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ADA FMLA Update
- 1. ADA and FMLA Update 2009
Presented by:
William W. Bowser
Young Conaway Stargatt & Taylor, LLP
- 2. Agenda
ADA Amendments and Regulations
FMLA Regulations
Defense Authorization Act for 2010
© 2009 Young Conway Stargatt & Taylor, LLP
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- 3. ADA Timeline
History of the ADA
1990 -- ADA enacted.
Sept. 25, 2008 -- ADA Amendments Act
(“ADAA”) signed into law.
Sept. 23, 2009 – EEOC issues proposed
new regulations.
November 23, 2009 – Deadline for public
comments.
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- 4. ADA Amendments Act of 2008
What does the ADAA NOT change?
Definition of Disability
Physical or mental impairment
“Substantially limits”
One or more “major life activities.”
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- 5. ADA Amendments Act of 2008
What does the ADAA change?
Definition of disability “shall be
construed in favor of broad coverage”
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- 6. ADA Amendments Act of 2008
What does the ADAA change?
Creates non-exhaustive list of Major
Life Activities
Caring for oneself; bending; performing manual
tasks; speaking; seeing; breathing; hearing;
learning; eating; reading; sleeping; concentrating;
walking; thinking; standing; lifting;
communicating; and working
Proposed regulations add reaching, sitting, and
interacting with others
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- 7. ADA Amendments Act of 2008
What does the ADAA change?
Congress also created a subset of major life
activities called "major bodily functions"
These functions include: functions of the immune
system, normal cell growth, and digestive, bowel,
bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions
Note that any ailment that would be a disability if
it were to manifest is still considered a disability
if it is in remission or is currently non-episodic
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- 8. ADA Amendments Act of 2008
What does the ADAA change?
Lowers the standard for what when
person is “substantially limited” in a
major life activity
Need not “severely restrict” or “prevent”
individual from doing major life activity
Six Rules of Construction
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- 9. ADA Amendments Act of 2008
Six Rules of Construction
No. 1 -- Focus should be on whether
discrimination occurred, not on whether
someone meets the definition of
“disability”
No. 2 -- Need not demonstrate a limitation
on ability to perform “activities of central
importance to daily life”
No. 3 – Impairment need only limit one
MLA
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- 10. ADA Amendments Act of 2008
Six Rules of Construction
No. 4 – Limitation is compared using
“common-sense standard, without
scientific or medical evidence”
No. 5 – An impairment that last less than
six months can substantially limit a MLA
No. 6 – Focus on how MLA is substantially
limited, not on what an individual can do
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- 11. ADA Amendments Act of 2008
What does the ADAA change?
Mitigating measures are not to be
considered when determining whether
someone is disabled
Medication, prosthetics, hearing aids, surgical
interventions, etc.
Exception: ordinary glasses or contact lenses
intended to return vision to 20/20
Overturns Sutton v. United Air Lines, Inc.
(1999)
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- 12. ADA Amendments Act of 2008
What does the ADAA change?
Impairments that are episodic or in
remission are analyzed as if the
impairment is “active”
Proposed regulations refer to cancer,
epilepsy, hypertension, MS, asthma,
cancer, depression, bipolar disorder, post
traumatic stress disorder
© 2009 Young Conway Stargatt & Taylor, LLP
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- 13. ADA Amendments Act of 2008
What does the ADAA Change?
Proposed regulations contain categories of
impairments
Certain impairments “will consistently meet the
definition of disability”
Blindness, deafness, intellectual disabilities,
missing limbs, mobility impairments that require
wheelchair, autism, cancer, cerebral palsy, diabetes,
epilepsy, HIV and AIDS, MS, MD, major depression,
bipolar disorder, post-traumatic stress disorder,
schizophrenia
Abandons the “case by case” method
© 2009 Young Conway Stargatt & Taylor, LLP
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- 14. ADA Amendments Act of 2008
What does the ADAA Change?
Proposed regulations contain categories of
impairments
Certain impairments that “may be disabling for
some individuals but not others”
Asthma, high blood pressure, coronary artery
disease, learning disabilities, back or leg
impairment, carpal tunnel syndrome, panic or
anxiety disorder, depression, hyperthyroidism
Academic achievement is not relevant
Success in overcoming impairment is not relevant
© 2009 Young Conway Stargatt & Taylor, LLP
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- 15. ADA Amendments Act of 2008
What does the ADAA Change?
Proposed regulations lower standard for
showing impairment substantially limits the
MLA of working
Need only show impairment substantially limits
ability to perform, or meet the qualifications for the
“type of work” at issue
Heavy lifting, extended standing, walking long
distances
Fact that individual got work elsewhere is not
relevant
Statistical or expert testimony not necessary
© 2009 Young Conway Stargatt & Taylor, LLP
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- 16. ADA Amendments Act of 2008
What does the AAA change?
Employee can state “regarded as” claim under the
ADA if he can show discrimination based on an
actual or perceived impairment “whether or not
the impairment limits or is perceived to limit a
major life activity.
Actions based on impairment symptoms or
mitigating measure are evidence
No reasonable accommodation required for
“regarded as” individuals
No transitory impairment (less than six months)
can form basis of “regarded as” claim
© 2009 Young Conway Stargatt & Taylor, LLP
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- 17. FMLA Military Leave and
Regulations
FMLA Expanded on January 28, 2008
to add military family leave provisions
DOL issued new regulations on
November 17, 2008
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- 18. FMLA Military Leave
Created by National Defense
Authorization Act (NDAA)
Signed into law on January 28, 2008
Expanded again on October 28, 2009
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- 19. FMLA Military Leave
Two brand new types of FMLA leave
created
“Qualifying Exigency” Leave
“Military Caregiver” Leave
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- 20. Military Caregiver Leave
Up to 26 weeks of leave in a “single
12-month period” to care for an ill or
injured servicemember
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- 21. Military Caregiver Leave
Can be taken by son, daughter, spouse,
or “next of kin” of covered
servicemember
“Next of kin” is new to FMLA
Statute says “nearest” blood relative
What happens when nearest can’t or won’t
provide care?
Can more than kin provide care?
Can service member designate kin?
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- 22. Military Caregiver Leave
Care must be for a “covered servicemember” -
- a member of the U.S. Armed Forces,
including a member of the National Guard or
Reserves undergoing:
Medical treatment
Recuperation
Therapy
Is otherwise in outpatient status, or
Is otherwise on the temporary disability
retired list due to the injury or illness
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- 23. Military Caregiver Leave
Defense Authorization Act for 2010
expands military caregiver leave to
care for veterans if:
Veteran was a member of armed forces
within five years of treatment or
recuperation
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- 24. Military Caregiver Leave
Service member must be recovering
from a serious illness or injury
sustained in the line of duty on active
duty or one which was aggravated by
service in the line of duty
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- 25. Military Caregiver Leave
The 26 week entitlement includes
other FMLA time
If FMLA time is used, it is deducted
from the 26 weeks
Can be taken intermittently
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- 26. Military Caregiver Leave
Leave entitlement is on a per-
covered-servicemember, per injury
basis
Can take no more than 26 weeks in
a single 12-month period
Can take more than one period of
26 weeks of leave
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- 27. Qualifying Exigency Leave
Up to 12 weeks of leave when family
member is called to duty
Note: this is for the family member,
not the servicemember
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- 28. Qualifying Exigency Leave
Can be taken by spouse, parent, son or
daughter of covered servicemember
Note: no “next of kin”
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- 29. Qualifying Exigency Leave
Covered service members include:
Reserves, National Guard, and active
members of the Armed Forces
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- 30. Qualifying Exigency Leave
Call to active duty need not be in
support of a “contingency operation”
Include instances when
servicemember is deployed to a
foreign country
© 2009 Young Conway Stargatt & Taylor, LLP
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- 31. Qualifying Exigency Leave
Examples of “qualifying exigency”
Short notice deployment
Military events and related activities
Childcare and school activities
Financial and legal agreements
Rest and recuperation
Additional activities agreed to by employer
© 2009 Young Conway Stargatt & Taylor, LLP
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- 32. FMLA Regulations
Coverage Issues
Employee Leave Entitlements
Employer Notice Obligations
Employee Notice Obligations
Medical Certification and Fitness for
Duty
© 2009 Young Conway Stargatt & Taylor, LLP
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- 33. Continuing Treatment
Old definition:
More than three days’ of incapacity for the same
condition plus:
Two or more treatments by a health care provider;
or
Two or more treatments by a provider of health
care services (physical therapist); or
One treatment by a health care provider which
results in a regimen of continuing treatment
under the supervision of the health care provider
© 2009 Young Conway Stargatt & Taylor, LLP
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- 34. Continuing Treatment
New “continuing treatment” definition
is the same, except:
Two or more treatments by a health care
provider within the first 30 days of the
beginning of the period of incapacity
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- 35. Chronic Conditions
Old rule says that “chronic serious health
conditions,” such as asthma, diabetes,
epilepsy, etc., are conditions that require
“periodic visits” to a health care provider
for treatment
New rule says that “periodic visits” means
two or more visits a year to a health care
provider for treatment
© 2009 Young Conway Stargatt & Taylor, LLP
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- 36. Bonuses
Old rule says employees who take FMLA
leave are entitled to “equivalent benefits”
including bonuses for perfect attendance,
safety and job performance
New rule says that employer may
disqualify employee for a bonus where
the employee’s FMLA leave has prevented
achievement of the requisite goal, unless
similarly situated employees who were out
on non-FMLA-related leaves are not
disqualified
© 2009 Young Conway Stargatt & Taylor, LLP
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- 37. Light Duty
Old rule says employees on light duty
are using their entitlement to take
FMLA leave during light duty period
New rule says that light duty does
not count toward FMLA leave
Employees are still not required to
accept light duty in lieu of FMLA leave
© 2009 Young Conway Stargatt & Taylor, LLP
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- 38. Waiver of Rights
Old rule says employees may not waive
their rights under the FMLA
New rule says that employees may waive
their rights under the FMLA when settling a
claim that the employer violated the FMLA
in the past
Court or DOL approval will not be required
for settlement of claims (DOL says it never
was required)
© 2009 Young Conway Stargatt & Taylor, LLP
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- 39. Employer Notice Requirements
Eligibility Notice must be provided
within 5 business days of request for
FMLA leave or employer knowledge of
basis for FMLA leave
This is up from the current 2 days
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- 40. Employer Notice Requirements
If employee is not eligible, notice must
say so and explain why
DOL has published a prototype
eligibility notice
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- 41. Employer Notice Requirements
Designation Notice must be
provided within 5 business days of
receiving information sufficient to
determine that leave qualifies as
FMLA leave
This is up from the current 2 days
If employee is not eligible, notice
must say so and explain why
© 2009 Young Conway Stargatt & Taylor, LLP
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- 42. Employer Notice Requirements
If possible, employer should tell
employee how much leave will be
FMLA leave
DOL has published a prototype
designation notice.
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- 43. Penalty for Failure to Notify
No per se penalty (i.e., time not
counted against 12 week entitlement)
for failing to notify employees of
eligibility or designation (per Ragsdale
decision)
Retroactive leave designation is
permitted, but employer risks liability
for harm, if employee can prove any
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- 44. Employee Notification
Responsibilities
Employee must come forward with
qualifying reason “as soon as
practicable” after learning of need
Same day, if during working hours
Next day, if not
Old Rule allowed 1-2 days after
absence
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- 45. Employee Responsibilities
Employees must comply with usual call-in
requirements for unforeseen absences
except for more stringent timing
requirements
Includes intermittent FMLA absences
Failure to comply may result in delay or
denial of FMLA leave (i.e., possible counting
of absence as “occurrence”) and disciplinary
action
© 2009 Young Conway Stargatt & Taylor, LLP
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- 46. Employee Notification
Responsibilities
Employee must give at least 30 days
notice if leave is foreseeable
Employee must respond to employer
request for explanation if 30 days
notice is not provided
Employee must answer employer’s
requests for additional information
© 2009 Young Conway Stargatt & Taylor, LLP
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- 47. Employee Responsibilities
Employee must provide “sufficient
information” for employer to be able
to decide whether FMLA applies
“Sufficient information” is:
Information showing that employee
cannot perform job functions, or that
family member needs care, and
Duration of absence and whether doctor’s
visit is planned or has happened
© 2009 Young Conway Stargatt & Taylor, LLP
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- 48. Medical Certification
DOL has designed a new medical
certification form
Employer should request completion
of form within 5 business days of
learning of need for FMLA leave
© 2009 Young Conway Stargatt & Taylor, LLP
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- 49. Medical Certification
Employee must provide completed
form within 15 calendar days
If certification form is incomplete or
insufficient, employer must state in
writing what additional information
is needed and give employee 7
calendar days to provide the
requested information
© 2009 Young Conway Stargatt & Taylor, LLP
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- 50. Medical Certification
If employee notifies employer of
inability to obtain the information
despite good faith efforts to get it,
employer must grant an additional
reasonable period of time
If the deficiencies are not corrected
in the resubmitted certification,
FMLA leave may be denied
© 2009 Young Conway Stargatt & Taylor, LLP
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- 51. Medical Certification
Employer may contact health care
provider directly (not just through
health care provider hired by
employer) to obtain clarification of
certification
Note: Employer must give employee
7-day chance to obtain clearer
certification before contacting
provider
© 2009 Young Conway Stargatt & Taylor, LLP
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- 52. Fitness for Duty
Employers may still have a uniformly
applied policy that requires a
“fitness-for-duty” certificate
Employee must provide complete
certification or sufficient
authorization to provider to supply
sufficient information directly to
employer
© 2009 Young Conway Stargatt & Taylor, LLP
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- 53. Fitness for Duty
Employer may provide list of
essential functions and require
health care provider to certify that
employee can perform them
Employees must be informed of this
requirement and given the list of
essential functions with the eligibility
notice
© 2009 Young Conway Stargatt & Taylor, LLP
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- 54. Fitness for Duty
Employee must bear cost of fitness-
for-duty certification
Employee is not entitled to FMLA
protections if employee does not
provide required certification or
request additional leave
© 2009 Young Conway Stargatt & Taylor, LLP
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- 55. Fitness for Duty
If employee takes intermittent leave
and employer has reasonable safety
concerns, employer can require
fitness-for-duty certifications every 30
days
© 2009 Young Conway Stargatt & Taylor, LLP
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- 56. The End
William W. Bowser
wbowser@ycst.com
302-571-6601
© 2009 Young Conway Stargatt & Taylor, LLP
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