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FMLA and ADA Changes


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FMLA and ADA Changes

  1. 1. NEW YEAR, NEW CHALLENGES: FMLA AND ADA CHANGES David Dubberly Certified Specialist in Employment and Labor Law January 13, 2009
  2. 2. New FMLA Regulations – Overview • Employer/Employee Notice • Medical Certification • Accounting for Leave • Care for Service Member Leave • Qualifying Exigency Leave
  3. 3. Effective Date • NDAA signed Jan. 28, 2008 (effective date for care for service member leave) • Revised FMLA regulations proposed Feb. 11, 2008 • Final FMLA regulations published Nov. 17, 2008, to take effect Jan. 16, 2009 (effective date for qualifying exigency leave)
  4. 4. Employer Notice • General Notice • Eligibility Notice • Rights & Responsibilities Notice • Designation Notice
  5. 5. General Notice • Form WH-1420 • Distribution: in handbook or materials given to new hires • Posting: must be posted conspicuously • May be distributed and posted electronically
  6. 6. Eligibility Notice • Form WH-381 Part A • Must be provided to employee within 5 business days of request for leave • Even if employee is not eligible (if that’s the case, state reason for ineligibility)
  7. 7. Rights & Responsibilities Notice • Form WH-381 Part B • Use if employee is eligible • Attach copy of FMLA policy • Attach appropriate certification form • Require proof of family relationship? • Require use of available paid leave? • Require status reports?
  8. 8. Designation Notice • Form WH-382 • Must be provided to employee within 5 business days after return of certification form
  9. 9. Designation Notice • Required content varies based on disposition of request: – Approved – Additional info. needed – Not approved (FMLA not applicable to request or leave entitlement exhausted) • Check appropriate boxes and fill in applicable blanks
  10. 10. Designation Notice • Require use of available paid leave? • Require fitness-for-duty certification upon return to work? (if so, attach list of essential job functions) • If certification form is incomplete, fill in appropriate spaces and provide date by which needed info. must be provided (at least 7 calendar days later) • Require second or third medical opinion?
  11. 11. Employee Notice Timing • Foreseeable Leave – 30 days or as soon as practicable – If late, delay period is not FMLA absence • Unforeseeable Leave – As soon as practicable – Comply with notice of absence policies – Otherwise, delay period is not covered • Exigency Leave – As soon as practicable
  12. 12. Employee Notice Content • If requesting for first time for particular FMLA-qualifying condition: sufficient info. for employer to determine if FMLA applies (calling in “sick” is not enough) • If requesting leave for condition for which employer has previously provided FMLA leave to employee: reference qualifying reason of need for “FMLA leave”
  13. 13. Medical Certification • Employer may request certification … – Within 5 business days after foreseeable leave requested – Within 5 business days after unforeseeable leave commences – Or when appropriateness of leave or its duration is questionable • Employee has 15 calendar days to produce certification
  14. 14. The Friday – Monday Leave Act
  15. 15. Medical Certification Forms • Two new optional forms: – WH-380-E (for employee’s own serious health condition) – WH-380-F (for family member’s SHC) • Employer may not require HIPAA consent – But leave may be denied if consent is refused
  16. 16. Direct Contact With Health Care Providers • Employer rep’s may contact employee’s HCP: – HCP retained by employer – HR professional or leave administrator – Management official – But not employee’s immediate supervisor • If medical certification requires … – Clarification (cannot read or understand it) or – Authentication (cannot determine if filled out by HCP) – But cannot ask for info. beyond what is on form
  17. 17. Definition of SHC Continuing Treatment • Period of incapacity of more than 3 full consecutive calendar days; and • In-person treatment with HCP within 7 days of first date of incapacity; and • Either HCP-determined: • continuing treatment; or • second in-person visit within 30 days of first day of incapacity
  18. 18. Definition of SHC Chronic Conditions Health care provider must treat employee at least two times per year for the condition in question
  19. 19. Recertification • Every 30 days in cases of pregnancy, chronic, or long-term conditions • At any time if an extension to a leave is requested, circumstances described in the last certification have changed, or information is received casting doubt on the employee’s stated reason for an absence or the continuing validity of the last certification • Every 6 months in other cases
  20. 20. Tracking FMLA Leave Time • FMLA leave may be tracked in increments up to one hour – But employee cannot be charged for time spent working • Employer may still use larger increments to track use of PTO
  21. 21. Tracking FMLA Leave Time Example • Employer has 30-minute late clock-in policy – If employee gets to work 5 minutes late due to FMLA reason, employer can prevent employee from working for full 30-minute increment – entire time counts as FMLA leave • But if employee leaves early, cannot charge for time he/she worked • Employer tracks paid sick leave in 4-hour increments – If employee chooses to substitute paid sick leave, must use at least 4 hours of FMLA leave
  22. 22. Attendance Bonuses • Employer may disallow employee from a bonus or award where failure to meet threshold is caused by FMLA absence – Examples: bonuses based on perfect attendance, products sold, hours worked, etc. – Caveat: as long as employees with equivalent non-FMLA leave status (like vacation and sick leave) are treated the same
  23. 23. Counting Paid Holidays • Full week of FMLA leave containing holiday: – Employer may count holiday • Partial week of FMLA leave containing holiday: – Holiday may not be counted
  24. 24. Release of Rights Release of FMLA rights: • Release of prior claims is permitted • FMLA claims may now be settled without court/DOL approval
  25. 25. Care for Service Member Leave “An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember.”
  26. 26. Covered Service Member “A member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”
  27. 27. Serious Injury or Illness • This definition differs from SHC • An injury or illness incurred by the member: • in line of duty • on active duty in the Armed Forces • that may render him/her medically unfit to perform duties of his/her office, grade, or rank
  28. 28. Qualifying Exigency Leave • 12 workweeks of leave during any 12- month period • “Because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”
  29. 29. Qualifying Exigencies • Short-notice deployments • Military events and related activities • Childcare and school activities • Financial and legal arrangements • Counseling • Post-deployment activities
  30. 30. The ADA Amendments Act of 2008
  31. 31. ADA Title I • Prohibits discrimination in employment against a “qualified individual with a disability” • Applies to private employers with 15+ employees (FT or PT), as well as all state and local government employers
  32. 32. Who Is an “Individual With a Disability”? • An individual who: – Has a physical or mental impairment that substantially limits one or more major life activities of such individual – Has a record of such an impairment – Is regarded as having such impairment
  33. 33. Who Is a “Qualified Individual With a Disability”? • An individual with a disability who: – Is qualified for a job – With or without reasonable accommodation – Can perform the essential functions of the job
  34. 34. What’s New? • ADA Amendments Act of 2008 (ADAAA) • Passed Congress Sept. 17, signed by President Sept. 25, 2008 • Goes into effect Jan. 1, 2009 • Expands several important ADA definitions
  35. 35. Why Was the ADAAA Enacted? • To overrule Supreme Court decisions – Mitigating factors taken into account in deciding whether MLA is “substantially limited” – “Disability” construed narrowly to create a “demanding standard” • … and “reinstat[e] a broad scope of protection to be available under the ADA.”
  36. 36. What Does the ADAAA Change? • Broad interpretation of “disability” • Expansive definition of “major life activity” • Limited role of mitigating factors • Lower standard for “regarded as” disabled
  37. 37. Broad Interpretation of “Disability” • Basic definition remains essentially the same • But law states it “shall be construed in favor of broad coverage … to the maximum extent permitted” • Tasked EEOC with expanding definition of “substantially limits” • Now specifically includes impairments that are either episodic or in remission (if it would substantially limit MLA when active)
  38. 38. Expanded Definition of “Major Life Activity” • Major bodily functions • Lifting • Caring for oneself • Bending • Performing manual tasks • Speaking • Seeing • Breathing • Hearing • Learning • Eating • Reading • Sleeping • Concentrating/thinking • Walking • Communicating • Standing • Working
  39. 39. “Major Bodily Functions” • Functions of the immune system • Normal cell growth • Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions
  40. 40. Limited Role of Mitigating Factors • Pre-ADAAA: whether MLA is “substantially limited” depends on effects of “mitigating measures” • Post-ADAAA: Most mitigating measures should not be considered when determining if someone is disabled – Exceptions:
  41. 41. Examples of Mitigating Measures • Medication for conditions like epilepsy or depression • Insulin to control diabetes • Prosthetic devices • Walkers, canes, and crutches • Hearing aids
  42. 42. Lower Standard For “Regarded As” Disabled • Broadened definition • Because of perceived mental or physical impairments – Regardless of whether perceived to limit major life activity • Excludes “transitory and minor” impairments – Transitory = 6 months or less (actual or expected)
  43. 43. What Can Employers Expect? • More requests for reasonable accommodation • Increase in claims/enforcement efforts • New EEOC regulations – Including revised definition of “substantially limits”
  44. 44. What Can Employers Do Now? • Train HR staff and supervisors on ADA compliance • Check any paperwork used in connection with accommodation requests • Reevaluate general approach to accommodation requests
  45. 45. QUESTIONS? David Dubberly (803) 253-8281