Your business likely functions more effectively when your employees are at work doing the work you hired them to perform? What are your rights (and obligations) as an employer when an employee is unable to work due to an illness or injury? Does the Family and Medical Leave Act apply? Do you operate in a jurisdiction that has recently enacted a sick leave law? What happens when an employee requests a reasonable accommodation because of a disability? These types of questions have been confounding employers for years and are likely to grow more complicated as state and local governments step in to fill the voids left at the federal level. Do not despair, though, as this webinar includes discussions of the mistakes commonly made by employers as well as a series of tips and pointers from a panel of experts who will help you navigate these and other thorny issues involving employees who are unable to work for health-related reasons. To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/managing-leaves-of-absence-and-accommodating-disabilities-2020/

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5. Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial or other professional advice. You should consult with an attorney or other
appropriate professional to determine what may be best for your individual needs. While
Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate,
Financial Poise™ makes no guaranty in this regard.
5

6. Meet the Faculty
MODERATOR:
Charles Krugel - Law Offices of Charles Krugel
PANELISTS:
Helen Bloch - Law Offices of Helen Bloch, P.C.
Max Barack - Partner, Garfinkel Law Group
Gary Savine - Savine Employment Law, Ltd.
6

7. About This Webinar - Time for a Break: Managing
Leaves of Absence and Accommodating Disabilities
Your business likely functions more effectively when your employees are at work doing the
work you hired them to perform? What are your rights (and obligations) as an employer when
an employee is unable to work due to an illness or injury? Does the Family and Medical
Leave Act apply? Do you operate in a jurisdiction that has recently enacted a sick leave law?
What happens when an employee requests a reasonable accommodation because of a
disability? These types of questions have been confounding employers for years and are
likely to grow more complicated as state and local governments step in to fill the voids left at
the federal level. Do not despair, though, as this webinar includes discussions of the mistakes
commonly made by employers as well as a series of tips and pointers from a panel of experts
who will help you navigate these and other thorny issues involving employees who are unable
to work for health-related reasons.
7

8. About This Series- Protecting Your Employee Assets:
The Life Cycle of the Employment Relationship 2020
If you have employees or advise companies with employees, this webinar series is for you!
No employer—whether large, medium or small—is immune from the reach of federal, state
and/or local employment laws and regulations. Now, more than ever, employers should
consider taking a proactive approach to auditing their employment practices and policies so
that they can better respond when issues arise. This webinar series approaches the
employer-employee relationship from beginning to end, with programs covering the most
important steps along the way, including hiring and onboarding, policy and procedure
development and training, wage and hour compliance, accommodating disabled employees,
conducting investigations and considerations associated with ending the relationship.
Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and
executives without much background in these areas, yet is of primary value to attorneys, accountants, and other
seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to
entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that
participants will enhance their knowledge of this area whether they attend one, some, or all episodes.
8

9. Episodes in this Series
#1: Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants
Premiere date: 1/28/20
#2: An Ounce of Prevention: Policies, Procedures and Proactivity
Premiere date: 2/25/20
#3: Show Them the Money: Wage & Hour Compliance
Premiere date: 3/24/20
#4: The Impact of Communicable Diseases, Including Coronavirus, on the Workplace
Premiere date: 4/28/20
#5: I Know What You Did Last Summer: Workplace Investigations
Premiere date: 5/19/20
#6: It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees
Premiere date: 6/16/20
#7: Time for a Break: Managing Leaves of Absence and Accommodating Disabilities
Premiere date: 7/30/20
9

10. Episode #7
Time for a Break: Managing Leaves of Absence and
Accommodating Disabilities
10

11. FMLA – Family Medical Leave Act
• FMLA – Family Medical Leave Act (FMLA)
• Provides leave to employees for a ―serious health condition‖ of an employee or certain
family members
• Includes birth, adoption, and foster care placement of employee’s child or ward
• Certain military-related leave
11

12. FMLA Covered Employers
§ 825.104
• Private sector employers with 50 or more employees
12

13. Employee Eligibility
§825.110
• Works for a covered employer
• Worked at least 12 months for that employer
• Have at least 1,250 hours of service during the 12 months before leave begins
• Employed at a worksite with 50 employees within 75 miles of worksite
13

14. Qualifying Leave Reasons: §825.112
• Eligible employees may take FMLA leave:
 For the birth or placement of a child for adoption or foster care
 To care for a spouse, son, daughter or parent with a serious health condition
 For their own serious health condition
• Military Family Leave:
 Because of a qualifying reason arising out of the covered active duty status of a military
member who is the employee’s spouse, son, daughter or parent (qualifying exigency
leave)
 To care for a covered service member with a serious injury or illness when the employee
is the spouse, son, daughter, parent or next of kin of the covered service member
(military caregiver leave)
14

15. Qualifying Family Members: §825.102
• Parent - A biological, adoptive, step or foster father or mother, or someone who stood in
loco parentis to the employee when the employee was a son or daughter. Doesn’t include
in-laws.
• Spouse - A husband or wife as defined by state law, including common law marriage, if
recognized. The federal Defense of Marriage Act definitions of ―marriage‖ and ―spouse‖
apply to the FMLA and therefore FMLA leave for a spouse may only be taken to care for a
spouse of the opposite sex.
• Son or Daughter - For leave other than military family leave, a biological, adopted or
foster child, a stepchild, a legal ward or a child of a person standing in loco parentis who is
either under 18 years of age or 18 or older and incapable of self-care because of a mental
or physical disability.
15

16. Qualifying Leave Reasons: For the Birth or
Placement of a Child
§825.120-121
• Both the mother and father are entitled to FMLA leave for the birth or placement of the
child and/or to be with the healthy child after the birth or placement (bonding time)
• Employees may take FMLA leave before the actual birth, placement or adoption
• Leave must be completed by the end of the 12-month period beginning on the date of the
birth or placement
16

17. Qualifying Leave Reasons: Serious Health Condition
§825.113
• Illness, injury, impairment or physical or mental condition involving:
 Inpatient care, or
 Continuing treatment by a health care provider
17

18. Serious Health Condition – Inpatient Care
§825.114
• An overnight stay in a hospital, hospice or residential medical facility
• Includes any related incapacity or subsequent treatment
18

19. Serious Health Condition – Continuing Treatment
§825.115
• Continuing treatment by a healthcare provider:
 Incapacity plus treatment
 Pregnancy
 Chronic conditions
 Permanent/long-term conditions
 Absence to receive multiple treatments
19

20. Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Incapacity Plus Treatment
 Incapacity of more than three consecutive, full calendar days, that involves either:
o Treatment two times by HCP (first in-person visit within seven days, both visits
within 30 days of first day of incapacity)
o Treatment one time by HCP (in-person visit within seven days of first day of
incapacity), followed by a regimen of continuing treatment (e.g., prescription
medication)
20

21. Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Pregnancy
 Incapacity due to pregnancy or prenatal care
21

22. Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Chronic Conditions
 Any period of incapacity or treatment due to a chronic serious health condition, which
is defined as a condition that:
o requires periodic visits (twice per year) to a health care provider for treatment
o continues over an extended period of time
o may cause episodic rather than continuing periods of incapacity
22

23. Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Permanent/Long-Term Conditions
 A period of incapacity which is permanent or long-term due to a condition for which
treatment may not be effective
23

24. Continuing Treatment by a Health Care Provider (HCP)
§825.115
• Absence to Receive Multiple Treatments
 For restorative surgery after an accident or other injury, or
 For conditions that, if left untreated, would likely result in incapacity of more than three
consecutive, full calendar days
24

25. Serious Health Condition: Practical Pointers
• The following ordinarily are NOT Serious Health Conditions:
 Routine physical, eye or dental examinations
 Common cold, flu, ear aches, upset stomach, minor ulcers
 Headaches (other than migraines)
 Routine dental or orthodontia problems or periodontal disease
 Conditions in which treatment is limited to either:
1) taking OTC medications such as aspirin, antihistamines, salves; or
2) bed-rest, drinking fluids, or exercise
o cosmetic treatments (unless in-patient care is required)
25

26. Amount of Leave
§825.205 & §825.802
• Employee’s workweek is basis for entitlement
• Eligible employees may take up to 12 workweeks* of FMLA leave:
 for the birth or placement of a child for adoption or foster care;
 to care for a spouse, son, daughter, or parent with a serious health condition; and
 for the employee’s own serious health condition.
26

27. Amount of Leave: Intermittent Leave §825.202
• Employee is entitled to take intermittent or reduced schedule leave for:
 Employee’s or qualifying family member’s serious health condition when the leave is
medically necessary
 Covered service member’s serious injury or illness when the leave is medically
necessary
 A qualifying exigency arising out of a military member’s covered active duty status
• Leave to bond with a child after the birth or placement must be taken as a continuous block
of leave unless the employer agrees to allow intermittent or reduced schedule leave
27

28. Amount of Leave: Intermittent Leave §825.202
• In calculating the amount of leave, employer must use the shortest increment the employer
uses to account for other types of leave, provided it is not greater than one hour*
• Shortest increment may vary during different times of day or shift
• Required overtime not worked may count against an employee’s FMLA entitlement
* Special rules apply for calculating leave for airline flight crew employees
28

29. 12 Month Period
§825.200
• Method determined by employer
 Calendar year
 Any fixed 12-month leave year
 A 12-month period measured forward
 A rolling 12-month period measured backward
29

30. Substitution of Paid Leave
§825.207
• ―Substitution‖ means paid leave provided by the employer runs concurrently with unpaid
FMLA leave and normal terms and conditions of paid leave policy apply
• Employees may choose, or employers may require, the substitution of accrued paid leave
for unpaid FMLA leave
• Employee remains entitled to unpaid FMLA if procedural requirements for employer’s paid
leave are not met
30

31. Substitution of Paid Leave – Limitations §825.207
• Workers’ compensation leave
 may count against FMLA entitlement
 ―topping off‖ allowed if state law permits
• Disability leave
 may count against FMLA entitlement
 ―topping off‖ allowed if state law permits
• Compensatory time off (public sector only)
 may count against FMLA entitlement
 subject to FLSA requirements
31

32. Employer Responsibilities
• Provide notice
• Maintain group health insurance
• Restore the employee to same or equivalent job and benefits
• Maintain records
32

33. Employer Responsibilities: General Notice, §825.300
• Employers must inform employees of FMLA:
 Post a General Notice, and
 Provide General Notice in employee handbook or, if no handbook, distribute to new
employees upon hire
• Electronic posting and distribution permitted
• Languages other than English required where significant portion of workforce not literate in
English
• $110 civil monetary penalty (CMP) for willful posting violation
33

34. Employer Responsibilities: Notice of Eligibility, §825.300
• Within five business days of leave request (or knowledge that leave may be FMLA-
qualifying)
• Eligibility determined on first instance of leave for qualifying reason in applicable 12-month
leave year
• New notice for subsequent qualifying reason if eligibility status changes
• Engage in ―interactive discussion‖ with employee
• Provide a reason if employee is not eligible
• May be oral or in writing (optional WH-381)
34

35. Employer Responsibilities: Provide Notice of Rights
and Responsibilities
§825.300
• Provided when eligibility notice required
• Must be in writing (optional WH-381)
• Notice must include:
 Statement that leave may be counted as FMLA
 Applicable 12-month period for entitlement
 Certification requirements
 Substitution requirements
 Arrangements for premium payments (and potential employee liability)
 Status as ―key‖ employee
 Job restoration and maintenance of benefits rights
35

36. Employer Responsibilities: Provide Notice of Designation
§825.300
• Within five business days of having enough information to determine leave is FMLA-
qualifying
• Once for each FMLA-qualifying reason per applicable 12-month period (additional notice if
any changes in notice information)
• Include designation determination; substitution of paid leave; fitness for duty requirements
• Must be in writing (optional WH-382)
• If leave is determined not to be FMLA-qualifying, notice may be a simple written statement
36

37. Employer Responsibilities: Provide Notice of Designation
§825.300-.301
• Employer must notify employee of the amount of leave counted against entitlement, if
known; may be payroll notation
• If amount of leave is unknown (e.g., unforeseeable leave), employer must inform employee
of amount of leave designated upon request (no more often than 30 days)
• Retroactive designation permitted provided that failure to timely designate does not cause
harm to employee
37

38. Employer Responsibilities: Maintain Group Health
Plan Benefits
§825.209
• Group health plan benefits must be maintained throughout the leave period
• Same terms and conditions as if employee were continuously employed
38

39. Employer Responsibilities: Maintain Group Health
Plan Benefits
§825.210-.213
• Employee must pay their share of the premium
• Even if employee chooses not to retain coverage during leave, employer obligated to
restore same coverage upon reinstatement
• In some circumstances, employee may be required to repay the employer’s share of the
premium if the employee does not return to work after leave
39

40. Employer Responsibilities: Job Restoration
§825.214-.219
• Same or equivalent job
 equivalent pay
 equivalent benefits
 equivalent terms and conditions
• Employee has no greater right to reinstatement than had the employee continued to work
• Bonuses predicated on specified goal may be denied if goal not met
• Key employee exception
40

41. Prohibited Employment Actions
§825.220
• Employers cannot:
 interfere with, restrain or deny employees’ FMLA rights
 discriminate or retaliate against an employee for having exercised FMLA rights
 discharge or in any other way discriminate against an employee because of involvement
in any proceeding related to FMLA
 use the taking of FMLA leave as a negative factor in employment actions
41

42. Employee Responsibilities
• Provide sufficient and timely notice of the need for leave
• Engage with employer in ―interactive discussion‖
• If requested by the employer:
 Provide certification to support the need for leave
 Provide periodic status reports
 Provide fitness-for-duty certification
42

43. Employee Responsibilities: Notice Requirements
§825.302-.303
• Provide sufficient information to make employer aware of need for FMLA-qualifying leave
• Specifically reference the qualifying reason or the need for FMLA leave for subsequent
requests for same reason
• Consult with employer regarding scheduling of planned medical treatment
• Comply with employer’s usual and customary procedural requirements for requesting leave
absent unusual circumstances
43

44. Employee Responsibilities: Notice Requirements
• Timing of employee notice of need for leave:
 Foreseeable leave - 30 days notice, or as soon as practicable (§825.302)
 Unforeseeable leave - as soon as practicable (§825.303)
44

45. What Notice is Required from an Employee?
• Request for leave from an employee may be given:
 In writing;
 Verbally;
 In person;
 By telephone;
 By fax machine;
 After the employee returns to work, but within two (2) business days of their return; or
 By the employee’s spokesperson.
45

46. Does an Employee Have to Use “The Magic FMLA Words?”
• NO – Employees do NOT have to specifically mention or request leave under the
FMLA
 Employees must provide a clear reason for taking leave
 If asked, an employee must provide details of his or her condition or that of his or her
child, spouse, or parent
 Employees do not need to provide a ―diagnosis‖ for a serious health condition
46

47. Employee Responsibilities: Provide Certification
§825.305
• Medical Certification for serious health condition (optional WH-380-E and 380-F)
 Submit within 15 calendar days
 Employer must identify any deficiency in writing and provide seven days to cure
 Annual certification may be required
 Employee responsible for any cost
47

48. Employee Responsibilities: Provide Certification
• Employer (not employee’s direct supervisor) may contact health care provider to:
 Authenticate: Verify that the information was completed and/or authorized by the
health care provider; no additional information may be requested
 Clarify: Understand handwriting or meaning of a response; no additional information
may be requested beyond what is required by the certification form
• Second and third opinions (at employer’s cost)
 If employer questions the validity of the complete certification, the employer may
require a second opinion
 If the first and second opinions differ, employer may require a third opinion that is final
and binding
48

49. Employee Responsibilities: Provide Certification
• Recertification
 No more often than every 30 days and with an absence
o If the minimum duration on the certification is greater than 30 days, the employer
must wait until the minimum duration expires
o In all cases, may request every six months with an absence
 More frequently than every 30 days if:
o the employee requests an extension of leave, or
o circumstances of the certification change significantly, or
o employer receives information that casts doubt on the reason for leave
• Consequences of failing to provide certification
 Employer may deny FMLA until certification is received
49

50. Employee Responsibilities: Provide Periodic Status Reports
§825.311
• Employee must respond to employer’s request for information about status and intent to
return to work
50

51. Employee Responsibilities: Fitness for Duty
Certification, §825.312
• For an employee’s own serious health condition, employers may require certification that
the employee is able to resume work
 Employer must have a uniformly-applied policy or practice of requiring fitness-for-duty
certification for all similarly-situated employees
• If state or local law or collective bargaining agreement is in place, it governs the return to
work
• Not permitted for intermittent or reduced schedule leave unless reasonable safety concerns
exist
• Authentication and clarification
• Employee responsible for any cost
51

52. Other Issues
• Salaried employees:
 Deductions from certain ―exempt‖ employees’ salaries
 Deductions for employees paid overtime on a fluctuating workweek method
§825.311
52

53. ADA vs. FMLA
• When FMLA leave is exhausted, the employer must go into ADA
―accommodation‖ mode
• FMLA ―serious health condition‖ can also qualify as an ADA ―disability‖
• Must consider further leave after FMLA leave
• No specific time limit on ADA leave, but cannot be indefinite and the employee must
demonstrate expected duration when requesting leave
• Light duty work
• Increased litigation concern/threat
• ADA explicitly requires ―interactive discussion‖ 29 C.F.R. § 1630.2(o)(3)
53

54. Medical Certifications
• ADA and FMLA allow limited medical inquires by employer
• ADA inquiries must be job related and necessary for business
 Can ask for documentation of existence of disability if leave is requested as
accommodation
• FMLA allows you to require medical certification of need for leave related only to condition
54

55. Pregnancy and ADA
• Normal Pregnancy not considered a disability
• High-risk complications that substantially limit a major life activity may be considered a
disability
55

56. Pregnancy and FMLA
• Definition of ―continuous treatment‖ includes incapacity due to pregnancy or prenatal care
• If a woman needs to stop work early due to complications this will count towards the 16
week leave total
• ―Baby bonding time‖ is also covered for 12 weeks
• Paternity leave covered for same 12 week limitation
• Same health insurance coverage as when working
56

57. Effective Strategies Going Forward
• Communicate with employee and monitor leave
• Require medical certifications for health related leaves to
determine eligibility for FMLA, ADA or both
• When FMLA leave is up determine if employee is eligible for further ADA leave
• Ensure reinstatement policy allows return to same job, not just equivalent, if employee is
covered by both FMLA and ADA
• Engage employee in interactive discussion & document
57

58. About the Faculty
58

59. About The Faculty
Charles Krugel - cak1@charlesakrugel.com
As a management side labor & employment attorney & human resources (HR) counselor,
Charles Krugel, www.charlesakrugel.com, has 24 years of experience in the field & has been
running his own practice for 18 years. His clients are small to medium sized companies in a
variety of industries. Charles has been lead negotiator for hundreds of labor & employment
agreements & contracts. Additionally, he’s litigated dozens of court cases, administrative
proceedings & arbitrations. In addition to providing traditional labor & employment law
services, he represents companies desiring to institute preventive & proactive HR functions.
These functions include policies & procedures, which help to efficiently & discreetly resolve
issues in-house & prevent lawsuits & complaints; they also help to reduce costs & act as
catalysts for increasing productivity & profits. Moreover, he’s frequently the subject labor &
employment law related TV, radio & print interviews.
59

60. About The Faculty
Gary Savine - gnoah@savinelaw.com
Gary Noah Savine is an employment lawyer and the founder of Chicago-based law firm
Savine Employment Law, Ltd. Gary brings to the table over twenty years of legal expertise
and hands-on experience, working around the globe, shoulder-to-shoulder with senior
executives and human resource professionals solving the thorniest of workplace disputes.
Before starting his firm, Gary practiced employment law exclusively at two of Chicago’s
largest law firms and served as chief employment counsel at Navistar (NYSE: NAV) and Hill-
Rom Holdings (NYSE: HRC). Gary frequently speaks and writes about employment law
issues. He has written and presented before the American Bar Association, the National
Employment Lawyers Association, the Northern Illinois Society for Human Resources
Management, the Northern Illinois Franchise Association and the American Conference
Institute. Gary received his law degree cum laude from the University of Michigan Law School
in 1996. More information about Gary’s firm can be found at www.savinelaw.com.
60

61. About The Faculty
Helen Bloch - hbloch@blochpc.com
In 2007, Helen Bloch founded the Law Offices of Helen Bloch, P.C., a general practice firm that is a
Certified Female Business Enterprise. In the employment & business context, Helen represents clients on
all sides of the employment relationship- individual employees, managers, or employers. Routinely Helen
negotiates & counsels clients on employment agreements, including non-competition, confidentiality, &
severance agreements. Also, she drafts employment handbooks & various policies & procedures. Helen
will advise businesses on best practices, including providing sexual harassment training. Helen has
lectured on topics such as gender role in the law, legal issues affecting small businesses, & legal rights &
obligations from multiple sides of the employer-employee relationship. For the past two years she has
been selected for inclusion in Super Lawyers in the area of employment law. Helen is President of the
Decalogue Society of Lawyers & serves on the Alliance of Bar Associations, where she assists in
screening judicial candidates. Her other bar association memberships include the Illinois chapter of the
National Employment Lawyers Association, Women’s Bar Association of Illinois, & the Illinois State Bar
Association. An active National Association of Women Business Owner’s (NAWBO) member, Helen
leads NAWBO’s Lincoln Park Business Exchange Group.
61

62. About The Faculty
Max Barack - maxbarack@gmail.com
Max leads the Garfinkel Group, LLC's employment law practices groups and is a plaintiff-side
employment law attorney. He has been practicing law since 2013 and has spent the majority of that time
handling plaintiff-side employment matters. He concentrates his practice primarily on representing
plaintiffs in their claims of discrimination, as well as wage & hour violations, whistleblower actions, &
severance negotiations. He has extensive litigation experience, with a focus on electronic discovery
(ESI). He has represented & assisted employers in defending discrimination & wage & hour disputes,
including in department of labor investigations. He is a member of the Board of Directors of the National
Employment Lawyers Association of Illinois & co-chair of its Legislative Committee. He is a regular
contributor to the Chicago Bar Association's @theBar blog, & is fluent in Spanish.
Max Barack
Attorney at Law
J.D., Chicago-Kent College of Law
B.A., University of Michigan
62

63. Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, or if you are watching this webinar On Demand, please do not hesitate to email us
at info@financialpoise.com with any questions or comments you may have. Please include
the name of the webinar in your email and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes
only. It has been prepared primarily for attorneys and accountants for use in the pursuit of
their continuing legal education and continuing professional education.
63

64. About Financial Poise
64
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