Achieve eSignature Legitimacy for Leave of Absence Agreement in Australia

How to eSign a document: eSignature legitimacy for Leave of Absence Agreement in Australia

recorded and I would like to welcome you to today's webinar understanding the ins and outs of medical leave absences before we begin I'd like to review a few points of protocol so that you'll get the most out of your webinar experience remember you are listening to the conference via a conference service if you are disconnected repeat the steps that we're given to in the registration email in order to reduce background noise please mute your microphones during the presentation if you have any questions please type them in the chat box the chat icon is located at the top right hand side of your screen and our presenter will address questions as they become available or at the conclusion of the presentation please note that today's program is being recorded now it is my pleasure to introduce our presenter Mrs Jamie Hasting Jamie Hasty is a vice president with cesco management consultants in Richmond Virginia Jamie graduated from East Tennessee State University with a BBA in Human Resources management Jamie's a generalist consultant in all areas of human resource management with Specialties in affirmative action policy development wage and hour accounting employment regulation compliance training and development compensation and Performance Management Systems employee satisfaction assessments executive screening and placement and general Human Resources Consulting she regularly conducts Management training for clients and serves as a guest speaker for state and National associations Jamie is a certified trainer for Vital Learning Corporation John Maxwell and cesco Leadership Institute ladies and Gentlemen please welcome Ms Jamie hasty thank you Jessica and thanks everybody for joining us today it's a pleasure to be back with you all and today we're going to talk a little bit about the ins and outs of different types of medical leave of apps and says it's something that we deal with regularly at cesco from our clients having questions about FMLA Americans with Disabilities Act and the voluminous paperwork that goes along with it so again we're going to kind of focus on the two main Federal ones I probably will reference um State Medical leads as well um because as a reminder there are a variety of states that require Family Leave paid sick leave those sorts of things um so I want to focus on again FMLA and Ada and then as a reminder both ASA and acil have telephone and email Consulting access to cesco as a member benefit so if you ever run into situations where you need forms or you need a templated letter or you have questions about what to do with somebody when a medical situation arises please feel free to reach out utilize that membership benefit um and you can speak with any of the senior Consulting staff and our employment attorneys on staff so let's roll into Family Medical Leave Act um FMLA is one of those things that um still seems to be a little bit elusive for some um but there are certain requirements for employers if they have 50 or more full-time employer excuse me 50 or more employees it's head count not not full-time or part-time status during 20 or more calendar work weeks in the current and or preceding year now the interesting thing about that is the work weeks need not be consecutive so uh particularly for our ASA members when we have hiring booms um based on Project work and that sort of thing it's very easy to cross that 50 threshold Without Really realizing it and we may be subject to FMLA 50 or more employees within a 75 mile radius if we have multiple sites that's going to count as well um we have obviously engaged in Commerce in any industry or activity affecting Commerce um Jamie sorry to interrupt you um on your screen we're seeing all of the slides instead of just the one slide you're presenting on can you switch to the slideshow mode well that's interesting because I am in slight slideshow mode okay let's go back all right can you see the main slide we cannot we can still see all the slides okay let's see current slide it should be titled FMLA I can see where your you've highlighted the slide but it still was all of them no nothing issue yeah I'm not really sure what's going on Jessica because I'm in I'm in men's slideshow mode okay let's see the joys of Technology everybody the joys of Technology um we have someone that's saying hit setup slideshow okay not really sure what that is is that working now no okay whale Jamie if you want to send me the slides um and you can keep going and we'll pull it up and we'll do it from my screen let's do it that way I like that idea okay all right let me stop sharing so you don't see all of these screens okay let's do that very quickly so thank you all so much for your patience um we will get this all figured out um but when we talk about FMLA um you know again it's based on it's going to be based on your employee head count the other thing is that not everybody is going to be eligible for FMLA that's a common misconception that we run across a lot of times is that employees especially new newly hired employees whether they need to go out for birth or surgery or something of that nature they may not have been employed long enough to be eligible under Federal FMLA that doesn't necessarily mean that they wouldn't qualify if there was another state paid job protected leave um but in in terms of the federal piece they're probably not going to be be covered so they they first and foremost have to work for an employer who has 50 or more employees and they have to be employed under FMLA um for at least 12 months and within that 12-month period Works no less than 1250 hours okay now that 1250 hours piece is not going to include vacation personal sick time holidays those sorts of things it's actual hours worked um so interestingly enough there's also a very vague uh I shouldn't say vague there is a provision that many people are not aware of um what that deals with what we call a break in service so let's just assume that Jessica worked for ABC company and worked there for two or three years and then left for three years but then was rehired okay she came back after her three-year stint um and needed to go out on FMLA but had only been back for six months on the surface of it a lot of individuals would say oh well Jessica hasn't been back for 12 full months she's not eligible under FMLA and that is incorrect there is a break and service provision um that looks at the previous seven years in totality um to determine if they were eligible so if Jessica was eligible prior to her separating her employment in in the first round of employment with ABC company um even though she's only been back for six months she's still deemed eligible under that seven year break in service rule so um that's something to keep in mind there the other thing that um we want to look at is um the reasons in which people can take FMLA leave um the very obvious easy one is for the birth of an employee's child now that could be mom mom dad dad mom and or Dad okay um another reason is for the placement of a child with the employee for adoption or foster care we can also take job protected FMLA leave to care for a child spouse or parent who has a serious medical condition and a serious medical condition is defined as undergoing care twice in a 30-day period or a 24 hour overnight in the hospital okay and I'll dig more into that here in just a minute and then lastly um we can take it when the employee is unable to perform their essential functions due to a serious health condition okay um so that's that Jessica if you're sharing your screen you're you're still yours is showing I believe the way that um mine was showing okay can you you but you can see my screen I can see all employers who are covered I think you were probably doing better than I was it looks like Rebecca said that one slide was better um and it's an improvement we'll take an improvement how about that um okay I tell you what if we can move to slide number seven and then we should be caught up together there we go perfect um let's just um we need to take FMLA for military exigency leave um an individual could take up to 26 weeks job protectedly because of the employees immediate family member they're they're being called to active duty so we need to get the household in order or let's assume they've returned from active duty and they are recovering from a military-related injury so they have up to 26 weeks leave and that they can take under that piece as well um I do want to look a little bit at um job restoration and benefits now when we talk about job protected leave obviously um there's there's protections written into the regulation so a couple of things first and foremost when somebody request well when somebody requests FMLA and or we designate it because the ultimate responsibility for determining whether or not a situation is FMLA qualifying is gonna fall back to the employer um we also have to make sure that one they intend to return there has to be an intent to return after the leave in order for us to Grant the leave okay but when they do return they have to come back to pretty much the exact same everything um the way that the reg is written is that they have to be restored to his or her original job or or an equivalent job um which is equivalent pay benefits and other terms and conditions of employment now I've seen certain situations with the Department of Labor investigating FMLA charges of discrimination or claims of retaliation where you know somebody was out on FMLA then you know they needed to be out a little bit longer than the 12 weeks but we had already temporarily replaced that position and um you know the new person was working out great so we brought them back into what the employer felt like was an equivalent job but there were some differences perhaps in the schedule perhaps in the team that they were working with perhaps in the um slight day-to-day duties and deal well really really hones in on the fact that those things are not going to be considered equivalent even though there are there is the provision of equivalent they don't really like it when we use it so um the the best advice that I always provide our clients and Association members with is um if you're gonna temporarily fill that position while they're out on leave because we need to we we've got products or services to offer and and we need to maintain business operations um just know that it really needs to be the the temp moving into a different role when that person returns versus trying to place the the current employee or the the initial employee in a different role and employs FMLA cannot be counted against the attendance policy and also we are required to maintain all health benefits during their leave and I'll talk more about that because a lot of times employers get in situations where people are behind on premiums and we get a lot of calls on how to address that but even though they have to mean we have to maintain coverage they're still responsible for their portion of the premium if they get into rears there is a 31 day notice period that has to be provided to them in writing that allows them to you know make payment in full within that 31 days or else you could technically terminate their coverage um certainly nobody wants to have to do that but it wouldn't be the first time that I have seen that happen um okay so uh back in 20 2012 um FMLA was updated really just to make sure that some of the language was inclusive with regard to same-sex spouses legally uh married same-sex individuals um and so nothing really has dramatically changed with that update uh but just know it it does include same-sex um legally married individuals both for the series health condition provision as well as the military exigency leave um it also did um entitle eligible employees to take FMLA leave for step children uh so that was kind of a more modernized update there um a lot of times there are blended family situations where a step parent needs to be the primary caregiver of that that child um so they included that as well um and they also changed the ability for an individual to care for a step parent who is the same-sex spouse of the employee's parent so that was just a little minor update there I do want to cover some initial mistakes that I often see when we're working and supporting our clients um so mistake number one we fail to have the proper documents obviously part of the the big documentation is going to be that we have to have a federal FMLA employment poster obviously we know our employment posters have to be displayed in a common area if you need one let me know FMLA in terms of the poster hasn't been updated that particular poster um and probably like at least 10 years at this point so um you don't have to get new posters every single year unless there is an update to the federal and or state now some states update them all the time so just know that it's not one of those things where you have to constantly update um your posters every single every single year unless there's been a change we also have to have an FMLA policy and make sure that's announced typically that goes in your employee handbook make sure that the FMLA policy is compliantly written and that it includes all of the necessary Provisions their rights and responsibilities those sorts of things uh we also have to have appropriate requests for leave forms medical certification forms and templated written notices um I'll talk more about that but I have all sorts of templated letters the appropriate forms if you all need them I'm happy to share it kind of makes life easier um there's about six of them I think and they're all saved and titled based on the particular scenario you may run into so you know whether it's a request whether it's an approval denial extension uh prior to leave exhaustion perhaps they can't return so we need to explore Ada um so we have all those templates happy to share mistake number two um and and I see it daily um employees are not required to directly ask for FMLA leave okay it is up to the employer to say you've been out for an entire week or three days and I think this may be FMLA qualifying I need you to get this paperwork completed um now there are certain things that are very easy to anticipate FMLA leave um if somebody's gonna go out for a scheduled surgery or for the birth of a baby those sorts of things um but it's it's sometimes those unexpected situations where somebody has been in an accident or is in the hospital um and you know human resources or the person within the organization who's handling HR finds out you know well after the fact that they've been out for a little bit of time um instead of waiting for that individual to say hey I need some FMLA paperwork we're required under dol interpretation to go ahead and initiate that process um in a perfect world um the regulation states that employees must give notice 30 days notice unless it's impractical um so that we can get the paperwork out we give them the the 15 days to get it completed and return to us but obviously if the leave is unforeseeable um we just need to go ahead and determine if the situation may or may not qualify and initiate that medical certification mistake number three the supervisor one of the things that DOL has been very very specific on is that supervisors don't have a good understanding and or knowledge about FMLA um and certainly you know we don't expect them to be experts in FMLA but they need to know what to look for they need to know what they can and cannot say they need to know how to guide an individual who might be going out on leave or need leave and kind of what the steps are there so it's highly highly recommended that your managers receive basic medical leave training FMLA Ada um so that they can identify potential FMLA situations and guide them appropriately um oh the easiest question that the supervisor or a leader within your organization can ask the employee is how you know how long do you plan to be out have you seen a doctor um are you going to be seeing a doctor in a follow-up situation um those are kind of the initial questions when somebody has been out for typically three days or longer um and then that supervisor should be communicating that back to again whoever the designated individual is in the organization handling this type of leave um you know why aren't they able to report um we don't want to ask about specific medical diagnoses we just want to know have you seen a doctor when do you plan to return um and do you have follow-up appointments scheduled okay so mistake number four is not understanding what is considered a serious health condition um again it's not just for birth or surgery it's any sort of injury illness impairment physical or mental condition that would require inpatient care so it's an overnight in hospital 24 hours or less um and or continuing treatment by a health care provider and that's twice in a 30-day period so common things that can qualify under FMLA especially on an intermittent basis is um you know uh chronic health conditions migraines um you know anything that would be you know ongoing treatment it's not necessarily going to be your obvious routine annual physicals um your eye exams your dental exams um things that we're running into right now is allergy season um could it potentially rise to the level of FMLA Maybe um it depends on if we're having you know prescription medication medication specialized treatment addiction treatment um you know we just kind of rolled out a flu season um typically the flu is not going to qualify unless they were emotion and they have to do follow-up visits mistake number five we see a lot is improper documentation um like I mentioned happy to share our forms with you and templated letters but there is a lot of documentation that goes along with FMLA request relief forms medical examiner certificate once they get it in their hands they have 15 days to get it completed and returned to us um now a lot of the physician offices are kind of dragging their feet on it it takes a little bit longer um DOL says you know there's a little bit of cushion in that 15-day um period um so you know don't don't kind of dig our heels in or Draw the Line in the Sand just because they didn't quite meet the 15 days now if we're talking about two or three months after the fact then that's a different conversation um you absolutely can contact the medical provider if you need to gain additional information or clarification on certain items um if we think that there is potential FMLA abuse or that something isn't jiving in the medical certification compared to what we're hearing from the employee you can get a second and or third opinion if necessary just know that we as the employer are going to have to pay for that second and third opinion um I've run into a variety of situations where we've had to do that when we expected FMLA abuse um and it can be beneficial if there's something um going on there so we have designation letters we have exhaustion of leave letters everything should be sent certified mail receipt and or UPS FedEx where we can track it why because if we ever have to defend ourselves to the Department of Labor on a state or federal level I need to be able to show proof of delivery okay I need to show them that we did our due diligence and they failed to comply mistake number five is uh continued rather with the improper documentation there's a myth that only the doctor can actually complete the certification that's not true um we're seeing a lot of session assistance somebody within the medical practice that may be associated with that particular individual's case completing the um the medical certification um the RN that sort of thing totally fine um if we're dealing with mental health it could be a clinical social worker it could be um another situation with a podiatrist dentist those sorts of things if there's some oral surgery going on there um but if they need the definition of a health care provider as defined within the ACT they can legally complete the um forms it's just not going to be like an LPN or like a front desk receptionist sort of situation mistake number six a lot of people don't realize that you can integrate or or should be integrating FMLA with other leaves of absences okay so any sort of paid leave available to them um short-term disability long-term disability it could be paid parentally paid adoption leave workers comp Ada all of that can run concurrently with Federal FMLA um so you know making sure that we are looking at both the federal piece the state piece if you reside in a state or operate in a state that has paid sick leave paid family leave those sorts of things um and the other piece that I will say is some of those States in particular have Provisions where the the state paid sick leave or the state Paid Family Leave has to go before paid sick leave so you know this is where you really want to make sure that we have a firm understanding of State regulation and how that interplays with Federal as well but you know we want to track all that time we want to have good documentation associated with how much time have they taken when are they potentially going to run out of certain paid leaves uh you know short-term disability typically isn't going to pay out if they have paid leave available underneath the employer internal policy they'll start paying once all of that leave has been exhausted depending on how the policy is written so you know we want to check all of those things too mistake number seven is that the employee and the employer Communications are lackluster at best um whether that is something where we've got somebody out we kind of they fell off our radar and we haven't stayed in touch um we haven't gotten updates on their Fitness for Duty or potential return to work um perhaps they are out on Intermittent Leave um where they're taking you know four hours here two hours there and there are a lot of absences adding up and they haven't let us know look these are fmlite qualifying absences um and then the other thing we see is where employers have failed to notify the employee of the benefit premium responsibility um when we send the initial FMLA documentation there should be a statement of Rights and responsibilities that go along with it that outlines look you have to stay in touch with us you have to let us know when you're expected to return if that date changes if your intent to return changes altogether um and also by the way at uos these premiums by this date et cetera Etc so we want to make sure that that statement of Rights and responsibilities is also included in the paperwork mistake number eight is terminating right after FMLA um back in 2012 2013 um Department of Labor changed their stance on this it used to be previously when somebody had exhausted their 12 weeks and they were not able to return the employer was able to say well best of luck we're going to go ahead and separate employment however DOL now says because they expanded Ada is that well if somebody's out on FMLA leave because of a serious health condition it likely is going to qualify underneath the Americans with Disabilities Act as amended right so you shouldn't be terminating employment because they're job protected leave has just ended because they're going to qualify under Ada for an additional reasonable accommodation um so we need to pause before that um that is why it's really really important to get an updated medical certification prior to FMLA being exhausted so that we can look and see are they able to return if not when is the revised expected to return to work date um you know is it or are we looking at another month another two months another six months um because all of that's really gonna play into our review and our interactive process associated with reasonable accommodations um so that's just something that I see happen quite often where people are not engaging in the Ada interactive process um towards the end of FMLA and that's something that DOL really is honing in on before I move into Americans with Disabilities Act are there any questions about FMLA before we move forward okay then give it a second feel free to use your chat feature I can see that so that's good and all right um let's talk a little bit about ADA Ada is um probably the toughest um job protected um Federal Regulation to kind of navigate um you know we always preach consistency what you do for one you do for them all but Ada um doesn't necessarily always allow us to be as consistent as very black or white with regard to policy because everybody's medical condition and their limitations in our accommodations based on their limitations are going to be a smidge different um but really the purpose of ADA was back um back in the the 60s was to bring in individuals with disabilities back into economic social mainstream and to really have a good clear enforceable standard for addressing discrimination against those individuals who have a disability um it really was intended to allow them to have a fair playing field um and compete with other non-disabled individuals um in their terms and conditions of employment so um that said Ada has been dramatically expanded and which still leaves a lot of confusion out there for employers so a couple of key points for us to remember I you know we want to kind of check our attitudes we don't want Ada situations to really become something of a US versus them mentality the whole requirement of the interactive process is that it's got to be joint problem solving does that mean um we are going to you know do every single accommodation that they're asking for no it does not does that mean that I absolutely have to follow the specific guidelines that the doctor has outlined in their medical certification no it does not it's all a starting point it's all a negotiation um because what we what we rely on is that certain things may or may not create an unreasonable um or an undue hardship rather so um we want to try our best to have the same treatment and standards for everyone again what you do for one you do for them all but sometimes there are situations again based on their limitations based on their position based on business need at that moment um where there may be modifications that differ from a modification that we had previously provided for a different employee as with FMLA documentation all of that medical information goes into the separate medical file it's kept confidential um and we have to look at the job related specifications um so that's why it's really important with your job descriptions to have your your job duties as noted essential versus non-essential um because when we get to the accommodation process we only have to accommodate the essential functions not the alternative or infrequent job duties that they may be doing um a few other key points to remember obviously we have our legal obligations reasonable accommodation at every step of the way um we are not going to decide and tell them but it again it's going to be a joint problem uh solving and decision making um and that also has to be documented on what our proposals were what the employee proposals were what we have kind of gone back and forth on there needs to be clear documentation there similarly um with FMLA you know ultimately the employer is liable under Americans with Disabilities Act as well um and sometimes we have to do a case-by-case ultimate decisions for uh accommodations and do hardships are always going to be determined by the facts of each case again that's why our documentation particularly with Ada is so important so that if it ever is challenged that we are able to um prove why it was quote unquote an undue hardship so there are a variety of aspects dealing with Ada but for purposes of our conversation today we're going to focus on title one which deals with employment um obviously that particular definition prohibits discrimination against an individual with a disability um in terms of applying hiring advancing training compensation separation of employment in any other terms or conditions of employment and it also defines what a qualified individual with a disability is so it's what Ada is saying is we don't necessarily have to hire an individual with a disability or and we don't have to not hire them we have to look at what the ksas are the knowledge skills and abilities and make sure that they are the most qualified individual with or without an accommodation that can perform the essential functions of the job okay if they're not qualified then they're not qualified but again this goes back to documentation resumes applications good interview notes focusing on the essential functions and behavioral based questions okay what is not covered under Ada um anything that would be considered a temporary disability broken leg pregnancy technically is temporary but remember our pregnancy is protected under Title VII and pregnancy discrimination law on a federal basis again state law may have additional Provisions in place for pregnancy remember that not all permanent disabilities are going to impact major life activities um for example a loss of a finger unless it really is going to impact their ability to successfully perform a particular job function um drug use may be covered under Ada but not current use of illegal drugs uh not current use of alcohol however if they're in recovery that's going to be covered um gambling kleptomania Pyromania not covered um as neither are sexual preferences they are not considered disabilities underneath the ACT uh one thing that I hear a lot of from employers is um sometimes frustration or confusion surrounding ABA um because they often feel like it's requiring them to lower performance standards it's requiring them to have to hire somebody that they wouldn't necessarily normally hire and none of those things are true okay um we're not having to report it to the government we're not having to lower any sort of production standards we're not having to give preferential hiring treatment um or and we're most certainly not having to do unduly expensive or extremely costly modifications nobody's asking you to take you know a building that you may have that doesn't have an elevator and put you know 100 000 elevator in it that would be considered an undue hardship um so you know it's really not intended to lock you in it's it's just intended to kind of level the playing field for individuals um so let's look at the basic definition of a disability having a physical or mental impairment that substantially limits one or more major life activity and I'll show you what those are here in just a minute I may also have a record of such impairment or I've been regarded as having an impairment where managers often get themselves into a sticky situation is when they have regarded somebody as being impaired without having the documentation to back it up that in fact they actually do have an impairment okay um there are also things where we may have conditions that are episodic or in remission um and so if they are an active episodic situation um those things we have to look at would be considered under the act so perfect example in the past mental illness um it might not have been entitled to an accommodation in the workplace when the condition was active because they did not meet the Ada definition of a disability so conditions and remission or who have limitations that that come and go um would not necessarily have been previously covered under Ada depending on how long limitations were active okay another example here with episodic piece is let's just assume we have an employee with crohn's disease and they have periodic flare-ups um that would cause them to be in the hospital okay now this is a this is also a great example of where Ada and FMLA are playing with each other so if it requires hospitalization and they've been employed for 12 months and 1250 hours boom it's FMLA qualifying right off the bat but we also have an ADA piece that we need to look at as well so under the definition of a disability we have to look at what are the limitations during the flare-up um and how do those limitations during the flare-up impact their ability to perform the essential functions of the job maybe it is a situation where this person requires additional bathroom breaks or additional rest breaks or time off from work um because the the bowel function is considered a major life activity so it's not necessarily always just about what the condition in and of itself is we're also looking at subsequent or secondary um what is the word that I am looking for secondary um medical concerns medical issues that we that may be tied into Loosely or specifically um you know nausea fatigue others secondary symptoms um that would also qualify underneath the act that we might have to accommodate as well okay so a major point for consideration if somebody has a condition that is episodic or in remission and it limits a major life activity um we are looking at what those limitations are during a quote-unquote active State when it is flaring up when they are having um issues with it similar to to that example of the Crohn's disease they also did in 2009 um broaden the definition of regarded as impaired um so an individual is going to meet that requirement if that person established that he or she was subjected to an action prohibited underneath the act because of an actual or perceived physical or mental impairment again this is where managers sometimes get themselves into trouble they don't know for a fact if somebody really does have a medical condition so either they've already considered them as disabled and have a unofficially accommodated or somebody has said something or they haven't allowed something because of a perceived physical or mental impairment um and um we're seeing DOL really dig in a little bit more on this regarded as being impaired um so a transitory impairment um if it's six months or less um it is not going to play into regarded as impaired but um again it goes back to manager education of if somebody is asking for assistance or asking for a little bit of flexibility in something because of a quote-unquote medical condition that's when that manager needs to say time out talk with HR time out go talk to the office manager or what have you because before we do anything we need to actually certify that there's a medical condition here um because once we open that Pandora's Box they're regarded as being impaired so you take it away what's going to happen they're going to immediately file a charge of discrimination with the DOL or even the state uh deal that you're operating in so we we want to do our due diligence um so therefore to be covered Ada is going to have regarded as coverage it's very broad it's very open um lots of room for interpretation so we just want to be mindful of that um here's an example of regarded as an employer denied employment to an applicant solely because the applicant has had back problems in the past without looking at whether or not he or she could safely perform the job um that that reference and it and I'm going to take this a step further in the example let's just assume that person casually mentioned back issues in the interview this is a reminder that we don't ask medical questions in the interview we don't write down medical things in the interview notes we focus on the essential functions of the job and can you perform these with or without an accommodation um so the other thing we have to look at with regard to the major life activities is whether they're going to be substantially limited um bodily functions are included in that as well um having a major life activity limited um based on the disability so other things to keep in mind is that there are mitigating measures we're not going to consider that so if I have a medical condition or a disability and I'm taking medication and as long as I'm on that medication um I'm not having flare-ups I'm uh it's not limiting my ability to function in life I can't we're not going to consider that medical condition same thing with medical supplies equipment low vision devices um use of assistive technology those things are not considered um for purposes of mitigating measures and here's a good a good example somebody that has epilepsy is taking their medication the seizures are controlled they're covered underneath the new definition of a disability um because we're looking at her as being disabled without regarding the medication right so even though yes the medication is keeping it in line um we are still going to consider her disabled um but if the mitigating measure itself causes limitations so if it can get tricky here so without the medication we we know um that epilepsy meets the definition but if we are ignoring the beneficial effects of the medication um the medication itself that causes limitations then those things may also be considered so um she might be considered double double under the um act that we may have to look at so here's a list of your major life activities obviously pretty inclusive um if there's a medical condition that impacts any of these we need to have conversations as well as a medical condition that is impacting a major bodily function that was part of the expansion in 2008 um and so as I mentioned so let's give an example of somebody that has cancer and yes they're covered underneath the cancer treatment but let's assume that we're having secondary symptoms of nausea and fatigue that's going to be tied into the immune system and that's limiting um perhaps my ability to um stand and walk and interact with others so those things would be part of the um the exploration and the documentation of the medical certification um next slide is going to cover just a listing of impairments that always meet the definition of a disability I don't think any of these are a surprise to you all and that just know there are there are medical conditions that are specifically defined in the act that will always meet the definition of a disability so what do we do right um it's one thing to understand yes we've got Ada what does that really mean to us make sure we have good job descriptions review them make sure that it is very specific what is essential what is non-essential what are the requirements of the position both with education skill set experience but also having that ADA piece at the back or at the bottom of the job description that talks about how much weight am I required for left or push or pull how often am I doing these things am I standing am I walking am I bending am I exposed to chemicals loud noises um the the environmental chemical sensory and physical aspects of the job need to be clearly documented um why because we need to give that to the doctor along with the medical certification so that they can look at how this medical condition really potentially might impact the requirements of the job we always need to focus on performance and conduct the only thing that we can manage are facts of the situation the performance expectations the performance standards and manage that ADA does not require us to modify those standards for an individual with a disability we're just providing them assistance with accommodations to to rise up and meet those standards um again just like with fmli I want our managers to be trained on Ada what to say what not to say how to handle a situation if somebody's asking for a accommodation or we have identified some things going on and we might need to accommodate documentation needs to be solid and before we discipline for failure to perform or for attendance issues um or you know separate employment we want to take a take a step back and pause and make sure that we've dotted all of our eyes and crossed our T's so the next few slides deal with the hiring process I've I've talked a lot about um you know with or without an accommodation so when we talk about ADA and the employment procedures a couple of things um if you were one of those employers who are dealing with um pre-employment physicals totally fine to do totally fine to do as long as we are giving them to everybody for similar job categories so let's say some of our ASA members um you're doing physicals with your field staff but not all of your office staff totally fine as long as everybody that is working in the field has been given one we also have to make sure that it's tied back to job-related Necessities so again if we have a physically um taxing position we want to make sure that the the physical makes sense to give for that position obviously they need to be consistent with business necessity and if we based on the results of that physical we may have to provide reasonable accommodations okay um Ada talks about Physical Agility tests is not not being considered medical exams um typically again I'm going to tell you in terms of medical information unless there's a conditional offer of employment on the table uh we're not doing drug testing we're not doing physicals any of that stuff until a verbal or written offer of employment is presented okay if we do those things prior to you were opening yourself up to significant risk of a charge under Ada um so make sure that we are doing that post post job offer um again if somebody is not qualified to perform the essential functions you can reject them from employment um because they are not qualified doesn't matter whether they have a physical or mental impairment if they don't meet the ksas they don't need it um and you should always be showing them a copy of the job description during the employment process um again next slide just covers the way in which we can ask can they meet the work schedule the job duties um you know with or without an accommodation if they say no um you may ask the applicant to explain further um but again be mindful about what you write down um because we don't want that to come into play or be viewed as discriminatory um next slide gives you specific questions you may ask um feel free to work those into your interview questions um you know stating the attendance requirements look we are Monday through Friday nine to six one hour lunch break whatever it is or you know look you might be working weekends at the job site whatever it may be do you have any reason to believe that you would have difficulty meeting the schedule difficulty performing the essential job functions would you please explain how you would perform these um you know again that's where I really like to weave in behavioral based questions that are focusing on how they would actually perform things um because past behavior is the best predictor of future behavior um then once the conditional offer of employment is made then we arrange for those pre-employment medical exams drug tests those sorts of things physicals if we're doing that um if there are limitations then again we engage in that reasonable accommodation process if there are no work restrictions or direct threat then we just move on and document that piece um on your application again don't ask about health insurance industry workers comp history previous attendance records those sorts of things now um depending on the state in which you are operating in you may be able to ask workers compensation history post employment so during the orientation period there's actually a form that we have um that you can have them fill out about their previous workers comp claim history again not all states permit that a large portion of them do so if you are large and you are self-insured meaning that you as the employer are in charge of receiving and paying out the claims to the medical insurance um providers and that sort of thing don't be asking about health insurance history and claims history and that sort of thing that'll get you into trouble under ACA as well as Ada um now remember that substance abuse um and individuals who are current users of illegal drugs are not protected underneath the ACT but those who have been in rehab and who are no longer using illegal drugs um are protected okay so if you know you end up drug testing and somebody tests positive for oxycodone or alcohol or what have you um and they have previously been to rehab but they're using again they're not covered underneath Ada um so drug tests um after conditional offer of employment same thing with alcohol um you can still prohibit use of alcohol and illegal drugs by all employees especially if we have safety sensitive positions and certainly Ada does not allow anybody to be underneath the influence of alcohol or drugs at the workplace uh um let's see Jessica I know I'm getting tight on time so let me I'm gonna scroll through and tell you what Let's uh move up to slide 52. remind our medical information anything that has a medical diagnoses needs to go in a separate confidential medical file um supervisors managers don't need access to that file um it needs to be under locking key um that's a requirement under the the ACT various acts but that would include anything that is reasonable accommodation medical certifications workers comp doctor's notes with diagnoses on it those sorts of things um let's also see um and we're going to make sure you get a copy of this PowerPoint in all fairness I feel like my the number of slides was a little um overzealous for me today um knowing that I I am a talker um similarly with Ada and fmli um your benefits we can't deny benefits to somebody that you know simply because they have a disability so I do want to cover before we start wrapping up Jessica let's um let's go to slide 67 please let's go to slide 67. looking at reasonable accommodations well Jessica's pulling that up um a reasonable accommodation is not going to again lower their performance standard it's simply modifying or providing adjustments that enable the individual with a disability to have the same benefits and privileges of employment um so again this is where your job description comes into play um you may also um a lot of companies will contract out and I'm not saying you should or have to um but when there are more difficult medical situations going on um you can actually contract a Workforce um environment analyst where they can look at you know the job in and of itself the current environment how small modifications can be made to help assist this individual with a disability perform the essential functions um a lot of times the doctors will provide in their documentation you know this person needs to rest or sit down or eat or they may require you know frequent breaks or time off from work or I mean I've had people change out light bulbs because that you know reduce their triggers to migraines and seizures and that sort of thing so a lot of times these accommodations are very easy to do while they may not be ideal um DOL again is very very um focused for lack of a better phrase on um employers who are denying reasonable accommodations and trying to utilize the undo hardship DOL stands right now is that look pretty much everything can be accommodated unless it's going to cost you twenty five thousand dollars and I'm just throwing out numbers here um it can be accommodated it may not be ideal um but the burden to prove an undue hardship they've really really raised the bar there okay um so you want to make sure that you're looking at and it is truly an inner interactive process um between you and the individual with the disability plus looking at the doctor certification and how we can meet in the middle um and accommodate again that does not lock you into saying we have to do exactly what the doctor said or what the employee is asking for it's got to be reasonable it's got to help us maintain performance standards but also meet the needs of the business as well uh uh let me also um let's go to slide 74 please Jessica thank you very much um employer actions that may constitute discrimination denying employment opportunities because somebody has a relationship with somebody that's disabled um and you think that may you know divert their time and attention away from the um the employment situation uh refusing flat out to make reasonable accommodations it's going to lead you in some hot water with State and fed um limiting employment or an applicant um that adversely impacts opportunities for them simply because they have a disability um using any sort of pre-employment test that um we created on our own um and this actually came about from a situation back in 2007 maybe it was 2008. um we're a one of the um local uh fire stations um up and I want to say it was in Connecticut and it was a big case um that the DOL win against them but anyways long story short the fire department did some sort of like ongoing test it was like a competency test um they gave it to all of their you know firefighters what have you they made this test up on their own it was like a written test they gave it to everybody you either passed you got to keep your job if you failed you were out um well what happened was is they didn't provide any sort of accommodations for people that may have had ADD ADHD um in any other you know intellectual disabilities um that would require them to have additional time or an interpreter or whatever it may have been um in addition I want to say that because the test was not statistically valid and reliable it inadvertently um targeted um or cold out individuals with um minority status as well so long story short they they got sued uh don't make up your own pre-employment or competency test use use a test that has been validated it's significant those sorts of things um so that we're not running into hot water with Ada there um let's go to um slide number 76. so practical tips for compliance review your job descriptions check your standards make sure that we have good accommodation procedures in place just like you will with FMLA you have to have an ADA policy in your handbook um which informs the individuals on how to request accommodations and kind of our steps and how we will handle that number two always focus on performance and conduct don't make assumptions don't lead employees to believe decisions are made based on their disability real or perceived focus on the facts um observable behaviors and more importantly in performance conversations the disability the conversation of the disability their limitations should never be brought up never never okay um make sure we have good documentation just with just like with FMLA the accommodation process should be documented uh certified letters everything goes mailed receipt um especially if we're doing an extended leave of absence on the back end of FMLA general rule of thumb is 60 days is pretty much Court standard 30 days is fine but I always try to encourage you 45 to 60 days is a little bit nicer and they're still also going to have a return to work piece as well you certainly want to make sure to train your managers um on more importantly refraining from discussing medical conditions unless they are absolutely relevant um making sure that they understand how they can reduce retaliation claims based on you know not engaging in negative or derogatory comments um documentation being solid making sure we have good um paperwork on actions and decisions and medical certifications there so I know I threw a lot at you in a very short amount of time um do I have questions do I have anything that I can address for you all at this point oh look at all these questions that came in I didn't even see that okay um Jessica I'm just gonna go ahead and read these if you're fine with that okay that works I try to be self-sufficient um if you have if you are a union contractor uh the employer is responsible for Health Care contributions during the leave for the union um yeah that's going to be based on potentially your collective bargaining agreement if that was part of the agreement um you may be required for that um but let's let's just talk generally speaking let's say that the CBA has not covered whether you have to pay it or not um remember that your carrier contract is also going to dictate your your employer responsibility for their premium I've never seen anything written into a health insurance contract where the employer was not responsible for um no less than 50 percent of the employee only portion um so yes you're going to want to maintain your your employer portion what happens is we typically pay the entire premium up front anyways the month before and then we recoup the employee portion via payroll deduction um so keep that up because what we don't want to do is violate the carrier contract either now there are situations where FMLA has exhausted somebody's out on Ada that benefit contract typically is also going to outline and let's just use Blue Cross Blue Shield for example um that Blue Cross Blue Shield contract is going to say look when somebody's out on a period of disability or medical leave they can remain active on the plan up to 120 days up to six months after which we need to issue Cobra so again this is a good reminder to review your contracts review your collective bargaining agreement and make sure that we fully understand what our responsibilities are as the employer so um Kelly thank you for that question slash comment um Petra can an employee be forced to use PTO before going out on fmli oh good question here's what I'm going to tell you I want you to run PTO concurrently with FMLA why because if you force them to use PTO up front and then enact FMLA they're going to be out 14 16 weeks your policy should include how you're going to handle paid leave with regard to FMLA I strongly strongly encourage you to run it concurrently together um certainly you don't have to but it's our recommendation um let's see I think that's all the questions that we have if there are any questions any additional questions feel free to use the chat feature there but again reminder you have unlimited telephone and email access to cesco so if you have follow-up questions feel free to reach out if you need any sort of templated forms also feel free to reach out I believe Jessica will be sending a copy of the PowerPoint of people as well so correct so with that we will go ahead and conclude thank you Jamie for your presentation thank you everyone for joining us today and as Jamie said we will get these slides to you and the recording of the presentation will be available at the end of the day today so with that thank you everyone again thank you Jamie and we look forward to joining us on our next webinar yes thank you everybody have a great day bye-bye