urgent medical leave update 2009

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

David E. Cassidy, Esq.

The New FMLA & MFLA Regulations


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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

• Mark the DOL website in your Favorites• Familiarize yourself with Regulations• Familiarize yourself with New Forms• Distribute and post the new General Notice• Review Employee Handbooks, FMLA policies• Review existing safeguards for medical

information• Train employees who deal with these issues

Americans With Disabilities Act Amendments Act of

2008:What Every Employer Should Know


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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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NYSHRL – A Quick Note

• The term “disability” means– (a) a physical, mental or medical impairment resulting from

anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques; or

– (b) a record of such an impairment ;or – (c) a condition regarded by others as such an impairment,

provided, – however, that in all provisions of this article dealing with

employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

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NYCHRL – A Quick Note• The term "disability" means

– any physical, medical, mental or psychological impairment, – or a history or record of such impairment.– The term "physical, medical, mental, or psychological impairment"

means:(1) An impairment of any system of the body; including, but not limited to: the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system; or (2) A mental or psychological impairment.

– In the case of alcoholism, drug addiction or other substance abuse, the term "disability" shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse, and shall not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

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IWA CBA 2006-2009Seniority

• Section 23(B), Page 19:– (4) An employee absent from work because of sickness

or injury for not more than twenty-six (26) weeks shall be reinstated to his/her former job with all job rights and seniority, provided the employee is physically capable of performing the duties of the job. The employee shall give the EMPLOYER one (1) week’s notice of intention to return to work.

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• Section 23(B), Page 19:– (5) An employee absent from work because of sickness or

injury for more than twenty-six (26) weeks but not more than one hundred and four (104) weeks shall be placed upon a rehiring list and shall be offered the first available job opening in his/her job classification, provided that at the time the job opening becomes available the employee is physically capable of performing the duties of the job. Upon rehiring, the employee shall be restored to all his/her job rights and seniority. If not rehired by the expiration of the one hundred and four (104) week period, the employee shall lose his/her seniority.

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• Section 23(B), Page 19:– (6) In either case the EMPLOYER may require satisfactory

proof of sickness or injury and recovery. If the employee presents a statement by the Health Center or another appropriate health care professional that the employee is able to return to work and if the EMPLOYER challenges said certification, the dispute may be submitted to an impartial physician designated by the EMPLOYER and the UNION, or if they are unable to agree, designated by the Impartial Chairperson, and the UNION and EMPLOYER agree to be bound by the decision of said physician.

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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!

urgent medical leave update 2009

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