Recent Changes to the ADA and FMLA

goodwinprocter_logoGoodwin Procter presented a webinar on recent changes to the Americans with Disability Act and the Family and Medical Leave Act. Rob Hale moderating the presentation.

Heidi Goldstein Shepherd led off with a background on the ADA. The key concept for employers is that it is up to the employee to request a “reasonable accommodation” by the employer. New amendments to the ADA went into effect on January 1.

The new term is “substantially limited” which is supposed to be defined by the EEOC. Unfortunately, the EEOC has not promulgated this definition.

The question of disability is still considered on a case-by-case basis. Employer needs to determine if the accommodation requested is reasonable. Employer is not required to lower quantitative or qualitative standards as a “reasonable accommodation.” Conduct standards can be enforced if  “job related and consistent with business necessity” and applied consistently.

Steve Feldstein looked closer at the EEOC enforcement guidance. An employee who first requests the accommodation during a discipline process still remains subject to the discipline. If you go to fire a person and person first claims a disability, it is too late for the employee.

An employer should not raise the possibility of disability in discussing a performance problem. Leave it up to the employee.

California has a different standard than the federal law for disabilities. It is not a “substantial impairment of a major life activity.” It is just an “impairment of a major life activity.”  In making a reasonable accommodation it requires you to engage in an interactive process.

Rob Hale moved on to the new FMLA regulations. There were many changes and extensive. But the substance did not change much. Rob focused on three types of changes: (1) National Defense Re-Authorization act and military leaves, (2) some substantive leave changes, and (3) changes in the notice and information right.

The military change only applies to reserve and national guard being called up for military service.  Allows time off for when the soldier returns. Also allows leaves for childcare when a family member leaves for service.

Rob moved on to new substantive changes.

  • There is longer period for counting the 12 months of service
  • If the person is out on leave that could count as part of the 12 months of service
  • Serious health condition standard changed for 2 doctors visits, now within 30 days
  • Paid leave during FMLA leave, then the paid leave provisions overrule so you can get kicked out the paid leave to the unpaid FMLA leave
  • Intermittent leave allows you to count part of day absence as a full day absence under the “physical impossible rule”  (Rob used the example of a clean room worker.)
  • You can deny a perfect attendance bonus if the employee was out on FMLA leave.
  • Releases of past FMLA claims are now permissible. (You cannot release future FMLA claims.)

Rob moved on to the new notice changes. There is a new poster you need to put up. (Ours is up.) Rob points out that you can also post it electronically.

The designation notice needs to be delivered in five days. Employee notifications have largely not changed. They have to state that they want to take a FMLA leave. Saying you want to take time off to take care of a sick child (etc.)  may not be enough. There is more pressure on frontline managers to determine if the reason is FMLA eligible.

Employer can impose requirements on FMLA request that they do with other leave request. So you can require written notice or require them to call a certain number.

There are new forms for medical certification. There are also some new procedures for completing the form and what to do if the form is incomplete.

Rob emphasized the need to have a leave counting period. Employers need to designate the 12 month period during which they can use the 12 weeks of leave.  He has seen some employees win suits by using an alternative counting method.

Steve pointed out that California has an alternative law covering medical leave: California Family Rights Act.  California allows leave for domestic partners (registered with the state and living in the same residence). Pregnancy gives you a longer time off.  Interestingly, the domestic partner situation allows a longer time off because you can take the CFRA leave and then the FMLA since the domestic partner leave is not recognized under the FMLA.

Goodwin also made some materials available:

Employer Notices to Employee Under the Family and Medical Leave Act

An employer must provide written notice to an employee each that an employee gives notice of the need for FMLA leave. The employer has to give the notice within a reasonable time after notice of the need for
leave is given by the employee (within one or two business days if feasible.) [See 29 CFR 825.301 (c)]

The employer has to provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The written notice must be provided to the employee in a language in which the employee is literate (see Sec. 825.300(c)).

Section 29 CFR.301(b) provides that the written notice must include, as appropriate:

  1. that the leave will be counted against the employee’s annual FMLA leave entitlement (see Sec. 825.208);
  2. any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so (see Sec. 825.305);
  3. the employee’s right to substitute paid leave and whether the employer will require the substitution of paid leave, and the conditions related to any substitution;
  4. any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments (see Sec. 825.210), and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse);
  5. any requirement for the employee to present a fitness-for-duty certificate to be restored to employment (see Sec. 825.310);
  6. the employee’s status as a “key employee” and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial (see Sec. 825.218);
  7. the employee’s right to restoration to the same or an equivalent job upon return from leave (see Secs. 825.214 and 825.604); and,
  8. the employee’s potential liability for payment of health insurance premiums paid by the employer during the employee’s unpaid FMLA leave if the employee fails to return to work after taking FMLA leave (see Sec. 825.213).

The notice may include other information–e.g., whether the employer will require periodic reports of the employee’s status and intent to return to work, but is not required to do so. A prototype notice is DOL Form WH-381 (.pdf).

Fact Sheet 28 for The Family and Medical Leave Act

In addition to putting up the new FMLA poster, covered employers must  give notices to employees about their rights under the Family and Medical Leave Act. Section 29 CFR 825.301 describes the required notices.

If you have written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document. For example, if an employer provides an employee handbook to all employees that describes the employer’s policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer’s policies regarding the FMLA.

If you company does not have handbooks or other written material, then you need to provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave. According to the Department of Labor FMLA website, delivering a copy of Fact Sheet No. 28 will fulfill this requirement.

Record Keeping Under the Family and Medical Leave Act

The Family and Medical Leave Act does impose some record-keeping requirements on employers. [See 29 CFR 825.500].

The law does not impose any particular form or order of the records. Employers umst keep the records for at least three years.

Covered employers who have eligible employees must maintain records that must disclose the following:

  1. Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.
  2. Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA.
  3. If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
  4. Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all general and specific written notices given to employees as required under FMLA and these regulations (see Sec. 825.301(b)). Copies may be maintained in employee personnel files.
  5. Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
  6. Premium payments of employee benefits.
  7. Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

New FMLA Poster

Under the Family and Medical Leave Act of 1993, covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA.  The poster at WH Publication 1420 is sufficient.

Under 29 CFR 825.300:

(a) Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, whether or not it has any “eligible” employees, a notice explaining the Act’s provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. Employers may duplicate the text of the notice contained in Appendix C of this part (WH Publication 1420), or copies of the required notice may be obtained from local offices of the Wage and Hour Division. The poster and the text must be large enough to be easily read and contain fully legible text.

(b) An employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $100 for each separate offense. Furthermore, an employer that fails to post the required notice cannot take any adverse action against an employee, including denying FMLA leave, for failing to furnish the employer with advance notice of a need to take FMLA leave.

(c) Where an employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer shall be responsible for providing the notice in a language in which the employees are literate.

Comprehensive Changes to Family and Medical Leave Act Regulations

On November 17, 2008, the U.S. Department of Labor published final regulations under the Family and Medical Leave Act of 1993 (FMLA).  Morgan Lewis put together this great summary of the regulatory changes: Department of Labor Enacts Comprehensive Changes to Family and Medical Leave Act Regulations (.pdf)