urgent medical leave update 2009
DESCRIPTION
As the new year approaches, there are several new rules and regulations regarding employee medical leaves of absence that your company needs to address. David Cassidy, Member of Norris McLaughlin & Marcus and its Labor & Employment Group, will discuss the new regulations relating to the Federal Family and Medical Leave Act and the Military Family Leave Act. He will also present the September 25, 2008 amendments to the Americans with Disabilities Act (ADA). David will highlight what employers should do in 2009 to ensure compliance with the ADA, as amended.TRANSCRIPT
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
David E. Cassidy, 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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
Substantive Standards
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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The New FMLA and MFLA Regulations
Substantive Standards
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
Notice/Timing Rights
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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The New FMLA and MFLA Regulations
Notice/Timing Rights
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
Medical Certifications
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
Medical Certifications
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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The New FMLA and MFLA Regulations
MFLA Leave
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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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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The New FMLA and MFLA Regulations
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
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
Important Definitions Going Forward
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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
Expanding the Meaning of “Substantially Limits”
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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
Expanding the Meaning of “Major Life Activities”
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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
Expanding “Major Life Activities”
• 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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Americans with Disabilities Act Amendments Act of 2008
Expanding “Major Life Activities”
• 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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Americans with Disabilities Act Amendments Act of 2008
Mitigating Measures
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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
Episodic Conditions
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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
Episodic Condition Examples
– PTSD– Epilepsy – Diabetes– Others
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Americans with Disabilities Act Amendments Act of 2008
Changes to What It Means toHave a “Perceived Disability”
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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
Changes to “Perceived Disability”
• 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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Americans with Disabilities Act Amendments Act of 2008
Changes to “Perceived Disability”
• 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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
IWA CBA 2006-2009Seniority
• 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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Americans with Disabilities Act Amendments Act of 2008
IWA CBA 2006-2009Seniority
• 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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Americans with Disabilities Act Amendments Act of 2008
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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Americans with Disabilities Act Amendments Act of 2008
What To Do?
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Americans with Disabilities Act Amendments Act of 2008
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!