Mastering FMLA, ADA, and Workers' Comp Overlap: A Virtual Summit for HR Professionals

FMLA, ADA, and Workers' Comp Virtual Summit Recording

It's complicated enough to stay atop overlapping requirements of the ADA and FMLA, but when you add workers’ comp, it layers on a new set of regulations to worry about. With the EEOC's new ADA regulations having had a full year to take effect, how you decide if an employee is disabled -- and thus entitled to the act’s protections -- has profoundly changed. And what happens when these protections overlap with other provisions of FMLA or workers' comp laws? How can you balance your need to keep your workforce on the job and productive with your need to observe their legitimate leave rights?

When you participate in this live interactive one-day virtual event, from the comfort of your office or conference room, you'll learn how new ADA, FMLA, and workers' comp regulations are affecting your policies and procedures now, how they will do so in the future, and what you must do to adapt to changing employer rights and obligations.

This virtual summit was recorded on Tuesday, March 27, 2012

Have as many colleagues in your organization participate in this intensive policy and practice workshop for one low rate -- just $597. You'll get all the training value of an off-site seminar, for as many staff members as you choose, at a fraction of the price. In just one day, you'll learn:

• Key differences between a serious health condition under FMLA and an ADA-protected disability in light of recently enacted EEOC regulations
• Medical information you may ask for in support of a request for accommodation under the ADA following FMLA-protected leave
• How to evaluate whether an accommodation request is reasonable and the types of alternative accommodations you should consider
• Solutions to tricky administrative issues, such as tracking FMLA and PTO or workers’ compensation leave concurrently and maintaining health-care coverage for employees who are out on leave
• What to do when an employee runs out of FMLA leave but is still medically unable to return to work
• Steps you can take to determine if an employee is fit for duty following a leave of absence
• How to discipline and terminate protected workers for unrelated policy infractions in a legally defensible way
• And much, much more...

Your Virtual Summit Agenda: 
(All times below are Eastern – please adjust for your time zone.)

Session 1: 11:00 a.m. – 11:30 a.m. 
The Lay of the Leave and Disability Land

In this session, our experts will explain the key differences between an FMLA-protected SHC and a disability under the ADA in light of the recently enacted EEOC regulations implementing the ADAAA. You'll learn:

• Which employers are subject to FMLA and which ones are covered by the ADA
• An overview of the FMLA’s eligibility requirements for employees, and why you may need to provide leave to an employee who doesn’t meet them
• Key differences between a SHC under FMLA and a disability under the ADA
• How to tell if an employee’s impairment is transitory in nature or episodic -- and what difference it makes
• Examples of SHCs that would likely be considered disabilities under the ADA where other conditions, while serious, most likely would not be covered

Session 2: 11:30 a.m. – 12:30 p.m. 
Doing Your Homework: Getting to the Bottom of FMLA Leave Protection and Time Off Under the ADA

This session considers how to properly evaluate your ADA-compliance obligations concerning employees who are protected under FMLA. You’ll learn how to get the medical documentation you need when an employee asks for additional leave after FMLA leave is exhausted without crossing impermissible legal lines. In addition, you'll learn:

• Documentation you may ask for in support of a leave request
• FMLA’s general parameters on obtaining medical certifications from health care providers
• How and what to communicate with employees who are out of FMLA leave but who medically cannot return to work
• Questions to ask HCPs when an employee requests leave as an accommodation
• How to tell if your inquiries are job-related and rooted in business necessity and when you could be crossing the line

Conference Break: 12:30 p.m. – 12:45 p.m. 

Session 3: 12:45 p.m. – 1:45 p.m. 
Reasonable Accommodations and Undue Hardship: How to Balance An Employee’s Right to an Accommodation Against Your Need to Have Them at Work

This session will focus on evaluating what a reasonable accommodation is and how to tell if an alternative accommodation -- one that won’t be especially taxing for your organization -- may be the answer. You'll also learn how to engage in a meaningful dialogue with employees about their need for accommodation, as well as:

• How to tell if attendance is an essential job function
• Goals of the reasonable accommodation dialogue and how to know when you’ve achieved them
• How to evaluate whether granting time off as an accommodation would pose an undue hardship on your organization under the ADA -- factors the EEOC or a judge will consider when determining if the denial of leave as a reasonable accommodation was justified
• Alternative accommodations you may offer and what to do if an employee refuses to accept what you have deemed to be a reasonable and effective accommodation
• How to offer temporary modified duty work without inadvertently creating new permanent light duty jobs
• Tips for drawing the line between providing leave as a reasonable accommodation and indefinite job protection

Extended Conference Break: 1:45 p.m. to 2:15 p.m. 

Session 4: 2:15 p.m. – 3:15 p.m. 
Leave Administration: Calculating Available Leave Time Under FMLA and Your Continuing Benefit Obligations

This session covers the administrative procedures you should follow to ensure that you’re properly notifying employees that FMLA and PTO or workers’ comp or STD benefits will run concurrently. Also, our experts will provide insight into your obligations to continue health-care coverage for employees who take FMLA leave and the best practices for communicating with employees on leave. You'll learn:

• Why you should require paid leave time such as PTO to run concurrently with FMLA leave
• Special provisions which apply to FMLA leave which is also covered by workers’ comp or STD benefits
• Best practices for communicating the interaction between workers’ comp, STD, or other paid (or partially paid) types of leave
• Your obligations to continue health-care coverage while employees are on leave, and what to do about health benefits if an employee is entitled to additional leave as a reasonable accommodation
• Tips for communicating with employees on leave 
  – How often is too often to contact them 
  - What you may legally ask about their anticipated return to work 
  - Checking on a medical status under FMLA and the ADA

Session 5: 3:15 p.m. – 4:00 p.m. 
Fitness to Return to Work: How to Discern Whether Workers May Safely Return

Fit for duty or not? Is termination or reassignment the answer? These are two of the key questions that will be discussed in this session. Our experts will explain when the need for a fitness-for-duty examination may arise, the practical considerations you need to think about -- such as how to inform the employee that you’re requiring the exam -- what you may do if the fitness-for-duty certification is too ambiguous or vague, and when you may refuse reinstatement upon learning the results of the fitness-for-duty exam. You’ll also learn how to craft a legally sound return-to-work policy and why some employers have landed in legal hot water with the EEOC because their RTW policies were too strict. There will be an in-depth discussion about your obligation to return protected workers to their former jobs, and you’ll learn how an “equivalent” position is defined. In addition, you'll learn:

• Circumstances that may trigger the need for a fitness-for-duty exam, and the minimum requirements that must be met before you can request an exam
• Federal laws you must comply with when requesting fitness-for-duty exams
• What you can legally do if a fitness-for-duty certification is vague or ambiguous
• Examples of return-to-work policies that are too strict and have resulted in huge payouts against employers
• Whether you must return an ADA-protected employee to work at a different job if the employee can no longer perform the essential functions of the job he was initially hired to do
• How long you should keep an injured workers’ compensation claimant’s job open

Session 6: 4:00 p.m. – 4:30 p.m 
Complying with FMLA and the ADA: Best Practices for Avoiding Interference and Retaliation Claims

Let’s face it, when employees are in and out of work due to illness or injuries, employers must do a balancing act. On one hand, they need to ensure that the employee has provided adequate documentation in support of a leave request. If you improperly deny leave you could face a FMLA interference claim. Improper designation isn’t the only way to get into trouble, though. Supervisors and managers, in particular, are walking a tight rope because their actions or inactions can be the primary fuel for interference or retaliation claims. This session will focus on the best practices for avoiding interference and retaliation claims at your organization. You’ll also gain insight into how to legally document discipline -- up to and including termination -- for an employee who is currently on leave or who has just returned to work.

• A discussion of recent cases where courts have held that employers have interfered with employee rights -- whether they meant to or not
• How and when to use surveillance and other resources when you suspect possible fraud without drawing an interference or retaliation claim
• Tips for training your supervisors so their actions or comments don’t spark interference or retaliations claims against your organization
• Steps you should take to protect your organization from a retaliation or interference claim when disciplining or terminating an employee based on conduct which was discovered either shortly before, during, or after a medical leave of absence

Session 7: 4:30 p.m. – 5:00 p.m. 
Your Toughest FMLA, ADA, and Workers’ Compensation Questions Answered

In this session, you have a full half-hour to get our panel to answer your specific FMLA, ADA, and workers’ compensation-related questions. You’ll also learn a great deal by hearing the questions that have been perplexing your fellow attendees. Many past attendees tell us that the Q&A session is the most useful part of the entire conference, so don’t miss it!

Mastering FMLA, ADA, and Workers' Comp Overlap: A Virtual Summit for HR Professionals

About Your Speakers:

Attorney Julie K. Athey is an HR Consultant with the Robert E. Miller Group in Kansas City, Missouri. Prior to becoming an HR Consultant, she wrote extensively on a variety of compliance issues for human resources professionals. Her publications include the manuals ADA Compliance: Practical Solutions for HR, FMLA Compliance: Practical Solutions for HR, HR Q&A: Family and Medical Leave Act, and newsletters on ADA compliance and FMLA compliance. She has also presented seminars and audio conferences on the topics of FLSA compliance and the interaction of the FMLA with the ADA and worker’s compensation laws. Julie graduated with honors from the University of Tulsa College of Law, where she was an editor of the Energy Law Journal. She also obtained her undergraduate degree in English, cum laude, from the University of Tulsa.

Attorney Stacie L. Caraway is a partner in the law firm of Miller & Martin PLLC and concentrates her practice in the areas of labor and employment. Ms. Caraway is currently part of a regional civil litigation team, which advises national franchises and other companies concerning general employment and labor law issues; and develops, reviews, and updates human resource policies, supporting communications and contracts. She also represents these companies in all local, state and federal legal proceedings including EEOC and state human rights commission investigations, settlement mediations, arbitrations and lawsuits throughout the United States.

Attorney Charles S. Plumb a shareholder with the law firm of McAfee & Taft, represents management in all phases of employment law and labor relations. Much of his practice is dedicated to counseling employers on compliance with a broad range of state and federal employment laws and regulations and educating management on best practices for avoiding disputes arising from the employer/employee relationship. He also has extensive litigation experience before federal and state courts, regulatory and administrative agencies, and in arbitration matters involving claims of discrimination, wrongful discharge, retaliatory discharge, breach of contract, and constitutional law violations.