer.
                        serious health condition
                        applies.
General obligation of   Employee must provide          Applicant or Employee         Employee must notify
the individual.         notice of the need for         must inform employer          employer immediately
                        leave.                         of disability if seeking      of a work related illness
                                                       an accommodation.             or injury.
                        To provide medical
                        certification if
                        requested by employer.

                        To cooperate with
                        employer in arranging
                        for leave period




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General obligation of   To provide leave for           To engage in                  To provide
the Employer.           employees who qualify,         individualized                compensation through
                        and return employee to         interactive process           insurance benefits for
                        same or similar position       regarding an                  employees who are
                        at the conclusion of the       individual’s request for      injured at work.
                        leave period.                  accommodation.

                                                       To provide a reasonable
                                                       accommodation that
                                                       enables an employee to
                                                       perform the essential
                                                       functions of a job,
                                                       unless the
                                                       accommodation creates
                                                       an undue hardship.
Leave from work         The essence of the             Leave may be, but is          Absence from work
                        FMLA. An employer              not necessarily, a            may be necessary due
                        cannot legally deny an         reasonable                    to a work related illness
                        eligible employee the          accommodation.                or injury but the
                        right to take qualifying                                     employer may provide
                        leave.                                                       light duty to keep the
                                                                                     employee at work.
Intermittent leave or   Intermittent leave or a        May be a reasonable           Not required, but may
part-time work.         reduced leave schedule         accommodation.                be used as a form of
                        is available if the leave                                    light duty with the
                        is requested due to a                                        intention of restoring
                        serious health condition                                     employee to full duty.
                        of the employee or a
                        qualified family
                        member of the
                        employee.

                        Not availble for the
                        birth or adoption of a
                        child, unless employer
                        agrees..




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                                                    23
Return to work.          Employee must be               Employer who has              Not necessarily. (If
                         returned to the same or        provided leave to an          employee is returned to
                         a substantially similar        employee due to a             lower pay, loss of
                         position with equivalent       disability is expected to     earning power benefits
                         pay and benefits.              return the employee to        may be owed,
                                                        the same position with        depending on nature of
                                                        the same benefits,            injury).
                         An employee who                unless the employee
                         cannot perform the             can no longer perform
                         essential functions of         the essential functions
                         the position that he left      of the position, in
                         to take leave cannot be        which case the
                         required to return to a        employer has the
                         “light duty” position if       obligation to consider
                         leave has not yet been         transfer to other vacant
                         exhausted.                     positions that the
                                                        employee can perform
                                                        with or without
                                                        reasonable
                                                        accommodation.
Medical certification    Permitted for employee         Permitted.                    Permitted.
or “fitness for duty     who was on leave due
examination” upon        to own serious health          Examination limited to        Examination limited to
return to work.          condition, unless leave        fitness for performance       fitness for performance
                         was intermittent or on a       of job duties.                of job duties.
                         reduced leave schedule.

                         Examination limited to
                         fitness for performance
                         of job duties.
Benefits during leave.   Group health coverage          Continued coverage            Varies by state.
                         must be continued              during leave not
                         throughout the leave.          required if employer
                                                        does not provide
                                                        continuation of benefits
                                                        to non-disabled
                                                        employees on leave.




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                                                     24
Medical inquiries      Inquiries limited to            No inquiries pre-offer.       Employer generally has
                       condition for which             Post-offer inquiries          access to medical
                       leave is requested.             must be job related and       records for current
                                                       consistent with               condition.
                                                       business necessity.
                                                                                     Employer may have
                                                       Employer cannot               access to medical
                                                       inquire of workers’           records of prior illness
                                                       comp history at               or injury if need
                                                       application stage.            justified.E
Examination by         If employer disagrees           Post-offer physical           Employer almost
employer’s doctor to   with certification,             examination may be            always has a right to a
confirm employee’s     employer may obtain a           required so long as it is     “defense examination”
condition.             second opinion at its           job related and is            where employer is
                       own expense. If results         consistent with               challenging the
                       differ, a binding third         business necessity, and       employee’s right to
                       opinion may be                  performed on all new          benefits.
                       requested, also at              employees in that
                       employer’s expense.             position.
Employee’s failure to Leave is not protected           Employee may be               Employee may reduce
cooperate or submit to by FMLA.                        deemed not a qualified        or lose benefits.
medical examination.                                   individual with a
                                                       disability.
Medical Records.       No specific provisions          Strict confidentiality        Requirements vary
                       require confidentiality.        requirements.                 from state to state.
Legal action against   Lawsuit may be                  Courts are split, with        “Exclusive remedy’
individual             brought against                 most holding that             provisions may bar
supervisors.           individuals who act             individuals cannot be         suits against co-
                       directly or indirectly in       sued under the ADA.           workers. Ability to sue
                       the interest of the                                           varies by state.
                       employer and who are
                       alleged to have violated
                       employee’s FMLA
                       rights..
Duration of leave.     12 weeks.                       No specific amount.           Varies by state law.
                                                       Limited by concept of
                                                       “reasonable”
                                                       accommodation.




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Claims   Denial of leave or             Discrimination                Failure to provide
         violation of other rights      (disparate treatment or       benefits.
         under Act.                     adverse impact)
                                                                      Wrongful discharge in
         Discrimination                 Failure to provide            retaliation for filing
                                        reasonable                    worker’s comp claim.
         Retaliation                    accommodation
                                                                      Employer right to
                                        Retaliation                   challenge claim for
                                                                      benefits.


Relief   Wages, salary benefits.        Make whole relief for          Benefits are typically
         Actual out of pocket           wages, salaries,              the exclusive remedy.
         loss during leave.             benefits, and other
                                        costs to put the
         Liquidated damages             individual in the
         available.                     position he would have
                                        been in but for the
         Equitable relief such as       illegal conduct.
         employment,
         reinstatement or               Compensatory and
         promotion                      punitive damages based
                                        on size of employer.
         Reasonable attorneys’
         fees, expert witness           Equitable relief
         fees and costs for
         prevailing plaintiff.          Reasonable attorneys’
                                        fees, expert witness
                                        fees and costs for
                                        prevailing plaintiff




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                                     26

								
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