A Division of Thompson Media Group
www.thompsoninteractive.com
Leaves and Absences from Work Under the
ADAAA and FMLA
Presented by:
Burton J. Fishman Esq.
bfishman@fortneyscott.com
Fortney & Scott, LLC
www.fortneyscott.com
Tele: 202-689-1200 / Fax: 202-689-1209
Important Legal Notice
This presentation is to provide general information and
updates regarding rights and obligations for federal
contractors. These materials are not intended to provide
legal advice.
Federal contractors’ representatives should consult either
with their in-house counsel or, as directed, with an
experienced employment attorney for legal advice about
whether, based on their specific facts and circumstances,
their company complies with the applicable federal and
state laws and regulations.
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The Dilemma
Amendments to the ADA create new opportunities for
employees to be absent from work even without sick
leave and even if the ailment doesn’t qualify for the
FMLA.
 What can you do?
 First, some background.

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Amendments to the ADA

Broadens the definition of disability by:
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Expanding the types of Major Life Activities.
Broadening the definition of “substantially limits.”
Removing the consideration of mitigating measures on a
person’s impairment.
Impairments that are episodic or in remission will be
disabilities if such impairments otherwise meet the definition
of “disabled” while active.
Expands definition of “regarded as” disabled.
No accommodation of “regarded as” disabilities.
Retains “undue hardship” exception.
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Major Life Activities
“Working” retained as a major life activity.
 Controversy about its inclusion continues.
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If inability to do a single job yields as accommodation, then
is a transfer to a different, even preferred job, “reasonable?”
List of Major Life Activities has greatly increased.
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Major Life Activities (cont.)

Major Life Activities include the following actions:
 Caring for oneself
Performing Manual Tasks
 Seeing
Hearing
 Eating
Sleeping
 Walking
Standing
 Lifting
 Speaking
Bending
 Learning
Breathing
 Concentrating
Reading
 Communicating
Thinking
 Performing Manual Tasks
Working
 Hearing
Sleeping
 Breathing
Standing
 Reading
Bending
 Sitting*
 Reaching*
Working
* Added by EEOC
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Interacting with others*
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Major Life Activities (cont.)
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Expanded Major Life Activities to include the following
bodily functions:
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Immune system
 Brain
Normal cell growth
 Respiratory
Digestive
 Circulatory
Bowel
 Endocrine
Bladder
 Reproductive
Neurological
 Cardiovascular*
Special sense organs & skin*
 Lymphatic*
Genitourinary*
 Hemic*
Musculoskeletal*
Many functions have no relation to or even likely manifestation at work.
*Added by EEOC
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Summary of ADAAA Basics

ADA
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Employers of 15 or more are covered
Disability required, many are life-long;
Many accommodations available, including leave but cannot create
undue hardship;
Leave is concurrent with FMLA leave, but can be longer than FMLA
leave AND can be added to FMLA leave IF a disability is involved;
Leave is supposed to be curative, thus, indefinite leave is usually
“unreasonable”; and
Return to same job required, with or without accommodation, unless
employee cannot perform it; in that case, assignment to a vacant position
must be considered.
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When is a Hardship Undue?
If your policies permit the accommodation (e.g., length
of leave), not undue.
 If you have done it in the past, probably not undue
(absent change of policy).
 If it disrupts work process-sales territory uncovered;
other workers over-burdened; leaves essential functions
undone or shifts them to other employees-likely undue.
 Relationship of accommodation to essential functions
of job is a useful guide.

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Summary of FMLA Basics
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FMLA:
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Employers of 50 or more are covered
Only a “serious health condition” required; not intended
to be a high standard;
Leave is only benefit but need not be “reasonable”;
12-week fixed maximum leave;
Condition can be chronic;
Leave can be intermittent; and
Return to same or similar job guaranteed within 12-week
period, but no reassignment or other accommodation
required.
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What is a “Serious Health
Condition?”

Physical or mental impairment requiring:
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In-patient care, including any period of incapacity or
subsequent treatment in connection with in-patient care, or;
Continuing treatment by a health care provider.
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Intermittent Leave
Non-emergency leave must be taken in manner that
does not unduly disrupt business operations.
 Employee may take intermittent leave or reduced work
hours when medically necessary and leave may be taken
in the smallest time period offered for any other
leave (if not more than one hour).
 May limit to leave for treatment or because
incapacitated.

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Why does this matter?
Uncontrollable and unpredictable absences have
profound impact on productivity and profitability.
 In comments on the FMLA, employers identified
abuses of FMLA, particularly intermittent leave, as their
most serious leave problem.
 The ADAAA, which applies to employers of only 15,
will create numerous new opportunities for mandated
absences – some not even permitted under the FMLA.

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Why does this matter? (cont.)
Because of the expansion of the definition of disability
under the ADAAA, some differences between the
FMLA and the ADA have been reduced or have
disappeared.
 Anticipate requests for extended leave under the
ADAAA as FMLA leave expires.

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For Example
An employee has exhausted her sick leave but has a
doctor’s note requiring fertility treatments, twice a
month, two days in a row.
 This is not a serious health condition BUT substantial
impairments to a person’s reproductive function is
named as a disability.

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For Example (cont.)
Salesman needs 13 weeks or more to recuperate from
an ailment, during which time his territory would be
“uncovered.”
 Would you grant the leave or is this an undue hardship?
 Would you consider a temporary transfer of another
salesperson?
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What if it were only 12 weeks and under FMLA?
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For Example (cont.)
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An employee with an ADA disability has taken 12
weeks of FMLA leave. There is no other leave option.
He notifies his employer that he is ready to return to
work, but he no longer is able to perform the essential
functions of his position or an equivalent position.
What would you do?
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For Example (cont.)

An employee with an ADA disability requests that she
be excused from work one day a week for the next six
months because of her disability, but this will cause an
undue hardship under the ADA. She also is eligible for
FMLA. What would you do?
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For Example (cont.)

When is an indefinite leave an undue hardship and
when is it not?
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Example A: A specialized researcher requests leave for
treatment of her disability but cannot provide a fixed date of
return.
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For Example (cont.)
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When is an indefinite leave an undue hardship and
when is it not?
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Example B: An employee requests twelve weeks of leave for
surgery for his disability. The employer grants the request.
During surgery, serious complications arise that require a
lengthier period of recuperation than originally anticipated,
as well as additional surgery. The employee contacts the
employer after six weeks of leave to ask for an additional ten
to eighteen weeks of leave (i.e., a total of 22 to 30 weeks of
leave).
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How Can You Prepare?
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Re-Examine your Job Descriptions.
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An accommodation helps someone perform the essential
functions of the job; it does not eliminate essential functions.
So, look over list of Major Life Activities and determine
which ones play a role in your jobs and in your workplace.
If “thinking,” “concentrating,” “interacting with others,” and
other basic elements, such as working to deadline, working
under stress, coming to work regularly and promptly, are
essential functions, write them in.
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How Can You Prepare? (cont.)
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Know your rights under the FMLA
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Use the Forms provided by the DOL and add whatever
other forms you think will help you monitor FMLA
use.
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When can you get a new medical certification?
When can you influence use of intermittent leave?
Remember, you designate a leave as eligible for FMLA.
Adapt DOL forms for ADA
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How Can You Prepare? (cont.)
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Focus on the Interactive Dialogue.
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Can you accommodate?
Because the new emphasis is on conduct, not definitions,
your conduct is more critical.
Create forms, logs and procedures, as appropriate.
Take careful notes of all conversations with health care
providers and the employee, and others who have helped
develop ID alternatives.
Keep employees fully informed.
Your good faith efforts may determine the outcome.
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Questions?
THANK YOU.
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Do you have a question that you would like
answered during the Q&A session?
Simply follow the instructions below.
To ask a question, please press *1 on your touchtone phone.
If you are using a speaker phone, please lift the receiver and
then press *1.
If you would like to withdraw your question, press *1.
Burton J. Fishman
bfishman@fortneyscott.com
Mr. Fishman has devoted his practice to developing the “law of the workplace,” an
interdisciplinary approach that offers employers counsel and representation on a broad
range of matters growing out of government regulation of business. His experience
extends to the full spectrum of employment and labor matters, including employment
discrimination, the Occupational Safety and Health Administration, the Employee
Retirement Income Security Act, the Americans with Disabilities Act (ADA), affirmative
action, and wrongful termination. In recent years, Mr. Fishman has taken a leading role
nationally in advising the business community on the impact of the ADA and the
evolving law of sexual harassment. He has represented clients throughout the nation in
proceedings before the Equal Employment Opportunity Commission, the U.S.
Department of Labor, the National Labor Relations Board, and in arbitrations and courts
at all levels.
Mr. Fishman served as the Deputy Solicitor for National Operations for the U.S.
Department of Labor during the George H. W. Bush administration. During that time,
he was a departmental spokesman on safety and health issues, disability law, wage and
hour matters, the ‘glass ceiling’ initiative, and the North American Free Trade Agreement
negotiations with Mexico. His familiarity with the regulatory and legislative process has
led to his being retained by entities as diverse as the Society of Human Resource
Management and the American Bar Association, to represent them regarding emerging
issues before Congress.
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Fortney & Scott, LLC
Workplace solutions. Legal excellence.
www.fortneyscott.com
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© FortneyScott 2011
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12-8-2011 Leaves and Absences from Work Under the ADAAA and FMLA
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