As Director of Human Resources for Company X, I have been directed to research and make recommendations concerning three personnel issues. These issues pertain to possible violations of the Family Medical Leave Act of 1993 (FMLA), Age Discrimination in
Employment Act of 1967 and the Americans with Disability Act of 1990.
Situation A involves the Family Medical Leave Act of 1993 and Employee A. Employee
A has been employed by our company for two years and requested leave to assist at home due to unforeseen complications with the birth of his twin children. He has been on leave for 11 weeks and has requested to return to work and be paid for the 11 weeks he was on leave. During his absence, his Department Manager, has left the company and has been replaced. The current
Department Manager has granted his request to return to work, in his previous position, but is denying his request for back pay.
Pursuant to Section 102(a)(1) FMLA 1993, Employee A was entitled to 12 work weeks of unpaid leave in any 12 month period, for the birth of his children or to care for his spouse.
Also under FMLA Section 104(a)(1) (a) and (b), the employee is entitled to be reinstated by his or her employer to the position held by the employee when the leave started or be offered a position of like importance with equal pay and equal benefits. Section 104(2) states an employee taking leave under Section 102 shall not lose any employment benefits accrued prior to the date which leave started. Section 102(d)(1) and (2) are also relevant in this instance. Section 102
(d)(1) states if an employer provides less than 12 weeks of paid leave the balance of leave due may be granted unpaid. Section 102(d)(2)(A) states and employee may elect, or an employer may require, accrued sick time and vacation to be taken as part or all, of the 12 weeks of leave.
It is my opinion we, as a company, have complied with the regulations as stated in the
Family Leave Medical Act of 1993 by granting Employee A up to 12 week of leave and allowing him to return to his original position with no reduction in rate of pay or loss of benefits.
However, if Employee A has any accrued sick time or vacation time he must be allowed to use said time. I have directed the Payroll Department to review his pay history and notify his
Department Manager of any accrued sick time or vacation time that may be used toward his 11 week leave. After those monies, if any, have been paid, the company is not obligated to pay, and should not pay, Employee A for the balance of the time he was absent from work. It is also my opinion the FMLA regulations and our company policy should have been discussed with
Employee A and provided to him in writing by the Human Resources Department prior to his taking his leave. This topic is not something that is within the purview of the Department
Manager.
Situation B involves a possible violation of The Age Discrimination in Employment Act of 1967. Employee B has been employed with our company for 42 years and he is 68 years of age. On his annual performance review last month, he received an “above average” rating. The position was given to a 32 year old co-worker who had received an “adequate” rating on his annual performance review. Employee B was denied a promotion due to his age.

Sec. 623 [section 4] (a)(2) of The Age Discrimination in Employment Act of 1967 states that “ to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age”. With the information provided it indicates that we
(Company X) are in direct violation of this provision. However, Sec. 623 [Section 4](f)states; “It shall not be unlawful for an employer, employment agency, or labor organization- (1)to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age”.
Because there could be factors other than age in determining whether an employee is denied a promotion, I have directed the Department Manager to meet with me to review the position qualifications and KSA’s (Knowledge, Skills and Abilities) to determine if a violation has occurred. Situation C involved an applicant who is confined to a wheelchair. The position
Applicant C had applied for, required access to work areas on all seven (7) levels of the company which would require daily use of the elevator(s). Two out of four elevators keypads are too high for access by the applicant. Applicant C was denied employment because making all elevators accessible would cause undue hardship to the company.
There are various parts of the American’s with Disabilities Act of 1990 that could be sited for this situation but the only one that actually applies is Section 4.1.6(1)(a) of the 1991
Standards and 206.6.1 of the 2010 Standards. This section states that when one element is altered to comply with Standards, all like elements must also be altered. Also Appendix B to Part
36, Analysis and Commentary on the 2010 ADA Standards for Accessible Design, commentators expressed concern “such a requirement is burdensome and will result in costly efforts without significant benefit to individuals with disabilities”. The response was “The Department also believes that the effort required to meet this provision is minimal in the majority of situations because it is typical to upgrade all of the elevators in a bank at the same time.” Since we
(Company X) have two elevators in compliance we have no basis to claim “undue hardship”, thus it is my determination we (Company X) are in violation of the American’s with Disabilities
Act. I am advising modifications be made immediately to the two elevators that are not up to
Standard.
Due to these issues coming to my attention, I recommend the Human Resources
Department provide a series of In-Services to Department Managers and Supervisors on hiring procedures and compliance with Federal and State statutes that apply to the workplace. I would also recommend meeting with the Facility Manager to assure our building is handicap accessible and up to State and Federal standards. These issues should never have occurred within Company
X and I will endeavor to educate our managers to assure compliance in all areas.

References
United States Department of Labor (2012). Family Medical Leave Act of 1993, Section
102(a)(1), FMLA 1993, Section 104(a)(1) (a) and (b), Section 104(2), Section 102(d)(1) and (2), Section 102 (d)(1), Section 102(d)(2)(A). Retrieved February 21, 2012, from http://www.dol.gov/whd/fmla. United States Department of Labor (2012). The Age Discrimination in Employment Act of 1967,
Sec. 623 [section 4] (a)(2), Sec. 623 [Section 4](f). http://www.dol.gov/oasam/regs/statutes/age_act.htm. United Stated Department of Justice (2012). American’s with Disabilities Act of 1990, Section
4.1.6(1)(a) of the 1991 Standards and 206.6.1 of the 2010 Standards. Retrieved February
20, 2012 from, http://www.ada.gov/reg3a.html#Anchor-91481.