Time for a Break: Managing Leaves of Absence and Accommodating Disabilities (Series: HR, Talent Management & Employment Law Boot Camp)

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Practical and entertaining education for
attorneys, accountants, business owners
and executives and investors.
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DISCLAIMER
The material in this webinar is for informational purposes only. It should not be
considered legal, financial or other professional advice. You should consult with an
attorney or other appropriate professional to determine what may be best for your
individual needs. While Financial Poise™ takes reasonable steps to ensure the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
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MEET THE FACULTY
Moderator:
Charles Krugel – Charles A. Krugel, Labor & Employment Law on Behalf of
Business
Panelists:
Aaron Gelb – Conn Maciel Carey LLP
Emily Fess – Associate General Counsel at Rush University Medical Center
Jason Klimpl – Tannenbaum Helpern Syracuse & Hirschtritt LLP
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ABOUT THIS WEBINAR:
Time for a Break: Managing Leaves of Absence
and Accommodating Disabilities
Your business likely functions more effectively when your employees are at work doing the work you
hired them to perform? What are your rights (and obligations) as an employer when an employee is
unable to work due to an illness or injury? Does the Family and Medical Leave Act apply? Do you
operate in a jurisdiction that has recently enacted a sick leave law? What happens when an
employee requests a reasonable accommodation because of a disability? These types of questions
have been confounding employers for years and are likely to grow more complicated as state and
local governments step in to fill the voids left at the federal level. Do not despair, though, as this
webinar includes discussions of the mistakes commonly made by employers as well as a series of
tips and pointers from a panel of experts who will help you navigate these and other thorny issues
involving employees who are unable to work for health-related reasons.
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ABOUT THIS SERIES:
HR, Talent Management, Employment Law Boot
Camp
If you have employees or advise companies with employees, this webinar series is for you! No
employer—whether large, medium or small—is immune from the reach of federal, state and/or local
employment laws and regulations. Now, more than ever, employers should consider taking a
proactive approach to auditing their employment practices and policies so that they can better
respond when issues arise. This webinar series approaches the employer-employee relationship
from beginning to end, with programs covering the most important steps along the way, including
hiring and onboarding, policy and procedure development and training, wage and hour compliance,
accommodating disabled employees, conducting investigations and considerations associated with
ending the relationship.
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EPISODES IN THIS SERIES
4/3/19 Episode #1: Welcome to the Team! Recruiting and Hiring, Including
Restrictive Covenants
5/8/19 Episode #2: An Ounce of Prevention: Policies, Procedures and Proactivity
6/5/19 Episode #3: Show Them the Money: Wage & Hour Compliance
7/10/19 Episode #4: Time for a Break: Managing Leaves of Absence and
Accommodating Disabilities
8/7/19 Episode #4: Know What You Did Last Summer: Workplace Investigations
9/4/19 Episode #4: It’s So Hard To Say Goodbye: Minimizing Risk When
Terminating Employees
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #4:
Time for a Break: Managing Leaves of
Absence and Accommodating
Disabilities
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FMLA – FAMILY MEDICAL LEAVE ACT
• FMLA – Family Medical Leave Act (FMLA)
• Provides leave to employees for a “serious health condition” of an
employee or certain family members
• Includes birth, adoption, and foster care placement of employee’s child or ward
• Certain military-related leave
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FMLA COVERED EMPLOYERS
§ 825.104
• Private sector employers with 50 or more employees
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EMPLOYEE ELIGIBILITY
§825.110
• Works for a covered employer
• Worked at least 12 months for that employer
• Have at least 1,250 hours of service during the 12 months before leave begins
• Employed at a worksite with 50 employees within 75 miles of worksite
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QUALIFYING LEAVE REASONS: §825.112
Eligible employees may take FMLA leave:
• For the birth or placement of a child for adoption or foster care
• To care for a spouse, son, daughter or parent with a serious health condition
• For their own serious health condition
Military Family Leave:
• Because of a qualifying reason arising out of the covered active duty status of a military
member who is the employee’s spouse, son, daughter or parent (qualifying exigency leave)
• To care for a covered servicemember with a serious injury or illness when the employee is the
spouse, son, daughter, parent or next of kin of the covered servicemember (military
caregiver leave)
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QUALIFYING FAMILY MEMBERS-§825.102
• Parent - A biological, adoptive, step or foster father or mother, or someone who stood in
loco parentis to the employee when the employee was a son or daughter. Doesn’t include in-
laws.
• Spouse - A husband or wife as defined by state law, including common law marriage, if
recognized. The federal Defense of Marriage Act definitions of “marriage” and “spouse”
apply to the FMLA and therefore FMLA leave for a spouse may only be taken to care for a
spouse of the opposite sex.
• Son or Daughter - For leave other than military family leave, a biological, adopted or
foster child, a stepchild, a legal ward or a child of a person standing in loco parentis who is
either under 18 years of age or 18 or older and incapable of self-care because of a mental or
physical disability.
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QUALIFYING LEAVE REASONS – FOR
THE BIRTH OR PLACEMENT OF A CHILD
§825.120-121
•Both the mother and father are entitled to FMLA leave for the birth or placement
of the child and/or to be with the healthy child after the birth or placement
(bonding time)
•Employees may take FMLA leave before the actual birth, placement or adoption
•Leave must be completed by the end of the 12-month period beginning on the date
of the birth or placement
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QUALIFYING LEAVE REASONS –
SERIOUS HEALTH CONDITION
§825.113
Illness, injury, impairment or physical or mental condition involving:
• Inpatient care, or
• Continuing treatment by a health care provider
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SERIOUS HEALTH CONDITION –
INPATIENT CARE
§825.114
• An overnight stay in a hospital, hospice or residential medical facility
• Includes any related incapacity or subsequent treatment
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SERIOUS HEALTH CONDITION –
CONTINUING TREATMENT
§825.115
Continuing treatment by a healthcare provider
• Incapacity plus treatment
• Pregnancy
• Chronic conditions
• Permanent/long-term conditions
• Absence to receive multiple treatments
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CONTINUING TREATMENT BY A HEALTH
CARE PROVIDER (HCP)
§825.115
• Incapacity Plus Treatment
• Incapacity of more than three consecutive, full calendar days, that involves either:
✓ Treatment two times by HCP (first in-person visit within seven days, both visits within
30 days of first day of incapacity)
✓ Treatment one time by HCP (in-person visit within seven days of first day of incapacity),
followed by a regimen of continuing treatment (e.g., prescription medication)
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CARE PROVIDER (CON’T)
§825.115
Pregnancy
•Incapacity due to pregnancy or prenatal care
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§825.115
Chronic Conditions
• Any period of incapacity or treatment due to a chronic serious health condition, which is
defined as a condition that:
✓ requires periodic visits (twice per year) to a health care provider for treatment
✓ continues over an extended period of time
✓ may cause episodic rather than continuing periods of incapacity
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§825.115
Permanent/Long-Term Conditions
• A period of incapacity which is permanent or long-term due to a condition for
which treatment may not be effective
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§825.115
Absence to Receive Multiple Treatments
•For restorative surgery after an accident or other injury, or
•For conditions that, if left untreated, would likely result in incapacity of more than
three consecutive, full calendar days
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SERIOUS HEALTH CONDITION:
PRACTICAL POINTERS
The following ordinarily are NOT Serious Health Conditions:
• Routine physical, eye or dental examinations
• Common cold, flu, ear aches, upset stomach, minor ulcers
• Headaches (other than migraines)
• Routine dental or orthodontia problems or periodontal disease
• Conditions in which treatment is limited to either:
1) taking OTC medications such as aspirin, antihistamines, salves; or
2) bed-rest, drinking fluids, or exercise
✓ cosmetic treatments (unless in-patient care is required)
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AMOUNT OF LEAVE
§825.205 & §825.802
• Employee’s workweek is basis for entitlement
• Eligible employees may take up to 12 workweeks* of FMLA leave:
✓ for the birth or placement of a child for adoption or foster care;
✓ to care for a spouse, son, daughter, or parent with a serious health condition;
and
✓ for the employee’s own serious health condition.
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AMOUNT OF LEAVE: INTERMITTENT
LEAVE- §825.202
• Employee is entitled to take intermittent or reduced schedule leave for:
✓ Employee’s or qualifying family member’s serious health condition when the leave
is medically necessary
✓ Covered servicemember’s serious injury or illness when the leave is medically
necessary
✓ A qualifying exigency arising out of a military member’s covered active duty status
• Leave to bond with a child after the birth or placement must be taken as a continuous
block of leave unless the employer agrees to allow intermittent or reduced schedule
leave
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AMOUNT OF LEAVE: INTERMITTENT
LEAVE- §825.202 (CON’T)
• In calculating the amount of leave, employer must use the shortest increment the
employer uses to account for other types of leave, provided it is not greater than one
hour*
• Shortest increment may vary during different times of day or shift
• Required overtime not worked may count against an employee’s FMLA entitlement
* Special rules apply for calculating leave for airline flight crew employees
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12 MONTH PERIOD
§825.200
Method determined by employer
• Calendar year
• Any fixed 12-month leave year
• A 12-month period measured forward
• A rolling 12-month period measured backward
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SUBSTITUTION OF PAID LEAVE
§825.207
• “Substitution” means paid leave provided by the employer runs concurrently
with unpaid FMLA leave and normal terms and conditions of paid leave policy
apply
• Employees may choose, or employers may require, the substitution of accrued
paid leave for unpaid FMLA leave
• Employee remains entitled to unpaid FMLA if procedural requirements for
employer’s paid leave are not met
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SUBSTITUTION OF PAID LEAVE-
LIMITATIONS - §825.207
• Workers’ compensation leave
✓ may count against FMLA entitlement
✓ “topping off” allowed if state law permits
• Disability leave
✓ “topping off” allowed if state law permits
• Compensatory time off (public sector only)
✓ subject to FLSA requirements
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EMPLOYER RESPONSIBILITIES
• Provide notice
• Maintain group health insurance
• Restore the employee to same or equivalent job and benefits
• Maintain records
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EMPLOYER RESPONSIBILITIES:
GENERAL NOTICE, §825.300
• Employers must inform employees of FMLA:
✓ Post a General Notice, and
✓ Provide General Notice in employee handbook or, if no handbook, distribute to new
employees upon hire
• Electronic posting and distribution permitted
• Languages other than English required where significant portion of workforce not
literate in English
• $110 civil monetary penalty (CMP) for willful posting violation
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NOTICE OF ELIGIBILITY, §825.300
• Within five business days of leave request (or knowledge that leave may be FMLA-
qualifying)
• Eligibility determined on first instance of leave for qualifying reason in applicable 12-
month leave year
• New notice for subsequent qualifying reason if eligibility status changes
• Engage in “interactive discussion” with employee
• Provide a reason if employee is not eligible
• May be oral or in writing (optional WH-381)
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EMPLOYER RESPONSIBILITIES: PROVIDE
NOTICE OF RIGHTS AND RESPONSIBILITIES§825.300
• Provided when eligibility notice required
• Must be in writing (optional WH-381)
• Notice must include:
✓ Statement that leave may be counted as FMLA
✓ Applicable 12-month period for entitlement
✓ Certification requirements
✓ Substitution requirements
✓ Arrangements for premium payments (and potential employee liability)
✓ Status as “key” employee
✓ Job restoration and maintenance of benefits rights
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PROVIDE NOTICE OF DESIGNATION
§825.300
• Within five business days of having enough information to determine leave is FMLA-
qualifying
• Once for each FMLA-qualifying reason per applicable 12-month period (additional notice if
any changes in notice information)
• Include designation determination; substitution of paid leave; fitness for duty requirements
• Must be in writing (optional WH-382)
• If leave is determined not to be FMLA-qualifying, notice may be a simple written statement
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EMPLOYER RESPONSIBILITIES: PROVIDE
NOTICE OF DESIGNATION (CON’T)
§825.300-.301
•Employer must notify employee of the amount of leave counted against entitlement, if
known; may be payroll notation
•If amount of leave is unknown (e.g., unforeseeable leave), employer must inform
employee of amount of leave designated upon request (no more often than 30 days)
•Retroactive designation permitted provided that failure to timely designate does not cause
harm to employee
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MAINTAIN GROUP HEALTH PLAN
BENEFITS
§825.209
• Group health plan benefits must be maintained throughout the leave period
• Same terms and conditions as if employee were continuously employed
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MAINTAIN GROUP HEALTH PLAN
BENEFITS (CON’T)
§825.210-.213
• Employee must pay their share of the premium
• Even if employee chooses not to retain coverage during leave, employer obligated to
restore same coverage upon reinstatement
• In some circumstances, employee may be required to repay the employer’s share of the
premium if the employee does not return to work after leave
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EMPLOYER RESPONSIBILITIES: JOB
RESTORATION
§825.214-.219
• Same or equivalent job
✓ equivalent pay
✓ equivalent benefits
✓ equivalent terms and conditions
• Employee has no greater right to reinstatement than had the employee continued to
work
• Bonuses predicated on specified goal may be denied if goal not met
• Key employee exception
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PROHIBITED EMPLOYMENT ACTIONS
§825.220
Employers cannot:
• interfere with, restrain or deny employees’ FMLA rights
• discriminate or retaliate against an employee for having exercised FMLA rights
• discharge or in any other way discriminate against an employee because of
involvement in any proceeding related to FMLA
• use the taking of FMLA leave as a negative factor in employment actions
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EMPLOYEE RESPONSIBILITIES
• Provide sufficient and timely notice of the need for leave
• Engage with employer in “interactive discussion”
• If requested by the employer:
✓ Provide certification to support the need for leave
✓ Provide periodic status reports
✓ Provide fitness-for-duty certification
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EMPLOYEE RESPONSIBILITIES: NOTICE
REQUIREMENTS
§825.302-.303
• Provide sufficient information to make employer aware of need for FMLA-
qualifying leave
• Specifically reference the qualifying reason or the need for FMLA leave for
subsequent requests for same reason
• Consult with employer regarding scheduling of planned medical treatment
• Comply with employer’s usual and customary procedural requirements for
requesting leave absent unusual circumstances
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EMPLOYEE RESPONSIBILITIES: NOTICE
REQUIREMENTS (CON’T)
Timing of employee notice of need for leave:
• Foreseeable leave - 30 days notice, or as soon as practicable (§825.302)
• Unforeseeable leave- as soon as practicable (§825.303)
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WHAT NOTICE IS REQUIRED FROM AN
EMPLOYEE?
Request for leave from an employee may be given:
• In writing;
• Verbally;
• In person;
• By telephone;
• By fax machine;
• After the employee returns to work, but within two (2) business days of their
return; or
• By the employee’s spokesperson.
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DOES AN EMPLOYEE HAVE TO USE
“THE MAGIC FMLA WORDS”?
NO – Employees do NOT have to specifically mention or request leave under
the FMLA
• Employees must provide a clear reason for taking leave
• If asked, an employee must provide details of his or her condition or that of his or her
child, spouse, or parent
• Employees do not need to provide a “diagnosis” for a serious health condition
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EMPLOYEE RESPONSIBILITIES:
PROVIDE CERTIFICATION
§825.305
Medical Certification for serious health condition (optional WH-380-E and 380-F)
• Submit within 15 calendar days
• Employer must identify any deficiency in writing and provide seven days to cure
• Annual certification may be required
• Employee responsible for any cost
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PROVIDE CERTIFICATION (CON’T)
• Employer (not employee’s direct supervisor) may contact health care provider to:
✓ Authenticate: Verify that the information was completed and/or authorized by the
health care provider; no additional information may be requested
✓ Clarify: Understand handwriting or meaning of a response; no additional information
may be requested beyond what is required by the certification form
• Second and third opinions (at employer’s cost)
✓ If employer questions the validity of the complete certification, the employer may
require a second opinion
✓ If the first and second opinions differ, employer may require a third opinion that is
final and binding
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EMPLOYEE RESPONSIBILITIES: PROVIDE
CERTIFICATION (CON’T)
• Recertification
✓ No more often than every 30 days and with an absence
o If the minimum duration on the certification is greater than 30 days, the employer
must wait until the minimum duration expires
o In all cases, may request every six months with an absence
✓ More frequently than every 30 days if:
o the employee requests an extension of leave, or
o circumstances of the certification change significantly, or
o employer receives information that casts doubt on the reason for leave
• Consequences of failing to provide certification
✓ Employer may deny FMLA until certification is received
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PROVIDE PERIODIC STATUS REPORTS
§825.311
•Employee must respond to employer’s request for information about status and
intent to return to work
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EMPLOYEE RESPONSIBILITIES: FITNESS FOR
DUTY CERTIFICATION (§825.312)
• For an employee’s own serious health condition, employers may require certification
that the employee is able to resume work
✓ Employer must have a uniformly-applied policy or practice of requiring fitness-for-
duty certification for all similarly-situated employees
• If state or local law or collective bargaining agreement is in place, it governs the return
to work
• Not permitted for intermittent or reduced schedule leave unless reasonable safety
concerns exist
• Authentication and clarification
• Employee responsible for any cost
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OTHER ISSUES
• Salaried employees:
✓ Deductions from certain “exempt” employees’ salaries
✓ Deductions for employees paid overtime on a fluctuating workweek method
§825.311
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ADA VS. FMLA
• When FMLA leave is exhausted, the employer must go into ADA
“accommodation” mode
• FMLA “serious health condition”can also qualify as an ADA “disability”
• Must consider further leave after FMLA leave
• No specific time limit on ADA leave, but cannot be indefinite and the employee must
demonstrate expected duration when requesting leave
• Light duty work
• Increased litigation concern/threat
• ADA explicitly requires “interactive discussion” 29 C.F.R. § 1630.2(o)(3)
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MEDICAL CERTIFICATIONS
• ADA and FMLA allow limited medical inquires by employer
• ADA inquiries must be job related and necessary for business
✓ Can ask for documentation of existence of disability if leave is requested as
accommodation
• FMLA allows you to require medical certification of need for leave related only to
condition
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PREGNANCY AND ADA
• Normal Pregnancy not considered a disability
• High-risk complications that substantially limit a major life activity may be
considered a disability
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PREGNANCY AND FMLA
• Definition of “continuous treatment” includes incapacity due to pregnancy
or prenatal care
• If a woman needs to stop work early due to complications this will count
towards the 16 week leave total
• “Baby bonding time” is also covered for 16 weeks
• Paternity leave covered for same 16 week limitation
• Same health insurance coverage as when working
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EFFECTIVE STRATEGIES GOING
FORWARD
• Communicate with employee and monitor leave
• Require medical certifications for health related leaves to
determine eligibility for FMLA, ADA or both
• When FMLA leave is up determine if employee is eligible for further ADA leave
• Ensure reinstatement policy allows return to same job, not just equivalent, if
employee is covered by both FMLA and ADA
• Engage employee in interactive discussion & document
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ABOUT THE FACULTY
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Charles Krugel – cak1@charlesakrugel.com
As a management side labor & employment attorney & human resources (HR) counselor,
Charles Krugel has 20-plus years of experience in the field & has had his own practice for
more than 15 years; www.charlesakrugel.com.
Charles’ clients are small to medium sized companies & not-for-profits in a variety of
industries. His practice is equal parts prevention, negotiation & litigation. Besides
providing traditional labor & employment law services, he represents companies desiring
to institute preventive & proactive HR functions. These functions include policies &
procedures that which help to efficiently and discreetly resolve issues in-house & prevent
lawsuits & complaints. They also help to reduce costs & act as catalysts for increasing
productivity & profits.
For perspectives of what Charles’ clients think of him, please see his “Client Testimonials”
web page.
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Aaron Gelb – agelb@connmaciel.com
Aaron R. Gelb is a partner in the Chicago office of Conn Maciel Carey, a boutique law firm
focused on Labor & Employment, Workplace Safety, and Litigation. Mr. Gelb specializes in
labor and employment, and OSHA litigation. He has extensive experience litigating equal
employment opportunity matters in federal and state courts having tried a number of cases
to verdict and defending employers before the EEOC as well as fair employment agencies
across the country; in the past 5 years alone, Aaron has successfully handled more than
250 discrimination charges. Aaron also has a particular emphasis on advising and
representing clients in relation to inspections, investigations, and enforcement actions
involving federal OSHA and state OSH programs, and managing a full range of litigation
against OSHA. Mr. Gelb received his bachelor’s degree from the University of Chicago in
1992 and his JD from the University of Texas in 1995.
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Emily Fess – Emily_fess@rush.edu
Emily C. Fess is the Associate General Counsel – Employment for the Rush University
System for Health. Emily counsels RUSH on a broad range of employment law matters,
including medical leave and accommodation requests, discipline and discharge,
harassment
and workplace investigations and wage and hour issues.
Emily routinely manages litigation that includes discrimination charges filed with the
EEOC and state agencies and various Title VII, ADA, FMLA, FLSA and retaliation
lawsuits.
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Jason Klimpl – klimpl@thsh.com
Jason B. Klimpl is a partner in the Employment Law Group of Tannenbaum Helpern Syracuse & Hirschtritt
LLP. In this capacity, he advises clients on a broad range of employment law matters, such as wage and hour
compliance; healthcare; equal opportunity actions and policies; employment agreements and restrictive
covenants; independent contractor and consulting issues, reductions in force; technology and privacy
concerns; and other human resources counseling.
Jason is also the Associate General Counsel of the New York Staffing Association, and is heavily involved in
legal and legislative efforts to support the staffing industry.
Jason has written numerous employment law articles and is a contributing faculty member of both Lawline
and the National Academy of Continuing Legal Education. Jason is also a member of the Manhattan Chamber
of Commerce’s Speakers Bureau and Help Desk.
-Awarded Martindale‐Hubbell “Preeminent” peer review rating; Named 2013 ‐2017 New York Super Lawyer
(Rising Star); Finally, the New York Enterprise Report named Jason the winner of the 2012 Best Attorneys and
Accountants “Rising Star Attorney” category.
Follow Jason on Twitter: @HR_Attorney
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IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily
for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education.
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Time for a Break: Managing Leaves of Absence and Accommodating Disabilities (Series: HR, Talent Management & Employment Law Boot Camp)

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