Presentation of William W. Bowser, Esq. of Young Conaway Stargatt & Taylor, LLP, to the Employer's Council Network.

1. ADA and FMLA Update 2009
Presented by:
William W. Bowser
Young Conaway Stargatt & Taylor, LLP

2. Agenda
 ADA Amendments and Regulations
 FMLA Regulations
 Defense Authorization Act for 2010
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3. ADA Timeline
 History of the ADA
 1990 -- ADA enacted.
 Sept. 25, 2008 -- ADA Amendments Act
(“ADAA”) signed into law.
 Sept. 23, 2009 – EEOC issues proposed
new regulations.
 November 23, 2009 – Deadline for public
comments.
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4. ADA Amendments Act of 2008
 What does the ADAA NOT change?
 Definition of Disability
 Physical or mental impairment
 “Substantially limits”
 One or more “major life activities.”
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www.YoungConway.com

5. ADA Amendments Act of 2008
 What does the ADAA change?
 Definition of disability “shall be
construed in favor of broad coverage”
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www.YoungConway.com

6. ADA Amendments Act of 2008
 What does the ADAA change?
 Creates non-exhaustive list of Major
Life Activities
 Caring for oneself; bending; performing manual
tasks; speaking; seeing; breathing; hearing;
learning; eating; reading; sleeping; concentrating;
walking; thinking; standing; lifting;
communicating; and working
 Proposed regulations add reaching, sitting, and
interacting with others
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7. ADA Amendments Act of 2008
 What does the ADAA change?
 Congress also created a subset of major life
activities called "major bodily functions"
 These functions include: functions of the immune
system, normal cell growth, and digestive, bowel,
bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions
 Note that any ailment that would be a disability if
it were to manifest is still considered a disability
if it is in remission or is currently non-episodic
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8. ADA Amendments Act of 2008
 What does the ADAA change?
 Lowers the standard for what when
person is “substantially limited” in a
major life activity
 Need not “severely restrict” or “prevent”
individual from doing major life activity
 Six Rules of Construction
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9. ADA Amendments Act of 2008
 Six Rules of Construction
 No. 1 -- Focus should be on whether
discrimination occurred, not on whether
someone meets the definition of
“disability”
 No. 2 -- Need not demonstrate a limitation
on ability to perform “activities of central
importance to daily life”
 No. 3 – Impairment need only limit one
MLA
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www.YoungConway.com

10. ADA Amendments Act of 2008
 Six Rules of Construction
 No. 4 – Limitation is compared using
“common-sense standard, without
scientific or medical evidence”
 No. 5 – An impairment that last less than
six months can substantially limit a MLA
 No. 6 – Focus on how MLA is substantially
limited, not on what an individual can do
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

11. ADA Amendments Act of 2008
 What does the ADAA change?
 Mitigating measures are not to be
considered when determining whether
someone is disabled
 Medication, prosthetics, hearing aids, surgical
interventions, etc.
 Exception: ordinary glasses or contact lenses
intended to return vision to 20/20
 Overturns Sutton v. United Air Lines, Inc.
(1999)
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12. ADA Amendments Act of 2008
 What does the ADAA change?
 Impairments that are episodic or in
remission are analyzed as if the
impairment is “active”
 Proposed regulations refer to cancer,
epilepsy, hypertension, MS, asthma,
cancer, depression, bipolar disorder, post
traumatic stress disorder
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

13. ADA Amendments Act of 2008
 What does the ADAA Change?
 Proposed regulations contain categories of
impairments
 Certain impairments “will consistently meet the
definition of disability”
 Blindness, deafness, intellectual disabilities,
missing limbs, mobility impairments that require
wheelchair, autism, cancer, cerebral palsy, diabetes,
epilepsy, HIV and AIDS, MS, MD, major depression,
bipolar disorder, post-traumatic stress disorder,
schizophrenia
 Abandons the “case by case” method
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

14. ADA Amendments Act of 2008
 What does the ADAA Change?
 Proposed regulations contain categories of
impairments
 Certain impairments that “may be disabling for
some individuals but not others”
 Asthma, high blood pressure, coronary artery
disease, learning disabilities, back or leg
impairment, carpal tunnel syndrome, panic or
anxiety disorder, depression, hyperthyroidism
 Academic achievement is not relevant
 Success in overcoming impairment is not relevant
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

15. ADA Amendments Act of 2008
 What does the ADAA Change?
 Proposed regulations lower standard for
showing impairment substantially limits the
MLA of working
 Need only show impairment substantially limits
ability to perform, or meet the qualifications for the
“type of work” at issue
 Heavy lifting, extended standing, walking long
distances
 Fact that individual got work elsewhere is not
relevant
 Statistical or expert testimony not necessary
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www.YoungConway.com

16. ADA Amendments Act of 2008
 What does the AAA change?
 Employee can state “regarded as” claim under the
ADA if he can show discrimination based on an
actual or perceived impairment “whether or not
the impairment limits or is perceived to limit a
major life activity.
 Actions based on impairment symptoms or
mitigating measure are evidence
 No reasonable accommodation required for
“regarded as” individuals
 No transitory impairment (less than six months)
can form basis of “regarded as” claim
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17. FMLA Military Leave and
Regulations
 FMLA Expanded on January 28, 2008
to add military family leave provisions
 DOL issued new regulations on
November 17, 2008
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18. FMLA Military Leave
 Created by National Defense
Authorization Act (NDAA)
 Signed into law on January 28, 2008
 Expanded again on October 28, 2009
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19. FMLA Military Leave
 Two brand new types of FMLA leave
created
 “Qualifying Exigency” Leave
 “Military Caregiver” Leave
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20. Military Caregiver Leave
 Up to 26 weeks of leave in a “single
12-month period” to care for an ill or
injured servicemember
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www.YoungConway.com

21. Military Caregiver Leave
 Can be taken by son, daughter, spouse,
or “next of kin” of covered
servicemember
 “Next of kin” is new to FMLA
 Statute says “nearest” blood relative
 What happens when nearest can’t or won’t
provide care?
 Can more than kin provide care?
 Can service member designate kin?
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

22. Military Caregiver Leave
 Care must be for a “covered servicemember” -
- a member of the U.S. Armed Forces,
including a member of the National Guard or
Reserves undergoing:
 Medical treatment
 Recuperation
 Therapy
 Is otherwise in outpatient status, or
 Is otherwise on the temporary disability
retired list due to the injury or illness
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

23. Military Caregiver Leave
 Defense Authorization Act for 2010
expands military caregiver leave to
care for veterans if:
 Veteran was a member of armed forces
within five years of treatment or
recuperation
© 2009 Young Conway Stargatt & Taylor, LLP
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24. Military Caregiver Leave
 Service member must be recovering
from a serious illness or injury
sustained in the line of duty on active
duty or one which was aggravated by
service in the line of duty
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www.YoungConway.com

25. Military Caregiver Leave
 The 26 week entitlement includes
other FMLA time
 If FMLA time is used, it is deducted
from the 26 weeks
 Can be taken intermittently
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www.YoungConway.com

26. Military Caregiver Leave
 Leave entitlement is on a per-
covered-servicemember, per injury
basis
 Can take no more than 26 weeks in
a single 12-month period
 Can take more than one period of
26 weeks of leave
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www.YoungConway.com

27. Qualifying Exigency Leave
 Up to 12 weeks of leave when family
member is called to duty
 Note: this is for the family member,
not the servicemember
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28. Qualifying Exigency Leave
 Can be taken by spouse, parent, son or
daughter of covered servicemember
 Note: no “next of kin”
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29. Qualifying Exigency Leave
 Covered service members include:
Reserves, National Guard, and active
members of the Armed Forces
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30. Qualifying Exigency Leave
 Call to active duty need not be in
support of a “contingency operation”
 Include instances when
servicemember is deployed to a
foreign country
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31. Qualifying Exigency Leave
 Examples of “qualifying exigency”
 Short notice deployment
 Military events and related activities
 Childcare and school activities
 Financial and legal agreements
 Rest and recuperation
 Additional activities agreed to by employer
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www.YoungConway.com

32. FMLA Regulations
 Coverage Issues
 Employee Leave Entitlements
 Employer Notice Obligations
 Employee Notice Obligations
 Medical Certification and Fitness for
Duty
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33. Continuing Treatment
 Old definition:
 More than three days’ of incapacity for the same
condition plus:
 Two or more treatments by a health care provider;
or
 Two or more treatments by a provider of health
care services (physical therapist); or
 One treatment by a health care provider which
results in a regimen of continuing treatment
under the supervision of the health care provider
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

34. Continuing Treatment
 New “continuing treatment” definition
is the same, except:
 Two or more treatments by a health care
provider within the first 30 days of the
beginning of the period of incapacity
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

35. Chronic Conditions
 Old rule says that “chronic serious health
conditions,” such as asthma, diabetes,
epilepsy, etc., are conditions that require
“periodic visits” to a health care provider
for treatment
 New rule says that “periodic visits” means
two or more visits a year to a health care
provider for treatment
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

36. Bonuses
 Old rule says employees who take FMLA
leave are entitled to “equivalent benefits”
including bonuses for perfect attendance,
safety and job performance
 New rule says that employer may
disqualify employee for a bonus where
the employee’s FMLA leave has prevented
achievement of the requisite goal, unless
similarly situated employees who were out
on non-FMLA-related leaves are not
disqualified
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

37. Light Duty
 Old rule says employees on light duty
are using their entitlement to take
FMLA leave during light duty period
 New rule says that light duty does
not count toward FMLA leave
 Employees are still not required to
accept light duty in lieu of FMLA leave
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

38. Waiver of Rights
 Old rule says employees may not waive
their rights under the FMLA
 New rule says that employees may waive
their rights under the FMLA when settling a
claim that the employer violated the FMLA
in the past
 Court or DOL approval will not be required
for settlement of claims (DOL says it never
was required)
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

39. Employer Notice Requirements
 Eligibility Notice must be provided
within 5 business days of request for
FMLA leave or employer knowledge of
basis for FMLA leave
 This is up from the current 2 days
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

40. Employer Notice Requirements
 If employee is not eligible, notice must
say so and explain why
 DOL has published a prototype
eligibility notice
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

41. Employer Notice Requirements
 Designation Notice must be
provided within 5 business days of
receiving information sufficient to
determine that leave qualifies as
FMLA leave
 This is up from the current 2 days
 If employee is not eligible, notice
must say so and explain why
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

42. Employer Notice Requirements
 If possible, employer should tell
employee how much leave will be
FMLA leave
 DOL has published a prototype
designation notice.
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

43. Penalty for Failure to Notify
 No per se penalty (i.e., time not
counted against 12 week entitlement)
for failing to notify employees of
eligibility or designation (per Ragsdale
decision)
 Retroactive leave designation is
permitted, but employer risks liability
for harm, if employee can prove any
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

44. Employee Notification
Responsibilities
 Employee must come forward with
qualifying reason “as soon as
practicable” after learning of need
 Same day, if during working hours
 Next day, if not
 Old Rule allowed 1-2 days after
absence
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www.YoungConway.com

45. Employee Responsibilities
 Employees must comply with usual call-in
requirements for unforeseen absences
except for more stringent timing
requirements
 Includes intermittent FMLA absences
 Failure to comply may result in delay or
denial of FMLA leave (i.e., possible counting
of absence as “occurrence”) and disciplinary
action
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

46. Employee Notification
Responsibilities
 Employee must give at least 30 days
notice if leave is foreseeable
 Employee must respond to employer
request for explanation if 30 days
notice is not provided
 Employee must answer employer’s
requests for additional information
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

47. Employee Responsibilities
 Employee must provide “sufficient
information” for employer to be able
to decide whether FMLA applies
 “Sufficient information” is:
 Information showing that employee
cannot perform job functions, or that
family member needs care, and
 Duration of absence and whether doctor’s
visit is planned or has happened
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

48. Medical Certification
 DOL has designed a new medical
certification form
 Employer should request completion
of form within 5 business days of
learning of need for FMLA leave
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

49. Medical Certification
 Employee must provide completed
form within 15 calendar days
 If certification form is incomplete or
insufficient, employer must state in
writing what additional information
is needed and give employee 7
calendar days to provide the
requested information
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

50. Medical Certification
 If employee notifies employer of
inability to obtain the information
despite good faith efforts to get it,
employer must grant an additional
reasonable period of time
 If the deficiencies are not corrected
in the resubmitted certification,
FMLA leave may be denied
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

51. Medical Certification
 Employer may contact health care
provider directly (not just through
health care provider hired by
employer) to obtain clarification of
certification
 Note: Employer must give employee
7-day chance to obtain clearer
certification before contacting
provider
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

52. Fitness for Duty
 Employers may still have a uniformly
applied policy that requires a
“fitness-for-duty” certificate
 Employee must provide complete
certification or sufficient
authorization to provider to supply
sufficient information directly to
employer
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

53. Fitness for Duty
 Employer may provide list of
essential functions and require
health care provider to certify that
employee can perform them
 Employees must be informed of this
requirement and given the list of
essential functions with the eligibility
notice
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

54. Fitness for Duty
 Employee must bear cost of fitness-
for-duty certification
 Employee is not entitled to FMLA
protections if employee does not
provide required certification or
request additional leave
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

55. Fitness for Duty
 If employee takes intermittent leave
and employer has reasonable safety
concerns, employer can require
fitness-for-duty certifications every 30
days
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com

56. The End
William W. Bowser
wbowser@ycst.com
302-571-6601
© 2009 Young Conway Stargatt & Taylor, LLP
www.YoungConway.com