the material provided herein is for informational purposes only and is not intended as legal advice...

The material provided herein is for informational purposes only and is not intended as legal advice or

counsel.

Urgent Employee Medical Leave Updates for 2009

Patrick T. Collins, Esq.Keith D. McDonald, Esq.David E. Cassidy, Esq.

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New Jersey Family Leave Benefits

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The New FMLA & MFLA Regulations

Patrick T. Collins, Esq.

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The New FMLA and MFLA Regulations

Introduction

• Final rule issued on November 17, 2008- Over 20,000 comments

• Overall attempt to clarify communication process

• Q&A format gone• New forms• Changes effective January 16, 2009• DOL website:

www.dol.gov/esa/whd/fmla/finalrule.htm

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Introduction• Final regulations with comments over

750 pages• Four categories of changes:

1. Substantive Standards2. Notice/Timing Rights and

Requirements3. Medical Certification Process4. Military Family Leave

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Substantive StandardsELIGIBILITY

Old Regulations • Did not specify how a break in service would affect

12 month employment requirement• Did not address employees on leave at 12 month

anniversary

New Regulations• Previous periods of employment count if break in

service is less than 7 years• Employees on leave at 12 month anniversary

become eligible as long as benefits/compensation provided on leave

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Substantive Standards

WAIVERS

Old Regulatory/Case Law•Employees may not waive FMLA rights

New Regulation•Employees may waive FMLA rights

retroactively

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PERFECT ATTENDANCE AWARDS

Old Regulations• Cannot disqualify employee from

awards/bonuses based on attendance on basis of FMLA leave

New Regulations • Can be disqualified based on FMLA as long

as non-FMLA leave is treated the same

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SERIOUS HEALTH CONDITION

Old Regulations• Period of incapacity for (a) more than 3 consecutive

calendar days and (b) treatments by health care provider (either (i) one treatment plus regimen of treatment or (ii) two treatments). No guidance on when treatment must occur.

New Regulations• Period of incapacity for 3 FULL consecutive calendar

days• In person treatment within 7 days of first day of

incapacity plus (a) regimen of treatment or (b) second in-person treatment within 30 days of first day of incapacity

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Substantive StandardsCHRONIC CONDITIONS

Old Regulations• “Periodic visits” to health care

provider. No guidance on how many visits or how often.

New Regulations•At least 2 visits to health care

provider per year

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Substantive StandardsSUBSTITUTION OF PAID TIME OFF

Old Regulations• Employees may substitute PTO for unpaid FMLA leave

New Regulations• The right to substitute PTO depends on the employer’s

policies• The employer may enforce all normal rules for PTO

Examples:Vacation: Minimum increments of 8 hoursSick Time: Limited to employee’s illness

NOTE: Employees may opt to take unpaid FMLA leave in smaller increments.

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Substantive StandardsLIGHT DUTY

Old Regulations • Light duty assignments count as FMLA leave

New Regulations• Light duty assignments do not count as

FMLA leave• Reinstatement rights exist for up to the full

12-month leave year while on light duty

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Notice/Timing Rights

POSTER

Old Regulations• Must have poster posted

New Regulations• New poster (General Notice)• Posted hard copy or electronically• Must be included in Employee Handbooks• Must be distributed to all current employees, all new

hires and provided to applicants

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ELIGIBILITY NOTICEOld Regulations

• 2 Business days

New Regulations• 5 business days from date of request• Notice of Eligibility and Rights and Responsibilities

(Form WH-381)• Part A – Notice of Eligibility• Part B – Rights and Responsibilities• Explain 12 month leave year• Written confirmation required• PTO included

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DESIGNATION NOTICE (Form WH-382)• Designating leave as FMLA leave• Amount of leave to be counted• Whether PTO will be applied• Whether Fitness For Duty Certification will be

required– Attached list of essential job duties

• Procedures when additional information is needed

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Notice/Timing RightsFAILURE TO DESIGNATE FMLA LEAVE

Old Regulations• Employee’s leave does not count as FMLA leave

unless and until employer designates leave as FMLA

(RAGSDALE V. WOLVERINE WORLD WIDE, INC. (535 U.S. 81 (2002))

New Regulations• Adopts RAGSDALE• Employer may retroactively designate leave as FMLA

leave unless employee can show harm from failure to timely designate

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Medical Certifications

2 NEW FORMS• Employee’s Serious Health Condition (Form WH-380-E)• Family Member’s Serious Health Condition (Form WH-

380-F)• Must provide form with Rights and Responsibilities

Notice• Can request a diagnosis, symptoms, treatment, etc.• Explain why care is medically necessary• Probable duration

•“unknown,” “indeterminate,” and “lifetime” are not acceptable

• 15 calendar days to provide completed certifications

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INCOMPLETE OR INSUFFICIENT• Employer must provide written notice to

employee as to specific information still needed

• Employee has 7 calendar days to cure

AUTHENTICATION/CLARIFICATION• HR, Management, company doctor may

contact employee’s doctor• Employee’s supervisor MAY NOT

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Medical Certifications• Certifications will request sensitive health

information about employees or family members• HIPAA consents will be required• If employee refuses consent, leave can be denied• Limits on who can contact employee’s doctor

– Employers should designate their employees• Certifications must be maintained in confidential

medical files– Separate from general personnel file

• Genetic information concerns– Restrictions on disclosure

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RECERTIFICATIONS

Old Regulations• Every 30 days

New Regulations• Every 30 days is out!• More than 30 days, when duration of leave expires• Every 6 months• Less than 30 days – not permitted

• Requests for extensions• Significant changed circumstances

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MFLA Leave

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MFLA Leave

• Exigency Leave– Certification of Qualifying Exigency

(Form WH-384)

• Military Caregiver– Certification for Serious Injury or

Illness for Covered Service Member (Form WH-385)

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MFLA LeaveEXIGENCY LEAVE

• Employee’s spouse, son/daughter or parent is on/called to active duty in National Guard or Reserves

• Federal (not State)• 12 weeks max, part of regular FMLA

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MFLA Leave

QUALIFYING EXIGENCY1. Short-notice deployment activities;2. Military events and related activities;3. Childcare and school activities;4. Financial and legal arrangements;5. Counseling activities;6. Rest and recuperation activities;7. Post-deployment activities; and/or8. Additional activities

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MFLA Leave

MILITARY CAREGIVER• All employees who are spouse, son,

daughter, parent or next of kin to care for “covered service member” who incurs serious illness or injury in line of active duty

• Covers both National Guard or Reserves and Regular Armed Forces

• 26 weeks in any single 12-month period• Per covered service member/per injury

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Practical Considerations

• Download the DOL website onto your Favorites

• Familiarize yourself with Regulations• Familiarize yourself with New Forms• Distribute and post the new General Notice• Review Employee Handbooks, FMLA policies• Review polices/safeguards for medical

information• Train employees who will be dealing with

these issues

Keith D. McDonald, Esq.

New Jersey’s Paid Family Leave Benefits

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Overview

• Applies to all New Jersey employers regardless of number of employees

• Administered through the State Temporary Disability Benefits Program

• Employee funded through payroll tax• Wage replacement, not technically

“leave”• Benefits available starting July 1, 2009

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Overview

• Available to all New Jersey employees who pay into the State Temporary Disability Benefits Program

• Test: Worked at least 20 weeks or earned at least 1000 times the hourly minimum wage during the prior year (for any NJ employer)

• A seven day waiting period is required before paid leave kicks in

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Overview

• Provides employees with six weeks of paid leave over any 12-month period to:– Care for a newborn or newly-adopted child– Care for a “family member” with a “serious

health condition”

• Employees receive two-thirds of their wages, capped at $546 a week

• Tax withholding of 0.09% or approximately $0.64 per week

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Definitions

• “Family member”• “Parent”• “Child”• “Care”• “Serious Health Condition”

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How Much Leave?

• Six weeks with respect to “any one period” of continuous leave

• 42 days with respect to leave taken on intermittent basis to care for sick family member

• Any 12 month period – not based on calendar year

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Medical Certification• Must state:

– Date of onset of condition– Probable duration of condition– Medical facts within knowledge of provider

regarding the condition– Statement that condition warrants participation of

employee– Estimate of amount of time care will be needed– Statement that intermittent care is necessary (if

applicable)

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Are You In Compliance?

• Employee tax withholdings required to begin on January 1, 2009

• Posting requirements should have taken place by December 15, 2008

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Employer Notice Requirements

• Notice must be issued:(1) not later than 30 days after the notification

form is provided by the Department of Labor;

(2) at the time of hire;

(3) whenever an employee provides notice that the employee is taking covered leave; and

(4) at any time, upon an employee’s first request for a copy of the notice

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Employee Notice Requirements

• At least 30 days notice required when seeking leave to care for a newborn or newly-adopted child

• Prior notice not required when an employee seeks leave to care for an ill family member – Provided in a reasonable manner– Intermittent leave – 15 days notice

absent unforeseen circumstances

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NJFLA and FMLA• Paid family leave does not affect the

protections provided by the NJFLA and FMLA

• An employee that qualifies for leave under these statutes and paid family leave can receive paid leave for six of the 12 weeks of unpaid leave

• Paid family leave benefits run concurrent with NJFLA and FMLA benefits

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Job Protection

• Unlike the NJFLA and FMLA, paid family leave does not offer job protection for employees

• Creates a “small employer exception”

• Risks to small employers

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Effects on Current Policies

• Employers have the option to require employees to use up to two weeks of available PTO before receiving the paid family leave benefits

• No waiting period• Policy must be written

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Payments to Employee

• Employer submission not later than 9th days after leave begins

• Employee submission not later than 30th day after leave begins

• State makes determination• Reasonable delay provision

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Can Employer Deny a Paid Family Leave Request?• No, the State determines whether to

grant Paid Family Leave benefits• The employer may challenge State’s

grant by way of appeal under same procedures in the Temporary Disability Statute

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Private Plans

• Employer can elect to use private plan instead of State plan

• “Written Election” requirement if employees are required to contribute

• Contributions cannot exceed State plan contributions

• All private plans require State approval

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Disability and Paid Leave

• Receipt of disability benefits does not affect eligibility for paid family leave

• No waiting period for paid leave to bond with newborn when leave is taken immediately following temporary disability pregnancy-related claim

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Other Issues

• Employees cannot “opt out” of paid leave program

• Payments estimated to be made two weeks after employee’s claim

• State may request that family member be examined by a State designated doctor at State expense

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Additional Resources• New Jersey Department of Labor website:

http://lwd.dol.state.nj.us/labor/fli.html

• Employee Notification Form and poster available for download at website and included in the materials

• Prior Labor & Employment Alerts included in the materials

http://lwd.dol.state.nj.us/labor/fli.html

Americans With Disabilities Act Amendments Act of

2008:What Every Employer Should Know

David E. Cassidy, Esq.

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Americans with Disabilities Act Amendments Act of 2008

ADA Amendments Act of 2008• “An act to restore the intent and

protections of the Americans with Disabilities Act of 1990”

• Purpose: to reinstate “a broad scope of protection” under the ADA

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ADA Amendments of 2008-Retroactivity

• Effective January 1, 2009• But: Individuals not qualified with a

disability before January 1, 2009, may qualify for an accommodation now

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Important Definitions Going Forward

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Basic Definition

• ADA’s definition of a disability remains mostly unchanged

• ADAAA changes how courts must interpret whether an individual qualifies as disabled

• ADAAA requires the EEOC to issue new guidance

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Overruling “Demanding Standards”• Pre –Amendment standard: disability

needed “to be interpreted strictly to create a demanding standard for qualifying as disabled”

• The ADAAA: “The definition of disability shall be construed in favor of broad coverage of individuals under the Act, to the maximum extent permitted by the terms of this Act”

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Expanding the Meaning of “Substantially Limits”

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Expanding “Substantially Limits”• Pre-Amendment, a substantial

limitation “prevents or severely restricts an individual from performing major life activities” (Toyota v. Williams)

• The ADAAA states that the definition of disability shall be “construed in favor of broad coverage”

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Expanding “Substantially Limits”

• The ADAAA does not provide a definition of “substantially limits,” but it does require the EEOC to adopt a new definition of the term that is “consistent with the Act”

• The EEOC will almost surely reject the Supreme Court’s “prevents or severely restricts” standard and adopt a more lenient one

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Expanding the Meaning of “Major Life Activities”

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Expanding “Major Life Activities”• Neither the original ADA nor the

regulations issued by the EEOC actually defined the term “major life activities”

• The EEOC came up with a short, illustrative list of qualifying activities that left a number of questions unresolved

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Expanding “Major Life Activities”

• The ADAAA explicitly rejects that the term “major life activities” must be narrowly interpreted

• The ADAAA rejects that only activities “of central importance to most people’s daily lives” are “major life activities”

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• The new ADAAA list of “major life activities” includes:

Caring for oneself Performing manual tasksSeeing HearingEating SleepingWalking StandingLifting BendingSpeaking BreathingLearning ReadingConcentrating ThinkingCommunicating Working

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• Major bodily functions included– The ADAA specifies that “major bodily

functions” are a type of “major life activity,” including normal cell growth, the functions of the immune, digestive, respiratory, circulatory, or other bodily systems, and reproductive functions

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Mitigating Measures

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Mitigating Measures

• Pre –Amendment, “mitigating measures” were considered when determining if an individual is substantially limited in a major life activity

• ADAAA: “mitigating measures” are not to be considered, except ordinary eyeglasses/contacts

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Episodic Conditions

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Episodic Conditions

• Pre- Amendment, some courts have held that such conditions do not qualify because the individual is not usually limited in his activities

• The ADAAA recognizes “episodic” conditions as potentially “substantially limiting”

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Episodic Condition Examples

– PTSD– Epilepsy – Diabetes– Others

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Changes to What It Means toHave a “Perceived Disability”

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Changes to “Perceived Disability”• The Supreme Court narrowed the

“regarded as” prong by holding that the terms “substantially limits” and “major life activities” must be strictly interpreted

• The Court applied its strict definitions to claims under the “regarded as”

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Changes to “Perceived Disability”

• The ADAAA explicitly rejects the Supreme Court’s approach

• Under the new standard, an employee can state a “regarded as” claim even if a real or perceived impairment did not substantially limit a major life activity

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Changes to “Perceived Disability”• The effect of the ADAAA is to make a

“regarded as” claim similar to a claim for discrimination under Title VII

• No assessment of the employee’s functional abilities or limitations

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• The focus will likely shift to determining:– Does the employee have a mental or physical

impairment? – Was the employee perceived by the employer as

having an impairment?– Did the employer take “adverse action” against

the employee?– Was that adverse action based in whole or in

part on the employee’s real or perceived impairment?

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• Exception: “transitory and minor” impairments– The ADAAA defines a “transitory and

minor” impairment as one “with an actual or expected duration of six months or less”

– “Transitory and minor” impairments (e.g., the flu) does not qualify under the “regarded as” prong

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No Reverse Discrimination

• “Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.”

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NJLAD – A Quick Note• "Disability" means physical disability, infirmity, malformation or

disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device; OR

• Any mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.

• Disability shall also mean AIDS or HIV infection.

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Summary of Key Changes

• Broader interpretation of disability• Near elimination of mitigating

measures concept• Coverage for episodic or dormant

impairments• Clarifies that reverse disability

discrimination is not cognizable under ADA

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What To Do?

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Immediate Action

• Review and Modify Existing Disability Policies

• Train Managers - Create an HR Checklist to Follow

• Create Accurate Job Descriptions With Essential Duties

• Conduct Early Assessment of Injuries/Illnesses

• Audit Existing Employee Roster for “Retroactivity” Issue

Questions & Answers

Thank you for coming!

the material provided herein is for informational purposes only and is not intended as legal advice...

Documents

old regulations employees

nonfmla leave

introduction final regulations

unpaid fmla

basis of fmla

year slide

seminar slide

military family leave