1. NEW YEAR, NEW CHALLENGES:
FMLA AND ADA CHANGES
David Dubberly
Certified Specialist in Employment and
Labor Law
January 13, 2009

2. New FMLA Regulations – Overview
• Employer/Employee Notice
• Medical Certification
• Accounting for Leave
• Care for Service Member Leave
• Qualifying Exigency Leave

3. Effective Date
• NDAA signed Jan. 28, 2008 (effective
date for care for service member
leave)
• Revised FMLA regulations proposed
Feb. 11, 2008
• Final FMLA regulations published
Nov. 17, 2008, to take effect Jan. 16,
2009 (effective date for qualifying
exigency leave)

4. Employer Notice
• General Notice
• Eligibility Notice
• Rights & Responsibilities
Notice
• Designation Notice

5. General Notice
• Form WH-1420
• Distribution: in handbook or
materials given to new hires
• Posting: must be posted
conspicuously
• May be distributed and
posted electronically

6. Eligibility Notice
• Form WH-381 Part A
• Must be provided to
employee within 5
business days of request
for leave
• Even if employee is not
eligible (if that’s the case,
state reason for
ineligibility)

7. Rights & Responsibilities Notice
• Form WH-381 Part B
• Use if employee is eligible
• Attach copy of FMLA policy
• Attach appropriate certification form
• Require proof of family relationship?
• Require use of available paid leave?
• Require status reports?

8. Designation Notice
• Form WH-382
• Must be provided to
employee within 5
business days after
return of certification
form

9. Designation Notice
• Required content varies based on
disposition of request:
– Approved
– Additional info. needed
– Not approved (FMLA not applicable to
request or leave entitlement exhausted)
• Check appropriate boxes and fill in
applicable blanks

10. Designation Notice
• Require use of available paid leave?
• Require fitness-for-duty certification upon return
to work? (if so, attach list of essential job
functions)
• If certification form is incomplete, fill in
appropriate spaces and provide date by which
needed info. must be provided (at least 7
calendar days later)
• Require second or third medical opinion?

11. Employee Notice
Timing
• Foreseeable Leave
– 30 days or as soon as practicable
– If late, delay period is not FMLA absence
• Unforeseeable Leave
– As soon as practicable
– Comply with notice of absence policies
– Otherwise, delay period is not covered
• Exigency Leave
– As soon as practicable

12. Employee Notice
Content
• If requesting for first time for particular
FMLA-qualifying condition: sufficient
info. for employer to determine if FMLA
applies (calling in “sick” is not enough)
• If requesting leave for condition for
which employer has previously provided
FMLA leave to employee: reference
qualifying reason of need for “FMLA
leave”

13. Medical Certification
• Employer may request certification …
– Within 5 business days after
foreseeable leave requested
– Within 5 business days after
unforeseeable leave commences
– Or when appropriateness of leave or
its duration is questionable
• Employee has 15 calendar days to
produce certification

14. The Friday – Monday Leave Act

15. Medical Certification Forms
• Two new optional forms:
– WH-380-E (for employee’s
own serious health condition)
– WH-380-F (for family
member’s SHC)
• Employer may not require HIPAA
consent
– But leave may be denied if
consent is refused

16. Direct Contact With
Health Care Providers
• Employer rep’s may contact employee’s HCP:
– HCP retained by employer
– HR professional or leave administrator
– Management official
– But not employee’s immediate supervisor
• If medical certification requires …
– Clarification (cannot read or understand it) or
– Authentication (cannot determine if filled out by
HCP)
– But cannot ask for info. beyond what is on form

17. Definition of SHC
Continuing Treatment
• Period of incapacity of more than 3 full
consecutive calendar days; and
• In-person treatment with HCP within 7 days of
first date of incapacity; and
• Either HCP-determined:
• continuing treatment; or
• second in-person visit within 30 days of
first day of incapacity

18. Definition of SHC
Chronic Conditions
Health care provider must
treat employee at least
two times per year for
the condition in question

19. Recertification
• Every 30 days in cases of pregnancy, chronic, or
long-term conditions
• At any time if an extension to a leave is
requested, circumstances described in the last
certification have changed, or information is
received casting doubt on the employee’s stated
reason for an absence or the continuing validity
of the last certification
• Every 6 months in other cases

20. Tracking FMLA Leave Time
• FMLA leave may be tracked in
increments up to one hour
– But employee cannot be charged for
time spent working
• Employer may still use larger
increments to track use of PTO

21. Tracking FMLA Leave Time
Example
• Employer has 30-minute late clock-in policy
– If employee gets to work 5 minutes late due to
FMLA reason, employer can prevent employee
from working for full 30-minute increment – entire
time counts as FMLA leave
• But if employee leaves early, cannot charge for time
he/she worked
• Employer tracks paid sick leave in 4-hour increments
– If employee chooses to substitute paid sick leave,
must use at least 4 hours of FMLA leave

22. Attendance Bonuses
• Employer may disallow employee from a
bonus or award where failure to meet
threshold is caused by FMLA absence
– Examples: bonuses based on
perfect attendance, products sold,
hours worked, etc.
– Caveat: as long as employees with
equivalent
non-FMLA leave status (like vacation and
sick leave) are treated the same

23. Counting Paid Holidays
• Full week of FMLA leave containing holiday:
– Employer may count holiday
• Partial week of FMLA leave containing holiday:
– Holiday may not be counted

24. Release of Rights
Release of FMLA rights:
• Release of prior claims is
permitted
• FMLA claims may now be settled
without court/DOL approval

25. Care for Service Member Leave
“An eligible employee who is the spouse, son,
daughter, parent or next of kin of a covered
servicemember shall be entitled to a total of 26
workweeks of leave during a 12-month period to care
for the servicemember.”

26. Covered Service Member
“A member of the Armed Forces, including a
member of the National Guard or Reserves,
who is undergoing medical treatment,
recuperation, or therapy, is otherwise in
outpatient status, or is otherwise on the
temporary disability retired list, for a serious
injury or illness.”

27. Serious Injury or Illness
• This definition differs from SHC
• An injury or illness incurred by the
member:
• in line of duty
• on active duty in the Armed
Forces
• that may render him/her
medically unfit to perform
duties of his/her office, grade,
or rank

28. Qualifying Exigency Leave
• 12 workweeks of leave during any 12-
month period
• “Because of any qualifying exigency
arising out of the fact that the spouse, or
a son, daughter, or parent of the
employee is on active duty (or has been
notified of an impending call or order to
active duty) in the Armed Forces in
support of a contingency operation.”

29. Qualifying Exigencies
• Short-notice deployments
• Military events and related
activities
• Childcare and school activities
• Financial and legal
arrangements
• Counseling
• Post-deployment activities

30. The ADA
Amendments Act of 2008

31. ADA Title I
• Prohibits discrimination in
employment against a “qualified
individual with a disability”
• Applies to private employers
with 15+ employees (FT or PT),
as well as all state and local
government employers

32. Who Is an “Individual With a Disability”?
• An individual who:
– Has a physical or mental impairment that
substantially limits one or more major
life activities of such individual
– Has a record of such an impairment
– Is regarded as having such impairment

33. Who Is a “Qualified Individual
With a Disability”?
• An individual with a disability who:
– Is qualified for a job
– With or without reasonable
accommodation
– Can perform the essential
functions of the job

34. What’s New?
• ADA Amendments Act of 2008
(ADAAA)
• Passed Congress Sept. 17, signed by
President Sept. 25, 2008
• Goes into effect Jan. 1, 2009
• Expands several important ADA
definitions

35. Why Was the ADAAA Enacted?
• To overrule Supreme Court decisions
– Mitigating factors taken into
account in deciding whether MLA
is “substantially limited”
– “Disability” construed narrowly to
create a “demanding standard”
• … and “reinstat[e] a broad scope of
protection to be available under
the ADA.”

36. What Does the ADAAA Change?
• Broad interpretation of “disability”
• Expansive definition of “major life
activity”
• Limited role of mitigating factors
• Lower standard for “regarded as”
disabled

37. Broad Interpretation of “Disability”
• Basic definition remains essentially the same
• But law states it “shall be construed in favor of
broad coverage … to the maximum extent
permitted”
• Tasked EEOC with expanding definition of
“substantially limits”
• Now specifically includes impairments that are
either episodic or in remission (if it would
substantially limit MLA when active)

38. Expanded Definition of
“Major Life Activity”
• Major bodily functions • Lifting
• Caring for oneself • Bending
• Performing manual tasks • Speaking
• Seeing • Breathing
• Hearing • Learning
• Eating • Reading
• Sleeping • Concentrating/thinking
• Walking • Communicating
• Standing • Working

39. “Major Bodily Functions”
• Functions of the immune system
• Normal cell growth
• Digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and
reproductive functions

40. Limited Role of Mitigating Factors
• Pre-ADAAA: whether MLA is “substantially limited”
depends on effects of “mitigating measures”
• Post-ADAAA: Most mitigating measures should
not be considered when determining if someone is
disabled
– Exceptions:

41. Examples of Mitigating Measures
• Medication for conditions like epilepsy or
depression
• Insulin to control diabetes
• Prosthetic devices
• Walkers, canes, and crutches
• Hearing aids

42. Lower Standard For “Regarded As”
Disabled
• Broadened definition
• Because of perceived mental or physical
impairments
– Regardless of whether perceived to limit major
life activity
• Excludes “transitory and minor” impairments
– Transitory = 6 months or less (actual or
expected)

43. What Can Employers Expect?
• More requests for reasonable
accommodation
• Increase in claims/enforcement
efforts
• New EEOC regulations
– Including revised definition of
“substantially limits”

44. What Can Employers Do Now?
• Train HR staff and
supervisors on ADA
compliance
• Check any paperwork used
in connection with
accommodation requests
• Reevaluate general approach
to accommodation requests

45. QUESTIONS?
David Dubberly
(803) 253-8281
ddubberly@nexsenpruet.com