Practice Areas

If it concerns your employment, it concerns us!

 

FMLA

The Family and Medical Leave Act (FMLA) probably applies to you if you work for the government or for an employer with 50 or more employees within a 75 mile radius of where you work AND you have worked for the employer at least one year.

The Family and Medical Leave Act (FMLA) permits eligible employees to take off work up to 12 weeks per year because of their own or a family member’s serious health condition or because they become a mother or a father. You don’t even need to mention the FMLA in order to be entitled to the time off, although you have to give your employer enough information so that they know there might be a serious health condition involved. Your employer can require you to fill out paperwork and have your doctor certify that you need the leave.

According to the Family and Medical Leave Act (FMLA), a “serious health condition” doesn’t have to be all that serious. A health condition qualifies if any of the following are true:

  • The condition has resulted in a period where the patient can’t work or perform regular daily activities for more than three consecutive days and involving either two doctor’s visits or one doctor’s visit and a prescription (examples may include strep throat, ear infection, or pink eye)
  • The condition is chronic and requires continuing treatment (for example – asthma, diabetes, or epilepsy)
  • The condition has resulted in an overnight hospital stay

You can take leave in increments as small as one hour or even less. For instance, the health condition might require periodic doctor appointments or might limit you to working reduced hours for a period of time.

It is against the law for your employer to take your job away from you during your leave or upon your return, unless you are given an almost identical job with the same pay, status, and work schedule. It also violates the law for your employer to retaliate against you because you have taken Family and Medical Leave Act (FMLA) leave or tried to do so. One common violation employers commit is to count the leave against you under a so-called “no fault” attendance policy.

ADA

Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. Learn about the history of the Act at ADA at 25.

An individual with a disability is a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment.

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

  • Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
  • Job restructuring, modifying work schedules, reassignment to a vacant position;
  • Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:

  • A deaf applicant may need a sign language interpreter during the job interview.
  • An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
  • A blind employee may need someone to read information posted on a bulletin board.
  • An employee with cancer may need leave to have radiation or chemotherapy treatments.

An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one. if an employer believes that a medical condition is causing a performance or conduct problem, it may ask the employee how to solve the problem and if the employee needs a reasonable accommodation. Once a reasonable accommodation is requested, the employer and the individual should discuss the individual’s needs and identify the appropriate reasonable accommodation. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.

Title I of the ADA also covers:

  • Medical Examinations and Inquiries
    Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer’s business needs.

    Medical records are confidential. The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.

  • Drug and Alcohol Abuse
    Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

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Rich Denoncour

Ben finds a path to victory and executes a plan. He gave me a chance to compete at my workplace when no one else would. He communicated fluidly despite a very long process that was out of his control. Mr Yormack is THE reason I could keep my job and grow my career.

Bill

Benjamin H. Yormak handled my case to my satisfaction. Ben is a lawyer you can trust. He kept me informed in “Black & White” terms exactly where we stood in my case. If I have any legal needs in the future I will have no hesitation to call Ben and get him on the case.

Al

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