On Wednesday, May 24, 2023 Kegler Brown presented its annual Managing Labor + Employee Seminar. The in-person and virtual seminar focused on timely information regarding labor and employee relations, and allowed attendees to earn CLE and SHRM credit hours.

2. Presented by
Danielle Crane
NAVIGATING
the Intersection of the FMLA,
ADA, Workers’ Compensation
+ Other Leave Laws

3. Why Now?

4. Federal
FMLA, ADA, Rehabilitation
Act, USERRA
State
Mini-FMLA, Parental
Leave, Paid Sick Leave
Workers’
Comp

5. Hypothetical Scenario:
Daniel Delivery Driver

6. Workers’
Comp

7. Workers’ Comp
Source of benefits for a work-
related injury
Not truly “leave”
Could qualify the employee for
other forms of leave

8. Light Duty
Employers can offer light duty, if
consistent with employee’s
restrictions
If employee refuses, Temporary
Total Disability (TTD) may be
reduced or denied
Employers cannot require light
duty work in lieu of FMLA leave

9. Hypothetical Scenario:
Daniel Delivery Driver

10. Federal
FMLA, ADA, Rehabilitation
Act, USERRA

11. FMLA Coverage
The employee’s own serious
health condition
To care for family member with
serious health condition
Care for a newborn or newly
adopted/fostered child

12. an illness, injury, impairment or physical or
mental condition that involves inpatient
care in a hospital, hospice or residential
medical care facility; or continuing
treatment by a health care provider
“Serious Health
Condition”

13. Leave Entitlement
Up to 12 weeks unpaid leave
Your policy may require paid leave
to run concurrently

14. Intermittent
Leave

15. Requesting Leave
Employee need not formally
request FMLA leave
Employer simply needs notice
that leave could qualify for FMLA

16. Taking PTO from work
for work-related injury
or illness for more
than 3 days
Tell you they need time
off for a chronic
condition or
treatment
Tell you they are
in the hospital

17. Timing is Key!
Within 5 business days of notice
of qualifying leave

19. Timing is Key!
Within 5 business days of notice
of qualifying leave
Employee provides health provider
certification within 15 days
Cure period, if applicable –
7 calendar days
Designation Notice – within 5
business days of receipt of
employee information

20. Benefits
Must maintain health-related
benefits
Must restore to equivalent
position with equivalent benefits

21. Process
Determine if employee qualifies
Determine if leave qualifies
Provide required notices
Return to work
Review returned paperwork from employee
Leave

22. Hypothetical Scenario:
Daniel Delivery Driver

23. Federal
FMLA, ADA, Rehabilitation
Act, USERRA

24. What does the
ADA require?
Protects qualified individuals with
disabilities from employment
discrimination
Reasonable accommodations

25. a person who has a physical or mental
impairment that substantially limits one or
more major life activities, a person who has
a history or record of such an impairment,
or a person who is perceived by others as
having such an impairment
“Disability”

26. ADA vs. FMLA
Blindness?
Pneumonia?
Cancer?
Mental health conditions?
Being pregnant?
Giving birth?

27. any change or adjustment to a job or work
environment that permits a qualified
applicant or employee with a disability to
participate in the job application process,
to perform the essential functions of a job,
or to enjoy benefits and privileges of
employment equal to those enjoyed by
employees without disabilities
“Reasonable
Accommodations”

28. Leave Under the ADA
Allowing employees to take a
leave of absence to attend to their
condition
Can be used to extend FMLA
leave where both apply

29. What about
undue
hardship?

30. “The Commission takes the
position that compliance with
the FMLA does not necessarily
meet an employer's obligation
under the ADA, and the fact that
any additional leave exceeds
what is permitted under the
FMLA, by itself, is not sufficient
to show undue hardship”

31. What is “Unduly
Hard?”
An extra 5 weeks off?
Additional time off for an
indefinite/undetermined period?
Additional time off of 2 weeks, but is
requested 3 different times?
Additional intermittent time off for
treatment of a condition, but employee fails
to report these absences in accordance with
the Company’s attendance policy?

32. Hypothetical Scenario:
Daniel Delivery Driver

33. State
Mini-FMLA, Parental
Leave, Paid Sick Leave

35. Retaliation

36. Return to Work
FMLA
ADA
Workers’ Compensation

37. FMLA ADA Workers’ Comp
Benefits
Unpaid leave; employers may
require concurrent use of paid
leave under certain conditions
• Unpaid leave; employers may require concurrent
use of paid leave
• Modification of job duties, workspace, workplace
policies, etc.
Varies by state
• Partial wage replacement
• Medical care and costs
• Vocational rehab/transitional
job programs
Employers Covered
50+ employees 15+ employees Almost all employers (in states
requiring workers’ comp)
Employees Covered
1,250 hours worked in 12-month
period and 50+ EEs within 75 mi.
Qualified individual with a "disability" who can
perform essential functions
All
Employee’s
Condition Covered
“Serious health condition” (EE or
covered family member)
• "Disability"
• Definition may vary under state/local disability
laws
• Not same as workers' comp definition
Work-related injury or illness
Leave Available
12 weeks unpaid in 12-month
period
• No specified ceiling or floor, although "indefinite
leave" generally not required; may vary by EE's
specific circumstances and jurisdiction
• State/local version may differ from ADA
N/A
Job Protection?
• Reinstatement to same or
equivalent condition
• "No greater right" but for leave
Might be required, e.g. whether position filled,
ability to perform essential job functions, "direct
threat"
Varies by state, but generally no
reinstatement rights
Prohibition Against
Retaliation
Yes Yes Yes

38. Hypothetical Scenario:
Daniel Delivery Driver

39. Danielle Crane
Kegler Brown Hill + Ritter
dcrane@keglerbrown.com
keglerbrown.com/crane
614-462-5444

41. Presented by
Nicholas S. Bobb
Proving You’re Right:
Documentation +
Employment Litigation

44. How to BUILD a
proper paper story

46. 73,485
total charges filed with the EEOC
for workplace discrimination

47. EEOC 2022 Annual Report
Charge Statistics – FY 2021
61,331
Total Charges
20,908
Race
18,792
Sex
34,332
Retaliation
12,965
Age
22,843
Disability
National Origin 6,213
Religion 2,111
Color 3,516
Equal Pay Act 885
GINA 242

48. Retaliation
Disability
Race

49. 4,091
total charges filed with the Ohio
Civil Rights Commission for
workplace discrimination
35%
closed for no
probable cause

50. OCRC 2022 Annual Report
Cases Closed by Type of Closure – FY 2022
1,425
No Probable Cause
421
Charging Party Failed to Return Notarized Charge
382
Withdrawal with Benefits
349
Notice of Right to Sue Issued
152
Probable Cause
89
Negotiated Settlements
79
Successful Conciliation
71
Withdrawal without Benefits
538
Other
No Jurisdiction 49
Administrative Closure 39
Unsuccessful Conciliation 6
Charging Party Failed to Participate 1

51. OCRC 2022 Annual Report
Charges Filed by Regional Office – FY 2022
1,086
Columbus
Toledo 529
696
Akron
837
Dayton
987
Cleveland

52. OCRC 2022 Annual Report
Charges Filed by Alleged Basis – FY 2022
1,474
Retaliation
1,472
Race/Color
1,430
Disability
799
Sex
506
Religion
484
Age
200
National Origin
87
Familial Status
224
Other
Military Status 4

53. Litigation following
the termination of an
employee is likely

55. Employment
AT-WILL

56. What you CAN’T do is
terminate an employee
for an illegal reason
Race
Retaliation
Disability
Sex
Pregnancy
Age
Religion
Familial Status
Military Status

57. Employees who have an
employment agreement
with a provision that they
can be terminated for cause

58. How to handle
termination with an
eye toward litigation

59. Burden of
PROOF

60. Initially the burden is on
the plaintiff to prove he:
Is a member of a
protected class Was qualified for the job
Suffered an adverse
employment decision
Was replaced by a person
outside the protected class
or treated differently

61. Burden on plaintiff to
establish prima facie case
Burden shifts to defendant
to show legitimate,
nondiscriminatory reason
Burden shifts back to
plaintiff to show reason
is pretext

62. Instances in which persons outside the
protected class were treated better for
offenses of comparable seriousness
The manner in which the employee
was treated by the employer while
employed
The employer’s reaction to “legitimate
civil rights activities”
Statistics concerning employer’s
employment policy and practice with
respect to minority employment
Evidence of
PRETEXT

63. Ways to Defend
Yourself + Prove Your
Nondiscriminatory
Reasons

64. 1
Develop and consistently
apply appropriate policies,
procedures + handbooks

65. 1
Have policies in writing
Document employee
acknowledgement of the policy
Buy-in from supervisors and
management
Achieve good policies with an
employee handbook

66. 2
Violations of policies +
performance problems –
you have the policies, now
you must apply them
Consistency
is KEY!!
>

67. 3
Decide if it’s the right
time to terminate
employment
Do you have
documentation?
>

68. 4
Choose your
language carefully

69. Use examples, not labels
Generic labels don’t help your employee
improve and will not help your defense
Nick is usually late for work
Nick misses too much work
April 1: Nick called in sick and missed eight hours of work
April 4: Nick arrived at work at 10 a.m., two hours late from
his scheduled start time
April 6: Nick scheduled a doctor's appointment and then,
stayed home to have a new furnace installed
April 12: Nick called in sick and missed eight hours of work

70. Focus on results, not intent
Focus on what happened and stay away from
what your employee may have intended
“You didn’t try,” “You don’t care” and
“You weren’t applying yourself”
Your sales numbers were (X), and they were
supposed to be (X). Historically, your district
has performed at these levels and your
performance is below expectations.

71. Enumerate the consequences of lack of improvement
Don’t give employees an excuse to say they were surprised
Employee may be disciplined if this
conduct continues
“Employee will be subject to more severe discipline
up to and including immediate discharge.”

72. Avoid using words that sound like
“proxies” for bias or retaliation
Avoid terms that suggest you have an underlying
discriminatory motive
Lack of commitment
Employee never volunteers, must be persuaded to
accept assignments and complains incessantly about
how things were better before the bar was raised

73. Avoid using absolutes
There is no easier way to attack credibility than to test
an absolute statement. One deviation from the absolute
can make your documentation look unreliable.
Nick is always late
Nick was late to work 6/7 days he
was scheduled to work this week

74. Avoid hedging
Use specific and definitive language that shows you are
documenting known deficiencies
“You don’t seem to understand the
new computer software”
“You have made three major mistakes with
the new computer software that have…”

75. Avoid making evaluations you’re not
qualified to make
Nick is withdrawn and seems depressed
Nick did not speak up or contribute at
Monday or Tuesday’s group meetings
You aren’t doctors and can’t make medical diagnoses.

76. Avoid writing like a lawyer
Just report what happened honestly and genuinely. If you
throw this up in front of a jury and it looks like your lawyer
has written everything, you look like you’re covering
something up and juries are suspicious of that
Our legitimate, non-discriminatory reason
for firing Nick is theft of company property.
We terminated Nick because he stole
money from the cash register.

77. 5
Economic
downturn

78. 5
Well-documented basis for the job elimination
or reduction in force based on legitimate
business-related reasons
Used objective criteria to select the employees
for job elimination
Conducted a disparate impact analysis to make
sure no protected class is disproportionately
affected
Name
Attendance
Record
Seniority 2018 Sales Total
Jane 10 2 9 21
Brendan 2 10 4 16
Erin 8 5 3 16

79. 6
Delivering the
message

80. 6
Hold a termination meeting where you are
prepared + well-rehearsed
Have a witness
Ensure that all resources relevant to the
termination have been assembled + assessed
Document the termination
Documents to bring
Focus the message on your legitimate, non-
discriminatory business reason for
termination decision

81. 7
Other
documentation

82. 7
Signed assurance that he has or will return all
company property
Social media
Clearly communicate to the
employee any limitations to his right
to: post on employer-owned social
media accounts, use contacts
developed through employer-
owned social media accounts, use
social media to solicit clients or
employees

83. 8
Conduct an exit
interview

84. 8
Discover problems in the
workplace
Assess litigation risks
Discover risks related to
confidential or trade secret info
Manage the departing employee’s
expectations

85. 9
Respond to
employee reference
checks

86. 9
Implement a policy of verifying only job title,
dates of employment + compensation in
response to a request for references
Direct all requests for references to one
employer representative
Provide a written reference letter to the
employee for future use
Document who called, when, who spoke with
them, and what was said
If it’s a written request, retain it

88. Nero v.
Industrial
Molding Corp

89. Vaughn v.
The Boeing
Company

91. Employee is chronically late + repeatedly
insubordinate
You have delayed terminating him
Hypothetical
Scenario 1
He has a heart attack and becomes disabled

92. Hypothetical
Scenario 1
POLICIES
Written policy about how many times you
can come in late before being disciplined
TIMING Impose discipline upon the first violation
LANGUAGE
Document more than “he is always late” -
find the dates that he was late and by
how much

93. From: Mr. Manager
To: Brendan
Subject: Tardiness
Brendan,
You clocked in 15 minutes later for your shift today, February 18,
2019. This is your first warning.
Sincerely,
Mr. Manager

94. From: Mr. Manager
To: Brendan
Subject: Tardiness
Brendan,
This is your second written warning for tardiness. According to
your schedule, you were supposed to clock in at 7:30. Instead,
you clocked in at 7:54. According to section 5.1 of the Employee
Handbook, tardiness two times within a quarter will result in
termination.
Sincerely,
Mr. Manager

95. Delivering the
MESSAGE
Hold a termination meeting where
the message is very clear to the
employee that the reason for his
termination is his repeated
tardiness and insubordination

96. Female salesperson claims that she was
discriminated against because she was pregnant
Really, she was terminated because she
consistently failed to meet her sales quotas
Hypothetical
Scenario 2

97. Hypothetical
Scenario 2
POLICIES
Do you have a clear policy that indicates
what her quotas were?
TIMING
Do you have documentation that you
properly communicated expected sales
quotas?
LANGUAGE
Danielle’s numbers aren’t where they
should be – this is not specific enough

98. Delivering the
MESSAGE
Hold a termination meeting
where the employee is shown his
already-documented
underperformance – stay on
message that the termination is
due to sales performance

99. Think about your
documentation trail
like a hot stove

100. Documents should reflect
that your policies are:
Foreseeable Immediate
Uniform Impersonal

101. Nicholas S. Bobb
nbobb@keglerbrown.com
keglerbrown.com/bobb
614-462-5414

102. Presented by
Maria Mariano Guthrie
What Do I Do About
These Garnishments?

103. Ohio Exceptions
Money, fines or penalties owed to
the government
Arrearages in court-ordered child
support, alimony or spousal support
Unpaid income taxes
Defaulted student loans

104. “Employer”
a person who is required to withhold
taxes out of payments of personal
earnings made to a judgment debtor
“Disposable
Earnings”
net earnings after all deductions
required by law, excluding child
support deductions

105. Receipt of Order + Notice of Garnishment (Section A)
The Garnishment
PROCESS

106. Employer required to start
withholding immediately
Five-day response period
Employee has time to contest
If challenged, employer should
send withheld money to the court
or agency that issued the
garnishment

107. “You are therefore ORDERED to complete the
“Answer of the Employer (Garnishee)”
enclosed as section B. Return one completed
and signed copy of the section B form to the
clerk of this court within FIVE (5) business
days after you received this order of
garnishment. Deliver one completed and
signed copy of this form and the
accompanying documents entitled “NOTICE
TO THE JUDGMENT DEBTOR” and “REQUEST
FOR HEARING” to the judgment debtor
(employee). Keep the other completed and
signed copy of this form for your files.”
The employer is
also required to
return a statutory
response form

108. Garnishment is continuous
Employer permitted to deduct a
processing fee

109. Garnishment remains in
place until:
Judgment is paid in full
Notice filed with the Court that
the judgement has been satisfied
or terminated
Court appoints a trustee for the
debtor and issues a stay order
Federal bankruptcy issues a stay
order

110. Garnishment remains in
place until:
Ohio or federal law provides
another order with higher priority
Another garnishment issued
(same debtor), that does not have
a higher priority
Written request filed with the
court to terminate + release the
order of garnishment

111. Answer of the Employer – Garnishee (Section B)
The Garnishment
PROCESS

112. You are required to fill out this
form + return to Court
State the date you received
Whether or not the individual
works for you
Is the debtor a party to a debt
scheduling agreement and
counseling service?
Is the employee subject to
another garnishment order?

113. Interim Report + Answer
Garnishment
CALCULATION

114. Garnishment
Calculation Worksheet
Employer should use to
determine the amount of
money withheld

115. Up to 25% withheld for
commercial debts
25%
50-65% can be garnished
for child support
50-
65%
Only 15% can be
garnished for student
loan debt
15%
Up to 70% of an
employee’s wages subject
to IRS garnishment
70%

116. If the employer has any
questions regarding the
appropriate garnishment
amount, they’re advised to
contact the court or agency
that issued the garnishment
It’s extremely important that the
correct amount is withheld

117. Must return the form along with
the check to the court
Please keep copies for your
records!
You have to do this every pay
period

118. Payment to the court must be
accompanied by an Interim
Report + Answer
Must be prepared in triplicate
Submit one copy to court with
payment and one to the
judgment debtor
Interim Report
+ Answer
No report filed for any period
earnings not withheld

119. Once a continuous order ceases
to remain in effect, the garnishee
must file a Final Report + Answer
Must be prepared in triplicate
Submit one to court with
payment and one to the
judgment debtor
Final Report
+ Answer

120. Garnishment Priorities
Confusion often arises when there
is more than one garnishment
“First in time, first in right” policy
IRS levies + child support
garnishments give priority
Student loan garnishments don’t
usually take precedence

121. Garnishment Exceptions
In most cases, employer required
to honor garnishment order
Can face disciplinary action if not
Sometimes, writ of garnishment is
sent to wrong employer
If maximum amount already
withheld, employer cannot honor
the new garnishment

122. Ending a Garnishment
Some garnishment orders list an
end date
Even if not fully paid, garnishment
will cease on that date
If an employer receives a “Notice
of Termination of Wage
Garnishment order,” they should
stop withholding

123. Wage garnishments
can cause additional
work for an employer,
but it’s essential they
comply

124. Cannot fire or
discipline an
employee for wage
garnishment

125. Failure of Employer
to Comply
May be found in contempt
Judgement creditor may institute
proceedings against employer
Garnishee is exempt from civil
liability if it acts “in good faith”

126. Maria Mariano Guthrie
Kegler Brown Hill + Ritter
mguthrie@keglerbrown.com
keglerbrown.com/guthrie
614-462-5437

128. Test Your Knowledge Against Your
Favorite Employment Lawyer

129. Lookout below, LLC is a manufacturer of
drones used to deliver products. It’s based
in Columbus and its employees are all in
Columbus. It has contracts with the
Federal Government as well as private
companies.
Its salespeople have non-
competes, are those enforceable?

130. It depends
A

131. David works for a startup company. He, like the other
5 employees at the company, works long hours. For 8
hours a day he works as a salesperson working at the
company’s headquarters in Plain City. In addition, for
the last 3 hours of every day he sorts all the company’s
mail so the employees can review it the next morning.
He is paid $25.00 per hour for his sales work and
$10.00 per hour to sort the mail. To make everything
simple after his first two weeks the company decided
it would pay him $17.50 per hour for all hours over 40.
Is this legal?

132. No.
Realizing that won’t work, 6 months into
employment the company decides it will pay
David time and a half the rate he got paid for the
work he did. Since the overtime work was all
sorting the mail, the company pays him $15.00
per hour for the overtime work.
This is ok right?
A

133. John is a tenured employee who has worked for
his employer, a large technology company, for the
past 7 years. He approaches the company’s HR
and informs them that he is suffering from
gender dysphoria – a medical condition where an
“incongruence between their gender identity and
assigned sex” results in “clinically significant
distress.” John requests 6 weeks leave for therapy.
Do you have to accommodate John’s
request? Under the FMLA? Under the ADA?

134. You’re HR for a large for-profit company. The
company is approached by a charitable
organization offering to wrap the company’s
products in exchange for a donation to the
charity. The individuals who would be wrapping
the products are members of the organization
and sign a waiver indicating they are working as
volunteers.
Is this legal? If not, anything you can
do to make it legal?

135. You have a supervisor Tom, he is approached by one of
the employees he supervises, Alex. Alex indicates that
while a biological male, Alex would like to use female
pronouns.
Tom does not agree with Alex’s choice and indicates
that if Alex is a biological male, Tom will continue to
call him using male pronouns. Tom goes a step further
and repeatedly goes out of his way to refer to Alex as
a male and make remarks using male pronouns.
Having had enough of the comments and treatment
from Tom, Alex files a complaint with the EEOC
alleging gender discrimination.
Does Alex have a case?

136. You have an underperforming supervisor. His
attendance is below average, and he regularly berates
the employees he supervises. Most of the employees
he supervises despise him and their production has
suffered as a result.
You’ve tried talking to the employee and writing him
up. This has not had the effect you’re hoping for. You
decide you’re going to start docking his pay by 1/7 for
every day he misses.
Can you do this? What about if you decide
you will take away 5 of the PTO days he is
eligible for this year because his
performance is bad? Will that work?

137. Your employee, Theresa, approaches you
on Monday. She indicates that she is going
to see an optometrist regarding some
vision problems she is having. She states
there is nothing you need to do now, she
just wanted to make you aware.
Anything you should do?

138. Theresa returns indicating that her vision
is deteriorating, and she will be legally
blind in six months. She says that the
optometrist recommends a service animal
within four weeks.
She is allergic to dogs, but says she is
interested in a mini-horse as her service
animal.
Is this legal?

139. Your company has had difficulty attracting
candidates and many of your recent hires have
not worked out the way you had hoped. Your CEO
says he has recently purchased an Artificial
Intelligence (AI) program that will handle all
hiring for you.
Anything you should be worried about?
Potential bias? Legal responsibility?
Lack of human involvement/screening?
Best practices?

140. You have a general policy which says that the company
e-mail system is only to be used for business purposes.
This rule is generally ignored. However, an employee
named Joltin Joe has taken to e-mailing his co-
workers after hours. Most of these e-mails contain
some reference to MAGA employers and strongly
advocate for organizing the workplace.
You decide you have no interest in being in the middle
of a political quagmire and additionally you don’t
want a union in your workplace.
You fire Joe. Any problems? What about if
the e-mails were during work hours?

141. Your company considers itself a “progressive”
employer. You have communal office space and allow
employees to work remotely. However, you’re also
cost conscious, so you decide you’re going to track
your employees’ productivity in various ways,
including:
• Monitoring their device usage
• Recording employees during working hours
using device cameras
• Monitoring employee’s personal e-mail accounts
• Requesting employees provide a monthly log of
cell phone usage during working hours
(Employees can redact all after hours usage)
What are your risks? Anything you should
do to protect yourself?

142. You have an employee Stormy, working in your
marketing department as a videographer. She
accuses your other employee Donald of sexual
harassment. You investigate and find that you can
not determine exactly what occurred.
As a result, you decide you’re going to terminate
both of their employment. You provide them with
a severance which includes having them sign
release agreements which include non-
disparagement and confidentiality provisions.
What could possibly go wrong?

143. Ron is an employee at your company. Ron has
requested and been approved for intermittent
FMLA leave due to migraine headaches. Last
week you received complaints from two co-
workers that Ron, without asking permission
or telling anyone, left his desk and went to
sleep in the break room, in violation of your
no sleeping on the job rule.
You decide you’re firing Ron for violating the
no sleeping rule.
Problem?

144. Brendan Feheley
Kegler Brown Hill + Ritter
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614-462-5482