The Krizner Group

An Employment Law Boutique

1709 Hermitage Boulevard (850) 386-3747

Suite 202 FAX (850) 907-1246

Tallahassee, Florida32308

ADAAA/FMLA/WC—When Can I Finally Fire the Absent Employee?

Presented By

Joyce Chastain

ADAAA/FMLA/WC—When Can I Finally Fire the Absent Employee?

A Short Quiz On Leave

1.The most significant legal problem with employers’ leave policies is:

a. they fail to provide a maximum accrual of such leave

b. they fail to designate how such leave will be provided when several employees request leave for the same period

c. they are not consistent with one another

d. they do not clarify when unused benefits become compensable

e. All the above

2.Employers must provide employees with the opportunity for unpaid leave when they exhaust all available paid leave benefits.

True_____False _____

3.The Americans with Disabilities Act mandates that employers with less than fifty employees provide unpaid leave to an employee with a disability.

True_____False_____

4.Workers compensation retaliation occurs when:

a. an employer terminates an injured employee who does not appear for work and fails to contact the employer in advance

b. an injured employee is laid off as part of a legitimate reorganization while out on leave

c. an employer discharges an employee three weeks after filing a workers compensation claim to avoid the chance of the employee further injuring herself on the job

5.The modern trend is to merge sick and vacation benefit policies into a singular “Paid Time Off” policy.

True_____ False_____

ADAAA/FMLA/WC—When Can I Finally Fire the Absent Employee?

Overview Of The Four Major Laws Governing Leave

  1. Family Medical Leave
  1. Employer coverage occurs where the organization employs more than 50 people within 75 miles of the worksite for 20 weeks in the current or previous year.
  2. Employee coverage occurs where employee has worked both 12 months for the employer and worked 1250 or more hours during the previous 12 month period.
  3. 12 weeks of unpaid leave is required for the birth of a child, adoption or the initiation of foster care, serious health condition for employee or for spouse, child, or parent with serious health condition.
  4. Paid leave, workers compensation leave, and ADA leave can and should be counted toward FMLA.
  5. Intermittent leave growing trend that cannot be ignored.
  6. Military Leave – 26 weeks
  1. Americans With Disabilities Act

A.A Disability is a physical or mental disorder or impairment that substantially limits an individual's ability to perform a "major life activity”.

B.Three primary types of disabilities are actual disability, history of disability, and perceived disability.

C.An employee with a disability must perform the essential functions of the job with or without reasonable accommodation.

D.Unpaid leave is considered a reasonable accommodation.

E.The key is verifying undue hardship.

F.Job descriptions are extremely helpful in verifying undue hardship.

G.Offering alternative accommodation or part time work when available is expected.

  1. Workers Compensation
  1. All injuries sustained in the workplace must be reported.
  2. Employer permitted to pay for medical costs to avoid record.
  3. Employee permitted to utilize leave.
  4. Employer strongly encouraged to return employee to light or full duty to minimize impact on premium and opportunity for renewal.
  1. Title VII, ADEA & Many Other “Consistency” Laws
  1. Know your personal, departmental and organizational precedent.
  2. Consider restarting expectations by use of a memorandum.
  3. Some employers use unpaid leave policies.
The Krizner Group

An Employment Law Boutique

1709 Hermitage Boulevard (850) 386-3747

Suite 202 FAX (850) 907-1246

Tallahassee, Florida 32308

HELP! These Leave Laws Are Driving Me Crazy…

10Hotline Questions On The ADA,

FMLA & Other Key Issues Of Leave

HELP! These Leave Laws Are Driving Me Crazy…

Forgetting To Get “Proper Credit” (ADA)

The Call: Sara is asking for an office space change for the fourth time in two months because of a lung condition. Jo will be displaced and just loves having a window. Do we have to accommodate?

The Answer:______

My “Take Home:”1.______

2.______

Deciding When To Designate Leave (FMLA)

The Call: We are so confused here in human resources. When are we allowed to designate an employee’s absence as FMLA. We can never tell if the absence is for the flu or for their cancer.

The Answer:______

My “Take Home:”1.______

2.______

The Forgotten Side Of The Square: Being Consistent (Title VII, ADEA, ETC)

The Call: Derron has used his paid leave, does not qualify for FMLA, and is now demanding that he be permitted to take 5 days off unpaid to attend a family reunion. Do we have to allow it?

The Answer:______

My “Take Home:”1.______

2.______

It Never Stops: Intermittent Leave (FMLA)

The Call: Kristen has a condition that causes severe headaches and requires her to need time off periodically. Oddly, this time always seems to be on Fridays. We have designated her time under FMLA. We have heard reports that her Facebook page shows her playing in a beach volleyball league on many of the Fridays in question. Can we terminate?

The Answer:______

My “Take Home:”1.______

2.______

HELP! These Leave Laws Are Driving Me Crazy…

The Rock & The Hard Place (Workers Compensation Danger, ADA)

The Call: Sally has been out on workers compensation for six weeks because of an injury to her back. She is now ready to come back but we are afraid that she will aggravate her back if she returns to the same job. As such, we want to offer her something different.

The Answer:______

My “Take Home:”1.______

2.______

Designating Leave (FMLA)

The Call: Tyran, a supervisor, has called and explained that one of his employees has been out for long periods of time over the last five months. He explains that he was considering termination but now the employee is asking for some type of medical leave. What options exist?

The Answer:______

My “Take Home:”1.______

2.______

Organizational Inconsistency With Leave (Title VII, ADEA, ETC)

The Call: Juanita, a librarian, has filed a complaint stating that she is being treated unfairly. She explains that her request for personal leave has been denied and that she knows that a friend, Bill, in the engineering department has been allowed twice as much time just last month.

The Answer:______

My “Take Home:”1.______

2.______

Leave After FMLA Exhaustion (FMLA, ADA)

The Call: Frank, who has cancer, will exhaust his FMLA in 2 weeks and is not ready to return. The supervisor wants to terminate so the position can be filled and he can stop doing the work.

The Answer:______

My “Take Home:”1.______

2.______

HELP! These Leave Laws Are Driving Me Crazy…

It Is Or It Isn’t A Disability?!? (ADA)

The Call: George has approached us and stated that he has a condition that prevents him from “overheating.” He has requested that we provide him with a portable fan with a cost of $350. We think its sounds fishy and want to challenge this alleged condition.

The Answer:______

My “Take Home:”1.______

2.______

When Will He Send That @!# Check: Health Benefits (FMLA)

The Call: Wilfredo has been out on FMLA and is now 3 weeks late making his health insurance payment. Finances are tight right now and we want to cancel his insurance.

The Answer:______

My “Take Home:”1.______

2.______

Attendance Is Still Attendance: Disciplining FMLA Takers (FMLA)

The Call: Beth provides care for her elderly father who suffers from Alzheimer’s. She uses intermittent FMLA. She appears late for work without calling on two separate occasions. The supervisor now wants to terminate her.

The Answer:______

My “Take Home:”1.______

2.______

Window Of Protection: Retaliation (FMLA)

The Call: We just caught Jenny sleeping on the job and we are moving to terminate her. While she just returned from FMLA three weeks ago, this behavior is certainly enough, right?

The Answer:______

My “Take Home:”1.______

2.______

What You Can Do Now To Avoid Costly Mistakes Later…

Be Clear. Your Handbook and Job Descriptions can make or break your defense in this area of litigation. Be certain yours are up to par with today’s laws.

Be Consistent. The leading cause of employment litigation is inconsistency in the application of employer policies. Know and apply your policies.

Be Proactive. Small employers face monumental challenges under today’s employment laws. Utilize experienced external counsel to assist.

Be Audited.Knowing your deficiencies now saves significant liability later. Utilize annual audits to make necessary corrections.

Contact Us For Assistance:

Joyce Chastain

The Krizner Group

Direct Dial: 850-212-6474

Email:

The Krizner Group 1709 Hermitage Blvd., Suite 202, Tallahassee, Florida 32308  (850) 386-3747