TheI mpact o--7 Recent FMLA

ADA Changes on Fenployers

Paul D. Satterwhite Husch Blackwell Sanders LLP

© 2010 Husch Blackwell Sanders LLP

HUSCHBLACKWELL SANDERS LLP 4

The Impact of Recent FMLA & ADA Changes on Employers

Paul D, Satterwhite Husch Blackwell Sanders LLP

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Trigger Points

• FM LA: Serious health condition that makes employee unable to perform functions of job?

• ADA: Qualified individual with a disability?

FMLA Regulation Revisions

• Regulations reviewed and revised, after public comment, by DOL for first time since law passed

• New regulations were effective January 16, 2009

• Intended to clarify "unclear" issues under the FMLA - Largely regarded as employer-friendly revisions

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FMLA Regulations Most Significant Revisions

nQualifying Reasons for Leave • Employee Notice of Need for Leave • Employer Designations • Health Care Certifications • Intermittent Leave nMilitary Leave

Qualifying Reasons for Leave • Definition of "serious health condition" • "continuing treatment by Healthcare Provider (HCP)"

- period of incapacity of more than 3 consecutive full calendar days AND

• Treatment 2 or more times within 30 days by HCP

• OR treatment by HCP + regimen of continuing treatment

• First visit must occur within seven days of incapacity in either case

Chronic Conditions now require twice a year visits for treatment (formerly "periodic")

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Employee Notice of Need for Leave

• Employees should, absent special circumstances, give notice within two days of learning of need for leave

• If employees unreasonably delay giving notice, employer may delay leave up to length of delay

• If employees are going to be absent, employees must follow usual procedures for leave to count (call-in, etc.)

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Employer Designations

nFMLA Eligibility Notice • Rights and Responsibilities Notice • Designation Notice

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Employer Designations: Rights and Responsibilities Notice

• Rights and Responsibilities Notice- must be sent each time an eligibility notice is sent and set forth:

Leave may be counted against the employee's FMLA leave entitlement;

Applicable 12-month period for FMLA entitlement; Any requirement to furnish certification and consequences if fail to do so; Employee's right to substitute paid leave, whether the employer will require substitution, conditions related to substitution, and employee's entitlement to take unpaid FMLA leave;

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Employer Designations: Rights and Responsibilities Notice

(Continued) - Obligations to make premium payments to maintain health

benefits, arrangements for making such payments, and consequences for failure to pay; Employee's potential liability for payment of health insurance premiums paid by employer if employee fails to return; Employee's status as a key employee and the potential consequences that restoration may be denied; Reinstatement rights.

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Employer Designations: FMLA Eligibility

• FMLA Eligibility Notice - Must be made within 5 business days upon

receiving notice of need for leave; - Must set forth reasons employee is ineligible, if

applicable; - In response to subsequent requests for leave, for

a different FMLA-qualifying reason, must provide new eligibility notice only if eligibility has changed.

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Employer Designations: Designation of Leave as FMLA

• Must be done within 5 days of medical certification; • Must notify of fitness-for-duty requirement, if any; • Must notify amount of leave counted against entitlement, if

known.

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Retroactive Designations: Ragsdale Regulations

nEmployee and employer can mutually agree to a retroactive designation in all cases.

• Permitted IF failure to timely designate leave does not cause harm or injury to the employee. - If harm or injury to employee as a result of the

retroactive designation, may constitute interference with, restraint of, or denial of the exercise of FMLA rights.

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Health Care Certifications

• Medical Certification nRecertification nFitness-for-Duty Certifications

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Medical Certification

• 1 5 calendar days from request • Must be "complete" and "sufficient"

- If incomplete or insufficient, must identify, in writing, information needed

- Employee has 7 days to cure.

Medical Certification: Employer May Seek "Authentication" or

"Clarification"

nEmployer's HCP, HR representative, leave administrator, or management official (other than employee's direct supervisor) may contact employee's HCP after employee provided opportunity to cure deficiencies to authenticate information or clarify information provided;

nMay NOT seek any additional information.

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Fitness-for-Duty Certif ic ation

• Must certify employee may resume work;

nMay require certification address employee's ability to perform essential functions - Must notify employee of requirement in

designation notice; - Must provide list of essential job functions; - If fail to provide FFD certification, or request

additional FMLA leave, loses right to reinstatement.

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Intermittent Leave: The Dilemma Continues

• Increments of FMLA leave for intermittent absences

-Up to 1 hour increments if consistent with other leave policies;

-Provided, an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

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Intermittent Leave: The Dilemma Continues

Transfer to Alternative Position • Only available if absences "foreseeable" based on planned medical treatment

• Not available for sporadic unpredictable absences

No FFD for each intermittent absence • But: may obtain a FFD up to once every 30

days IF reasonable safety concerns regarding employee's ability to do the job.

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Tips for Managing the "Chronically Absent" Employee

• Monitor leave eligibility; • Track attendance closely, looking for

patterns of absence; • Use the right to obtain certification; • If necessary, consider transfer to an

alternative position.

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Military (FM LA) Leave

• Qualifying Exigency Leave (1 2 weeks) • Military Caregiver Leave (26 weeks) • Do not confuse with USERRA Leave

Miscellaneous Changes

• Bonuses • Waiver of FMLA Rights

"Qualifying Exigency"

• For who?

• For what reason?

• For how long?

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"Qualifying Exigency" For who: • Spouse, son, daughter, or parent

- Note: "son/daughter" not limited to child under 18

• National Defense Authorization Act, Oct. 2009 - Now applies to family members of current active duty members of the armed services

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"Qualifying Exigency"

For what: • Qualifying reasons:

- Short notice deployment, i.e., leave necessary to address issues resulting from impending call to active duty 7 days or less prior to the date of deployment;

• Leave limited to 7 days • Note: Need for leave should tie to the

deployment

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"Qualifying Exigency"

For what: • Military events and related activities

-To attend ceremony, programs or events related to active duty call

-To attend family support programs and informational briefings related to active duty call

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"Qualifying Exigency" For what:

- Childcare and school activities • To arrange for alternative childcare • To provide childcare on urgent, immediate need basis • To enroll in or transfer to new school or daycare • To attend meetings with staff at school or daycare

when meetings necessitated by active duty call • Note: Must be related to the call to active duty NOT

regular school conferences or activities

"Qualifying Exigency"

For how long - Depends on reason

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"Qualifying Exigency" For what:

- Counseling - Rest and recuperation

• Leave limited to 5 days - Post-deployment activities

• Attend arrival ceremonies, reintegration briefings • Address issues that arise from death of covered

military member - Additional activities

• Employer and employee must agree need for leave qualifies, and must agree to the timing and duration of leave.

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"Qualifying Exigency"

For what: - Financial and legal arrangements

• Update financial and legal arrangements

• Act as covered military member's representative before government agency for purposes of securing military service benefits

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Notice and Certification for Qualifying Exigency

• Must provide notice of foreseeable leave as soon as practicable (even if more than 30 days)

• Copy of active duty or call to active duty orders

• Employee statement with any supporting documentation

• May use new DOL Form

Military Caregiver Leave

• 26 weeks • May be taken within a "single 12-month period" • Applies to son, daughter, spouse, parent or next of

kin of a covered service member - Note: "son/daughter" not limited to child under

18

• Service connected injury or illness

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Other FMLA Qualifying

Leave

The interplay between military caregiver leave and

other types of leave.

Military Caregiver Certification

• May use new DOL Form • Must accept ITOs or ITAs • Cannot require second/third opinion • Cannot require recertification

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2010 Case Law

• Harris v. Metro Gov't

- reinstatement

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The ADA Amendments Act "ADAAA"

• ADA amended in September of 2008 • Effective January 1, 2009 • Clarifies and alters existing statute

and case law • Widely regarded as NOT employer-

friendly

Brief ADA Overview

The ADA has two main purposes:

1. To prohibit discrimination against a qualified individual with a disability (QIWD)

2. Requires reasonable accommodation for a QIWD

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What is a "Disability"?

• A "disability" is physical or mental impairment that substantially limits at least one major life activity.

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Key Points of ADA Amendments • Significant revisions to concept of

"substantially limits" • Expands the definition of "major life

activities" - Recognized "major life activities" include

performing manual tasks, eating, standing, lifting, reading, concentrating, thinking, communicating, and working.

- Bodily functions (functioning of major bodily systems), normal cell growth, neurological, and reproductive functions.

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"Substantially limits": What has changed?

• Rejects requirement mitigating measures be considered;

• Rejects Toyota definition of "prevents or severely restricts";

• Rejects EEOC definition of "significantly restricts" and directs EEOC to revise its regulations; and

• States disability is to be construed "in favor of broad coverage ... to the maximum extent permitted by the terms of ADAAA."

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"Major L.ife Activities" Examples of "Major

- Bending - Breathing - Caring for oneself - Concentrating - Communicating - Eating -Hearing -Learning -Performing of manual tasks

Life Activities": - Reading - Seeing - Sleeping - Speaking - Standing -Thinking - Walking - Working

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"Major Life Activities" Major Bodily Functions = Major Life Activities:

Functions of the immune system

• Normal cell growth • Digestive functions • Bowel functions • Bladder functions

• Brain functions • Respiratory functions • Circulatory functions • Endocrine functions • Reproductive functions • Neurological functions

"Major Life Activities"

Held NOT to be "Major Life Activities":

- Caring for others -Shopping in a mall - Driving, basic chores, -Shoveling, gardening, skiing, golfing, yard mowing a lawn, playing work tennis, fishing and

- Getting sound night's hiking sleep and reporting to -Swimming work on time, clear headed

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"Duration of Impairment": What has changed?

• No specific length of time required; • Presumably, EEOC regulations will

remain in effect, i.e. "temporarily, non-chronic impairments of short duration, with little or no long-term or permanent impact" usually are not disabilities.

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Key Points of Amendments • Mitigating measures other than

"ordinary eyeglasses or contact lenses" shall not be taken into account when assessing disability

• "Mitigating measures" may include: - Medication, medical equipment,

prosthetics, hearing aids, oxygen equipment, any kind of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications

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Key Points of Amendments

• Individual subject to action prohibited by the ADA because of an actual or perceived impairment meets "regarded as" prong unless the impairment is "transitory and minor" - No longer necessary that impairment be

perceived by the employer to "limit or substantially limit" a major life activity

• Substantially lowers the bar for "regarded as" cases for applicants/interviewees

Key Points of Amendments

• Individuals covered only by the "regarded as" prong are not entitled to reasonable accommodations

• Above all, emphasized that the definition of "disability" should be interpreted broadly - Lawmakers say that this is intended to

restore the ADA to its original purpose before case law impacted it

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HYPOTHETICAL

QUESTIONS?

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