1. ADA/FMLA 2012
EMPLOYEE LEAVE AND
ACCOMMODATION
Joel J. Borovsky, Jackson Lewis
April 26, 2012
Thrive. Grow. Achieve.
2. WHERE TO BEGIN?
• Examine obligations
under EACH law
separately
• Don’t ignore info you
obtain through handling
a different legal claim
ADA/FMLA Employee Leave / Page 2
3. THE FAMILY AND MEDICAL
LEAVE ACT (FMLA)
ADA/FMLA Employee Leave / Page 3
4. 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
5. 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
6. 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 employers
ADA/FMLA Employee Leave / Page 6
7. 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 child
ADA/FMLA Employee Leave / Page 7
8. 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 job
ADA/FMLA Employee Leave / Page 8
9. 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 FMLA
ADA/FMLA Employee Leave / Page 9
10. CERTIFICATION FORMS
• Did you know that the FMLA forms originally expired December 31, 2011?
• Recently “renewed”, and extended until February 28, 2015
ADA/FMLA Employee Leave / Page 10
11. 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
certification
ADA/FMLA Employee Leave / Page 11
12. 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 opinions
ADA/FMLA Employee Leave / Page 12
13. 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 claim
ADA/FMLA Employee Leave / Page 13
14. 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 +
ABSENCE
ADA/FMLA Employee Leave / Page 14
15. 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 HOURS
ADA/FMLA Employee Leave / Page 15
17. 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
18. 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 leave
ADA/FMLA Employee Leave / Page 18
19. 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 country
ADA/FMLA Employee Leave / Page 19
21. 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 WELL
ADA/FMLA Employee Leave / Page 21
23. 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
24. 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
25. 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 disability
ADA/FMLA Employee Leave / Page 25
26. 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
27. 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” RESPONSE
ADA/FMLA Employee Leave / Page 27
28. 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
effective
ADA/FMLA Employee Leave / Page 28
29. LEAVE ACCOMMODATIONS
THE BIG QUESTION:
• How much time off is an employee entitled to receive?
ISSUES:
• Indefinite leave
• Continually extended leave
• Unpredictable absences
ADA/FMLA Employee Leave / Page 29
30. 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 ADA's 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
31. 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
• Diabetes
ADA/FMLA Employee Leave / Page 31
32. “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
33. 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 accommodated
ADA/FMLA Employee Leave / Page 33
34. DISABILITY DISCRIMINATION:
KEY CONCEPTS: MEDICAL INQUIRIES
IF “INSUFFICIENT” INFORMATION IS PROVIDED, EMPLOYER MAY REQUEST
EVALUATION BY A DESIGNATED HEALTH PROFESSIONAL OF THE
EMPLOYER’S CHOICE
ADA/FMLA Employee Leave / Page 34
35. 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 retaliatory
ADA/FMLA Employee Leave / Page 35
36. 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
37. 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
accommodation
ADA/FMLA Employee Leave / Page 37
38. 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 policies
ADA/FMLA Employee Leave / Page 38
39. 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
40. 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
41. 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
43. 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
44. 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 accommodation
ADA/FMLA Employee Leave / Page 44
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
