(8918435 1) Ada And Fmla Update 2009 Materials (Dec 11.11.09)

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This is my presentation on recent update on changes to the ADA and FMLA

This is my presentation on recent update on changes to the ADA and FMLA

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  • 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
  • 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.
  • 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.”
  • 5. ADA Amendments Act of 2008
    • What does the ADAA change?
      • Definition of disability “shall be construed in favor of broad coverage”
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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)
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 18. FMLA Military Leave
    • Created by National Defense Authorization Act (NDAA)
    • Signed into law on January 28, 2008
    • Expanded again on October 28, 2009
  • 19. FMLA Military Leave
    • Two brand new types of FMLA leave created
      • “Qualifying Exigency” Leave
      • “Military Caregiver” Leave
  • 20. Military Caregiver Leave
    • Up to 26 weeks of leave in a “single 12-month period” to care for an ill or injured servicemember
  • 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?
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 28. Qualifying Exigency Leave
    • Can be taken by spouse, parent, son or daughter of covered servicemember
    • Note: no “next of kin”
  • 29. Qualifying Exigency Leave
    • Covered service members include: Reserves, National Guard, and active members of the Armed Forces
  • 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
  • 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
  • 32. FMLA Regulations
    • Coverage Issues
    • Employee Leave Entitlements
    • Employer Notice Obligations
    • Employee Notice Obligations
    • Medical Certification and Fitness for Duty
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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)
  • 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
  • 40. Employer Notice Requirements
    • If employee is not eligible, notice must say so and explain why
    • DOL has published a prototype eligibility notice
  • 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
  • 42. Employer Notice Requirements
    • If possible, employer should tell employee how much leave will be FMLA leave
    • DOL has published a prototype designation notice.
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 56. The End
    • William W. Bowser
    • [email_address]
    • 302-571-6601