oh, the tangled web we weave* managing …...oh, the tangled web we weave*—managing the ada and...

OH, THE TANGLED WEB WE WEAVE*—MANAGING

THE ADA AND THE FMLA

*Oh, what a tangled web we weave When first we practice to deceive. Sir Walter Scott, (Marmion 1808)

THE AMERICANS WITH DISABILITIES ACT ( THE “ADA”)

ADA OVERVIEW

• The ADA makes it unlawful for an employer to discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment. 42 U.S.C. § 12112(a)

• The ADA defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. §12111(8)

• The ADA further defines “disability” to include “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such impairment. 42 U.S.C. § 12102(1)

• Under the ADA, employers are required to make “reasonable accommodations” for disabled employees if such accommodations would allow them to perform the essential duties of their job and the reasonable accommodation does not present an undue hardship. 42 U.S.C. §§ 12112(b)(5); 29 C.F.R. § 1630.9

WHO DOES THE ADA APPLY TO? The ADA applies to all city employers, regardless of the number of

employees, pursuant to the Texas Labor Code § 21.001.

THE ADA PRIOR TO 2009

Shaped by 4 key Supreme Court Decisions:

1. Mitigating Measures: The first three cases held that consideration must be given to mitigating measures that help individuals control impairments when determining whether persons are disabled under the ADA. Therefore, if the impairment could be corrected, the impairment does not substantially limit a major life activity:

• Sutton v. United Air Lines, 527 U.S. 471 (1999)(eye glasses);

• Murphy v. United Parcel Services, Inc., 527 U.S. 516 (1999)(blood pressure medication);

• Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999)(body’s adjustment).

2. Regarded as disabled: The Sutton case also held that the perceived impairment must, like any actual impairment, substantially limit a major life activity, before a plaintiff can prove that they are “regarded as disabled.”

3. Strict construction of “substantially limits a major life activity”:

• Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). Held that the terms “substantially limits a major life activity” are to be construed strictly to create a demanding standard for qualifying as disabled, and that the issue is whether the plaintiff is unable to perform the variety of tasks central to most person’s daily lives, not whether the plaintiff is unable to perform the tasks associated with her specific job.

AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT OF 2008 (“ADAAA”)

• The ADAAA effective January 1, 2009;

• Congress stated purpose behind the ADAAA was to:

• Overturn decisions passed by the U.S. Supreme Court which had interpreted the definition of “disability” too narrowly, i.e., Sutton, Murphy, Albertson’s and Toyota Motor; and

• To shift the focus from whether an individual’s impairment is a disability under the ADA to the employer’s obligations under the ADA;

• Direct courts to construe the law in favor of broad coverage of individuals under the ADA

WHAT DID THE ADAAA CHANGE?

Retained the ADA’s basic definition of “disability” as an impairment that

substantially limits one of more major life activities, a record of such impairment or being regarded as having such an impairment. However, the ADAAA changed the way these statutory terms should be interpreted: • Directed the EEOC to revise its current regulations defining the term

“substantially limits”; • Expanded the definition of “major life activities” by including two lists; • Provided that mitigating measures other than “ordinary eyeglasses or contact

lenses” shall not be considered in assessing whether an individual has a disability;

• Clarified that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

• Changed the standard for “regarded as disabled.”

WHAT IS “SUBSTANTIALLY LIMITED” IN A MAJOR LIFE ACTIVITY?

Substantially limited” in a major life activity: Although not defined, the regulations provide 9 rules of construction to guide what is “substantially limited”: 29 C.F.R. § 1630.2(j)(1) 1. Broadly construed for expansive coverage – not a demanding standard; 2. Must compare the individual’s limitation to the general population. It need not severely restrict

a major life activity; 3. Disability status is no longer the focus; rather whether the employer has complied with its

obligations; 4. Requires an individualized assessment; 5. Should not require scientific, medical or statistical analysis; 6. Determination is made without regard to mitigating measures (except ordinary eyeglasses or

contacts); 7. An impairment that is episodic or in remission is a disability if when active it substantially limits

a major life activity; 8. An impairment need not limit more than one major life activity to be substantially limiting; 9. An impairment lasting fewer than six months can be substantially limiting.

MITIGATING MEASURES AND THEIR IMPACT ON “SUBSTANTIALLY LIMITED”

• Includes: medication, medical supplies, equipment, or appliances, low-vision devices (not including ordinary eyeglasses or contact lenses), prosthetics, hearing aids, mobility devices and oxygen therapy equipment and supplies; assistive technology; auxiliary aids or services; learned behavioral or adaptive neurological modifications; or psychotherapy, behavioral therapy, or physical therapy.

• Under the new regulations, employers are not allowed to consider mitigating measures (except for ordinary eyeglasses and contact lenses) in determining whether a person is substantially limited;

• Thus, employers will be required to analyze each person’s impairment in its unmitigated or uncorrected state.

29 C.F.R. § 1630.2(j)(1)(vi)

WHEN ARE TEMPORARY IMPAIRMENTS CONSIDERED DISABILITIES?

• The new EEOC regulations rejected the long-standing rule that temporary impairments are not substantially limiting and hence are not disabilities;

• The regulations state that the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting; 29 C.F.R. §1630.2(j)(1)(ix)

• Therefore, the regulations make clear that employers must consider all impairments, even short ones, on a case-by-case basis.

WHEN IS AN IMPAIRMENT THAT IS EPISODIC OR IN REMISSION A DISABILITY?

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; 29 C.F.R. § 1630.2(J)(1)(vii)

• Examples of episodic impairments are epilepsy, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder and schizophrenia;

• The regulations make it clear that although the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently, this is not relevant to determining whether an impairment substantially limits a major life activity.

THE EFFECT OF CONDITION, MANNER AND DURATION IN DETERMINING WHETHER AN INDIVIDUAL

IS SUBSTANTIALLY LIMITED The new EEOC regulations also explain that to determine whether an individual is substantially limited in a major life activity, it may be useful to consider: • The condition under which the individual performs the major life activity; • The manner in which the individual performs the major life activity; • The duration of time it takes the individual to perform the major life activity; • Consideration of the difficulty, effort or time required to perform a major life activity; • Pain experienced when performing a major life activity; • The length of time that a major life activity can be performed; • The way an impairment affects the operation of a major bodily function; • Negative side effects of mitigating measures; • Additional time or effort to achieve a major life activity.

29 C.F.R. 1630.2(j)(4)

THE EFFECT OF CONDITION, MANNER AND DURATION (CONT.)

• The focus of these condition, manner and duration rules is not on what outcomes a person may achieve with a disability;

• Rather, it is how long, and what the person had to overcome, in order to complete a major life activity;

• For example, a person with a learning disability may achieve a high level of academic success, but may be substantially limited in the major life activity of learning because of additional time or effort he or she must spend to read, write, or learn compared to most people in the general population.

29 C.F.R. 1630.2(j)(4).

WHAT ARE MAJOR LIFE ACTIVITIES? The new regulations also expanded the definition of “major life activities”:

• Caring for oneself • Performing manual tasks • Seeing • Hearing • Eating • Sleeping • Walking • Standing • Sitting • Reaching • Lifting • Bending • Speaking • Breathing

• Learning • Reading • Concentrating • Thinking • Communicating • Interacting with others • Working • Operation of a major bodily function • Immune system • Special sense organs • Skin • Normal cell growth • Digestive • Genitourinary

• Bowel • Bladder • Neurological • Brain • Respiratory • Circulatory • Cardiovascular • Endocrine • Hemic • Lymphatic • Musculoskeletal • Reproductive functions • Operation of an individual

organ

29 CFR 1630.2(i)(1)(i) and(ii)

MAJOR LIFE ACTIVITIES (CONT.)

To be a “major life activity”: • The activity no longer needs to be of “central importance to daily life” expressly overruling Toyota

Motor Mfg. v. Williams;

• May be on the non-exhaustive list as contained in the statute and in the regulations;

• Working is now a major life activity, overruling prior case law that said working was not necessarily a “major life activity”;

• If not on the non-exhaustive list, the regulations make it clear that the term ”major” shall not be interpreted strictly to create a demanding standard for disability;

WHAT IMPAIRMENTS ARE VIRTUAL LOCKS TO BE CONSIDERED DISABILITIES UNDER THE ADA?

The new regulations established that the following impairments will “virtually always” be considered disabilities:

• Deafness • Blindness • Intellectual disability • Partially or completely missing limbs • Mobility impairments requiring the use

of a wheelchair • Autism • Cancer • Cerebral palsy

• Diabetes • Epilepsy • HIV or AIDS • Multiple sclerosis • Major depression • Bipolar disorder • Post-traumatic stress

disorder • Obsessive compulsive

disorder • schizophrenia 29 CFR Part 1630.2(j)(3)(iii)

REGARDED AS DISABLED

• Prior to the enactment of the ADAAA, an individual was “regarded as disabled” only when the employer perceived the individual to have an impairment that “substantially limited” him or her in a major life activity;

• Now, post-ADAAA, the same individual need only establish that the employer perceived him or her as having an impairment and based an employee decision on that impairment;

• To establish liability the employee still must show that he was discriminated on the basis of his perceived disability;

• No duty of reasonable accommodation is owed to a person “regarded as disabled.”

29 C.F.R. § 1630.2(I)

TEXAS CASES DECIDED UNDER THE NEW ADA LAW

• Meinelt v. P.F.Chang’s China Bistro, Inc., 787 F.Supp. 2d 643 (S.D. Tex. 2011)( Plaintiff disabled with operable brain cancer);

• Norton v. Assisted Living Concepts, Inc., 785 F.Supp.2d 1173 (E.D. Tex. 2011)(Plaintiff disabled with renal cancer in remission);

• Patton v. Ecardio Diagnostics, LLC, 793 F.Supp.2d 964 (S.D. Tex. 2011)(Plaintiff disabled with broken fibula which kept Plaintiff from walking for a few months);

• Carbaugh v. Unisoft Intern., Inc., 2011 U.S. Dist. 131551 (S. D. Tex. 2011)(episodic flare-ups of multiple sclerosis created fact issue that Plaintiff was disabled)

FOCUS AFTER THE ENACTMENT OF THE ADAAA AND THE NEW EEOC REGULATIONS

• Congress stated “that the question of whether an individual’s impairment is a disability should not demand extensive analysis,” but instead “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.”

• As evidenced by the four Texas cases decided post-ADAAA, employers should now place emphasis on fulfilling its obligations under the ADA, including the non-discriminatory treatment of its employees with an impairment, the interactive process and reasonable accommodation.

THE EMPLOYER SHOULD REQUIRE THAT THE EMPLOYEE INVOKE THE INTERACTIVE PROCESS

• The employer should require that the employee initially invoke the ADA’s reasonable accommodation requirement, unless the disability, resulting limitations, and necessary reasonable accommodations are open, obvious, and apparent to the employer. Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996), cert. denied, 519 U.S. 1029 (1996).

• According to the EEOC, an employer is only required to initiate the reasonable accommodation interactive process without being asked if the employer: (1) knows that the employee has a disability; (2) knows or has reason to know that the employee is experiencing workplace problems because of the disability; and (3) knows or has reason to know that the disability prevents the employee from requesting a reasonable accommodation. If the employee states that they do not need a reasonable accommodation, the employer will have fulfilled its obligation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at 23. (1999).

THE INTERACTIVE PROCESS (CONT.)

• An employer should not jump to the conclusion that an employee’s illness or condition renders her disabled or entitles her to ADA protection. If it does, then it could lead to the employee being perceived as disabled. See McAlpin v. National Semiconductor Corp., 921 F.Supp. 1518 (N.D. Tex. 1996); but see Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047 (5th Cir. 1998).

• The employer should not unilaterally offer a reasonable accommodation to an employee just because it learns that the employee has a disability or some other impairment. See McAlpin.

THE EMPLOYER’S OBLIGATION TO PARTICIPATE IN THE INTERACTIVE PROCESS

• Once an employee has made a request for accommodation, the ADA’s regulations state that “it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation” in order to craft a reasonable accommodation. 29 CFR § 1630(o)(3).

• The EEOC’s Interpretative Guidelines reinforces this directive and also stresses that the interactive process requires the input of the employee as well as the employer. 29 CFR § 1630, App. § 1630.9.

• If an employer fails to engage in a good faith interactive process and that leads to a failure to reasonably accommodate an employee, the employer violates the ADA. See Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 736 (5th Cir. 1999)(upholding judgment for employer because employee, who abruptly resigned, failed to participate in the interactive process).

• An employer may not stymie the interactive process by preemptively terminating the employee before an accommodation can be considered or recommended. Cutrera v. Bd. of Supervisors of La. St. Univ., 429 F.3d 108 (5th Cir. 2005).

THE EMPLOYER’S OBLIGATION TO PARTICIPATE IN THE INTERACTIVE PROCESS (CONT.)

• Employers must ensure that their managers and Human Resources personnel are properly trained to know when they must participate in the interactive process since many times the employee’s request is not obvious.

• Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565 (3rd Cir. 2002);

• EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606 (5th Cir. 2009)

WHAT IS THE INTERACTIVE PROCESS?

EEOC regulations describe the interactive process as follows:

When an individual with a disability has requested a reasonable accommodation to the assist in the performance of a job, the employer using a problem solving approach, should:

1. Analyze the particular job involved and determine its purpose and essential functions;

2. Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;

3. In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

4. Consider the preference of the individual to be accommodated, and select and implement the accommodation that is most appropriate for both the employee and the employer.dations which would be the most effective.

29 CFR § 1630, App. § 1630.9.

QUESTIONS TO BE ASKED IN THE INTERACTIVE PROCESS

• Once an employee properly invokes the “reasonable accommodation” requirement, the employer should ask the following questions: • Ask the employee for medical information, to determine if their condition meets the ADA definition of

“disability,” which is a prerequisite for an employee to be entitled to a reasonable accommodation;

• Ask for medical information verifying that the employee’s disability has caused a workplace limitation that necessitates a reasonable accommodation;

• Require that the employee submit documentation about her disability and functional limitations from an appropriate health care provider;

• Request that the employee sign a limited release allowing the employer to submit a list of specific questions to the health care provider, so that the employer can obtain information necessary to verify the disability, its functional limitations and the need for a reasonable accommodation;

• If the employee asserts a mental disability, and their suggested reasonable accommodation is vague and indefinite, require that the suggestions for a reasonable accommodation of the mental disability come from a mental health professional;

• If the employer needs to hire its own health care provider to examine the employee, it may do so at its own cost. The employer should document the need for this examination.

TIPS REGARDING THE INTERACTIVE PROCESS

• Employers should document all the efforts that they have undertaken in the interactive process.

• If the employee fails to provide necessary information, or suggest an accommodation, that should be documented as well.

• Provide a clear, comprehensive job description of the essential functions of the employee’s job to any physician the employee or employer consults regarding whether the employee can perform the essential functions of his or her job;

• If the employer ultimately concludes that there is no reasonable accommodation available, it should notify the employee of that conclusion, tell them why they have reached that conclusion, and also give the employee some amount of time to provide information that would potentially change the conclusion.

REASONABLE ACCOMMODATION DEFINED

Under the ADA, employers are required to make reasonable accommodations for disabled employees if such accommodations would allow them to perform the essential duties of their job and the accommodation would not be an undue hardship to the employer.

The ADA defines “reasonable accommodation” as:

(1) Making existing facilities used by employees readily accessible to and usable by persons with disabilities; and

(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials, or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. §12111(9)

UNDUE HARDSHIP EXCEPTION

• Defined: Means, with respect to an accommodation, significant difficulty or expense incurred by the employer to provide the accommodation; 29 C.F.R. § 1630.2(p)

• Factors to be considered under undue hardship: • The nature and net cost of the accommodation; • The overall financial resources of the facility, the number of persons employed

at such facility, and the effect on expenses and resources; • The type of operation(s) of the employer, including the composition, structure

and functions of the workforce, the geographic separateness and administrative or fiscal relationship of the employer; and

• The impact of the accommodation upon the operation(s) of the employer, including the impact on the ability of other employees to perform their duties and the impact on the employer’s ability to conduct business.

UNDUE HARDSHIP EXCEPTION (CONT.)

• An employer may reject a reasonable accommodation request based on undue hardship. See Riel v. Electronic Data Systems Corp., 99 F.3d 678, 684 (5th Cir. 1996) Proving undue hardship, however, is very difficult. The employer must how that the requested accommodation would present an undue hardship to the employer when applied to the employee’s specific circumstances. This affirmative defense is a factually intensive defense, and obtaining summary judgment based upon “undue hardship” will be difficult.

RULES REGARDING REASONABLE ACCOMMODATION

• It is the employee’s burden to request a reasonable accommodation. Jenkins v. Cleco Power, LLC, 487 F.3d 309 (5th Cir. 2007).

• Employers may use reassignment to a vacant position as a reasonable accommodation. See 42 U.S.C. § 12111(9) The EEOC has concluded that it is permissible to pay the employee based on the rate for the vacant position, even if it is lower paying than the position the employee previously occupied. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act; Number 915.002; October 17, 2002.

• Practice Tip: Make sure that the position offered is not degrading

• An employer is not required to transfer a disabled employee as part of a reasonable accommodation unless: (a) the employee is qualified for the position to which they desire a transfer; (b) there is an actual opening; and (c) the employee asks for the transfer. Jenkins, 487 F.3d at 315-16; see also Gonzales v. City of New Braunfels, Texas, 176 F.3d 834, 839-40(5th Cir. 1999).

• A disabled employee has no right to a promotion, to choose what job to which he will be assigned, or to receive the same compensation he previously received. Allen v. Rapides Parrish School Board, 204 F.3d 619, 623 (5th Cir. 2000).

RULES REGARDING REASONABLE ACCOMMODATION (CONT.)

• Employers need not hire extra employees to perform work that a disabled employee is unable to perform because of their disability. Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999)(firefighter injured claimed that he should have been accommodated by the creation and reassignment to a light-duty job and or the use of other employees to perform the essential functions of his job); Robertson v. The Neuromedical Center, 161 F.3d. 292, 295 (5th Cir. 1998, cert. denied, 119 S. Ct. 1575 (1999)(neurologist with ADHD requested an accommodation that a clerical assistant could be hired to oversee his administrative duties which were an essential function of his job).

• An accommodation that would result in other employees having to work harder or longer is not required under the ADA. Turco V. Hoechst Celanese Chemical Group, Inc., 101 F.3d 1090, 1094 (5th Cir. 1996)(diabetes). In that case, the plaintiff claimed that the employer should reasonably accommodate his impairment by changing his schedule from a rotating shift to a straight day-shift position. The court rejected the plaintiff’s contention because the employer proved that moving the plaintiff to a straight day-shift would place a heavier burden on the rest of the employees in the plant where the plaintiff worked.


• An employer need not provide an indefinite leave of absence to an employee as a reasonable accommodation. See Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 481 (5th Cir. 2000); Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996). Employers, however, need to exercise caution when considering a request to extend a leave of absence for a specific period of time as a reasonable accommodation. See Garcia-Ayala v. Lederle Parenterlas, Inc., 212 F.3d 638, 648-650 (1st Cir. 2000).

• Reasonable accommodation does not require that an employer exempt the disabled employee from the essential functions of his job. Jones v. Kerrville State Hospital, 142 F.3d 263, 265 (5th Cir. 1998)(Holding, as a matter of law, it is an unreasonable accommodation for the employer to have to exempt the employee from performance of an essential function of the job); Barber v. Nabors Drilling U.S.A., Inc. 130 F.3d 702, 709 (5th Cir. 1997)(Holding “We cannot say that [the employee] can perform the essential functions of the job with reasonable accommodation, if the only successful accommodation is for [the employee] not to perform those essential functions".)

• Employers should take care not to terminate an employee for not being able to do part of their job, if that part is only a marginal or non-essential function. See Carmona v. Southwest Airlines Co., 604 F.3d 848, 859-60 (5th Cir. 2010)(finding that the evidence showed that Southwest's flight attendants have nearly unlimited discretion in determining when and how often they want to work, therefore regular attendance was not an essential function of job, so employee’s inability to regularly attend work did not render him unqualified for his position).


• Any offer of reasonable accommodation to an employee should be put in writing. If the employee rejects an offer of reasonable accommodation, the employer should document this rejection.

• Never deny a request for reasonable accommodation without first engaging in the interactive process.

• Do not deny a request for reasonable accommodation on the grounds that it would set a bad precedent or show favoritism. See Garcia-Ayala; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act Q&A No. 24, 915.002 (Oct. 17, 2002).

• When an employee seeks a reasonable accommodation, do not terminate them unless the grounds for termination are unrelated to their request or their medical condition and are undeniable. See Chevron Phillips Chemical Co., LP.

THE FAMILY MEDICAL LEAVE ACT

FMLA OVERVIEW

Four Basic Obligations:

1. Provide eligible employees 12 weeks of unpaid leave within a designated 12-month period: (a) to care for a newborn child or newly placed adopted or foster child; (b) to care for a spouse, child, or parent with a serious health condition; (c) for an employee’s serious health condition and (d) for any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or an impending call or order to covered active duty); 29 U.S.C. § 2612(a)(1)

2. Maintenance of Health Coverage; 29 U.S.C. § 2614(c)

3. Reinstatement (other than certain “highly compensated employees”) to the same or an equivalent position; 29 U.S.C. § 2614(a)(1)

4. Employers must not interfere with or deny FMLA rights and must not discharge or otherwise discriminate against employees for opposing any practices made unlawful by the FMLA or for asserting a right under the FMLA; 29 U.S.C. § 2615 (a) and (b)

EMPLOYER COVERAGE

• All cities are covered by the FMLA regardless of the city’s size. 29. C.F.R. § 825.108(a)

• Employees of the cities must meet all of the requirements of eligibility, including the requirement that the city employ 50 employees at the worksite or within 75 miles, to be an “eligible employee” under the FMLA. 29 C.F.R. § 825.108(d)

EMPLOYEE COVERAGE

To be an “eligible employee”:

1. Employed by covered employer for 12 months (total) at the time of leave (not the request)[Service prior to 7 years does not count unless due to military service or a cba]; 29 U.S.C. § 2611(2)(A)(i) • Any part off week worked counts a whole week

2. Employed by covered employer for at least 1,250 hours of service during the 12-month period immediately preceding the leave (not the request); 29 U.S.C. § 2611(2)(A)(i)

3. Employed at a worksite with 50 employees within 75 miles; 29 U.S.C. § 2611(2)(B)(ii) • Measured in surface miles; Bellum v. PCE Constructors, 407 F.3d 734 (5th Cir. 2005) • Separate but interrelated facilities count as one worksite; 29 C.F.R. § 825.111(a)(1) No fixed worksite – worksite is where work is assigned or where they report; 29 C.F.R. § 825.111(a)(2)

4. If employee is not eligible and employer fails to notify employee within 5 days of request, the employee is eligible; 29 C.F.R. § 825.300(b)

QUALIFYING REASONS FOR FMLA LEAVE

• Employee’s own serious health condition;

• Employee to care for a close family member with a serious health condition;

• Birth, adoption, or foster care placement of a child with the employee;

• Active Duty (qualifying exigency);

• Military Caregiver Leave

28 U.S.C. § 2612(a)(1)

WHO ARE CLOSE FAMILY MEMBERS

• Spouse, including common law;

• Son or daughter

• Under 18 years of age or older and incapable of self-care because of mental or physical disability;

• Parent, including adoptive, step, foster or anyone who stood in loco parentis

• Excluded: Grandparents, in-laws

29 U.S.C. § 2612(a)(1)(C)

LEAVE RULES APPLICABLE TO HUSBAND AND WIFE, SAME

EMPLOYER

• Birth or adoption of child – 12 weeks total; 29 C.F.R. §§ 825.120(a)(3) and 825.121(a)(3)

• Care for employee’s parent – 12 weeks total; 29 C.F.R. § 825.121(a)(3)

• Care for employee’s child – 12 weeks each; 29 C.F.R. § 825.120(a)(6)

• Care for their own serious health condition – 12 weeks each.

WHAT QUALIFIES AS A SERIOUS HEALTH CONDITION?

1. An illness, injury or physical or mental condition that involves “inpatient care.” 29 C.F.R. § 113(a)

“Inpatient care” means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in 29 C.F.R. §825.113(b), or any subsequent treatment in connection with such inpatient care. See 29 C.F.R. § 825.114

“Incapacity” means “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” 29 C.F.R. § 825.113(b)

WHAT QUALIFIES AS A SERIOUS HEALTH CONDITION? (CONT.)

2. An illness, injury or physical or mental condition that involves “continuing treatment by a health care provider.” 29 C.F.R. § 825.113(a)

Continuing treatment by a health care provider includes any one or more of the following:

Incapacity lasting more than 3 consecutive full calendar days which involves:

• Treatment two or more times (first visit within 7 days of absence; twice within 30 days of absence, unless extenuating circumstances exist) by a health care provider; or

• One treatment by health care provider with a continuing regimen of treatment

29 C.F.R. § 825.115(a)


3. Any period of incapacity due to pregnancy, or for prenatal care. 29 C.F.R. § 825.115(b)

• Time off for work due to incapacity caused by pregnancy or prenatal care qualifies for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence and even if the absence does not last more than 3 consecutive, full calendar days.

• Being pregnant is not necessarily a “serious health condition” – must be incapacitated

WHAT QUALIFIES AS A SERIOUS HEALTH CONDITION?(CONT.)

4. Any period of incapacity due to a chronic serious health condition. 29 C.F.R. § 825.115(c)

• Requires periodic visits at least 2 times a year;

• Continues over an extended period of time (not defined); and

• May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy).

Time off for work due to incapacity caused by chronic serious health condition qualifies for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence and even if the absence does not last more than 3 consecutive, full calendar days.


5. Includes a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. 29 C.F.R. § 825.115(d)

Examples include:

• Alzheimer’s,

• a severe stroke;

• the terminal stages of a disease; and

• autism


6. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

• Restorative surgery after an accident or other injury; or

• A condition which could likely result in a period of incapacity of more than 3 days if not treated [e.g., cancer (chemotherapy, radiation), severe arthritis (physical therapy), or kidney disease (dialysis).

29 C.F.R. § 825.115(e)

EMPLOYEE ONLY ENTITLED TO LEAVE IF UNABLE TO PERFORM ESSENTIAL FUNCTIONS OF JOB

1. To be entitled to leave under the FMLA, an employee must not only have a “serious health condition,” but that condition must render him or her unable to perform the essential function of his or her job. 29 U.S.C. § 2612(a)(1)(D)

2. The regulations provide that an employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for the treatment. 29 C.F.R. § 825.123

3. Treatment must be the reason for incapacity-can’t simply miss work to pick up medicines or run by physician’s office

ACTIVE DUTY (QUALIFIED EXIGENCY) LEAVE

• Eligible employees may take FMLA leave (up to 12 weeks) for a qualifying exigency while their spouse, son, daughter, or parent is on covered active duty or call to covered active duty status; 29 C.F.R. § 825.126

• Qualified Exigencies are: • Short-notice deployment; • Military events; • Childcare/School activities; • Financial/legal arrangements; • Counseling; • Rest and Recuperation; • Post-deployment activities; • Parental care; and • Anything else city and employee agree to

MILITARY CAREGIVER LEAVE

• Eligible employees are entitled to FMLA leave to care for a covered service member with a serious illness or injury; 29 C.F.R. § 825.127

• Employee gets up to 26 workweeks of leave, per injury, per family member, to care for a covered service member during a single 12-month period;

• Creates separate “12 month leave year” and begins on the first day the eligible employee takes FMLA leave to care for a covered service member;

• Employee can only have a maximum of 26 weeks of leave except if more than one service member is injured or the same service member suffers more than one serious injury;

• Married couples employed by the same covered employer must combine the 26 weeks of leave

EMPLOYEE’S OBLIGATION TO PROVIDE NOTICE OF NEED FOR FMLA LEAVE

Employee Notice:

The employee has an obligation to notify their employer of the need for FMLA leave.

• Foreseeable FMLA Leave: 29 C.F.R. § 825.302 • At least 30 days advance notice; • Or as soon as practicable – typically the same day or the next business day after employee

becomes aware of need for FMLA leave; • Content – Verbal notice sufficient to make the employer aware that the employee needs FMLA-

qualifying leave, and the anticipated timing and duration of the leave • Unforeseeable FMLA Leave: 29 C.F.R. § 825.303

• As soon as practicable; • Must typically follow employer’s policies regarding the requesting of FMLA leave - but see Saenz

v. Harlingen Medical Center, L.P., 613 F.3d 576 (5th Cir. 2010)(decided prior to adoption of new FMLA regulations);

• Employee must provide sufficient information for an employer to determine that the FMLA may apply to the leave request

WHAT IS SUFFICIENT NOTICE?

Employee notice requirement is not “onerous” and is satisfied when an employee provides their employer with information sufficient to show that he or she “likely has an FMLA-qualifying condition.”

• No rules exist that define sufficient notice;

• Depends on facts and circumstances;

• Do not have to expressly assert rights under the FMLA or even mention the FMLA;

• Calling in sick is insufficient

WHAT IS SUFFICIENT NOTICE (CONT.)?

• Examples of sufficient notice: • An employee’s statement to his employer indicating that he needs leave to care for a

seriously ill parent; Righi v. SMC Corp., 632 F.3d 404 (7th Cir. 2011) • An employee’s statement that he needed time off for removal of ingrown toenail; Manuel v.

Westlake Polymers Corp., 66 F.3d 758 (5th Cir. 1995) • Employee’s mother contacted employer and told them that she was suffering from severe

medical condition involving hallucinations and disorientation; Saenz v. Harlingen Med. Ctr., 613 F.3d 576 (5th Cir. 2010)

• Examples of insufficient notice: • Note from employee that she was having a lot of pain in her side, and would not be able to

return to work that day; Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973 (5th Cir. 1998) • Employee requested flexible schedule after back surgery; Giles v. Christian Care Centers,

Inc., 1997 U.S. Dist. LEXIS 20351 (N. D. Tex. 1997); • Employee demanding leave without any justification; Aubuchon v. Knauf Fiberglass, GmbH,

359 F.3d 950 (7th Cir. 2004)

EMPLOYER’S OBLIGATIONS ONCE THEY ARE ON NOTICE OF POSSIBLE NEED FOR FMLA LEAVE

Once an employee properly invokes their FMLA rights, the regulations shift the burden to the employer to process the leave request.

• Employer has a duty to provide a written explanation of the employee’s rights and responsibilities under the FMLA; 29 C.F.R. § 825.301

• Employer has a duty to make further inquiry if additional information is needed before the employer can process the leave request; 29 C.F.R. §§ 825.302(c) & 825.303(b)

WHAT SHOULD THE EMPLOYER DUE IF EMPLOYEE REQUEST FOR LEAVE IS VAGUE

• If any doubt about the condition qualifying for FMLA leave, send the employee Form 381, entitled, Notice of Eligibility and Rights and Responsibilities (FMLA), along with Form 380, entitled Certification of Health Care Provider (FMLA);

• If no doubt about the condition qualifying for FMLA leave, send both forms;

• Why?

• If employee returns paperwork and certification within 15 days, then most likely it is covered leave under the FMLA;

• If employee does not return the paperwork and certification within 15 days, then most likely it is not covered leave under the FMLA

WHAT IF THE EMPLOYEE DOES NOT RETURN FMLA MEDICAL CERTIFICATION?

• FMLA regulations permit an employee at least 15 calendar days (unless not practicable despite employee’s good faith, diligent efforts) to provide medical certification of a serious health condition; 29 C.F.R. § 825.305(b)

• May you terminate the employee for taking time off that is the basis for the FMLA request if they fail to return paperwork and certification?

• Prior to 15 days – absolutely not; Saenz v. Harlingen Med. Ctr., 613 F.3d 576 (5th Cir. 2010)

• After 15 days – with extreme caution and only after providing a written warning to the employee that failure to provide the certification may result in the leave not being designated as FMLA-qualifying leave and warning them of the consequences of that non-designation;

WHAT IF THE EMPLOYEE PROVIDES INCOMPLETE MEDICAL CERTIFICATION?

An employee may be terminated for submitting an unclear or deficient medical certification but only after the following rules are followed:

• A medical certification is considered sufficient if it contains: the date the serious health condition commenced; the probable duration of the condition; the appropriate medical facts; a statement that the employee is unable to perform the essential functions of his job; 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306

• 29 C.F.R. § 825.305(c) provides that an employee whose certification is deemed inadequate must be informed what additional information is needed and the employer must provide the employee with 7 calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency;

• 29 C.F.R. § 825.305(d) provides than an employer must advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification, i.e., termination.

See Picarazzi v. John Crane, Inc., 2011 U.S.Dist. LEXIS (S.D. Tex. 2011)

WHAT IF THE EMPLOYER QUESTIONS THE MEDICAL CERTIFICATION?

• Employer may contact the health care provider for purposes of clarification and authentication of the medical certification after the employer has given the employee an opportunity to cure any deficiencies in the medical certification; 29 C.F.R. § 825.307

• To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official;

• The employee’s direct supervisor may not make contact;

• “Authentication” means asking the health care provider to confirm that the certification was completed and/or authorized by the health care provider who signed the document;

• “Clarification” means contacting the health care provider to understand the handwriting or to understand the meaning of a response;

• Employers may not ask health care providers for additional information beyond that required by the certification form.

WHAT IF THE EMPLOYER QUESTIONS THE MEDICAL CERTIFICATION (CONT.)?

1. Second opinion:

• Employer may require the employee to obtain a second opinion on the medical certification. 29 C.F.R. § 825.307(b)

• Performed by a health care provider chosen by employer who is not employed on a regular basis by the employer (exception if in a rural area);

• Performed at the employer’s expense, including any travel expenses

• Must provide employee with copy of second opinion.

2. Third opinion:

• Employer may obtain a third opinion if the 1st and 2nd opinions differ;

• Third opinion is final and binding;

• Employer and employee must attempt in good faith to agree to health care provider;

• Otherwise same conditions for second opinions apply, i.e., costs and provision of copy to employee

DESIGNATING LEAVE AS FMLA

• Employer’s responsibility;

• Must notify the employee whether the leave will be designated as FMLA leave, or not, within 5 business days absent extenuating circumstances 29 C.F.R. § 825.300(d) • Use Form 382, entitled Designation Notice (FMLA)

• In that notice of designation, the employer must notify the employee: • That the employer requires paid leave to be substituted for unpaid FMLA leave or that paid

leave taken under an existing leave plan is to be counted as FMLA leave; • That a fitness-for-duty certification will be required to be restored to employment

• Consequences of failing to timely provide notice of designation: • May not be able to retroactively designate leave as FMLA qualifying if the employee is able

to demonstrate harm; 29 C.F.R. § 825.301(d); See Downey v. Strain, 510 F.3d 534 (5th Cir. 2007)

• Employer may be liable under the FMLA if the employee suffered actual harm because of the failure to timely designate; 29 C.F.R. § 825.301(e)

DESIGNATING LEAVE AS FMLA (CONT.)

• FMLA “by estoppel” has been recognized by the 5th Circuit. See Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352 (5th Cir. 2006)

• What is it? Misrepresentation that employee entitled to FMLA leave that the

employee reasonably relies upon to his or her detriment.

• FMLA “by estoppel” can be avoided if the employer timely, and correctly, disapproves of a FMLA request.

• What if you make a mistake in granting or denying FMLA leave? • Correct it promptly – the quicker the better; • In writing • Do not prejudice or harm the employee

WHAT IF EMPLOYEE DOES NOT WANT TO TAKE FMLA LEAVE

• It is the employer’s decision;

• Employee requests sick leave, but never mentions FMLA. Employer may designate as FMLA leave if information received reasonably supports such position;

• Employer must notify employee within 5 business days that leave will be counted against his/her FMLA entitlement (retroactive to 1st day of leave);

• Failure to notify employee of FMLA leave status delays commencement of 12 week period, but employee has FMLA protection prior to the notice of designation being sent.

SUBSTITUTION OF PAID LEAVE

• Employee may choose to “substitute” applicable, available paid leave during FMLA leave;

• Employer may require the employee to “substitute” applicable, available paid leave during FMLA leave;

• Employer cannot prevent employee from substituting applicable, available paid leave during FMLA leave;

• “Substitute” means run concurrently with FMLA leave;

• Prudent employers: require paid leave to be used concurrently to prevent stacking of leave

29 U.S.C. § 825.207

MAINTENANCE OF BENEFITS DURING FMLA LEAVE

• Group health must be offered at same level;

• Any changes to group health plan apply to employees on FMLA leave;

• If employee chooses not to have group health while on FMLA leave, or fails to pay premium (after receiving 15 days’ advance written notice of cancellation), must be reinstated to coverage on the same terms as prior to taking leave without any qualifying period, examination, pre-existing exclusions, etc.

• Holiday Pay: only if employer pays during other leaves of absence;

• Vacation Pay Accrual: only if employer allows during other leaves of absence;

• Unconditional pay increases;

• Goal oriented bonuses (i.e., hours worked, productivity) can be denied if failure to achieve is due to FMLA leave as long as denial would occur due to other types

29 C.F.R. §§ 825.209, 210, 211 & 212.

EMPLOYER’S RECERTIFICATION RIGHTS

• Generally limited to once per 30 days; • Exceptions:

• If certification provides that the condition will last more than 30 days, then recertification not permitted until the time period runs out;

• Employer may always seek recertification every six months. • No recertification allowed in less than 30 days;

• Exceptions: • Extension of leave requested; • Change of circumstances, i.e., sudden improvement; • New information casts doubt on need for leave.

• No right to second or third opinion on recertification; • Employee has obligation to provide recertification within 15 days. 29 C.F.R. § 825.308

INTENT TO RETURN TO WORK

• An employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work; 29 C.F.R. § 825.311

• The employer’s policy regarding such reports may not be discriminatory and must take into account the fact specific situation of the employee on FMLA leave;

• Examples of reporting policies:

• Call-in policies;

• Return to work policies. See Hearst v. Progressive Foam Techs., Inc., 682 F.Supp.2d 955 (E.D. Ark. 2010)

FITNESS FOR DUTY REPORTS

• Employer’s may require only if required for all similarly-situated employees; 29 C.F.R. § 825.312(a)

• The fitness for duty exam must be job related and consistent with business necessity; 29 C.F.R. § 825.312(h)

• Limited to health condition that necessitated the leave; 29 C.F.R. § 825.312(b)

• Paid for by employee; 29 C.F.R. § 825.312(c)

• No second or third fitness for duty exam allowed; 29 C.F.R. § 825.312 (b)

• Available for return from intermittent leave up to once every 30 days if there are “reasonable safety concerns” regarding the employee’s ability to perform his or her job duties. 29 C.F.R. § 825.312(f)

REDUCED SCHEDULE OR INTERMITTENT LEAVE

• For birth or adoption – only if employer agrees;

• When medically necessary as determined by health care provider;

• Can be taken in minimum increments of 1 hour;

• If the leave is foreseeable, can transfer employee to alternate position with equivalent pay and benefits (but not equivalent duties) during the period of intermittent leave which better accommodates the employee’s absences; 29 C.F.R. § 825.204(a)

• May require employee to make a “reasonable effort” to schedule planned medical treatment so as not to unduly disrupt operations. 29 C.F.R. § 825.203

WHAT IF AN EMPLOYEE CANNOT RETURN TO WORK AFTER FMLA LEAVE EXPIRES?

• Under the FMLA, employers are not required to extend FMLA leave beyond the period of eligibility;

• If an employee cannot return to work after FMLA leave expires because of a continuing medical condition, the employer must consider whether the condition constitutes a disability, and whether a reasonable accommodation could be made under the ADA that would allow the employee to continue in employment

EMPLOYER’S OBLIGATIONS AFTER FMLA LEAVE

• Employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment; 29 C.F.R. § 825.214;

• The definition of “equivalent position” is very demanding. The duty to reinstate includes same or equivalent position and the same shift. See Hunt v. Rapides Healthcare Sys., 277 F.3d 757 (5th Cir. 2001)

EMPLOYERS CANNOT RETALIATE AGAINST EMPLOYEES WHO REQUEST LEAVE OR ASSERT RIGHTS

UNDER THE FMLA • Protects employees who:

• Request or take FMLA leave;

• Complain about unlawful practices under the FMLA;

• File charges with the Department of Labor under the FMLA;

• Gives information or testimony in connection with any proceeding under the FMLA;

• The anti-retaliation clause has been extend to “friends and family” of the employee. See Thompson v. North American Stainless, LP., 131 S.Ct. 863 (2011).

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