There are countless ways in which our municipal clients can create potential legal liability connected with the relationship between the City and its employees. Often, this involves a situation where the relationship has become contentious due to the employee’s poor performance and/or misconduct necessitating adverse employment action. In such cases, often involving termination of employment, the employer desires the separation of employment. In some cases, however, the employer is confronted with an employee who is absent from work and is experiencing hardships due to such absence. The question will often be presented to legal counsel as to when the employer can move on from the employment relationship so that they may hire a replacement. In such cases, depending on the reason for the absence, the ADA, FMLA and Workers Compensation laws can come into play.
This paper will discuss and provide an overview of each statute individually, and then will discuss some common ways in which the protections of the statutes can overlap and/or interplay with one another. When confronted with an issue, you should assess the applicability of each statute. Where one law affords greater protection than the other, you should counsel your client to comply with the law most favorable to the employee. As always, if you find yourself in a situation and are unsure of how to proceed, you should contact your liability carrier to seek advice. For OMAG cities, you may contact our legal department and speak with any one of our three full time attorneys – myself, General Counsel Stephen Reel and/or Associate General Counsel Suzie Paulson.
AMERICANS WITH DISABILITIES ACT (ADA), 42 U.S.C. 12101 ET SEQ.
As with any statute, the first question is whether the statute applies to your client. The ADA applies to employers with 15 or more employees for each working day in each of 20 or more calendar work weeks during the current or preceding year. 42 U.S.C. §12111(5)(A). The ADA prohibits discrimination based on disability in the hiring process and against current employees. The ADA protects three classes of individuals: 1) those with a physical or mental impairment that substantially limits one or more of the individual’s major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. §1630.2(g). The ADA Amendments Act of 2008 (ADAAA) substantially expanded the scope and coverage of the act in many respects. It expanded the definition of major life activity, it clarified that the term substantially limits is to be construed broadly in favor of coverage, it clarified that an impairment that is episodic or in remission is nevertheless a disability if it would substantially limit a major life activity when active, and it made clear that the effects of mitigating measures, other than ordinary eyeglasses or contact lenses, shall not be considered in assessing whether an individual suffers from a disability.
The first step under the ADA is to determine whether your employee is disabled – an actual physical or mental impairment that substantially limits a major life activity. What is the nature and severity of the impairment? What is the duration of the impairment? What will be the long-term impact or expected effect of the impairment on the individual? Which major life activity is the individual substantially limited?
The Act also applies to employees with a record of a disability. The record of disability can include records that were in your possession such as medical records, school records, employment records, or false test results. This can extend protection even if the individual was not actually disabled in fact at the time of the adverse action.
Finally, the Statute expanded coverage to employees the employer regards as disabled. This extends coverage to employees who are not actually disabled, but whom the employer believes and the employee is treated as though they are disabled. It can apply to employees whose major life activities are substantially limited because of the attitude of others (e.g. HIV where the employee is limited only by the irrational fears of co-workers).
As to job applicants, the first question essentially amounts to – what do I need to know. Under the ADA and HIPAA, an employer’s right to inquire about an applicant’s medical history is severely limited. Under the ADA, pre-employment questions about disabilities, illnesses, and past injuries are generally not allowed because they have the potential to reveal information concerning the existence, nature, or severity of an applicant’s disability. 42 U.S.C. §12112(d). Permissible questions include whether an applicant can perform the essential functions of the job, with or without a reasonable accommodation. Id. After a conditional offer of employment is made, you may acquire necessary information to assess what accommodations can be made. The inquiry should be limited to job related questions. Further, you may send the employee for a medical examination but only if all employees in the same job category are subject to the same examination. All information obtained through inquires and medical examinations should be kept segregated from the normal personnel file and kept confidential.
If the employee is not actually disabled, has no record of disability and is not regarded as disabled by the employer, then the ADA will not apply. If the employee is disabled, has a record of disability or is regarded as disabled, then the Act provides that the employee may be entitled to an accommodation. Only a “qualified individual” with a disability is entitled to a reasonable accommodation. A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. §12111(8). Consideration is given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. If the individually cannot perform the essential job functions even with an accommodation, then they are not entitled to the protections of the ADA.
If the employee is a qualified individual, then they are entitled to a “reasonable” accommodation. A reasonable accommodation may include making existing facilities used by employees readily accessible to and usable by individuals with disabilities. It may also include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. §12111(9). An employer is not required to provide the accommodation if it would impose an undue hardship on the employer, which means an action requiring significant difficulty or expense, when considered in light of the following factors:
• The nature and cost of the accommodation needed;
• the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
• the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
• the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
29 U.S.C. §12111(10). An initial assessment should include a determination of whether the employee would pose a direct threat to his own safety or to the safety of others. See §12113(a) and (b). If they would pose a direct threat, then they likely have no right to an accommodation. If no direct threat is posed, the inquiry should turn to whether the employee can perform the essential job functions of the position in question without an accommodation. If there are certain job functions that cannot be performed without an accommodation, you should inquire whether the employee could perform the essential functions with a reasonable accommodation such as changing the physical work environment, restructuring the job, modifying the work schedule, adopting more flexible leave policies and the like. If none of these types of changes would accommodation the disability then there may be no reasonable accommodation to be had. If adopting one or more of these types of changes would allow the employee to perform the essential job functions in question, then further dialogue about the effectiveness of such an accommodation should be had.
Some common triggers for possible ADA application include (1) an applicant requesting an adjustment to the application or interview process due to a medical condition; (2) an employee requesting an adjustment to job duties due to a medical condition; or (3) an employee advising that recent poor performance is due to a medical condition.
For employees who are ill and who exhaust paid sick leave and all other paid leave, the ADA requires that a period of unpaid leave be granted as a reasonable accommodation provided it does not constitute an undue hardship. Whether unpaid leave is unreasonable and an undue hardship is a fact specific inquiry. For example, if the employer allows employees to accrue up to 6 months of sick leave, and an employee requires 6 months and 1 week of leave to be able to return to work, then it would be very difficult for an employer to argue that the one additional week of unpaid leave was unreasonable in light of the fact that the employer’s own policy contemplates that every employee could accrue, and thereby be able to use, 6 months worth of sick leave.
Does an employee have to have a definite return to work date in order to qualify for a period of unpaid leave as a reasonable accommodation? The answer to that question would depend on whether the employer is able to show that the lack of a fixed return date causes an undue hardship, then it can deny the leave. In certain circumstances, undue hardship will derive from the disruption to the operations of the entity that occurs because the employer can neither plan for the employee's return nor permanently fill the position. If an employee cannot provide a fixed date of return, and an employer determines that it can grant such leave at that time without causing undue hardship, the employer has the right to require, as part of the interactive process, that the employee provide periodic updates on his/her condition and possible date of return. After receiving these updates, employers may reevaluate whether continued leave constitutes an undue hardship.
In certain situations, an employee may be able to provide only an approximate date of return. Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return. In such situations, or in situations in which a return date must be postponed because of unforeseen medical developments, employees should stay in regular communication with their employers to inform them of their progress and discuss, if necessary, the need for continued leave beyond what might have been granted originally.
FAMILY MEDICAL LEAVE ACT (FMLA), 29 U.S.C. §2601 ET SEQ.
As an initial matter, it’s important to note a contradiction within the FMLA which is relevant to your municipal client(s). The FMLA applies to your municipal client, no matter how large or small that client is. §2601(4) defines the term employer and, in the private employment context, limits the application of the Act to employers who employ 50 or more employees. §2601(4)(A)(iii) applies the Act to all public agencies as the term is defined in the Fair Labor Standards Act (FLSA) at 29 U.S.C. §203(x), which defines the term as including “the government of a State or political subdivision thereof.” (Emphasis added). Simply put, the FMLA applies to all municipalities. The catch, however, is that he FMLA’s benefits and protections only extend to “eligible” employees. That term limits the application of the Act to employees who:
• Have been employed for at least 12 months prior to the request for leave; §2601(2)(A)(i)
• Have worked at least 1,250 hours during the 12 months immediately preceding the request for leave; §2601(2)(A)(ii)
• Work at a worksite where the employer has at least 50 employees working within 575 miles of that worksite. §2601(2)(B)(ii)
Simply put, the FMLA applies to your client, but it may not apply to their employees. For this reason, your municipal client must adopt an FMLA policy and post required notices via an FMLA poster. See 29 C.F.R. §825.300. Such policy can expressly advise that it will not extend benefits except to eligible employees as defined under the Act. If your client does not employ 50 employees, then none of its employees will be eligible for benefits. Moreover, when an event giving rise to FMLA benefits arises, as discussed below, it is recommended that you client advise its employee, via Form WH-381 (Notice of Eligibility and Rights & Responsibilities), that the employee is not eligible for FMLA leave due to the fact that they do not work at a site with 50 or more employees within a 75 mile radius.
When should your municipality consider sending the required notices to the employee? Some common triggers include:
• Employee calls in sick for 3 or more consecutive shifts;
• Employee advises that he/she must miss work due to intermittent doctor’s appointments for a chronic condition;
• Employee advises that he needs leave to care for his/her spouse, parent, or child (typically under 18) due to a serious health condition;
• Employee becomes pregnant or expects a newborn child (not intermittent leave unless agreed to by employer and employee – 29 U.S.C. §2612(b)(1)); or
• Employee adopts a child or accepts a foster child (not intermittent leave unless agreed to by employer and employee – 29 U.S.C. §2612(b)(1)).
The FMLA grants eligible employees up to twelve (12) weeks of unpaid leave during a 12 month period to care for a newborn or newly placed adopted/foster child, or for the serious health condition of the employee’s child, parent or spouse, or for the serious health condition of the employee. 29 U.S.C. §2612(a)(1). The FMLA was recently amended to extend protections to military families. Eligible employees can receive up to 12 weeks of unpaid leave for any “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the armed forces in support of a contingency operation. 29 U.S.C. §2612. Finally, the FMLA extends 26 weeks of unpaid leave to an employee to provide care to a son, daughter, spouse, parent, or some other next of kin who is a member of the armed forces wounded in the line of duty.
While the FMLA only guarantees an employee a period of protected unpaid leave, this does not mean that the employer cannot require that an employee utilize accrued compensated absences currently with FMLA unpaid leave. 29 C.F.R. §825.207. This requirement must, however, be established in the employer’s leave policy, and should detail the priority in which leave is taken (e.g. what order leave is used as between sick, vacation, holiday, personal leave, etc.).
Finally, the FMLA requires that the employer return an employee to the same or an equivalent job when they return from FMLA leave. There are exceptions to this rule: 1) the employee unequivocally states an intention not to return to work; 2) the employer hired the employee for a limited term project that has ended; 3) the employer eliminated the employee’s job as part of a layoff or reduction in force; or 4) the employee originally obtained leave fraudulently. Unless one of these has occurred, an employer must generally return an employee to the same or an equivalent job if the employee is able to perform the job without accommodation.
WORKERS’ COMPENSATION, 85A O.S. §1 ET SEQ.
The Workers Compensation statutes contain an alphabet soup of acronyms relevant to this discussion. All terms discussed are defined at 85A O.S. §2:
The purpose of this discussion is to address the needs of an employee who is limited in his or her ability to work or has a period that they cannot work. An employee who is designated as PTD cannot work at all, and their condition is permanent. There is nothing that can be done employment wise for such an employee. When an employee reaches PPD, they have been found to be permanently disabled, but only partially. In such case, the employee is no longer under the protections of the workers compensation statutes, but may have protections under the ADA (see below). The remaining discussion in this section will be limited to employees who are temporarily disabled, totally or partially.
An employee who is TTD is, by definition, unable to perform any work. During a period of TTD, the employee may not be terminated “for the sole reason of being absent from work or for the purpose of avoiding payment of temporary total disability benefits to the injured employee.” §7(E). This period during which you may not terminate the employee extends throughout the period of temporary total disability.
An employee who is TPD can perform some work, they just cannot perform the functions of their position. The workers compensation statutes, at §45(B)(1), grants the employer the right, but not the obligation, to offer alternative work to the employee. This offer is sometimes called a light or transitional duty assignment. The assignment must be consistent with the medical restrictions imposed on the employee. The employee’s compensation at that point is determined by comparing the compensation received under the alternative work assignment to the TTD benefits. See formula at §45(B)(1). If the employee refuses the assignment, they forfeit their entitlement to any TTD benefits. §45(B)(3).
Finally, the workers compensation statutes protect an employee who, in good faith, 1) files a claim, 2) retains a lawyer to represent them regarding claim, 3) institutes or causes to be instituted any proceeding under Title 85A, or 4) testifies in any proceeding under Title 85A. §7(A). This retaliatory discharge protection has existed for decades and, prior to 2015, a claim could be filed in District Court for retaliatory discharge. With the 2015 amendments, claims of retaliatory discharge under §7(A) fall within the exclusive jurisdiction of the workers compensation commission (not the District Courts). See §7(B). This legislative act of grating exclusive jurisdiction to the Commission was; upheld as a valid exercise of police powers to abolish certain claims and substitute others in Ellsworth Construction Co. v. Inhofe, Oklahoma Supreme Court Case No. PR-113217 (decided 12/9/2014 on a 6-3 vote).
INTERPLAY BETWEEN THE STATUTES
Where do the statutes overlap? Here are a few examples:
FMLA and Work Comp: FMLA is not limited to off duty injuries and applies to periods of absence that qualify under the workers compensation statutes. 29 C.F.R. §825.207(E). As such, the employer can designate the period of TTD as counting towards the 12 weeks of protected leave under the FMLA. I say “can” because, as discussed above, a failure to timely designate FMLA leave merely provides additional protections to an employee above and beyond what is required by the law. That said, while the employee is receiving TTD benefits, you may not require that they also exhaust paid leave as part of your FMLA policy’s substitution provision. Id. The right to substitute paid leave during a period of FMLA leave only applies when the employee is unpaid. Since the employee is receiving compensation by way of TTD benefits, you may not require substitution. That said, if the employee loses their entitlement to TTD benefits (e.g. through refusing an alternative work assignment), such a loss does not affect their entitlement to FMLA leave but it would have the effect of triggering the employers substitution of paid leave provision. Id. See also 29 C.F.R. §§ 825.210(f), 825.216(d), 825.220(d), 825.307(a) and 825.702(d)(1) and (2) regarding the relationship between workers' compensation absences and FMLA leave.
ADA and Work Comp: at the point that an employee who was injured on the job reaches MMI, the ADA may come into play unless the employee is PTD. If the employee is PPD (i.e. cannot return to their job, but can work another job) or is released with restrictions that may implicate the essential job functions of their job, the ADA may extend protections to the employee. If a reasonable accommodation is available that allows the employee to perform the essential functions of his/her job after reaching MMI without imposing an undue hardship, then it should be granted. If no accommodation can be granted, but the employee is still able to work, then the next step in the interactive ADA process is to review all open employment positions currently available at the municipality. Reassignment to a vacant position is listed as a statutory example of a reasonable accommodation if the employee is qualified for the position. The employee must meet the minimum requirements for said position, and must be able to perform the essential functions of the new position with or without accommodation. But if such a position exists which the employee is both qualified for and able to perform the essential job functions, then the employee has the right to that position. Priority for vacancies starts with equivalent positions to the previously held position and, if none are available, then the employer may look to lower level positions. The employer is not required to pay the employee at their old rate of pay if they are reassigned to a new, lower position. Reassignment does not include giving an employee a promotion. Thus, an employee must compete for any vacant position that would constitute a promotion.
An employer is not required to create a new position or bump and employee out of a current position as an accommodation. See 29 C.F.R. §1630.2(o); see also White v. York Int'l Corp., 45 F.3d 357, 362, (10th Cir. 1995). That said, the issue sometimes arises as to whether a “vacant” position actually exists. Even if a vacant position does not currently exist, “vacant” has been held to mean not only that the position is available when the employee asks for reasonable accommodation, but also where the employer knows that it will become available within a reasonable amount of time. A "reasonable amount of time" should be determined on a case-by-case basis considering relevant facts, such as whether the employer, based on experience, can anticipate that an appropriate position will become vacant within a short period of time. A position is considered vacant even if an employer has posted a notice or announcement seeking applications for that position.
Before considering reassignment as a reasonable accommodation, you should first consider those accommodations that would enable an employee to remain in his/her current position. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.29 C.F.R. §1630.2(o) However, if both the employer and the employee voluntarily agree that transfer is preferable to remaining in the current position with some form of reasonable accommodation, then the employer may transfer the employee.