Host Sean Harris talks with OAJ member Pete Friedmann about medical and disability leave for employees. Pete covers the Americans with Disabilities Act as well as the Family and Medical Leave Act.

Sean: Hello, I’m your host Sean Harris and this is episode 43 of Civilly Speaking brought to you by the Ohio Association for Justice. Today is January 17th and I’m here with our guest Pete Friendmann from Columbus, OH. Our topic today is medical and disability related leave for employees. Pete thanks for joining us here on Civilly Speaking.

Pete: Thank you for having me.

Sean: So, when we hear the term disability, that can be a vague term. What are we talking about?

Pete: In the ADA, the American’s with Disabilities Act has defined that and essentially an individual with a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities or has a record of such impairment or is regarded as having such impairment so having the actual disability or being regarded as having a disability can both be protected under the law.

Sean: What’s the difference?

Pete: And so, a difference would be obviously if you have a disability, any type of physical or mental condition that affects any major life activity that could be as pretty self-explanatory, but being regarded as having one would be a situation where you may have a condition and the employer actually believes that you are not able to perform an essential function of your position because of that condition and that may not be the case.

Sean: Even if it’s not true?

Pete: Correct.Sean: Now I noticed when you told us that definition of disability there was some loaded terms in there that probably bear some discussion and the first one that jumped out in my mind was that it had to be substantial, right? I suspect that, that means it has to rise to some level, right? I mean it can’t be every minor injury.

Pete: Correct and can’t really quote me on the exact duration but anything like a sprained ankle or something like that obviously won’t qualify as a disability if it’s a shorter time period, something that is, can briefly be resolved is not permanent that does not or an ongoing basis effect a substantial life activity that won’t be considered a disability under the ADA.

Sean: And you also mention the words life activity and I would imagine there’s some argument on both sides as to what counts and what doesn’t.

Pete: Correct.

Sean: What kinds of things are they are you generally looking for as far as life activities that are being affected?

Pete
: And that’s where the courts have been, especially more recently, pretty inclusive so anything that could affect a major life activity speech, sleep, your ability to think, and act properly in a social setting, anything that can affect the life activity, you know, it’s usually evaluated on a case by case basis so really you can get creative with it, but as long as you can make that legitimate argument I think that you have a good claim.

Sean: It does sound potentially like it could be very, as you say, inclusive and broad.

Pete: Sure.

Sean: Yeah. Now, this is under the ADA that we’re talking about and I heard you mention both physical and mental disabilities and I guess that makes sense although traditionally you think of someone being physically disabled.

Pete: Right.

Sean: It applies to mental disabilities as well.

Pete: Correct.

Sean: Tell us about that.

Pete: Yeah, so any type of mental condition especially it seems more in our, in this day and age I don’t know if it’s our life style, our culture or whatever it is.Sean: I blame social media.

Pete: I would absolutely agree with that and I think that a lot of it has to do with the work load expectations that employers, you know me as an employer we have as from our employees and so I think that also makes an impact on, what I see, for me is an increased diagnosis in stress and anxiety in employees. I don’t have any statistics behind that, but I see a lot more people contacting us for that have medical conditions or diagnosis of stress, anxiety, PTSD, bi-polar disorder that is directly affecting their work and it’s difficult for an employer to number one understand what really that condition is like for an employee and two, to understand how to work with that employee and accommodate that condition.Sean: And that’s a great point. What does the ADA require as far as accommodations?

Pete: So, the ADA requires that the employer engage in an interactive discussion with the employee just to make sure that the employee is able to perform the essential functions of his or her job with a reasonable accommodation.

Sean: When I hear accommodations, I’m thinking you know wheel chair ramp or these kinds of things, physical changes for a physical disability. What kind of accommodations can you make for mental disabilities?

Pete: Some accommodations that I’ve seen are if a client or an employee has stress and anxiety disorder or any PTSD or something of that sort, sometimes it’s an employee may want to take a few more breaks just to help destress in a situation especially if you’re working in a high stress environment. I’ve had clients that have had other conditions, obsessive compulsive disorder which requires the employee to over analyze certain work products that they are turning into the employer so just allowing that employee a little additional time to maybe review and make those edits that someone without that condition may not need that amount of time that little additional time can be considered an accommodation.

Sean: Does the ADA apply to all employers or I gather there’s a size requirement.

Pete: Right, yes there is and so it’s the ADA of course is federal law and it only applies to companies with fifteen or more employees.

Sean: I see. Now Pete, I gather that with the ADA sometimes there are some administrative requirements first before filing a claim is that right?

Pete: That is correct. So basically I think it was, this was initiated by the government to act as a sort of threshold for federal claims to be filed in federal court so what you have to do if you’re filing a claim under the American’s with Disabilities Act, whether it’s disability, discrimination, a failure to accommodate or a retaliation of some sort you have to first file a charge with the equal employment opportunity commission and so there are also a lot of states have corresponding state government agencies like Ohio has the Ohio Civil Rights Commission and so you can file dually with the EEOC and the civil rights commission of any respective state and that preserves your claims for both federal and state claims.

Sean: And do either of those administrative agencies state or federal, what happens once you do that?

Pete: So with the EEOC I’ll just focus on that since we’re talking about the ADA, the Equal Employment Opportunity Commission of course is a federal government agency and it just like I said it’s a threshold before you can file in federal court for those types of claims and essentially what they do they is you file a claim or a charge, which is a mini complaint with the EEOC and they will assign an investigator to your case and perform an investigation, hopefully, and then you know come to some type of conclusion whether there’s probable cause for your claim or not and essentially regardless of what the EEOC determines after its investigation, it issues a right to sue and you need that right to sue, just a piece of paper, verifying that you have the availability to file a lawsuit in federal court and so you need that right to sue from the EEOC before you can file a federal claim. And that’s the, the EEOC process is required under pursing claims under the ADA or Title VII so there are other federal claims that require a filing with the EEOC.

Sean: Interesting. I could see potential statute of limitations issues cropping up in these scenarios. Does filing an EEOC charge toll your statute of limitations?

Pete: So, I guess the answer is, and I don’t really know if I am answering that correctly, but how I would answer that is you have to file in order to pursue a claim in federal court for a federal claim like the ADA or Title VII you must file a charge with the EEOC within three hundred days of the adverse employment action.

Sean: Okay, so less than a year.

Pete: Correct.

Sean: Very good.

Pete: And that’s assuming that in some states it may be a hundred and eighty days, but I know that at least in Ohio there’s a corresponding state discrimination statute, it allows for that extension to three hundred days.

Sean: Okay.

Pete: So, I think it differs depending on the state even though that is a federal law.

Sean: Well we’ve been talking primarily about the ADA, but I gather there are other federal statutes in the area of disability that apply to one of those that jumps out in my mind is FMLA. How does that kind of dove tail or fit into all of this?

Pete: So the FMLA or the Family and Medical Leave Act is federal law designed to help employees with a work life balance for family or any other job responsibilities. Essentially it applies to a situation where an employee or immediate family member has a serious medical condition that may require time off or some type of treatment and so the FMLA allows for job protected leave for that particular employee.

Sean: So theoretically someone who is disabled could apply for both, ADA and FMLA?

Pete: Correct, so if you have a serious medical condition that would qualify you as being disabled under the ADA and so you don’t necessarily have to apply for anything in that situation unless you need a reasonable accommodation at work. You would just be qualified under the ADA. Now, that would also provide coverage if the employer discriminates against the employee for that particular medical condition or disability, but if the employee does need leave related to a serious medical condition for him or herself or a family member that is where you would want to apply to the employer for leave under the Family and Medical Leave Act.

Sean: And I take it this is unpaid leave.

Pete: That’s correct. By law it’s unpaid. Some states elect to provide pay leave depending on state law and I think some companies also offer to provide paid leave so it really is dependent upon the situation and the organization. In my experience usually, it’s just unpaid leave though.

Sean: I’m going to go out on a limb and say Ohio doesn’t require it to be paid leave.

Pete: That’s correct. And so the FMLA coverage does not apply the same as ADA. ADA covers any employee or any employers with fifteen or more employees. FMLA on the other hand only applies to private employers with fifty or more employees working within a seventy-five-mile radius of that work site and as the employee you also to have been working there for at least one thousand two hundred fifty hours over the last twelve months prior to the leave and so you must meet those qualifications first before you can even be eligible for FMLA leave.

Sean: Sounds like they were considered about new hires taking advantage of this statute.

Pete: Yeah, I mean I think absolutely and also how that you know the FMLA allows for twelve weeks of job protected leave and so I think it also there may have been a concern with impacting smaller businesses where somebody in an important position gone for twelve weeks can certainly impact the operations of the business so yeah and I think that each company may have its own leave policies or absence policies in addition to FMLA leave, but you know if it’s something where the employees eligible then the employer must provide that, that job protected leave.

Sean: And do you see situations or cases where an employer just refuses to comply with that requirement?

Pete: Yes, we see situations either where the employer refuses to comply or it’s a situation where maybe where a mid-level management may not completely understand the laws and you know, unfortunately that just is a situation of lack of education in that particular situation of educating the employees of the federal laws that provide protection for the employees. And so, in those situations, the violation is pretty clear for FMLA, for us, because the standard is that we only have to establish that the FMLA the use of FMLA leave was a motivating factor in any type of adverse employment actions so…

Sean: Doesn’t have to be the only one.

Pete: Exactly. Whereas the ADA if you’re alleging discrimination or retaliation for requesting an accommodation or being discriminated against because of a medical condition you have to prove that your medical condition was the butt for a cause.

Sean: What’s the remedies available to someone who has been aggrieved under FMLA?

Pete: There are different remedies available. Obviously it depends on what type of adverse employment action was taken and ultimately, I think it depends on, it comes down to what the employers willing to negotiate and what the employees willing to do. If it’s a situation where and the employer acknowledges a violation and they offer reinstatement an employee obviously may not feel comfortable going back into an environment like that where they believe their rights have been violated. So typically, it will involve back pay, loss wages, attorneys fees and reasonable court costs.

Sean: There’s some overlap here. How do they ADA and the FMLA work together?

Pete: Sure so and we actually get a lot of situations where you will have violations of both or will claim violations of both ADA and FMLA and of course in order for that to be, for the employer to qualify for those federal protections they must be the higher threshold so the ADA only requires at least fifteen employees in order to be applicable to the employer whereas the FMLA is fifty employees within a seventy-five-mile radius plus the minimum hours worked so in order for both to apply obviously you know the FMLA standard would have to be met but often times what we will see is that an employee will have a serious medical condition or disability that may require some type of treatment or ongoing treatment and after FMLA leave has been expired they may need additional time to get a release from a doctor to return to work and so often times we may see where as soon as the FMLA leave expires the employer terminates the employee because by law that’s the only leave that they have to provide. However, the ADA also works into that as a factor of courts have found that providing additional to the employee beyond the FMLA requirement can be considered a reasonable accommodation. And so, you can kind of play off the two laws in that situation if the employee may require some type of additional protection.

Sean: Pete in your practice what kinds of things, I would imagine some employers conduct can be quite eye brow raising. What have you seen?

Pete: So, we definitely get some interesting situations. One case I tried a couple years ago in federal court in Cincinnati, it was an ADA and FMLA case. My client was diagnosed with alcoholism and you know, that is qualified as a disability under the ADA.

Sean: And you say diagnosed by a medical doctor?

Pete: Correct. Otherwise without a diagnosis, you know, it’s a difficult argument to make. Obviously, you can’t self-diagnose for a condition like that. But so, you do need that medical doctor diagnosis and in our situation our client was an employee of a company for several years. Very great salesman and was an alcoholic and it only affected his personal life at that point and time once it started impacting, you know, carrying over to his professional life he notified the organization that hey I think I’m going to need some leave and I’d like to admit myself into rehab and address this so I can return to work and continue to be a positive employee and so by law the company was required to provide him with FMLA leave, which they did and he took leave for his rehabilitation, returned to work within a month or so and was ready to get back and the company terminated him the day he returned to work for some reason that they investigated while he was out on leave and so that’s one of the protections that FMLA provides to is that by law you’re required to be reinstated to a same or similar position after returning from leave. You cannot terminate somebody while on leave or immediately after returning from leave or after requesting leave for the fact of requesting leave. If somebody obviously commits a serious violation of company policy then that employee can be terminated for that reason under the law. So if a client or if an employee requests leave and the employer finds out that this employee was stealing money from the company obviously you can terminate that person for stealing money, but it has to be a legitimate non-discriminatory reason for the termination and so in that situation we were able to find emails and other documentation where the high level executives of the company as soon as our client took leave for his rehabilitation they were looking for reasons to get rid of him. They sent emails to each other saying that he is no longer a reliable employee, that he needs outside help, and he’s a risk for the company and so we were able to present that information to the jury and the jury found in our favor and on the FMLA violations.

Another situation I mentioned before was a client who had obsessive compulsive disorder and it was very interesting because she seemed to be a very good employee. There’re just certain things about her condition that obviously affected her ability to perform work in a timely fashion compared to others without that condition and so she had been with this company for I think at least fifteen years and had done a great job. Always had positive performance, no issues, until the company changed its performance standards and required a certain level of performance and it was all automated and so I believe she was in the call center and so in order for her to meet the performance standards it was all automated and so she was not able to meet those standards without the reasonable accommodation that she had in place prior to this new system being put in and the new system would not allow for that reasonable accommodation and so because the company revoked that accommodation she was no longer able to meet the standards that were required by the company. Whereas, had the company kept that accommodation in place she clearly would have been able to meet those standards as she had done for the last fifteen years and so that was a situation where the company I think you know maybe had good intentions with trying to improve its technology and efficiency among its employees, but maybe didn’t really consider how it was affecting other employees and their, you know, accommodations. Which I think also weighs into you know it is difficult for employers to take all those factors into consideration.

Sean: And I was going to ask you that. Do you have a sense in your practice whether by in large employers are intending to do the right thing and may not just know the law or are these folks that know the law very well and don’t care and are looking to get rid of folks?

Pete: I think that’s difficult question because you know employers, a company is an entity and so the company ultimately is made up of the decision makers and the managers and I think there are managers out there that exist that are probably getting pressured by upper level management to hit their quotas or get the job done faster and so that in turn may cause them pressure their employees or their subordinates to do certain things and any type of disruption like a medical leave would certainty throw that efficiency off the process and so for that reason I often see that those mid-level managers are taking these actions against the employees that otherwise should have these legal protections in place.

Sean: Maybe more focused on the bottom line.

Pete: Right, right.

Sean: Well Pete thanks very much for being here today and thank you to all our listeners out there. If you like our show and want to learn more check out civillyspeaking.com or please leave us a review on iTunes and we’ll see you on the next episode of Civilly Speaking.