Leaves of Absence/FMLA Law and Practice

Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of a disability and requires employers engage in an interactive process and provide reasonable accommodations. A failure to do so may result in liability.

The ADA requires employers to provide reasonable accommodations to qualified applicants or employees. A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can do the job without causing the employer undue hardship, such as too much difficulty or expense.

Use the Interactive Process to Determine Reasonable Accommodation

In order to determine the appropriate reasonable accommodation, employers and employees must engage in the interactive process, which requires communication and good-faith exploration of possible accommodations. An employer that acts in bad faith in the interactive process may be liable if it can be reasonably concluded that the employee would have been able to perform the job with a reasonable accommodation.

It’s a two-way street: an employee must also make a good faith effort to comply with any of the employer’s reasonable requests.


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Bass, Berry & Sims attorney Tim Garrett discussed a case currently under review by the Eleventh Circuit Court that should provide clarity on whether, and under what circumstances, a licensed professional counselor or therapist can be a “healthcare provider” - and therefore qualified to verify a need for leave - under the Family & Medical Leave Act (FMLA). I recently discussed a case currently under review by the Eleventh Circuit Court that should provide clarity on whether, and under what circumstances, a licensed professional counselor or therapist can be a “healthcare provider” – and therefore qualified to verify a need for leave – under the Family & Medical Leave Act (FMLA).

The case centers around an employee who was fired from her job the same day she met with a licensed counselor who recommended leave after determining the employee had depression and anxiety. While the timing and specific circumstances of the case are unusual, the case does call into question the larger issue of who can be considered a healthcare provider under the FMLA.


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Bass, Berry & Sims invites you to a complimentary seminar focusing on trending areas of labor & employment law.

Topics will include:

  • FMLA/ADA Considerations for Leaves of Absence: A practical, scenario-based discussion regarding extended leaves of absence and how they are regulated by application of the FMLA and the ADA, including a detailed discussion of the EEOC’s position with respect to extended leave as a reasonable accommodation.
  • Preventing and Addressing Workplace Violence: A comprehensive discussion of workplace violence, including strategies for preventing and properly addressing acts of violence in the workplace.
  • An Employers Approach to Reducing Harassment: Questions employers should ask as they strive to reduce harassment in the workplace and cultivate a healthy working environment.

EVENT DETAILS:


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Labor Employment Seminar | November 16 | Memphis

Labor & employment attorneys Lymari Cromwell and Mary Leigh Pirtle will discuss the following topics:

  • FMLA/ADA: A practical, scenario-based discussion regarding extended leaves of absence and how they are regulated by application of the FMLA and the ADA, including a detailed discussion of the EEOC’s position with respect to extended leave as a reasonable accommodation.

The U.S. Department of Labor has issued its final rule requiring federal contractors to provide at least seven days or 56 hours of paid sick leave each year to employees who perform work on covered federal contracts. This rule is the final implementation of Executive Order 13706, which President Obama issued in September 2015. The new rule becomes effective on November 29, 2016, though in most instances, as discussed below, it will only be applicable to new contracts awarded on or after January 1, 2017. Contractors should, however, take steps now to ensure compliance.

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On April 21, 2016, San Francisco became the first city to impose a mandatory paid parental leave ordinance.  Under the new law, certain covered employers must provide supplemental compensation to employees who are receiving California Paid Family Leave (PFL) for purposes of bonding with a new child.  Employers should be mindful of these new obligations, which are likely to expand to other cities and possibly the entire State of California in the future.

Under previously existing law, no California city required that employers provide paid parental leave for bonding with a new child.  Employers were only required to notify employees of their rights under the state’s PFL program.  The PFL program is a component of the California State Disability Insurance (SDI) program and entitles employees who have paid into SDI to receive up to 55% of their lost wages when they must take a leave of absence to care for a child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner.  Benefits are capped at six weeks in a 12-month period, and benefits are funded entirely by the SDI program.  (Note that California Governor Jerry Brown recently signed legislation that will increase the benefits paid by the California PFL program for eligible leaves from 55% to 60% (or 70% in some cases) beginning on or after January 1, 2018.)
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A number of significant developments in California labor and employment law occurred in 2015. This article will highlight the developments we believe are most important for California employers, including a new mandatory paid sick leave law, a substantial overhaul of the Fair Pay Act, the solidification of special meal period waivers for healthcare employees, the prohibition of certain no-hire clauses in California settlement agreements, and a few others.

California Paid Sick Leave Laws

On July 1, 2015, California became the second state in the nation (following Connecticut) to implement a mandatory paid sick leave law and the first state in the nation to require paid sick leave for all employers.  Unlike Connecticut, there is no small employer carve out.


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On Thursday, February 25, 2016, the U.S. Department of Labor proposed new rules to implement Executive Order 13706, which requires certain federal contractors to provide qualifying employees with at least seven days of paid sick leave each year, including paid leave for family care. The Department of Labor intends to publish a final version of these rules by September 30, 2016, and employers who contract with the federal government should begin preparing for their implementation now. Noncompliance could result in suspension of federal payments or even termination of a federal contract.
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Armed Services Board of Contract Appeals logoThe Armed Services Board of Contract Appeals (ASBCA) recently granted a claim sponsored by the prime contractor for its subcontractor’s employee severance costs under a fixed-price contract. Appeal of Government Contracting Resources, Inc., ASBCA No. 59162 (March 12, 2015).

Government Contracting Resources, Inc. (GCR), sought additional compensation for severance costs it incurred, along with its subcontractor, upon expiration of its service contract with NASA for the distribution of mail at the Kennedy Space Center. A collective bargaining agreement (CBA) between GCR subcontractor Creative Management Technology Inc. (CMT) and the International Association of Machinists and Aerospace Workers (IAMAW) granted severance pay to CMT bargaining unit employees who were not rehired by a successor company at the end of the service contract. The provisions of the CBA had been incorporated, through a modification, into GCR’s service contract with NASA.


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