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2012-04-26 ADA FMLA
 

2012-04-26 ADA FMLA

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  • 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