ADA AND FMLA: Important Issues and Trends for Schools 1
BY
DAVID H. WILLIAMS, ESQUIRE
Morris James LLP
500 Delaware Avenue
P.O. Box 2306
Wilmington, DE 19899
302-888-6800/Telephone
302-571-1750/Facsimile
dwilliams@morris.james.com
A.
Americans With Disabilities Act (ADA)
1.
Introduction
The Americans with Disabilities Act (ADA) was signed into law on July 26,
1990. The ADA has five titles; however, the focus of these materials is on Title I
(Employment Discrimination) and Title II (Public Services Provided by State and Local
Governments).
2.
Amendments and Regulations
The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25,
2008, and became effective on January 1, 2009. This law made a number of significant
changes to the definition of “disability.” It also directed the U.S. Equal Employment
Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes
made by the ADAAA. The final regulations were published in the Federal Register on
March 25, 2011. (29 C.F.R. § 1630).
The Equal Employment Opportunity Commission ("EEOC") is charged with
administering Title I. The EEOC is making changes to both the Title I ADA regulations
and to the Interpretive Guidance (also known as the Appendix) that was published with
1
These materials include information from the ADA, FMLA, their regulations, the EEOC’s Fact
Sheets and Questions and Answers on the Final Rule Implementing the ADA Amendments Act of
2008, and case law.
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the original ADA regulations. The Appendix provides further explanation on how the
regulations should be interpreted.
The ADAAA applies to discriminatory acts which occurred on or after January 1,
2009. The ADAAA does not apply retroactively to discriminatory acts that occurred
prior to January 1, 2009. For example, if an employer allegedly denied a reasonable
accommodation in November 2008, and the employee did not file a charge of
discrimination with the EEOC until January of 2009, the original definition of disability
would apply to the charge.
3.
"Disability” Defined
a.
Definition
The ADAAA and the final regulations define a disability using a three-pronged
approach:
(1) a physical or mental impairment that substantially limits one or more major
life activities (also referred as an “actual disability”), or
(2) a record of a physical or mental impairment that substantially limited a major
life activity (“record of”), or
(3) when a covered entity takes an action prohibited by the ADA because of an
actual or perceived impairment that is not both transitory and minor (“regarded as”). (29
C.F.R. § 1630.2(g))
An individual only has to meet one of the three prongs of the definition of
“disability.” Individuals are not required to use a particular prong of the definition of
disability when challenging an employer’s action.
However, claims for denial of
reasonable accommodation must be brought under one or both of the first two prongs of
the definition of disability ( i.e., an actual disability and/or a record of a disability) since
the ADAAA specifically states that those covered under only the “regarded as” definition
are not entitled to reasonable accommodation. (29 C.F.R. § 1630.2(g)(3) and Appendix §
1630.2(g))
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b.
"Qualified Individual With A Disability"
The 2011 final regulations now refer to “individual with a disability” and
“qualified individual” as separate terms, which is consistent with the ADAAA. The
regulations prohibit discrimination “on the basis of disability” rather than “against a
qualified individual with a disability because of the disability of such individual.” The
changes in the regulations and the ADAAA demonstrate that the primary focus of an
ADA inquiry should be whether discrimination occurred, rather than whether an
individual is disabled. An individual must still establish that he or she is qualified for the
job in question. (§1630.4 and the Introduction to the Appendix)
An employer seeking to terminate a disabled employee should determine
whether, with reasonable accommodation, the employee can perform the essential
functions of the job.
c.
The Existence of a Disability
With the enactment of the ADAAA and 2011 regulations, the definition of
“disability” has been significantly broadened, making it more difficult for employers to
argue that an employee is not disabled.
d.
Defining “Physical or Mental Impairment”
The regulations define “physical or mental impairment” as:
(1) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more body systems, such as neurological,
musculoskeletal,
special
sense
organs,
respiratory (including
speech
organs),
cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic,
lymphatic, skin and endocrine; or [immune and circulatory systems were added as a
result of the 2011 regulations]
(2) Any mental or psychological disorder, such as intellectual disability (formerly
termed mental retardation), organic brain syndrome, emotional or mental illness, and
specific learning disabilities. (29 C.F.R. § 1630.2(h))
e.
Defining “Major Life Activities”
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The 2011 regulations provide that major life activities include, but are not limited
to: (1) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, interacting with others, and working;
and (2) the operation of a major bodily function, including functions of the immune
system, special sense organs and skin, normal cell growth, digestive, genitourinary,
bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine,
hemic, lymphatic, musculoskeletal, and reproductive functions. Also, major bodily
function includes the operation of an individual organ within a body system ( e.g., the
operation of the kidney, liver, or pancreas).
As a consequence of the amendment characterizing major bodily functions as
major life activities, it is more difficult for employers to make the argument that
individuals with certain types of impairments do not have a disability.
f.
Defining “Substantially Limits”
To have an “actual” disability (or to have a “record of” a disability) an individual
must be (or have been) substantially limited in performing a major life activity as
compared to most people in the general population. The 2011 final regulations provide
“rules of construction” for determining whether an impairment substantially limits an
individual in a major life activity. The following is a summary of the 9 rules of
construction:
(1) The term “substantially limits” shall be construed broadly in favor of expansive
coverage to the maximum extent permitted by the ADA.
(2) An impairment is a disability within the meaning of this section if it substantially
limits the ability of an individual to perform a major life activity as compared to
most people in the general population. An impairment need not prevent, or
significantly or severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.
(3) The focus will be on compliance with the employer’s obligations under the ADA
and whether discrimination has occurred, not whether an individual's impairment
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substantially limits a major life activity. Accordingly, the threshold issue of
whether an impairment “substantially limits” a major life activity should not
demand extensive analysis.
(4) The determination of whether an impairment substantially limits a major life
activity requires an individualized assessment. However, in making this
assessment, the term “substantially limits” shall be interpreted and applied to
require a degree of functional limitation that is lower than the standard for
“substantially limits” applied prior to the ADAAA.
(5) The comparison of an individual's performance of a major life activity to most
people in the general population usually will not require scientific, medical, or
statistical analysis; however, such evidence may be presented when appropriate.
(6) The determination of whether an impairment substantially limits a major life
activity (i.e. whether the individual is disabled) shall be made without regard to
the ameliorative effects of mitigating measures, except ordinary eyeglasses or
contact lenses.
(7) An impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.
(8) An impairment that substantially limits one major life activity need not
substantially limit other major life activities in order to be considered a
substantially limiting impairment.
(9) The six-month “transitory” part of the “transitory and minor” exception to
“regarded as” coverage does not apply to the definition of “disability” under the
“actual disability” prong or the “record of” prong. The effects of an impairment
lasting or expected to last fewer than six months can be substantially limiting.
(29 C.F.R. § 1630.2(j)(1)(i-ix)
g.
Mitigating Measures- Examples
Mitigating measures eliminate or reduce the symptoms or impact of an
impairment. The 2011 final regulations provide that mitigating measures include, but are
not limited to, medication, medical supplies, equipment or appliances, prosthetic limbs
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and devices, low vision devices ( e.g., devices that magnify a visual image), hearing aids
and devices, mobility devices, oxygen therapy equipment, use of assistive technology,
reasonable accommodations, learned behavioral or adaptive neurological modifications,
psychotherapy, behavioral therapy, and physical therapy to the ADAAA’s list of
examples. (29 C.F.R. § 1630.2(j)(5))
h.
Mitigating Measures: Positive and Negative Effects
The positive effects of mitigating measures in limiting the impact of an
impairment on performance of a major life activity cannot be considered in determining
if an individual is disabled, except ordinary glasses and contact lenses.
Even if an impairment is reduced or eliminated by a mitigating measure, it cannot be
considered when determining if a person is disabled. Employers must instead consider
whether the individual would be substantially limited in performing a major life activity
without the mitigating measure.
The negative effects of a mitigating measure may be taken into account in
determining if a disability exists. In an example provided by the EEOC, the side effects
that an individual experiences from use of medication for hypertension may be
considered in determining whether the individual is substantially limited in a major life
activity.
Although the ADAAA prohibits employers from considering the ameliorative
effects of mitigating measures (except ordinary eyeglasses, and contact lenses) the
positive or negative effects of mitigating measures can be considered when assessing
whether someone is entitled to reasonable accommodation or poses a direct threat. The
employer may consider the side effects or burdens that using a mitigating measure might
impose. For example (as provided by the EEOC), an individual with diabetes may need
breaks to take insulin and monitor blood sugar levels, and someone with kidney disease
may need a modified work schedule to receive dialysis treatments. But, if a disabled
individual uses a mitigating measure that results in no negative effects and eliminates the
need for a reasonable accommodation, an employer does not have an obligation to
provide one.
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An employer cannot require an individual to use a mitigating measure, but refusal
to use a mitigating measure may affect whether the individual is qualified for a particular
job or poses a direct threat. (Appendix §1630.2(j)(1)(vi))
i.
Specific Impairments
The 2011 final regulations provide examples of specific impairments that will be
easily concluded to be disabilities, such as: deafness, blindness, intellectual disability
(formerly known as mental retardation), partially or completely missing limbs, mobility
impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes,
epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive
disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder,
and schizophrenia. (29 C.F.R. § 1630.2(j)(3))
Disability does not include transvestism, transsexualism, gender identity
disorders, etc. (29 C.F.R. § 1630.3)
j.
Condition, Manner, or Duration of Performance
An employer may assess the condition, manner, or duration under which
the individual can perform a major life activity.
The employer can consider the
difficulty, effort, or time required to perform a major life activity; pain experienced when
performing a major life activity; the length of time a major life activity can be performed;
and/or the way an impairment affects the operation of a major bodily function. (29 C.F.R.
§ 1630.2(j)(4)(i) and (ii) and corresponding Appendix section)
k.
An Individual’s Illegal Use of Drugs
The ADA excludes from coverage a person who currently engages in the illegal
use of drugs when an employer acts on the basis of such use. A person who no longer
engages in the illegal use of drugs may be an individual with a disability if he or she: (1)
has successfully completed a supervised drug rehabilitation program or has otherwise
been rehabilitated successfully, or (2) is participating in a supervised rehabilitation
program (e.g., Alcoholics Anonymous or Narcotics Anonymous). (29 C.F.R. § 1630.3(a)(b)) It is not a violation for an employer to adopt and administer reasonable policies or
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procedures regarding drug testing designed to ensure that an employee is no longer
engaging in the use of drugs.
l.
Pregnancy
Pregnancy is not a disability; however, certain impairments resulting from
pregnancy (e.g., gestational diabetes), may be considered a disability if they substantially
limit a major life activity, or if they meet one of the other two definitions of disability.
(Appendix § 1630.2(h)).
m.
“Record of” a Disability
An individual who does not currently have a substantially limiting impairment but
who had one in the past meets this definition of “disability.” An individual also can meet
the “record of” definition of disability if she was once misclassified as having a
substantially limiting impairment (e.g., someone erroneously deemed to have had a
learning disability but who did not).
The other changes highlighted above in the
ADAAA and 2011 final regulations also apply to the evaluation of whether an individual
meets the “record of” definition of disability. (29 C.F.R. § 1630.2(k) and corresponding
Appendix section)
n.
“Regarded” as an Individual with a Disability
An employer “regards” an individual as having a disability if it takes an
action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an
individual’s impairment or on an impairment the covered entity believes the individual
has, unless the impairment is transitory (lasting or expected to last for six months or less)
and minor.
As a defense, an employer may challenge a claim under the “regarded as” prong
by showing that the impairment in question, whether actual or perceived, is both
transitory and minor. An employer may not defeat a claim by asserting it believed an
impairment was transitory and minor when objectively this is not the case. For example, I
fan employee is terminated because he has bipolar disorder, the employer cannot argue
that it believed the impairment was transitory and minor because bipolar disorder is not
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objectively transitory and minor. (Section 1630.15(f) and corresponding Appendix
section).
Just because an employer took an action based on an impairment does not mean
that an employer engaged in unlawful discrimination. An individual is still required to be
qualified for the job he or she holds or desires. An employer may still be to assert the
direct threat defense. (29 C.F.R. § 1630.2(l)(3) and § 1630.2(o)(4), and Appendix §§
1630.2(l) and (o)).
o.
Eligibility for a Reasonable Accommodation?
Individuals must meet either the “actual” or “record of” definitions of
disability to be eligible for a reasonable accommodation. Individuals who only meet the
“regarded as” definition are not entitled to receive reasonable accommodation. Also, the
individual must be able to show that the disability, or past disability, requires a
reasonable accommodation. (29 C.F.R. §§ 1630.2(k)(3), 1630.2(o)(4), 1630.9(e))
p.
Other Definitions.
The ADAAA’s changes primarily affect the definition of “disability. The
definitions of “qualified,” “direct threat,” “reasonable accommodation” and “undue
hardship” or the burdens of proof applicable to each one, have not changed. The only
provision in the ADAAA affecting the reasonable accommodation obligation is that a
covered entity does not have to provide one to an individual who only meets the
“regarded as” definition of disability.
4.
Essential Job Functions
Essential job functions means the fundamental job duties of the employment
position the individual with a disability holds or desires; however, it does not include the
marginal functions of the position. (29 C.F.R. § 1630.1 (n))
Evidence of the essential functions of a job can include: the employer’s judgment
as to which functions are essential; written job descriptions prepared before advertising or
interviewing applicants for the job; the amount of time spent on the job performing the
function; the consequences of not requiring the employee to perform the function; terms
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of a collective bargaining agreement; work experience of past employees on the job;
and/or the current work experience of incumbents in similar jobs. (Section 1630.1 (n))
Essential job functions include:
5.
a.
Attendance. (Miller v. University of Pittsburgh Medical Center,
350 Fed.Appx. 727 (3d. Cir. 2009)).
b.
Ability to get along with others. (Verniero v. Air Force Academy
Sch. Dist. No. 20, 705 F.2d 388, 393 (10th Cir.1983) (ability to get
along with others was essential function of job as elementary
school principal and special education director)).
c.
Dealing with stress (Gaul v. Lucent Technologies, Inc., 134 F.3d
576 (3d. Cir. 1998).
d.
Lifting for a school bus attendant job (Brickers v. Cleveland Bd. of
Educ., 145 F.3d 846 (6th Cir. 1998).
Reasonable Accommodations
a.
Types of Reasonable Accommodations:
A qualified employee or applicant with a disability is an individual who, with or
without reasonable accommodation, can perform the essential functions of the job in
question.
Reasonable accommodation may include, but is not limited to:
•
Making existing facilities used by employees readily accessible to and usable by
persons with disabilities.
•
Job restructuring, modifying work schedules, reassignment to a vacant position;
•
Acquiring or modifying equipment or devices, adjusting or modifying
examinations, training materials, or policies, and providing qualified readers or
interpreters.
Reasonable accommodations are adjustments or modifications provided by an
employer to enable people with disabilities to enjoy equal employment opportunities.
Accommodations vary depending upon the needs of the individual applicant or employee.
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Not all people with disabilities (or even all people with the same disability) will require
the same accommodation.
For example:
•
A deaf applicant may need a sign language interpreter during the job interview.
•
An employee with diabetes may need regularly scheduled breaks during the
workday to eat properly and monitor blood sugar and insulin levels.
•
A blind employee may need someone to read information posted on a bulletin
board.
•
An employee with cancer may need leave to have radiation or chemotherapy
treatments.
b.
Request for Reasonable Accommodation
An employer generally does not have to provide a reasonable accommodation
unless an individual with a disability has asked for one. If an employer believes that a
medical condition is causing a performance or conduct problem, it may ask the employee
how to solve the problem and if the employee needs a reasonable accommodation. Once
a reasonable accommodation is requested, the employer and the individual should discuss
the individual's needs and identify the appropriate reasonable accommodation. Where
more than one accommodation would work, the employer may choose the one that is less
costly or that is easier to provide.
6.
Employer Defenses
a.
Undue Hardship
An employer is required to make a reasonable accommodation to the known
disability of a qualified applicant or employee if it would not impose an “undue hardship”
on the operation of the employer’s business. Undue hardship is defined as an action
requiring significant difficulty or expense when considered in light of factors such as an
employer’s size, financial resources, and the nature and structure of its operation.
An employer is not required to lower quality or production standards to make an
accommodation; nor is an employer obligated to provide personal use items such as
glasses or hearing aids.
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b.
Direct threat
A direct threat is a significant risk of substantial harm to the health and safety of
the individual or others that cannot be eliminated or reduced by reasonable
accommodation. The determination must be based on an individualized assessment of
employee’s present ability to safely perform the essential functions of the job. (29 C.F.R.
§ 1630.2 (r)). The assessment must be based on reasonable medical judgment that relies
on the most current medical knowledge and/or on the best available objective evidence.
The following factors should be considered:
(1) duration of the risk
(2) nature and severity of the potential harm
(3) likelihood of potential harm will occur; and
(4) the imminence of potential harm
7.
Discrimination
It is unlawful for an employer to discriminate on the basis of a disability against a
qualified individual in regard to:
•
Recruitment, advertising, job application procedures
•
Hiring, promotion, transfer, termination, layoff, rehiring
•
Rate of pay
•
Job assignments and classifications
•
Leaves of absence
•
Fringe benefits
•
Selection and financial support for training
•
Social and recreational activities
•
Any other term, condition, or privilege of employment
•
Cannot limit, segregate or classify a job applicant or employee in a way
that adversely affects employment opportunities on the basis of a disability
8.
•
Failure to make a reasonable accommodation
•
Retaliation
Medical Examinations
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a.
Pre-employment
An employer can make pre-employment inquiries into the ability of an applicant to
perform job-related functions, and/or may ask an applicant to describe or to demonstrate
how, with or without reasonable accommodation, the applicant will be able to perform
job-related functions. (29 C.F.R. § 1630.14.)
An employer may require a medical examination after making an offer of
employment to a job applicant and before the applicant begins his or her employment
duties, and may condition an offer of employment on the results of such examination, if
all entering employees in the same job category are subjected to such an examination
(and/or inquiry) regardless of disability. The examination does not have to be job-related
and consistent with business necessity, but, if certain criteria are used to screen out an
employee with a disability as a result of the examination or inquiry, the exclusionary
criteria must be job-related and consistent with business necessity, and performance of
the essential job functions cannot be accomplished with reasonable accommodation.
*Information obtained by this inquiry or testing must be collected and maintained
on separate forms and in separate medical files and be treated as a confidential medical
record. The information may only be provided to the employee’s immediate supervisor,
and first aid and safety personnel if the disability may require emergency treatment, and
to governmental officials investigating compliance if requested. A common mistake that
employers make is not properly maintaining these records.
b.
During Employment
An employer may require a medical examination (and/or inquiry) of an employee
that is job-related and consistent with business necessity and may make inquiries into the
ability of an employee to perform job-related functions.
*Information obtained by this inquiry or testing must be collected and maintained
on separate forms and in separate medical files and be treated as a confidential medical
record. The information may only be provided to the employee’s immediate supervisor,
and first aid and safety personnel if the disability may require emergency treatment, and
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to governmental officials investigating compliance if requested. A common mistake that
employers make is not properly maintaining these records.
9.
Common Employer Mistakes On Employment Applications And In
Job Interviews
The following are examples of questions that may not be asked during job
interviews or in employment applications:
Have you ever been treated for any of the following conditions or
diseases? (followed by a listing of diseases and conditions)
Please list any conditions or diseases for which you have been treated in
the past 2 years?
How is your health?
Have you ever been hospitalized?
Have you ever been treated by a psychiatrist or psychologist?
Have you ever been treated for a mental condition?
Have you suffered from a major illness in the past 2 years?
How many days were you absent from work because of illness during the
last year?
Are you taking any prescribed drugs?
Have you been treated for drug addiction or alcoholism?
Have you filed workers’ compensation claims?
An employer may ask pre-employment questions about the ability of an applicant to
perform job-related function.
B.
Family and Medical Leave Act (FMLA)
1.
Introduction
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The Family and Medical Leave Act ("FMLA") took effect on August 5, 1993.
The Congressional intent is "to balance the demands of the workplace with the needs of
families, to promote the stability and economic security of families, and to promote
national interests in preserving family integrity."
Broadly stated, the FMLA requires employers of 50 or more employees to
provide up to 12 weeks of unpaid leave each year for the "serious health condition" of an
employee, or member of the employee's immediate family, or for the birth or adoption of
a child. While that sounds simple, there are many complexities and uncertainties lurking
in the FMLA which will generate litigation. Among the more difficult issues are the right
to incremental or intermittent leave, the effect of employer provided paid or unpaid leave
on FMLA entitlement, the effects of reduction in force upon employees on FMLA leaves,
and the interplay between the FMLA, state leave laws, and the Americans With
Disabilities Act.
2.
Who Is Covered?
a.
Employers Covered.
The Act applies to public and private
employers employing 50 or more employees. The determination of whether an employer
has 50 or more employees is based upon whether it has 50 or more employees on its
payroll during each of 20 or more calendar workweeks in the current or preceding
calendar year. (29 U.S.C. § 2611(4)).
b.
Employees Covered. In order to be entitled to take leave under
the FMLA, an employee must have been employed by the employer for at least 12
months and must have worked at least 1,250 hours (actual hours worked exclusive of
paid leave time - 29 C.F.R. § 825.110(c)) for the employer in the twelve months
preceding the commencement of the FMLA leave. (29 U.S.C. § 2611(2)). The 12 months
of employment with the employer need not be consecutive. (29 C.F.R. § 825.110(b)).
An employee working at a facility with less than 50 employees is not eligible to take
FMLA leave unless the employer has 50 or more employees working within a 75 mile
radius of the worksite. (29 U.S.C. § 2611(2)).
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c.
Leave Entitlement. An employee covered by FMLA is entitled to
12 work weeks of leave during a 12 month period for: (1) the birth of a child (father or
mother can take leave); or (2) the placement of a child with the employee for adoption or
foster care; or (3) the care of the employee’s spouse, son, daughter, or parent with a
serious health condition; or (4) a serious health condition which makes the employee
unable to perform the functions of his or her job; or (5) because of a qualifying exigency
arising out of the fact that the employee’s spouse, son, daughter, or parent is a military
member on active duty; or (6) to care for a covered servicemember with a serious illness
if the employee is the spouse, son, daughter, parent or next of kin of the servicemember.
(29 C.F.R. §§ 825.112, 825.122).
An 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 a servicemember. (29 U.S.C. § 2612 (a) (3)).
3.
Employer’s Rights Under FMLA: Confirmation Of The Serious
Health Condition And Time Involved, Second Opinions, Third
Opinions And Priority Of Time-Off Categories
a.
Confirmation of Family Relationships.
The employer may
confirm family relationships by requiring documentation of the relationship. (29 C.F.R.
§ 825.122(j)).
b.
Use of Accrued Leave.
An employee has the right, and the
employer may require the employee to use accrued vacation or personal leave for an
FMLA purpose. Similarly, an employee has the right, and the employee may require,
that an employee use paid sick or medical leave. (29 C.F.R. § 825.207 (a)).
c.
Calculation of 12 Month Period.
The employer may choose
any of the following for calculating the 12 month period:
(1)
Calendar year;
(2)
Any fixed 12-month “leave year” (e.g. employer’s fiscal
year, or employee’s anniversary date);
(3)
The 12-month period measured forward from the date the
employee’s FMLA leave begins; or
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(4)
A “rolling” 12-month period measured backward from the
date an employee uses any FMLA leave. (29 C.F.R. § 825.200(b)).
If an employer fails to designate the 12-month period, an employee may select the
most favorable alternative. (29 C.F.R. § 825.200 (e)).
d.
Serious Health Condition. The statute defines a "serious health
condition" as any "illness, injury, impairment, or physical or mental condition that
involves: (1) “inpatient care” in a hospital, hospice, or residential medical care facility;
or (2) “continuing treatment” by a healthcare provider."
(29 C.F.R. § 825.113).
Treatment of substance abuse may be a serious health condition if provided by or at the
direction of a health care provider. Absence, however, because of the employee’s use of
the substance rather than for treatment, does not qualify for FMLA leave. (29 C.F.R.
§ 825.119).
The Department of Labor's implementing regulations expand upon the
statutory definition of serious health condition by defining “inpatient care” and
“continuing treatment” as follows:
•
inpatient care: an overnight stay in a hospital, hospice, or residential medical care
facility;
•
a serious health condition involving continuing treatment by a health care
provider including:
o Incapacity and treatment – a period of incapacity of more than 3
consecutive, full calendar days and subsequent treatment or period of
incapacity
o Pregnancy or prenatal care – any period of incapacity due to pregnancy or
prenatal care
o Chronic conditions – any period of incapacity or treatment due to a
chronic serious health condition (continuous or episodic)
o Permanent or long term conditions – A period of incapacity which is
permanent or long term due to a condition for which treatment may not be
effective. The employee or family member must be under continuous care
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of a health care provider. (Ex: Alzheimer’s, severe stroke, or terminal
stages of a disease).
o Conditions requiring multiple treatments.
Any period of absence to
receive multiple treatments (including period of recovery) by a health care
provider for restorative surgery after an accident or other injury, a
condition that results in a period of incapacity for 3 or more consecutive
calendar days (Ex: chemotherapy or radiation for cancer; physical therapy
for severe arthritis, dialysis for kidney disease). (29 C.F.R. § 825.115).
e.
Certification Of Serious Health Condition. In the case of leave
attributable to the employee's own serious health condition, the employer may require a
medical certification showing that the employee is unable to work at all or is unable to
perform many of the essential functions of the employee's position within the meaning of
the ADA. (29 C.F.R. § 825.123). The employer is not required to accept the medical
certification provided by an employee if there is reason to doubt the validity of it. (29
C.F.R. § 825.307 (b)). At its own expense, the employer may obtain a second opinion by
a health care provider of the employer's choosing provided that the health care provider is
not employed on a regular basis by the employer. If the two opinions conflict, the
employer may require, at its own expense, that a third opinion be obtained by a health
care provider jointly designated by the employer and employee. This third opinion is
controlling. (29 C.F.R. § 825.307 (c)).
f.
Leave To Care For Family Member. The employee must show
that he or she is needed to care for the family member. (29 C.F.R. § 825.124(a)). The
regulations are so broad in defining "needed to care for" (i.e. physical care as well as
providing psychological comfort and reassurance – that it is not prudent for an employer
to challenge such a need except in cases of obvious abuse. The definition of “son or
daughter” distinguishes between those who are under 18 years of age and those who are
older. (29 C.F.R. 825.122 (c)). Sons and daughters 18 years or older are included only if
they are incapable of self-care because of a mental or physical disability.
g.
Notice By Employer.
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General Notice
Every employer subject to the FMLA is required to post and keep posted on its
premises in conspicuous places where employees are employed, 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. Electronic posting
is sufficient, also. (29 C.F.R. § 825.300).
If the employer has any eligible employees, it shall also provide this general
notice to each employee by including the notice in the employee handbooks or other
written guidance to employees concerning employee leave benefits or leave rights, if
such written materials exist, or by distributing a copy of the general notice to each new
employee upon hiring. In either case, electronic distribution is sufficient. (29 C.F.R. §
825.300 (a) (3)).
Eligibility Notice
When an employee requests FMLA leave or when the employer acquires
knowledge that an employee’s leave may be for an FMLA-qualifying reason, the
employer must notify the employee of the employee’s eligibility to take FMLA leave
within 5 business days. The eligibility notice must state whether the employee is eligible
for FMLA leave. If the employee is not eligible, the notice must state at least one reason
why the employee is not eligible. The notification may be oral or in writing. (29 C.F.R.
§ 825.300 (b)).
Rights and Responsibilities Notice
Employers are required to provide written notice detailing the specific
expectations and obligations of the employee and explaining any consequences of a
failure to meet these obligations. This notice shall be provided to the employee each time
the eligibility notice is provided. If the employee’s leave has already begun, the notice
should be mailed to the employee's address of record. The notice must include, as
appropriate:
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•
That the leave may be designated and counted against the employee's annual
FMLA leave entitlement if qualifying and the applicable 12-month period for
FMLA entitlement;
•
Any requirements for the employee to furnish certification of a serious health
condition, serious injury or illness, or qualifying exigency arising out of active
duty or call to active duty status, and the consequences of failing to do so.
•
The employee's right to substitute paid leave, whether the employer will require
the substitution of paid leave, the conditions related to any substitution, and the
employee's entitlement to take unpaid FMLA leave if the employee does not meet
the conditions for paid leave;
•
Any requirement for the employee to make any premium payments to maintain
health benefits and the arrangements for making such payments and the possible
consequences of failure to make such payments on a timely basis ( i.e. , the
circumstances under which coverage may lapse);
•
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;
•
The employee's rights to maintenance of benefits during the FMLA leave and
restoration to the same or an equivalent job upon return from FMLA leave; and
•
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.
•
The notice of rights and responsibilities 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.
•
The notice may be accompanied by any required certification form.
Additionally, if the specific information provided by the notice of rights and
responsibilities changes, the employer shall, within five business days of receipt of the
employee's first notice of need for leave subsequent to any change, provide written notice
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referencing the prior notice and setting forth any of the information in the notice of rights
and responsibilities that has changed. For example, if the initial leave period was paid
leave and the subsequent leave period would be unpaid leave, the employer may need to
give notice of the arrangements for making premium payments. Employers are also
expected to responsively answer questions from employees concerning their rights and
responsibilities under the FMLA. (29 C.F.R. § 825.300 (c)).
Designation Notice
The employer is responsible for designating leave as FMLA-qualifying and for
giving notice of the designation to the employee in writing. If the employer determines
that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a
reason covered by FMLA or the FMLA leave entitlement has been exhausted) the
employer must notify the employee of that determination. If the employer requires paid
leave be substituted for unpaid FMLA leave, the employer must inform the employee of
this designation at the time of designating the FMAL leave. If the employer will require
the employee to present a fitness-for-duty certification to be restored to employment, the
employer must provide notice of the requirement with the designation notice. If fitnessfor-duty certification must address the employee’s ability to perform the essential
functions of the employee’s position, the employer must include a list of the essential
function of the employee’s position with the designation notice. The employer must also
notify the employee of the amount of leave counted against the employee’s FMLA leave
entitlement. (29 C.F.R. § 825.300 (d)).
h.
Notice By Employees.
Employee Responsibilities
An employee giving notice of the need for FMLA leave does not need to
expressly assert rights under the Act or even mention the FMLA to meet his or her
obligation to provide notice, though the employee would need to state a qualifying reason
for the needed leave and otherwise satisfy the notice requirements depending on whether
the need for leave is foreseeable or unforeseeable. An employee giving notice of the need
for FMLA leave must explain the reasons for the needed leave so as to allow the
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employer to determine whether the leave qualifies under the Act. If the employee fails to
explain the reasons, leave may be denied. If there is a dispute between an employer and
an employee as to whether leave qualifies as FMLA leave, it should be resolved through
discussions between the employee and the employer. Such discussions and the decision
must be documented. (29 C.F.R. § 825.301 (b), (c)).
Notice of Foreseeable Leave
An employee must provide the employer at least 30 days advance notice before
FMLA leave is to begin if the need for the leave is foreseeable based on an expected
birth, placement for adoption or foster care, planned medical treatment for a serious
health condition of the employee or of a family member, or the planned medical
treatment for a serious injury or illness of a covered servicemember. If 30 days notice is
not practicable, such as because of a lack of knowledge of approximately when leave will
be required to begin, a change in circumstances, or a medical emergency, notice must be
given as soon as practicable. Whether FMLA leave is to be continuous or is to be taken
intermittently or on a reduced schedule basis, notice need only be given one time, but the
employee shall advise the employer as soon as practicable if dates of scheduled leave
change or are extended, or were initially unknown. In those cases where the employee is
required to provide at least 30 days notice of foreseeable leave and does not do so, the
employee shall explain the reasons why such notice was not practicable upon a request
from the employer for such information.
An employee is required to provide at least verbal notice sufficient to make the
employer aware that the employee needs FMLA-qualifying leave, and the anticipated
timing and duration of the leave. Depending on the situation, such information may
include that a condition renders the employee unable to perform the functions of the job;
that the employee is pregnant or has been hospitalized overnight, etc. An employer may
require an employee to comply with the employer's usual and customary notice and
procedural requirements for requesting leave, absent unusual circumstances.
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When planning medical treatment, the employee must consult with the employer
and make a reasonable effort to schedule the treatment so as not to disrupt unduly the
employer's operations, subject to the approval of the health care provider.
An employee shall advise the employer, upon request, of the reasons why the
intermittent/reduced leave schedule is necessary and of the schedule for treatment, if
applicable. The employee and employer shall attempt to work out a schedule for such
leave that meets the employee's needs without unduly disrupting the employer's
operations, subject to the approval of the health care provider. (29 C.F.R. § 825.302).
Notice of Unforeseeable Leave
When the approximate timing of the need for leave is not foreseeable, an
employee must provide notice to the employer as soon as practicable under the facts and
circumstances of the particular case. It generally should be practicable for the employee
to provide notice of leave that is unforeseeable within the time prescribed by the
employer's usual and customary notice requirements applicable to such leave.
The employee is required to provide sufficient information for an employer to
reasonably determine whether the FMLA may apply to the leave request. When an
employee seeks leave for the first time for a FMLA-qualifying reason, the employee need
not expressly assert rights under the FMLA or even mention the FMLA. When an
employee seeks leave due to a qualifying reason, for which the employer has previously
provided the employee FMLA-protected leave, the employee must specifically reference
either the qualifying reason for leave or the need for FMLA leave. Calling in “sick”
without providing more information will not be considered sufficient notice to trigger an
employer's obligations under the Act.
When the need for leave is not foreseeable, an employee must comply with the
employer's usual and customary notice and procedural requirements for requesting leave,
absent unusual circumstances. If an employee does not comply with the employer's usual
notice and procedural requirements, and no unusual circumstances justify the failure to
comply, FMLA-protected leave may be delayed or denied. (29 C.F.R. § 825.303).
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i.
Maintenance Of Health Insurance Coverage.
The employer
must continue any health insurance coverage provided under a "group health plan" during
the term of the FMLA leave "under the same conditions coverage would have been
provided" if the employee had remained at work. (29 U.S.C. § 2614(c); 29 C.F.R. §
825.209).
3.
When The Employee Returns
a.
Former Or Equivalent Position. At the completion of the leave,
the employee must be returned to his or her former position or "an equivalent position
with equivalent employment benefits, pay, and other terms and conditions of
employment." (29 C.F.R. § 214). The regulations define "equivalent position" as:
"An equivalent position is one that is virtually identical to the employee’s
former position in terms of pay, benefits, and working conditions,
including privileges, prerequisites and status. It must involve the same or
substantially similar duties and responsibilities, which must entail
substantially equivalent skill, effort, responsibility and authority."
(29 C.F.R. § 825.215(a)).
b.
Light Duty. An employee on FMLA leave may refuse light duty
assignments if the employee cannot return to an equivalent position. Such a refusal may,
however, disqualify the employee from continuing to receive workers compensation. (29
C.F.R. § 825.207(e)).
c.
Fitness For Duty Certification. At the conclusion of the leave
period, the employer may require certification of the employee’s fitness-for-duty with
regard to the condition which caused the leave, provided such a certification is required
of all similarly situated employees. (29 C.F.R. § 825.312).
4.
Enforcement
The FMLA is enforced by the Wage and Hour Division of the United States
Department of Labor. The employee, however, has a choice of filing a complaint with
the Department of Labor, or filing a private lawsuit. If the employee files a private
lawsuit, it must be filed within two years after the last action the employee contends was
in violation of the FMLA, or three years if the violation was willful. (29 C.F.R.
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§ 825.400(a)). No particular form of complaint is required except that a complaint must
be reduced to writing and include a full statement of the facts. (29 C.F.R. § 825.401(a)
and (c)).
In contrast to the EEOC, the early experience with FMLA enforcement is that a
representative of the Wage and Hour Division will promptly contact the employer by
telephone and make an effort to resolve the charge without any formal proceedings. Thus
far a large percentage of FMLA complaints are resolved in this fashion.
If the FMLA complaint is not resolved at an early and informal stage, the Wage
and Hour Division will conduct a more formal investigation.
Either the employee, or the Department of Labor, may also bring a civil action to
recover compensatory (lost wages, salary, employment benefits or other compensation -not to exceed the value of 12 weeks of salary), liquidated damages and equitable relief
(employment reinstatement and promotion). (29 U.S.C. § 2617). If the employee does
obtain the judgment, the Court is required to allow reasonable attorney's fees and expert
witness fees, plus any other costs of the action. (29 U.S.C. § 2617(a)(3)). There is no
similar fee shifting if the employer prevails.
5.
Incremental or Intermittent Leave
An employee may take leave in increments or intermittently when leave is
attributable to a serious health condition of the employee or the employee's family
member or covered servicemember. (29 U.S.C. § 2612(b); 29 C.F.R. § 825.202). Such a
right does not exist in the case of leave attributable to the birth of a child, or the
placement of a child for adoption or foster care.
6.
Special Rules for School Employees
The special rules affect the taking of intermittent leave or leave on a reduced
leave schedule, or leave near the end of an academic term (semester), by instructional
employees. “Instructional employees” are those whose principal function is to teach and
instruct students in a class, a small group, or an individual setting. This term includes not
only teachers, but also athletic coaches, driving instructors, and special education
assistants such as signers for the hearing impaired. It does not include, and the special
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rules do not apply to, teacher assistants or aides who do not have as their principal job
actual teaching or instructing, nor does it include auxiliary personnel such as counselors,
psychologists, or curriculum specialists. It also does not include cafeteria workers,
maintenance workers, or bus drivers. Special rules which apply to restoration to an
equivalent position apply to all employees of local educational agencies. (29 C.F.R. §
825.600).
Limitations on intermittent leave
Leave taken for a period that ends with the school year and begins the next
semester is leave taken consecutively rather than intermittently. The period during the
summer vacation when the employee would not have been required to report for duty is
not counted against the employee's FMLA leave entitlement.
If an eligible instructional employee needs intermittent leave or leave on a
reduced leave schedule to care for a family member with a serious health condition, to
care for a covered servicemember, or for the employee's own serious health condition,
which is foreseeable based on planned medical treatment, and the employee would be on
leave for more than 20 percent of the total number of working days over the period the
leave would extend, the employer may require the employee to choose either to:
(i) Take leave for a period or periods of a particular duration, not greater than the
duration of the planned treatment; or
(ii) Transfer temporarily to an available alternative position for which the
employee is qualified, which has equivalent pay and benefits and which better
accommodates recurring periods of leave than does the employee's regular
position.
These rules apply only to a leave involving more than 20 percent of the working
days during the period over which the leave extends. For example, if an instructional
employee who normally works five days each week needs to take two days of FMLA
leave per week over a period of several weeks, the special rules would apply. Employees
taking leave which constitutes 20 percent or less of the working days during the leave
period would not be subject to transfer to an alternative position. “Periods of a particular
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duration” means a block, or blocks, of time beginning no earlier than the first day for
which leave is needed and ending no later than the last day on which leave is needed, and
may include one uninterrupted period of leave.
If an instructional employee does not give required notice of foreseeable FMLA
leave to be taken intermittently or on a reduced leave schedule, the employer may require
the employee to take leave of a particular duration, or to transfer temporarily to an
alternative position. Alternatively, the employer may require the employee to delay the
taking of leave until the notice provision is met. (29 C.F.R. § 825.601).
Limitations on leave near the end of an academic term.
There are special rules for instructional employees who begin leave more than
five weeks before the end of a term, less than five weeks before the end of a term, and
less than three weeks before the end of a term. Regular rules apply except in
circumstances when:
•
An instructional employee begins leave more than five weeks before the end of a
term. The employer may require the employee to continue taking leave until the
end of the term if the leave will last at least three weeks, and the employee would
return to work during the three-week period before the end of the term.
•
The employee begins leave during the five-week period before the end of a term
because of the birth of a son or daughter; the placement of a son or daughter for
adoption or foster care; to care for a spouse, son, daughter, or parent with a
serious health condition; or to care for a covered servicemember. The employer
may require the employee to continue taking leave until the end of the term if the
leave will last more than two weeks, and the employee would return to work
during the two-week period before the end of the term.
•
The employee begins leave during the three-week period before the end of a term
because of the birth of a son or daughter; the placement of a son or daughter for
adoption or foster care; to care for a spouse, son, daughter, or parent with a
serious health condition; or to care for a covered servicemember. The employer
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may require the employee to continue taking leave until the end of the term if the
leave will last more than five working days.
For example, if an employee plans two weeks of leave to care for a family
member that will begin three weeks before the end of the term, the employer could
require the employee to stay out on leave until the end of the term. (29 C.F.R. §
825.602).
Duration of FMLA leave.
If an employee chooses to take intermittent or reduced schedule leave, the entire
period of leave taken will count as FMLA leave.
In the case of an employee who is required to take leave until the end of an
academic term, only the period of leave until the employee is ready and able to return to
work shall be charged against the employee's FMLA leave entitlement. The employer has
the option not to require the employee to stay on leave until the end of the school term.
Therefore, any additional leave required by the employer to the end of the school term is
not counted as FMLA leave; however, the employer shall be required to maintain the
employee's group health insurance and restore the employee to the same or equivalent job
including other benefits at the conclusion of the leave. (29 C.F.R. § 825.603).
Restoration to “an equivalent position.”
The determination of how an employee is to be restored to “an equivalent
position” upon return from FMLA leave will be made on the basis of “established school
board policies and practices, private school policies and practices, and collective
bargaining agreements.” The “established policies” and collective bargaining agreements
must be in writing, must be made known to the employee prior to the taking of FMLA
leave, and must clearly explain the employee's restoration rights upon return from leave.
The policy or collective bargaining agreement must provide for restoration to an
“equivalent position” with equivalent employment benefits, pay, and other terms and
conditions of employment. For example, an employee may not be restored to a position
requiring additional licensure or certification. (29 C.F.R. § 825.604).
7.
State Laws
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The FMLA may, and in the case of Delaware does, overlap with state laws
providing family or medical leave. The FMLA provides that "[n]othing in this Act or any
amendment made by this act shall be construed to supersede any provision of any State or
local law that provides greater family leave or medical leave rights than the rights
established under this Act or any amendment made by this Act." (29 U.S.C. § 2651(b)).
8.
Delaware Paid Leave Laws
Delaware has statutes entitling State employees (29 Del. C. § 5120) and school
district employees (14 Del. C. § 1333) sick leave upon the birth of a child of the
employee or the employee’s spouse, or upon the adoption by the employee of a prekindergarten age child.
9.
Reconciling FMLA With The Americans With Disabilities Act.
Briefly stated, there is a significant, and in some cases unresolved, interplay
between the FMLA and the Americans With Disabilities Act ("ADA"). This interplay
includes the following:
a.
When a serious health condition under FMLA qualifies as a
disability under ADA, a personnel action violating the FMLA may also violate the ADA.
b.
The ADA covers applicants as well as employees, while the
coverage of the FMLA is limited to employees who have worked for the employer for
one year and have worked at least 1,250 hours during that year. (29 U.S.C. § 2611(2)).
c.
Unlike the ADA, where there is "an undue hardship" defense
available to an employer who fails to provide an accommodation to a disability, there is
no "undue hardship" defense available to an employer who fails to provide FMLA leave
to an employee with a "serious health condition." For example, it may be possible for an
employer to establish that intermittent leave creates an undue hardship. Such a showing
would not, however, excuse the employer's obligation to provide intermittent leave under
the FMLA.
d.
An employee may exhaust FMLA rights for a serious health
condition, and subsequently request additional leave under ADA if the employee is able
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to meet the test of establishing that the employee suffers from a "disability" as that term
is defined in the ADA.
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