Construction Delays Handling Employee Leave Issues
CONSTRUCTION DELAYS – HANDLING EMPLOYEE LEAVE ISSUES
I. INTRODUCTION 1
II. FMLA BASICS 2
A. FMLA: Coverage, Notice, Certifications and Calculating Leave 2
B. Measuring FMLA Leave Use 5
C. Recent FMLA Leave Cases 9
III. ADA BASICS 11
A. The Physically or Mentally Disabled Individual 11
B. The ADA and Pregnancy 14
C. The Individual with a Record of Impairment 15
D. The Individual Regarded as Having an Impairment 16
E. Leave as a Reasonable Accommodation under the ADA 17
F. Return to Former Position under the ADA 20
G. Transfer as a Reasonable Accommodation 21
H. Recent ADA Leave Cases 22
IV. WORKER’S COMPENSATION BASICS 24
V. LEAVE ISSUES AND THE INTERPLAY BETWEEN THE ADA AND FMLA 28
VI. AVOIDING CLAIMS UNDER THE FMLA, ADA AND/OR WORKER’S COMPENSATION ACT 30
VIII. CONCLUSION 33
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CONSTRUCTION DELAYS – HANDLING EMPLOYEE LEAVE ISSUES
I. INTRODUCTION
You are on a tight schedule to finish the Department of Labor’s new office build-out when your electrician subcontractor runs into a ladder while talking on his IPhone thus breaking his clavicle and tearing his rotator cuff. He’ll be out of work a minimum of twelve weeks, and is expected to be able to return half-time for four weeks, and then full time. During his leave, the job site is hit by a massive snow storm (yes, in Florida!) and must close for three days. Shortly after, OSHA closes the worksite for one week for safety violations related to rogue ladders. With the DOL (and other administrative agencies watching closely, what do you do? Which laws direct your actions?
The three laws which have the biggest effect on leave issues for employers are the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”) [1], and Florida’s Workers Compensation Act (Chapter 440, Fla. Stat.). This article will discuss the fundamentals of each of these laws and how, depending on circumstances, these laws interact with each other.
II. FMLA BASICS
A. FMLA: Coverage, Notice, Certifications and Calculating Leave
The FMLA allows eligible employees of covered employers to take up to 12 workweeks of job protected leave in a 12 month period under certain defined circumstances. These circumstances include:
1. The birth of an employee’s son or daughter and to care for the newborn child;
2. The placement with an employee of a son or daughter for adoption or foster care and to care for the newly placed child;
3. To care for the employee’s spouse, son, daughter, or parent with a serious health condition;
4. Because of the employee’s own serious health condition that makes the employee unable to perform one essential function of his or her job; and
5. For a qualifying exigency arising when a spouse, son, daughter, or parent of the employee is on active duty (or has been notified of an impending call to active duty) in the Armed Forces in support of a “contingency operation.”
A “serious health condition” for FMLA purposes includes:
1. A period of incapacity of more than 3 consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same conditions that also involves:
a. Treatment 2 or more times, the 1st visit which must occur in-person within 7 days of the 1st day of incapacity and the 2nd visit which must occur within 30 days of the 1st day of incapacity, absent extenuating circumstances (such as a 2nd visit needed within 30 days but the health care provider (HCP) has no available appointments), by a HCP, a nurse under direct HCP supervision or a health care services provider under HCP order or referral; or
b. Treatment by a HCP on at least 1 occasion, in-person, within 7 days of the 1st day of incapacity, which results in a continuing treatment regimen under HCP supervision;
2. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective but condition which is subject to continuing supervision by a HCP (i.e., Alzheimer’s, severe stroke, terminal stages of a disease);
3. Any period of incapacity due to pregnancy or for prenatal care;
4. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition that:
a. Requires periodic visits, at least twice per year, for health care provider (HCP) treatment or by nurse under direct HCP supervision;
b. Continues over an extended period of time, including recurring episodes of a single underlying condition; or
c. Causes episodic incapacity (i.e., asthma, diabetes, epilepsy); and
5. Any period of absence to receive multiple treatments (including recovery time) by a HCP or a health care services provider under a HCP’s order or referral for:
a. Restorative surgery after an accident or injury; or
b. A condition that would likely result in a period of incapacity of more than 3 consecutive, full calendar in the absence of medical intervention or treatment (e.g., cancer, severe arthritis or kidney disease).
29 C.F.R. §825.115.
A “qualifying exigency” can include:
a. Short notice deployments of 7 days or less;
b. Military events and related activities;
c. informational briefings that are sponsored or promoted by military;
d. childcare activities that arise from a military member’s active duty, or call to active duty;
e. financial and legal arrangements to address military member’s absence;
f. counseling services provided by someone apart from the employee’s HCP arising from active duty or call to active duty of the military member;
g. spending a short-term temporary rest and recuperation leave with the military member (limited to 5 days)
h. post-deployment activities; and
i. any other event that the employer and employee agree upon as a qualifying exigency.
29 C.F.R. §825.126.
The FMLA also allows a spouse, son, daughter, parent or “next of kin”[2] to take up to 26 workweeks of job protected leave (i.e., military caregiver leave) in a single 12 month period[3] in order to care for a member of the Armed Forces (including covered veterans, or members of the National Guard or Reserves) who:
a. Is undergoing medical treatment, recuperation, or therapy;
b. Is otherwise in outpatient status; or
c. Is otherwise on the temporary disability retired list, for a “serious injury or illness”;[4]
The FMLA guarantees eligible employees of covered employers the right to return from leave to either the same position they held prior to taking leave or a substantially equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave.
B. Measuring FMLA Leave Use
1. Minimum Leave Increments - Intermittent/Reduced Schedule Leave
When an employee takes FMLA leave on either an intermittent or reduced schedule basis, the employer must account for the leave using an increment no larger than the shortest period of time the employer uses to account for use of other forms of leave, provided that the leave increment is not larger than 1 hour, and provided that the employee’s entitlement to FMLA leave may not be reduced more than the amount of leave actually taken. 29 C.F.R. §825.205(a)(1). If an employer accounts for use of leave in varying increments at different times of the day or shift, then the employer may not account for FMLA leave in a larger increment than the shortest period used to account for other leave during the period in which the FMLA leave is taken. If an employer accounts for other forms of leave in increments greater than 1 hour, then the employer must account for FMLA leave use in increments of no more than an hour. Id.
An employer can account for FMLA leave in increments smaller than that used for other forms of leave. For example, an employer that accounts for other forms of leave in 1 hour increments can account for FMLA leave in a shorter increment when the employee shows up to work late and the employer wants the work to begin immediately. However, such accounting for FMLA leave will not alter the increment considered to be the shortest period used to account for other forms of leave or the use of FMLA leave in other circumstances. 29 C.F.R. §825.205(a)(1).
Where it is physically impossible for an employee using intermittent or reduced schedule leave to commence or end work mid-way through a shift, then the entire period of time that the employee is forced to be absent can be designated as FMLA and counts toward the employee’s FMLA entitlement. 29 C.F.R. §825.205(a)(2).
2. Counting Holidays Toward FMLA Leave Entitlement
If an employee is using FMLA leave in increments of less than 1 week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled or expected to work during that holiday. 29 C.F.R. §825.200(h).
3. Counting Work Closures Toward Leave Entitlement
While there is no FMLA regulation directly on point, the holiday provisions likely also apply to other work closures due to unexpected issues like weather or OSHA inspections. For example, if the worksite is closed for two days due to snow and the employee is on full time FMLA leave, an employer can count the entire week against the FMLA. But, if the employee is on intermittent leave, the employer cannot count the closure time against the leave. If the worksite is closed for an entire week, then the employee’s leave may not count against the leave entitlement.
4. Application of Overtime Hours to FMLA Leave Entitlement
Pursuant to 29 C.F.R. §825.205(c), if an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason that limits the employee’s ability to work overtime, then the overtime hours which the employee would have been required to work may be counted toward the employee’s FMLA entitlement. However, voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee’s FMLA leave entitlement.
5. Substitution of Paid Leave Benefits for Unpaid FMLA Leave
Under the FMLA, leave is unpaid. However, employees are entitled to choose, and employers can require, the substitution of employer-provided paid accrued leave for unpaid FMLA. An employee’s ability to substitute paid accrued leave is determined by the specific terms and conditions of the employer’s normal leave policies. If an employee chooses to substitute paid accrued leave benefits for unpaid FMLA leave, and if the employer informs the employee of any procedural requirements of its paid leave policies, then the employee must satisfy those procedural requirements in order to substitute the paid accrued leave for unpaid FMLA leave. An employee’s failure to comply with the employer’s procedural leave requirements only precludes the substitution of paid leave for any FMLA-qualifying absence; it does not prevent the employee from taking unpaid FMLA leave. 29 C.F.R. §825.207(a).
6. Substitution of Compensatory Time Off for Unpaid FMLA Leave
In an effort to coordinate the FMLA with the Fair Labor Standards Act (“FLSA”), 29 C.F.R. §825.207(f) provides that if a state or local government employer requires or permits the use of compensatory time off for an FMLA-qualifying absence, the compensatory time off taken by the employee may be counted toward the employee’s 12 week FMLA leave entitlement.
7. FMLA Calculation Challenges
FMLA military caregiver leave is determined on a “per-covered service member/per-injury” basis. Therefore, if an employee takes only 14 of 26 weeks for military caregiver leave, the remaining 12 weeks arising from that particular situation are forfeited. However, if the same service member were to experience a second qualifying injury within the same twelve months, the employee could take the remaining 12 weeks of military caregiver leave. Likewise, the employee has 12 weeks of remaining military caregiver leave as next of kin for another military member. Additionally, spouses employed at the same company are limited to a combined total of 26 weeks in a single 12 month period to care for a service member and any other type of FMLA leave but the employee’s own serious health condition.
8. FMLA and Subcontractors/Joint Employers
In January 2016, following the NLRB, the DOL jumped on the joint employer bandwagon and issued Fact Sheet #38N concerning joint employers and their responsibilities under the FMLA. Where a joint employer relationship exists under the FMLA (which can include subcontractors and employers who lease or hire temporary employees), one employer is consideredtheprimary employer, while the other isthesecondaryemployer. As the DOL points out, “determining whether an employer is a primary or secondary employer depends upon the particular facts of the situation.” The main factors include:
· who has authority to hire and fire, and to place or assign work to the employee;
· who decides how, when, and the amount that the employee is paid; and,
· who provides the employee’s leave or other employment benefits.
The DOL outlines the FMLA responsibilities for both primary and secondary employers:
Responsibilities of Primary Employers
· Providingrequired FMLA notices to its employees, and providing FMLA leave
· Maintaining group health insurance benefits during the leave
· Restoring the employee to the same job or an equivalent job upon return from leave, and
· Keeping all records required by the FMLA with respect to primary employees
Responsibilities of Secondary Employers
· Prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA
· Restoring the employee to the same or equivalent job upon return from FMLA leave, such as when the secondary employer is a client of a placement agency and continues to use the services of the agency and the agency places the employee with that client employer, and
· Maintaining basic payroll and identifying employee data with respect to any jointly-employed employees
C. Recent FMLA Leave Cases
In depositions in FMLA cases, Plaintiffs frequently give testimony like the following: “my boss was very negative every time I called in for FMLA leave,” or “my supervisor rolled her eyes, had a nasty attitude, or said, “again?!” when I requested leave.” Is this enough to get an FMLA claim before a jury? According to Hefti v. Brunk Industries, the Eastern District Court of Wisconsin might think so. In Hefti, the Plaintiff was terminated for inappropriate communications including introducing his wife to co-workers as “his bitch,” telling a co-worker he was also “his bitch,” and telling his boss not to put any “nonsense” in his performance evaluation. Even after Jim had to be removed by the police following his termination, he found an attorney to take his FMLA interference and retaliation case because when he took FMLA leave for his son, his supervisor said, “The Company paid for your insurance and thus expected him to be at work.” Indeed, the Court ruled that it was a jury question of whether the employer terminated the employee because of his conduct or his request for FMLA leave. The Court also noted that the employer arguably tolerated the employee’s communication style for quite some time, and it was only after he requested FMLA leave that the employer finally terminated his employment. The lessons, of course, are train supervisors to control the “eye rolling,” and timely address errant behaviors.