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"Changing Currents in Employment Law" is the D.C. Bar's annual three-hour event featuring legal updates and practice tips from the area's top employment attorneys — all for CLE credit. TELG's Scott Oswald serves as faculty director and will moderate the event on October 29, 2019. Here he previews the panel on the intersection of the FMLA and the ADA with panelist Consuela Pinto of FortneyScott.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on September 6, 2019.
Changing Currents 2019: Panel Preview – The FMLA/ADA Intersection
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Hello everyone! We are here in anticipation of “Changing Currents in Employment Law” this year on October 29, 2019, at the D.C. Bar. And we are here with Consuela Pinto. She is a shareholder at FortneyScott —
[Turning to interviewee] And Consuela, you come from a government background.
Consuela A. Pinto: I do, I do. I joined FortneyScott a little over a year ago after spending about 10 years at the Department of Labor in the Office of the Solicitor.
Oswald: So you must have a unique perspective, especially with your clients.
Pinto: I do.
Oswald: Giving them advice on what to do, and what not to do, in the employment field.
Pinto: So I think my past experience helps quite a lot in terms of guiding my clients, particularly multi-jurisdictional ones — understanding that the flavor of their audit might be a little bit different depending on whether they’re in the Northeast or the Southwest, and what the expectations are going to be from the [government] agency.
Oswald: And speaking of multi-jurisdictional issues: The Family and Medical Leave Act and the Americans with Disabilities Act — it’s different depending upon how it interplays with various state laws, right?
Oswald: So how does that — you know, what’s a big company to do [when it operates] in multi states?
Pinto: So that’s really a struggle for them right now as the patchwork of state laws grows — and even within the various states, the laws are very different. Some are paid family leave; some are just paid leave; some are paid sick leave. And then you have to layer, on top of those, your obligations under the Family and Medical Leave Act and the ADA.
So what a lot of multi-jurisdictional employers struggle with is: How do I comply? Do I look at all the laws that I’m subject to in the leave area and figure out which is the most generous for my employees, and apply it everywhere? Do I take a more jurisdictional approach? And if so, how do I coordinate that? How do I track that?
And then the Family and Medical Leave Act and the ADA have their own intersection and differences. That’s a whole other level.
Oswald: Sounds to me like a huge headache.
Pinto: Yes, I like to call it a quagmire. [Laughs]
Oswald: So let’s talk about the intersection between the ADA and the Family and Medical Leave Act because, you know, if I’m an employer — many say, “Well, I know I have to give 12 weeks of leave and then my obligation is done, right?”
Oswald: So how does the ADA interplay with the Family and Medical Leave Act?
Pinto: You have to understand the standards under the two.
So the Family and Medical Leave Act: You just need a serious health condition and then you qualify for up to 12 weeks of leave, and that’s just for yourself or to care for a family member.
Then you’ve got the ADA, and the ADA kicks in when an employee has a disability and the accommodation that they need does not pose an undue hardship to the employer.
So [let’s say] you start by: Employee comes in — “I need leave.” It may very well be, when you’re providing that leave under the FMLA, you’re very likely also providing an accommodation under the ADA.
That sounds great, right? It overlaps; you’re golden!
Oswald: You can be triggering both protections.
Pinto: Right. [And] at the end of those 12 weeks your obligation under the FMLA may be done. But if that employee comes back and says, “I’m not quite well enough to return to work, I need another 12.” You are then just under the ADA and the question then becomes: Is this extra 12 weeks an undue hardship? Is it reasonable for me to provide another 12 weeks?
So one of the biggest mistakes employers make is, they assume once they’ve complied with the FMLA and they’ve given the 12 weeks, they’re covered under both [laws] and it’s all good.
And that may not necessarily be the case.
Oswald: So let’s talk about about the panel, “Changing Currents in Employment Law” on October 29. This panel will explore some of the tricky issues that come up with the ADA and the FMLA. If I’m in the audience, what might I see?
Pinto: So my colleague Cori Cohen and I, we’re going to be covering this overlap. We’re going to start out talking about the overlap between the ADA and the FMLA and how do you — what are some of the issues, as employment practitioner, you might come across, and what you need to be prepared to address to help your client stay compliant.
And then we’ll probably touch on some of the various state laws — particularly D.C.’s new paid-leave law and how that intersects, or doesn’t, with your federal obligations.
Oswald: Consuela, thank you.
Pinto: Thank you!
Oswald:[Turning to camera] And we look forward to seeing each of you at “Changing Currents in Employment Law” this year on October 29 from 6:00pm to 9:15pm at the D.C. Bar.