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LAW: HOW IT INTERPLAYS WITH ADA, FMLA AND POTENTIAL ...

arizona 'S NEW paid TIME OFF. LAW: HOW IT INTERPLAYS . WITH ADA, FMLA AND. POTENTIAL COMPLIANCE. PITFALLS. Laura Kam, Phoenix Katharine Liao, Los Angeles June 20, 2017. June 20, 2017 0. Agenda Review of federal and state-specific laws that interplay with AZ's new sick leave law FMLA. ADA. State-specific leave laws Where sick leave Is Required and Trends Across the US. Proposition 206 the Fair Wages and Healthy Families Act Similarities and Differences to other sick leave laws Litigation Trends Common Traps/Best Practices Performance Management Amidst leave Issues Bright Line Rules to Avoid June 20, 2017 1.

Arizona’s Paid Sick Leave . www.dlapiper.com June 20, 2017 20 Dual Enforcement –Labor Department of the Industrial Commission of Arizona –Employee can file complaint within one year of alleged violation –Private right of action / injured employee civil lawsuits

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Transcription of LAW: HOW IT INTERPLAYS WITH ADA, FMLA AND POTENTIAL ...

1 arizona 'S NEW paid TIME OFF. LAW: HOW IT INTERPLAYS . WITH ADA, FMLA AND. POTENTIAL COMPLIANCE. PITFALLS. Laura Kam, Phoenix Katharine Liao, Los Angeles June 20, 2017. June 20, 2017 0. Agenda Review of federal and state-specific laws that interplay with AZ's new sick leave law FMLA. ADA. State-specific leave laws Where sick leave Is Required and Trends Across the US. Proposition 206 the Fair Wages and Healthy Families Act Similarities and Differences to other sick leave laws Litigation Trends Common Traps/Best Practices Performance Management Amidst leave Issues Bright Line Rules to Avoid June 20, 2017 1.

2 Family Medical leave Act (FMLA). Applies to employers with 50 or more employees Employee must have worked for at least 12 months Need not be consecutive Employee must have worked at least 1,250 hours in he past 12 months Employee must work at a job site with at least 50 or more employees, or within 75 miles of job site with 50 or more employees Employee may take time off to care for a newborn or newly adopted child; to care for the employee's seriously ill parent, child, spouse or registered domestic partners; or on account of the employee's own serious health condition June 20, 2017 2.

3 Family Medical leave Act (FMLA). Eligible employee entitled to unpaid leave of absence of 12 weeks Calendar year, fiscal year, rolling 12 month period leave need not be taken consecutively increments as small as one hour Must designate to employee that the time off is being counted against FMLA. leave However, US Supreme Court ruled that 12 weeks still runs even if employer fails to designate June 20, 2017 3. Family Medical leave Act (FMLA). Serious health condition involves either: Inpatient care in a hospital, hospice or residential medical care facility, or Continuing treatment by, or under the supervision of, a health care provider Use of vacation and sick leave under FMLA.

4 Employer may require employee to use vacation or paid time off Employer may require employee to use sick leave if the leave is for employee's own serious health condition Employer must continue to pay its portion of employee health insurance during leave Cannot force an employee to take a FMLA leave June 20, 2017 4. ADA. Who is protected? Physical or mental impairment that substantially limits one or more major life activities A major life activity includes, but is not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive function June 20, 2017 5.

5 ADA. The Interactive Process How to recognize an accommodation request: Employee indicates he/she is having a problem related to a medical condition Presents doctor's note purporting to limit the employee's work activities (often coupled with return from medical leave ). Not required to use any magic words need not mention the ADA or use the phrase reasonable accommodation . A request to work reduced hours or work from home can be a request for an accommodation June 20, 2017 6. ADA. The Interactive Process An employer is required to engage in a good faith interactive process to determine an appropriate reasonable accommodation Who can/should participate in interactive process discussions?

6 Employer (usually HR, Employee Health, manager). Employee/applicant Employee's representative (if necessary because of the disability or other circumstances). June 20, 2017 7. ADA. The Interactive Process Applicants ask the right questions MAY NOT require applicant to undergo medical or psychological examination or inquiry MAY NOT make any inquiry whether an applicant has a mental or physical disability or medical condition MAY NOT make an inquiry regarding the nature and severity of a mental or physical disability or medical condition MAY inquire into the ability of an applicant to perform job-related functions and may respond to an applicant's request for reasonable accommodation June 20, 2017 8.

7 ADA. The Interactive Process Employees disability-related questions and requests for additional medical documentation as part of the interactive process? ONLY when it is job related and consistent with business necessity Employer must have a reasonable belief based on objective evidence that: an employee will be unable to perform the essential functions his or her job because of a medical condition or the employee will pose a direct threat because of a medical condition Can request clarification if doctor's note requesting accommodation is unclear June 20, 2017 9.

8 ADA. Reasonable accommodations Individualized process based on the employee and company's needs/limitations Accessible facilities Acquiring or modifying equipment or devices Job restructuring Adjusting or modifying examinations, training materials or policies Part-time or modified work Providing qualified readers or interpreters schedules Reassignment to a vacant Finite leave of absence position June 20, 2017 10. ADA. Reasonable accommodations Employer may choose among effective accommodation options and is not required to provide the best accommodation or the one preferred by the individual, so long as the accommodation chosen allows the individual to perform the essential functions of his/her job Not required to cause undue hardship to company; consider financial resources of company, $$$ required by accommodation, type of operations of the company June 20, 2017 11.

9 arizona 's paid sick leave Effective July 1, 2017. Part of Proposition 206 The Fair Wages and Healthy Families Act Ballot initiative approved by arizona voters November 8, 2016. Also established new state minimum wage effective January 1, 2017. Impacts virtually all employers in the state Does not apply to tribal employers on tribal land Industrial Commission will not enforce the Act against arizona employers for employees who work on tribal lands Exempts only State of arizona and federal employees No small business exemption No profession or salary range exemptions June 20, 2017 12.

10 arizona 's paid sick leave Earned paid sick time Accrued by employee Compensated at same hourly rate and with same benefits as employee normally earns during hours worked Accrual begins July 1, 2017 or at the commencement of employment, whichever is later Can be used as soon as it is accrued Employer can require employees hired after July 1, 2017 to wait 90 days before they use earned paid sick time Used for self or family member Medical care or mental or physical injury or illness;. Public health emergency; and Absence due to domestic violence, sexual violence, abuse or stalking June 20, 2017 13.


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