We offer this publication as a member service of the West Virginia Primary Care Association (WVPCA).

This annual observance highlights the efforts of healthcare professionals to protect patients of all ages against vaccine-preventable diseases through on-time vaccination.The Public Health Foundation and CDC have developed a  digital communication toolkit with resources for partners, including:

West Virginia is a leader in the success of immunization rates and was one of only a few states that did not have a measles outbreak this year.   The CDC will also be launching a website for the #HowIRecommend video series by August 1st.  Please share these resources with your colleagues and on your social media platforms using the hashtag  #ivax2protect.

"What If You Don't 'Like' an Employee's Social Media Content" is a presentation that will explore some of the pitfalls of social media in the modern age and help employers feel more confident in what they can and cannot do in response to social media posts of which they do not approve.  Please join the WVPCA and Brock Malcom of Bowles Rice on August 7th to discuss ways to:

Better familiarize the attendee with applicable law, including the First Amendment and its Right to Free Speech;

If you have any questions please email Pam Moore at  Pam@wvpca.org

 

This webinar is scheduled for August 7th at 1:00 pm. Registration is available here

By Justin M. Harrison, Esq.

 

In our last installment of the Legal Minute, we reviewed the general requirements of the Family and Medical Leave Act ("FMLA"), and we left you with this cliffhanger: What happens if an employee needs more time following exhaustion of their FMLA leave due to their own serious health condition? Typical lawyer response: "It depends!" We unpack this topic below.

 

West Virginia employers, including FQHCs, need to be mindful about the West Virginia Human Rights Act (WVHRA). This is the primary employment statute in West Virginia, and it covers a lot of different issues. For example, the WVHRA requires employers to provide reasonable accommodations to employees with disabilities, so long as the accommodation does not pose an undue burden.

 

The italicized phrases noted above highlight the three primary issues that employers need to evaluate for someone who has exhausted their FMLA leave and needs more time. Does the employee have a disability? Is the request for more time a reasonable accommodation? Does the request for more time pose an undue hardship?

 

Most of the time, if an employee has exhausted their FMLA leave due to a serious health condition, then they probably have a physical or mental health impairment that qualifies as a disability for purposes of the WVHRA, but not always. Although this process is not as well-defined as the certification process under the FMLA, if you need or want confirmation that the employee has an impairment that qualifies as a disability, you can make limited inquiries with the employees and their provider. You're not required to assume that every impairment qualifies as a disability.

 

The next issue to evaluate is whether the request for additional time constitutes a "reasonable accommodation." This is where things can get tricky. The WVHRA does not provide us with an exhaustive list of reasonable or unreasonable accommodations. Instead, we're given this directive: A reasonable accommodation is one that will allow an employee to perform the essential functions of her job. This begs the question: How can an employee perform the essential functions of her job if she needs a leave of absence? This issue has been extensively litigated for several years, and different conclusions have been reached by different courts. There is a trend in other jurisdictions which suggests that "reasonable accommodation" requests should not be used as alternative leave entitlement to supplement the FMLA, but the law is not quite that clear in West Virginia. Let me offer a rule of thumb: If an employee exhausts FMLA leave and needs another day or another week, you probably should give the request serious consideration. If the employee requests another three months or can't give you a definitive return to work date, then additional scrutiny is warranted and it's fair to question whether the employee is entitled to the requested accommodation.

 

Finally, the third issue noted above is whether the request for a leave of absence constitutes an "undue burden." When evaluating requests for accommodation, the question of undue burden is typically a highly fact-dependent concept, but if an employee has already received 12 weeks of FMLA leave, it will be difficult for most employers to argue that an additional day or an additional week will constitute an undue burden.

 

What's the take away? If an employee exhausts FMLA leave based on their own serious health condition, don't automatically assume that you have no further obligation to the employee. If the employee needs additional time before returning to work, you're required to evaluate that situation as a request for accommodation under the WVHRA.

 

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Justin M. Harrison is a labor & employment lawyer at Jackson Kelly PLLC. He is available for consultation through a special retainer relationship with the WVPCA. Justin can be reached at (304) 340-1358, and you can follow him on Twitter @wvhrlawyer.

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