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JHG_-_FMLA_-_ADA

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					MORE ACCOMMODATING? REVIEWING RECENT
         LEGISLATIVE CHANGES
           TO FMLA AND ADA
                                   James H. Gilliam
                                       BrownWinick
                      666 Grand Avenue, Suite 2000
                        Des Moines, IA 50309-2510
                          Telephone: 515-242-2446
                           Facsimile: 515-323-8546
                   E-mail: gilliam@brownwinick.com
THE ADA AMENDMENT ACT
        OF 2008
        (ADAAA)
     The ADA – Quick Historical
            Overview
• Passed and signed into law in 1990 in
  midst of AIDS crisis
• Adopts the definition of disability:
  – A physical or mental impairment that
    substantially limits one or more of the major
    life activities of such individual;
  – A record of such an impairment; or
  – Regarded as having such an impairment
                ADA Coverage
• Title I – Employment discrimination prohibited against:
   – An “otherwise qualified individual” based on disability
   – By private employers with 15 or more employees
• Imposes reasonable accommodation obligation
   – Employer must engage in interactive process and
      provide “reasonable” accommodation that will allow
      employee to perform essential functions of position
   – Accommodations not “reasonable” if employer can
      demonstrate undue hardship.
                  ADAAA
• Designed to address a series of decisions
  by the U.S. Supreme Court which
  effectively narrowed the definition of
  disability:
  – 1999 cases (3) finding that mitigating
    measures must be taken into account
  – 2002 case setting higher bar for which it
    means to have a “substantial” limitation on
    “major life activity”
      DISABILITY – ADA

• The ADA defines a “disability” in part,
  as a physical or mental impairment
  that substantially limits a major life
  activity of an individual
    DISABILITY – ADAAA

• The ADAAA rejects the Supreme
  Court’s interpretation of “substantially
  limits” by providing a rule of
  construction stating that the term
  “substantially limits” shall be
  interpreted consistently with the
  findings and purposes of the ADAAA.
    DISABILITY – ADAAA


• Findings and purposes make clear
  that Congress intended to apply a
  less demanding standard than that
  applied by the courts, and to cover a
  broad range of individuals.
MITIGATING MEASURES –
         ADA
 • Mitigating measures (such as
   medication or devices) were to
   be taken into account in
   determining whether a person
   was substantially limited in a
   major life activity
  MITITAGING MEASURES –
           ADA

• If medication or devices enabled a person
  with an impairment to function well, that
  person was often held by a court not to
  have a disability under the ADA – even if
  the impairment was the basis for
  discrimination
  MITIGATING MEASURES –
          ADAAA
• The ameliorative effects of mitigating
  measures should not be considered in
  determining whether an individual has an
  impairment that substantially limits a major
  life activity
• An exception is made for “ordinary
  eyeglasses or contact lenses” which may
  be taken into account
   SUBSTANTIALLY LIMITS –
           ADA
• An impairment “substantially limits” a
  “major life activity” if it “prevents or
  severely restricts the individual” from
  performing the activity
     SUBSTANTIALLY LIMITS –
            ADAAA
• The ADAAA requires that the term
  “substantially limits” be interpreted
  consistently with the findings and
  purposes of the Act. The findings of the
  Act state that the EEOC and the Supreme
  Court have incorrectly interpreted the term
  “substantially limits” to establish a greater
  degree of limitation than had been
  intended by Congress.
MAJOR LIFE ACTIVITY – ADA


 • A “major life activity” must be an
   activity that is “of central importance
   to most people’s daily lives”
MAJOR LIFE ACTIVITY -- ADAAA
• The ADAAA includes a non-exhaustive list
  of major life activities, such as seeing,
  hearing, eating, sleeping, walking, learning
  and concentrating
• Major life activities also include the
  operation of “major bodily functions,” such
  as the immune system, normal cell growth,
  and the endocrine system.
    ADAAA CLARIFICATIONS
• An impairment that substantially limits a
  major life activity need not also limit other
  major life activities in order to be
  considered a disability
• Impairments are episodic or in remission
  are considered disabilities if the
  impairment would substantially limit a
  major life activity when the condition is
  considered in its active state
             BEST PRACTICES
• Create a policy on how to request an
  accommodation
  – Make clear that obligation to request accommodation and provide
    adequate supporting medical documentation is the employee’s
  – Make clear that discipline cannot be avoided by belatedly requesting
    accommodation
  – Require requests be made in writing – create a form
  – Place the burden of demonstrating medical rationale and effectiveness
    on the employee
  – Make sure the employee authorizes employee’s physician to
    communicate directly with HR and that employee consents to be
    examined by employer’s physician if necessary (functional analysis
    more important than diagnosis)
       BEST PRACTICES
– Make sure essential functions are identified in
  writing in job descriptions
– Include:
  • All physical requirements (functional analysis) and
    environmental demands
  • Attendance (and overtime) requirements
  • Interpersonal interaction and communication
    requirements
         BEST PRACTICES
• FORMULATE A TRANSFER POLICY
  AND SET PROTOCOLS
 – Identify who is responsible for identifying open
   positions and how is it done
 – Identify how it is determined which positions
   employee is qualified for
    • Make sure that minimum qualifications are clear
    • Ensure that protocols are uniformly enforced
    • Cooperative process is the best
         BEST PRACTICES
• Written modified duty policy
• Make sure that modified duty is temporary
  and not work customarily performed by
  employees without industrial injuries
• No permanent light duty
• Non-industrially injured employees now
  entitled to separate “light” duty as matter
  of disability law
       Military Family Leave
            Amendments

• National Defense Authorization Act of
  2008
       Military Family Leave
            Amendments
• Two major developments:
  – Expanded leave to care for ill or injured
    service member
  – Created new leave for a “qualifying exigency”
    related to military service
           Military Family Leave
               Amendments:
             Who is covered?
• The new amendment provides for leave for
  family members to provide care for “covered
  service members,” which would include a
  member of the Armed Forces, including the
  National Guard or Reserves, who is undergoing
  medical treatment, recuperation, or therapy or
  who is otherwise in an outpatient status or on
  the temporary disability retired list for a serious
  injury or illness.
          Military Family Leave
              Amendments:
           What is Covered?

• A “serious injury or illness” is one that was
  incurred in the line of active duty which
  may render the Armed Services member
  medically unfit to perform the duties of the
  member’s rank
         Family Military Leave
            Amendments:
          Duration of Leave
• Eligible employees may take up to 26
  weeks of military family leave in a single
  12-month period.
  – The 26 available weeks can be reduced by
    any regular FMLA leave taken
 Family Military Leave Amendments:
 Leave to care for ill or injured service
               member

• Son, daughter, spouse, parent or next of kin of a
  covered service member up to 26 weeks of
  unpaid leave in a single 12-month period to care
  for service member
  – Statute defines “next of kin” as the “nearest blood
    relative”
  – “Next of kin” – like grandparents, for example – did
    not typically qualify for FMLA leave
Family Military Leave Amendments:
          Exigency Leave

• Allows an employee to take up to 12
  workweeks of leave for a “qualifying
  exigency” arising out of that employee’s
  spouse, son, daughter, or parent being on
  active duty or having been notified of an
  impending call or order to active duty in
  the Armed Forces in support of a
  contingency operation.
           Family Military Leave
               Amendments:
          Definition of “Exigency”
•   Making arrangements for child care;
•   Making financial and legal arrangements;
•   Attending counseling;
•   Attending official ceremonies or programs;
•   Attending to farewell or arrival arrangements; or
•   Attending to affairs caused by “missing” status or
    death
      New FMLA Regulations:
     Definition of Serious Health
               Condition
• The definition of “serious health condition”
  continues to cover seemingly minor illnesses,
  like colds and stomachaches when
  “complications arise”
• DOL made two modest clarifications to prior
  regulations:
  – Two visits with a medical provider would need to be
    completed within 30 days of incapacity; and
  – “Periodic” would mean visiting a healthcare provider
    at least two times per year for the same “chronic”
    condition
      New FMLA Regulations:
       Medical Certifications
• New regulation also alters the following:
  – Time frame to correct a deficient certification (at least
    15 days);
  – An employer’s ability to contact the employee’s
    healthcare provider as part of authentication or
    clarification process; and
  – The frequency that an employer may request
    recertification (30 days or “change in circumstances”)
       New FMLA Regulations:
  Content of Medical Certifications
• Includes a simplified medical certification form
  that
   – Includes more specific provisions for healthcare
     providers to provide medical facts;
   – Ask the healthcare provider to provide information on
     symptoms, doctor visits, and the medical treatment
     regimen to better enable employers to make a
     determination whether the leave qualifies under the
     FMLA leave; and
   – Specifically allows doctors to provide a diagnosis,
     which is not permitted under the current regulations.
       New FMLA Regulations:
       Use of Intermittent Leave
• One helpful clarification:
  – If the employee would be required to work
    overtime hours, then the hours the employee
    would have been required to work (but did
    not) may be counted against the employee’s
    FMLA entitlement
     New FMLA Regulations:
   Employer’s Paid Leave Policy
• Permits employers to enforce the terms
  and conditions of their paid leave policies
  when an employee elects to substitute
  paid leave for unpaid FMLA leave
  – Employer can enforce such terms and
    conditions regardless of the type of leave to
    be substituted
     New FMLA Regulations:
   Employer’s Paid Leave Policy
             (Cont.)
• To avail themselves of this provision,
  however, employers are required to:
  – Make employees aware of any restrictions
    associated with using paid leave in writing;
    and
  – Inform the employee that he or she remains
    entitled to unpaid FMLA leave
      New FMLA Regulations:
      Retroactive Designations
• The regulations would allow employers to
  retroactively designate leave, provided that there
  is no individualized harm established by the
  employee
• If there is a violation, DOL may impose monetary
  relief (mirroring the relief provided by the statute
  as opposed to simply providing extended leave)
  on employers that fail to timely designate leave
      New FMLA Regulations:
         General Notice
• Employers who do not maintain a handbook are
  required to distribute a copy of the general
  notice to each employee at least once per year,
  either in paper or electronic form
• It is no longer sufficient to distribute general
  notice in connection with an FMLA leave request
       New FMLA Regulations:
          Eligibility Notice
• Employers are required to:
  – Provide notice of eligibility and amount of leave
    available within five business days from request of leave
  – If applicable, the employer must indicate the reasons
    why the employee is not eligible or has no FMLA leave
    remaining;
  – Notify the employee of his or her right to take unpaid
    leave if the employee does not meet the terms and
    conditions of the employer’s paid leave policies to
    substitute paid leave; and
  – Include a statement of the employee’s essential job
    functions if the employer will require that those functions
    be addressed in a fitness-for-duty certification
      New FMLA Regulations:
        Designation Notice
• Under the regulations:
  – Employee now has 5 days to provide designation
    notice;
  – Employers must inform the employee of the number
    of hours, days or weeks that will be designated as
    FMLA leave; and
  – Employers must notify the employee if the leave
    taken is not designated as FMLA leave due to
    insufficient information or was taken for a non-FMLA-
    qualifying reason.
     New FMLA Regulations:
 Enforcement of Employer Call-In
          Procedures
• Employees may be required to follow
  established call-in procedures in
  connection with an FMLA leave request
  – Employees still would not necessarily need to
    follow employer’s restrictions on the timing of
    call-ins
  – Failure to follow such procedures would result
    in a delay or denial of FMLA protection
      New FMLA Regulations:
  Clarification of What Constitutes
           Sufficient Notice
• Clarify the standard as to what constitutes
  sufficient information from the employee to
  trigger the employer’s obligations to consider
  FMLA eligibility
• The employee “must explain the reasons for the
  needed leave so as to allow the employer to
  determine whether the leave qualified under the
  Act.”
     New FMLA Regulations:
      Waiver and Release
• The regulations change case law related
  to voluntary settlement of past FMLA
  claims:
  – Employers and employees can voluntarily
    agree to waive and release past claims
  – No court or DOL approval is required.
         BEST PRACTICES
• Look carefully at current FMLA policies
  – Policies may need to be amended or
    developed to comply with the new regulations
  – New employment policies should be
    considered in light of the Family Military
    Leave Amendment

				
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