(8918435 1) ada and fmla update 2009 materials (dec 11.11.09)

ADA and FMLA Update 2009ADA and FMLA Update 2009

Presented by:William W. Bowser

Young Conaway Stargatt & Taylor, LLP

Presented by:William W. Bowser

Young Conaway Stargatt & Taylor, LLP

AgendaAgenda

ADA Amendments and Regulations FMLA Regulations Defense Authorization Act for 2010

ADA TimelineADA 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.

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.

ADA Amendments Act of 2008ADA 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.”

What does the ADAA NOT change? Definition of Disability

Physical or mental impairment “Substantially limits” One or more “major life activities.”

What does the ADAA change? Definition of disability “shall be

construed in favor of broad coverage”

What does the ADAA change? Definition of disability “shall be

construed in favor of broad coverage”

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

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

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

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

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

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

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

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

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

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

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)

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)

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

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

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

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

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

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

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

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

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

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

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

FMLA Expanded on January 28, 2008 to add military family leave provisions

DOL issued new regulations on November 17, 2008

FMLA Military LeaveFMLA Military Leave

Created by National Defense Authorization Act (NDAA)

Signed into law on January 28, 2008 Expanded again on October 28, 2009

Created by National Defense Authorization Act (NDAA)

Signed into law on January 28, 2008 Expanded again on October 28, 2009

FMLA Military LeaveFMLA Military Leave

Two brand new types of FMLA leave created “Qualifying Exigency” Leave “Military Caregiver” Leave

Military Caregiver LeaveMilitary Caregiver Leave

Up to 26 weeks of leave in a “single 12-month period” to care for an ill or injured servicemember

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?

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?

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

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

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

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

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

The 26 week entitlement includes other FMLA time

If FMLA time is used, it is deducted from the 26 weeks

Can be taken intermittently

The 26 week entitlement includes other FMLA time

If FMLA time is used, it is deducted from the 26 weeks

Can be taken intermittently

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

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

Qualifying Exigency LeaveQualifying 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

Up to 12 weeks of leave when family member is called to duty

Note: this is for the family member, not the servicemember

Can be taken by spouse, parent, son or daughter of covered servicemember

Note: no “next of kin”

Can be taken by spouse, parent, son or daughter of covered servicemember

Note: no “next of kin”

Covered service members include: Reserves, National Guard, and active members of the Armed Forces

Call to active duty need not be in support of a “contingency operation”

Include instances when servicemember is deployed to a foreign country

Call to active duty need not be in support of a “contingency operation”

Include instances when servicemember is deployed to a foreign country

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

FMLA RegulationsFMLA Regulations

Coverage Issues Employee Leave Entitlements Employer Notice Obligations Employee Notice Obligations Medical Certification and Fitness for

Continuing TreatmentContinuing 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

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

Continuing TreatmentContinuing 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

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

Chronic ConditionsChronic 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

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

BonusesBonuses

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

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

Light DutyLight 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

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

Waiver of RightsWaiver 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)

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)

Employer Notice RequirementsEmployer 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

If employee is not eligible, notice must say so and explain why

DOL has published a prototype eligibility notice

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 possible, employer should tell employee how much leave will be FMLA leave

DOL has published a prototype designation notice.

If possible, employer should tell employee how much leave will be FMLA leave

DOL has published a prototype designation notice.

Penalty for Failure to NotifyPenalty 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

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

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

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

Employee ResponsibilitiesEmployee 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

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

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

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

Employee ResponsibilitiesEmployee 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

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

Medical CertificationMedical 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

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

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

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

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

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

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

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

Fitness for DutyFitness 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

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

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

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

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

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

If employee takes intermittent leave and employer has reasonable safety concerns, employer can require fitness-for-duty certifications every 30 days

The EndThe End

William W. Bowserwbowser@ycst.com

302-571-6601

William W. Bowserwbowser@ycst.com

302-571-6601

(8918435 1) ada and fmla update 2009 materials (dec 11.11.09)

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