1. Short-notice deployment (maximum of 7 calendar days)2. Military events and related activities (e.g. ceremonies, family assistance programs)3.Childcare and school activities (when need arises due to the change caused by active duty status)4. Financial and legal arrangements (due to covered family member’s absence)5. Counseling6. Rest and recuperation (leave can be taken for a maximum of 5 days per instance)7. Post-deployment activitiesLeave needed to address other events which arise out of active duty status provided that both the Company and employee agree that it is a qualifying exigency and agree to both the timing and duration of the leave.A. Operates independent of methods for calculating 12 weeks of other FMLA leaveIf military caregiver leave would also qualify as serious health condition, no dual designation allowed!C. Leave must always be designated as service member leave first
May request FFD certification for intermittent leave if reasonable safety concerns exist.
Recertification TimingThe general rule is that an employer may require recertification of a serious health condition no more frequently than the duration of the prior certification or every 30 days, whichever period is longer. For example, if an employee begins leave for a serious health condition with a certification that states that leave is necessary for 40 days, the employer may not seek recertification until the 40 days have passed. However, regardless of the duration of the original certification, the employer may require recertification every six months in connection with an absence.There are several exceptions that allow an employer to obtain recertification more frequently than every 30 days. More frequent recertification may be required if:The employee requests an extension of the leave.The circumstances described by the previous certification have changed significantly. The regulations refer to changes in the duration or frequency of absences or the nature or severity of the illness. For example, a medical certification stated that an employee would need leave for one or two days periodically when the employee had a migraine headache but the employee's absences for migraines tend to last for four or more days. Another example might be a suspicious pattern of the employee's taking unscheduled FMLA intermittent leave adjacent to scheduled days off. Either of these cases might constitute changed circumstances that would allow a recertification in less than 30 days.The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. The regulations offer the example of an employee who obtains FMLA leave for four weeks due to knee surgery but then is discovered playing in the company softball league during the third week of leave.So long as the employer gives the employee 15 calendar days to produce the recertification, the employee must do so within the requested period, unless it is not practicable under the particular circumstances despite the employee's diligent, good faith efforts.In general, the employer may ask for the same information when obtaining recertification that was permitted for the original certification and the employee has the same obligation to participate and cooperate in the recertification process as in the initial certification process. However, as part of the request for recertification because of leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee's absence pattern and ask the health care provider specifically to comment as to whether the serious health condition and the need for leave are consistent with such pattern. This is a way to deal with some of the suspicious circumstances discussed above.
Largely to implement statutory changes from the National Defense Authorization Act for Fiscal Year 2010 and The Airline Flight Crew Technical Corrections Act. Comments due by April 16, 2012. Recent Statutory Amendments to the FMLAStatutory amendments expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions. The amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country. The Airline Flight Crew Technical Corrections Act established a special FMLA hours of service eligibility requirement for airline flight crew members, such as airline pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months. Major Provisions of the FMLA Statutory Amendments NPRMThe major provisions of the NPRM include: the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty; a flexible, three-part definition for serious injury or illness of a veteran; the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition; the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces; inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces); the addition of a special hours of service eligibility requirement for airline flight crew employees; and the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.
The Airline Flight Crew Technical Corrections Act established a special FMLA hours of service eligibility requirement for airline flight crew members, such as airline pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.
The ADA, enacted in 1991, does not necessarily require time away from work, but it can. . . And there has been great development in this regard recently.
Previously, to establish a disability, under ADA an employee had to show not just that he had an impairment, but that the impairment stopped him from leading a normal life (i.e. affected his ability to perform daily activities). That high standard has been wiped away.
“Essential” or “fundamental” is not a convenience, and not marginal or incidentalA “marginal” function is not “fundamental,” e.g. receptionist = a answering the phone v. getting coffee for the boss?Whether or not a particular duty is considered marginal will depend on:The importance of the duty to your company's operation; It's frequency; If there's sufficient staff to reassign the marginal duty to other employees; If the marginal duty can be redesigned or performed in another way. Ask: Does the job exist to do this function? Would taking this function from the job significantly change the job?
The bottom line is that employers must have a legitimate reason before requesting a return-to-work medical exam. Also have arguably have an affirmative dutyExamples of cases in which an employer was found not to have violated the ADA: (1) One court found that it would be “grossly negligent” for an employer not to order a psychiatric examination when an employee makes serious workplace threats; (2) An employer was within its rights to require a medical examination when the job required driving and the employee disclosed a condition that required medications that could impair the ability to drive.
The ADA, enacted in 1991, does not necessarily require time away from work, but it can. . . And there has been great development in this regard over the last year.
Memorializing injury after the accident, even updating the description as part of the RTW process may be problematicThe term “direct threat” means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. It’s employer’s burden to prove, if you’re relying on this, seek legal counsel“An employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is a significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence -- rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes -- the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.”
Class action by EEOC against UPSAlleged company violated the ADA by rejecting an extension of medical leave as a reasonable accommodation.Supervalu lawsuit alleged company violated the ADA by having policies/practices requiring employees to return to work with no restrictions.Automatically terminated employees on medical leave for one yearEEOC consent decree: “inflexible” administration of leave policies
ADA/FMLA 2012 EMPLOYEE LEAVE AND ACCOMMODATION Joel J. Borovsky, Jackson Lewis April 26, 2012Thrive. Grow. Achieve.
WHERE TO BEGIN? • Examine obligations under EACH law separately • Don’t ignore info you obtain through handling a different legal claimADA/FMLA Employee Leave / Page 2
THE FAMILY AND MEDICAL LEAVE ACT (FMLA)ADA/FMLA Employee Leave / Page 3
THE FAMILY AND MEDICAL LEAVE ACT (FMLA) • The Family and Medical Leave Act (FMLA) of 1993 allows employees to take job- protected leave for certain family and medical reasons. It also allows leave in conjunction with the military service of family members.ADA/FMLA Employee Leave / Page 4
THE FAMILY AND MEDICAL LEAVE ACT (FMLA) ELIGIBLE” EMPLOYEES MAY TAKE 12 WEEKS OF UNPAID LEAVE IN A 12-MONTH PERIOD CONTINUATION OF HEALTH INSURANCE BENEFITS FOR THE EMPLOYEE DURING THE LEAVE PERIOD RESTORATION OF THE EMPLOYEE TO THE SAME OR EQUIVALENT POSITION UPON TIMELY RETURN FROM THE LEAVE • State Law equivalents (e.g. District of Columbia FMLA)ADA/FMLA Employee Leave / Page 5
THE FAMILY AND MEDICAL LEAVE ACT (FMLA) AN EMPLOYEE MUST BE EMPLOYED BY A COVERED EMPLOYER: • For at least 12 months (can include prior service) • For at least 1,250 hours in the 12 months immediately preceding the leave • At a worksite having 50 or more employees within 75 miles of that worksite ̵ Special rules for joint employersADA/FMLA Employee Leave / Page 6
REASONS FOR FMLA • The birth of a child and in order to care for such child • The placement of a child with the employee for adoption or foster care and to care for the newly placed childADA/FMLA Employee Leave / Page 7
REASONS FOR FMLA • To care for a spouse, son, daughter, or parent with a serious health condition • Employee’s own serious health condition which renders the employee unable to perform the functions of his/her jobADA/FMLA Employee Leave / Page 8
REASONS FOR FMLA QUALIFYING EXIGENCY RELATED TO THE ACTIVE DUTY (OR CALL TO ACTIVE DUTY) OF EMPLOYEE’S SPOUSE, SON, DAUGHTER OR PARENT EMPLOYEE IS THE SPOUSE, SON, DAUGHTER, PARENT OR NEXT OF KIN OF A COVERED SERVICE MEMBER WITH A SERIOUS ILLNESS OR INJURY. • Up to 26 weeks per service member and per injury • Calculation is different than and independent of regular FMLAADA/FMLA Employee Leave / Page 9
CERTIFICATION FORMS • Did you know that the FMLA forms originally expired December 31, 2011? • Recently “renewed”, and extended until February 28, 2015ADA/FMLA Employee Leave / Page 10
FMLA: FITNESS FOR DUTY CERTIFICATION EMPLOYERS MAY DEMAND MORE THAN A “SIMPLE STATEMENT” OF ABILITY TO RETURN TO WORK. ONLY CLARIFICATION OF INCOMPLETE OR INSUFFICIENT CERTIFICATION FORM ALLOWED: • “Incomplete” = Entries not complete • “Insufficient” = Vague, ambiguous, nonresponsive • Form not returned = failure to provide certificationADA/FMLA Employee Leave / Page 11
CERTIFICATION OF LEAVE • May deny leave if employee does not cure within 7 calendar days (after written notice from employer) • Then can contact health care provider for clarification and authentication only IF employee has released employer to do so • No 2nd or 3rd opinionsADA/FMLA Employee Leave / Page 12
RETROACTIVE DESIGNATION • Permissible if no harm or injury to employee • Employer and employee can mutually agree to retroactive designation • Employer’s failure to comply with the notice requirements could support an interference claimADA/FMLA Employee Leave / Page 13
MEDICAL RECERTIFICATION 30 DAYS + ABSENCE OR MINIMUM DURATION IF CONDITION LASTS MORE THAN 30 DAYS EXCEPTIONS: • Employee requests extension • Significantly changed circumstances • Information that casts doubt on stated reason or continued validity CAN REQUEST EVERY 6 MONTHS + ABSENCEADA/FMLA Employee Leave / Page 14
INTERMITTENT OR REDUCED LEAVE UNDER THE FMLA INTERMITTENT LEAVE MAY BE TAKEN FOR A SERIOUS HEALTH CONDITION OF THE EMPLOYEE OR FOR CARE OF A FAMILY MEMBER CAN TEMPORARILY TRANSFER TO ALTERNATIVE POSITION TO ACCOMMODATE NEED FOR PLANNED MEDICAL TREATMENT, BUT KEEP PAY THE SAME CAN REDUCE COMPENSATION TO REFLECT REDUCED WORK WEEK OR REDUCED HOURSADA/FMLA Employee Leave / Page 15
COMMON FMLA MISTAKES BEWARE!ADA/FMLA Employee Leave / Page 16
COMMON FMLA MISTAKES BEWARE! FAILURE TO DOCUMENT PERFORMANCE ISSUES PRIOR TO EMPLOYEE’S REQUEST FOR FMLA LEAVE; FAILING TO DESIGNATE THE METHOD OF CALCULATING THE FMLA 12-MONTH PERIOD; TOO RESTRICTIVE RE “SERIOUS HEALTH CONDITION;” FAILING TO PROPERLY DESIGNATE LEAVE; FAILING TO GIVE FMLA NOTICE TO EMPLOYEES ON WORKERS’ COMPENSATION OR STD LEAVES; AND, FAILING TO REINSTATE EMPLOYEE TO SAME OR SUBSTANTIALLY EQUIVALENT POSITION.ADA/FMLA Employee Leave / Page 17
FMLA REVISIONS! NOTICE OF PROPOSED RULEMAKING (FEBRUARY 15, 2012) • Extending entitlement of military caregiver leave to family members of veterans for up to 5 years after leaving military • Extending qualified exigency leave to employees whose family members serve in regular armed forces • Extending from 5 to 15 days the time an employee may take leave to spend with a military member who is on rest and recuperative leaveADA/FMLA Employee Leave / Page 18
FMLA REVISIONS! NOTICE OF PROPOSED RULEMAKING (CONT’D) • Expanding definition of “serious illness or illness” for both current service members and veterans to include that resulting from a condition that existed before active duty service and was aggravated by service in the line of duty • All qualifying exigency leave the military member must be deployed to a foreign countryADA/FMLA Employee Leave / Page 19
THE AMERICANS WITH DISABILITIES ACT (ADA) NON-DISCRIMINATION ADA REQUIRES EMPLOYERS TO PROVIDE REASONABLE ACCOMMODATIONS TO QUALIFIED INDIVIDUALS WITH DISABILITIES UNLESS TO DO SO WOULD CAUSE UNDUE HARDSHIP MEDICAL EXAMS AND INQUIRIES SIMILAR STATE AND LOCAL LAWS MAY APPLY AS WELLADA/FMLA Employee Leave / Page 21
THE ADA’S DEFINITION OF “DISABILITY” • The ADA defines “disability” as a “a physical or mental impairment that substantially limits one or more . . . major life activities.” • Under the ADAAA, but the Act provided that term “shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]”ADA/FMLA Employee Leave / Page 23
THE ADAAA: WHAT HASN’T CHANGED? • The ADAAA modified the ADA’s definition of disability, but did not change many other key aspects of the ADA, for example: ̵ What counts as an “essential” job function; ̵ What are “reasonable” accommodations; ̵ The “interactive” process to be followed when evaluating accommodations; ̵ Undue hardship.ADA/FMLA Employee Leave / Page 24
DISABILITY DISCRIMINATION: FEDERAL AND STATE ADA AND APPLICABLE STATE LAWS ALL: • include anti-retaliation • require “interactive dialogue” • cover individuals who are “regarded as” having a disabilityADA/FMLA Employee Leave / Page 25
DISABILITY DISCRIMINATION: “ESSENTIAL JOB FUNCTION” • “FUNDAMENTAL DUTIES” ̵ Work experience of others • JOB DESCRIPTION ̵ Amount of time spent performing task ̵ Consequences of not requiring the employee to perform function ̵ Does the job exist to perform this function?ADA/FMLA Employee Leave / Page 26
REASONABLE ACCOMMODATION • MEDICAL LEAVE CAN BE A REASONABLE ACCOMMODATION UNDER THE ADA • WHETHER INTERMITTENT OR IN A BLOCK OF TIME • ENGAGE IN THE INTERACTIVE ACCOMMODATION PROCESS – NEVER KNEE-JERK A “NO” RESPONSEADA/FMLA Employee Leave / Page 27
LIMITS ON PROVIDING A REASONABLE ACCOMMODATION • Would impose an undue hardship on the business • Would eliminate one of the essential functions of the job • An employer does not have to choose the “best” accommodation or the employee’s choice, so long as the accommodation it implements is effectiveADA/FMLA Employee Leave / Page 28
LEAVE ACCOMMODATIONS THE BIG QUESTION: • How much time off is an employee entitled to receive? ISSUES: • Indefinite leave • Continually extended leave • Unpredictable absencesADA/FMLA Employee Leave / Page 29
PREDICTABLE ASSESSMENTS • No “per se” list of disabilities … but! • Certain impairments will be disabilities in “virtually all cases” • This is “intended to provide for more generous coverage and application of the ADAs prohibition on discrimination through a framework that is predictable, consistent, and workable for all individuals and entities with rights and responsibilities under the ADA as amended.”ADA/FMLA Employee Leave / Page 30
PREDICTABLE ASSESSMENTS • Deafness • Epilepsy • Blindness • Human Immunodeficiency Virus (HIV) infection • Intellectual disabilities (formerly termed mental • Multiple sclerosis retardation) • Muscular dystrophy • Partially or completely missing limbs or mobility impairments • Major depressive disorder requiring the use of a wheelchair • Bipolar disorder • Autism • Post-traumatic stress disorder • Cancer • Obsessive compulsive disorder • Cerebral palsy • Schizophrenia • DiabetesADA/FMLA Employee Leave / Page 31
“REGARDED AS” COVERAGE • Unless impairment is transitory and minor, an individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.ADA/FMLA Employee Leave / Page 32
DISABILITY DISCRIMINATION: KEY CONCEPTS: MEDICAL INQUIRIES • Entitled to documentation about the nature and degree of limitations and possible reasonable accommodations • May request only relevant, job-related medical information necessary to assess the individual’s ability to perform essential job functions or to be accommodatedADA/FMLA Employee Leave / Page 33
DISABILITY DISCRIMINATION: KEY CONCEPTS: MEDICAL INQUIRIES IF “INSUFFICIENT” INFORMATION IS PROVIDED, EMPLOYER MAY REQUEST EVALUATION BY A DESIGNATED HEALTH PROFESSIONAL OF THE EMPLOYER’S CHOICEADA/FMLA Employee Leave / Page 34
DISABILITY DISCRIMINATION: KEY CONCEPTS: MEDICAL INQUIRIES • Documentation is “insufficient” if it does not specify the existence of a “disability” or explain the need for reasonable accommodation • The EEOC says that employers should first explain insufficiencies to employee and give them opportunity to provide what is missing • CAUTION : Requests may be deemed retaliatoryADA/FMLA Employee Leave / Page 35
DISABILITY DISCRIMINATION COMMON MISTAKES • Failing To: ̵ Identify/document “actual” essential job functions ̵ Adequately document performance deficiencies ̵ Engage in the “interactive process”ADA/FMLA Employee Leave / Page 36
DISABILITY DISCRIMINATION COMMON MISTAKES • Failing to correctly or sufficiently analyze safety issues under the direct threat standard • Failing to adequately acquire or analyze medical information • Not considering reassignment or additional unpaid leave with job restoration as accommodationADA/FMLA Employee Leave / Page 37
DISABILITY DISCRIMINATION COMMON MISTAKES • Making comments or treatment to support “regarded as” disability status • Not setting clear expectations and limits • Providing unrestricted “light duty” assignments • Blanket policiesADA/FMLA Employee Leave / Page 38
INSIGHT FROM THE FIRST ADA CASES • Early cases adopt a broader reading of disability, in accordance with the ADAAA. • Plaintiffs with conditions often previously denied coverage now reach the merits of their claims: Cancer, back pain, MS, depression. • Issues now more likely to be litigated: Essential functions, reasonable accommodation process, undue hardship. • Later cases: some backlash; courts are finding plaintiffs not disabled despite broader standards.ADA/FMLA Employee Leave / Page 39
EXAMPLE: ADA ACCOMMODATION AND ISSUES WITH THE FMLA ANY LEAVE PERIOD REQUESTED BY THE EMPLOYEE CONSTITUTES BOTH FMLA LEAVE AND MAY BE AN ACCOMMODATION UNDER THE ADA. • FMLA – Analyze FMLA first, until employee reaches 12 weeks of leave. • ADA - Analyze ADA second.ADA/FMLA Employee Leave / Page 40
EXAMPLE: ADA ACCOMMODATION AND ISSUES WITH THE FMLA WHAT IF THE EMPLOYEE COULD RETURN TO WORK AFTER 12 WEEKS OF FMLA LEAVE BUT COULD NO LONGER PERFORM THE ESSENTIAL FUNCTIONS OF HER JOB? WHAT IF EMPLOYEE TAKES INTERMITTENT LEAVE AND NEEDS OTHER ACCOMMODATIONS WHILE AT WORK? WHAT IF EMPLOYEE WANTS TO WORK FROM HOME?ADA/FMLA Employee Leave / Page 41
OTHER LEAVE CONSIDERATIONSADA/FMLA Employee Leave / Page 42
GRATUITOUS LEAVE FROM THE EMPLOYER PURSUANT TO EMPLOYER’S POLICY ON AN INDIVIDUAL BASIS (DISCRETIONARY) NO LEAVE AVAILABLE? • Employee may be discharged. • But watch for discrimination issues. • Fixed leave periods are no longer allowed.ADA/FMLA Employee Leave / Page 43
LEAVE PLAN ANALYSIS (LPA) Step One: Provide all leave employees are “entitled” to under law Step Two: Provide all leave permitted under policies Step Three: Determine whether providing additional leave is necessary as a reasonable accommodationADA/FMLA Employee Leave / Page 44
SCENARIO FOR DISCUSSIONADA/FMLA Employee Leave / Page 45
SCENARIO FOR DISCUSSION QUESTIONS? JOEL J. BOROVSKY, ESQ. BOROVSKY@JACKSONLEWIS.COM DIRECT: (703) 483-8315ADA/FMLA Employee Leave / Page 46