The ADA Amendments Act and the New FMLA Regulations: What it means for employers

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The ADA Amendments Act and the New FMLA
RegulationsWhat it means for employers

• Sally Griffith Cimini, Esq.
• Rachel E. Brown, Esq.
• Babst, Calland, Clements and Zomnir, P.C.

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The Americans with Disabilities Act

• The Americans with Disabilities Act (ADA)
  prohibits discrimination in all employment
  practices.
• The ADA covers qualified individuals with
  disabilities
• Employers must provide a reasonable accommodation
  to qualified individuals with disabilities UNLESS
  doing so would impose an undue hardship.

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Who is an individual with a disability?

• Under the ADA, an individual with a disability is
  a person who has a physical or mental impairment
  that substantially limits one or more major life
  activities, has a record of such impairment, or
  is regarded as having such an impairment.
• As discussed later, the ADA Amendments Act, or
  the ADAAA, expands how we define a major life
  activity.
• A qualified employee or individual with a
  disability satisfies the skill, experience,
  education and other job-related requirements of
  the position and who, with or without reasonable
  accommodation, can perform the essential
  functions of the position.

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The ADAAA Changes to Disability

• Employers may no longer take into account
  mitigating measures when determining if someone
  is disabled. Examples include hearing aids,
  insulin.
• Eyeglasses or contact lenses may still be taken
  into account.
• This overrules three United States Supreme Court
  cases holding that mitigating measure could be
  considered when determining whether an individual
  is disabled within the meaning of the ADA.
• Employers may only use uncorrected vision as a
  qualification standard if it is job-related and
  consistent with business necessity.

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Major Life Activities Clarified

• Major life activities clarified to include
  caring for oneself, performing manual tasks,
  seeing, hearing, eating, sleeping, walking,
  standing, lifting, bending, speaking, breathing,
  learning, reading, concentrating, thinking,
  communicating, working and the operation of a
  major bodily function.

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Major Life Activities Bodily Functions

• The inclusion of bodily functions vastly expands
  the definition of disability.
• Examples include immune system activity, normal
  cell growth, digestive, bowel, bladder,
  neurological, brain, respiratory, circulatory,
  endocrine and reproductive functions.
• List is illustrative, not exhaustive.

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Major Life Activities

• Prior to the amendments, major life activities
  generally involved some volitional behavior.
  However, now non-volitional bodily activities may
  be a major life activity.
• An impairment that substantially limits a major
  life activity need not limit other major life
  activities to be considered a disability.

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Episodic Conditions Remission

• The ADAAA also covers episodic conditions and
  those conditions in remission if it would
  substantially limit a major life activity when
  active.
• Previously, courts refrained from hypothetical
  inquiries about the severity of impairments.
  However, it now appears that employers must look
  into this hypothetical inquiry.

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Regarded As Disabled

• Under the ADA, one who is regarded as having such
  an impairment qualifies for protection under the
  ADA.
• Courts interpreted this provision narrowly,
  requiring plaintiffs to establish that a
  defendant mistakenly thought that the impairment
  that the defendant was regarded as having
  substantially limited a major life activity of
  the plaintiff.

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Regarded As Disabled

• The ADAAA removed the substantially limits
  requirement from the regarded as disabled
  definition. Now, someone may be regarded as
  having a disability even without the perception
  that the impairment limits a major life activity.
• PROVIDED the impairment is not an impairment
  with an actual or expected duration of six months
  or less.

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Regarded As Disabled

• Plaintiffs will no longer have to prove the
  severity of the employers misconception (that it
  substantially limited a major life activity)
  Greatly expanding coverage under the regarded
  as definition.
• HOWEVER the ADAAA clarifies that employers do
  not need to provide a reasonable accommodation
  for someone who is only regarded as having a
  disability.

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What to Expect come January 9

• Expect substantially more requests for reasonable
  accommodation.
• Be prepared to classify more of your workforce as
  being disabled within the meaning of the ADA.
• Train supervisors and managers on their duty to
  accommodate both employees with disabilities and
  applicants.
• Develop internal protocols on how to approach
  situations.

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More things to add to your to do list

• Review the interactive process with supervisors
  and managers.
• Ensure proper documentation of the interactive
  process and reasonable accommodation requests.
• Conduct a refresher course on ADA compliance.
• Update any forms, letters and procedures already
  in place.
• Update job descriptions to describe all of the
  positions essential and non-essential job
  functions.

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The Family and Medical Leave Act

• Implements the National Defense Authorization Act
  (NDAA) which provides for military-related FMLA
  leave
• Qualifying Exigency Leave
• Provides for 12 weeks of leave in a single 12
  month period
• Caregiver Leave
• Provides for 26 weeks of leave in a single 12
  month period
• The DOL issued new two forms to facilitate
  certification for military FMLA leave.

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Caregiver Leave

• To care for a service member who has a serious
  illness or injury that was incurred in the line
  of duty while on active duty.
• Cannot use the calendar year method entitlement
  starts when the employee starts using caregiver
  leave.
• Can be used for more than one covered service
  member but for a maximum of 26 weeks.
• Covered service members include next of kin.

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Qualifying Exigency Leave

• Allows families of members of the National Guard
  and Reserves to manage their affairs while they
  are on active duty or called to active duty
  status.
• Qualifying exigency includes (1) short notice
  deployment (2) military events and related
  activities (3) childcare and school activities
  (4) financial and legal arrangements (5)
  counseling (6) rest and recuperation (up to five
  days) (7) post-deployment activities and (8)
  any additional activities not listed but agreed
  to by the employer and the employee.

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Consolidated Notice Requirements

• Must provide (1) general notice about the FMLA
  (poster, handbook) (2) eligibility notice (3)
  notice of rights and responsibilities (4)
  designation notice.
• The time period for providing the eligibility
  notice has changed from two to five days from the
  date the employee requests FMLA for a particular
  qualifying reason.
• A new notice is only required if the employees
  eligibility status changes during the same leave
  year.

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Consolidated Notice Requirements

• Designation notice must be provided within five
  business days after the employer determines if
  the leave is (or is not) FMLA-qualifying.
• Must specify the amount of leave that will be
  counted as FMLA leave if known. If not known at
  the time, a designation notice must be provided
  upon the employees request but no more often
  than every 30 days (if leave was taken during the
  prior 30 days).
• Must state if a fitness-for-duty certification
  will be required.

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Employee Notice Requirements

• Employees must comply with employers usual
  procedures for reporting an absence, unless
  unusual circumstances prevent doing so.
• This means that employees must typically use
  call-off procedures for reporting absences.
• OLD REGS employees had up to two business days
  after the absence to notify the employer of the
  need for FMLA leave.
• Employers may face liability if failure to follow
  the notification rules causes an individualized
  harm to an employee

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Substitution of Paid Leave

• No longer a distinction between sick leave and
  vacation leave. All types of paid leave will now
  be treated the same. (personal, vacation, sick,
  etc.)
• Employees seeking to use paid leave concurrently
  with FMLA leave must follow the same terms and
  conditions of the employers policies that apply
  to other employees for the use of such leave
• Such as providing advance notice, unless the
  employer chooses to waive the requirement.
• Employee is free to take unpaid FMLA leave if he
  or she does not meet the employers conditions for
  taking paid leave.

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Serious Health Condition

• Serious Heath Condition is tweaked
• One definition provides that serious health
  condition includes three consecutive days of
  incapacity plus two visits to a health care
  provider.
• The new regulations clarify this definition by
  stating that the two visits must occur within 30
  days of the start of the period of incapacity and
  that the first visit must occur within seven days
  of the start of the incapacity.

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Serious Health Condition

• Another definition provides that a serious health
  condition includes three consecutive days of
  incapacity plus a regimen of continuing
  treatment.
• The rules again provide that the first visit to
  the health care provider take place within seven
  days of the start of the incapacity.
• To qualify as a chronic serious health condition,
  the employee must make at least two visits to a
  health care provider per year, but employers
  cannot require employees to make more than two
  visits per year to demonstrate a chronic
  condition.

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Medical Certification

• Employers can contact the employees health care
  provider (HCP) to obtain information required by
  the certification form, with the employees
  consent.
• The new regulations provide that the employers
  representative must be either a health care
  provider, a human resources professional, a leave
  administrator, or a management official.
• Under no circumstances may the employees direct
  supervisors contact the employees health care
  provider due to privacy concerns.

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Medical Certification

• Employers may not ask heath care providers for
  additional information beyond that required by
  the certification form.
• Health care providers now may (but are not
  required to) provide a diagnosis of the patients
  health condition as part of the certification.
• The certification form (WH-380) was updated, as
  there are now separate forms for the employee and
  covered family members.
• The definition of health care provider has been
  expanded and now includes physicians assistants.

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Medical Certification

• Employers may require employees to provide a new
  medical certification every 12-month FMLA period
  for medical conditions that last longer than one
  year.
• Employers can also request recertification for an
  ongoing condition every six months in conjunction
  with an absence.
• Employers also must now notify employees in
  writing if their medical certification is
  incomplete or insufficient. Employers must state
  what information is lacking and give the employee
  seven calendar days to provide the additional
  information.

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Waivers of FMLA Claims

• Employees may settle or release their FMLA claims
  without obtaining court or agency approval.
• May release past violations.
• Seek legal assistance on all such waivers.
• Prospective waivers of FMLA rights are still
  prohibited.

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Light Duty

• Time spent working on light duty assignments does
  not count towards an employees FMLA leave.
• However, the employees right to job restoration
  in held in abeyance during the time period the
  employee performs the light duty (or until the
  end of the applicable 12 month period).
• If employee who accepts light duty while still
  eligible for FMLA leave.
• This overrules certain federal court cases.

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Return to Duty Requirements

• The new regulations permit employers to require
  that fitness-for-duty certifications specifically
  address the employees ability to perform the
  essential functions of the specific job.
• If a reasonable job safety concern exists, the
  employer may require a fitness-for-duty
  certification before an employee returns from
  intermittent leave.

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Miscellaneous

• Under the new regulations, employers are
  permitted to deny perfect attendance awards to
  employees who do not have perfect attendance
  because of taking FMLA leave so long as employers
  also deny these awards to employees taking
  non-FMLA leave.
• The new regulations added a new paragraph at
  825.110(b)(1) to provide that, although the 12
  months of employment need not be consecutive,
  employment prior to a continuous break in service
  of seven years or more need not be counted in
  determining whether the employee has been
  employed by the employer for at least 12 months.

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What should you do?

• FIRST Update your FMLA policy!
• Train supervisors and managers and apprise
  relevant personnel of the changes.
• Remember to document everything!
• Conduct a refresher course on FMLA compliance.
• Update forms and other policies.
• Keep in mind that the new regulations require
  more up-front work so management should prepare
  themselves for the workload.
• Keep employees apprised of changes to their FMLA
  rights as you update company policies.

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Questions?

• Email us at scimini_at_bccz.com or rbrown_at_bccz.com.
• Regularly visit the EEOCs website at
  http//www.eeoc.gov to learn more about the ADAA.
• Regularly visit the DOLs website at
  http//www.dol.gov to learn more about the FMLA.