Family Medical Leave Act Update: Changes in the Law and Review of Final Regulations

On January 16, 2009, the Final Regulations altering the scope and breadth of the Family Medical Leave Act (“FMLA”) became effective.  Under the prior version of the FMLA, eligible employees were entitled to up to twelve workweeks of unpaid leave in a single twelve-month period for certain occurrences.  An eligible employee is one who:

“worked for that employer for at least twelve months; and worked at least 1,250 hours during the twelve months prior to the start of the FMLA; and worked at a location where at least fifty employees are employed at the location or within seventy-five miles of that same location.”

The situations under which an eligible employee was entitled to FMLA leave was limited to these specific categories:

• The birth of a child and to care for that newborn child; or
• Placement of a child through adoption or foster care and to care for that newly placed child; or
• To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  When not able to work because of their own serious health condition.

The Final Regulations expand the protections of the FMLA in a significant manner to include two new military leave provisions.  The first of these new groupings is the “Military Caregiver Leave,” which provides that eligible employees (apply the same standards for eligibility under the prior FMLA) who are family members of covered service members may take up to twenty-six work weeks of leave, in a single twelve-month period, to care for a covered service member with a serious illness or injury, incurred in the line of duty while on active duty.  Note that this provision is substantially more inclusive as it is not restricted to family members, but includes “next of kin.”  Next of kin is defined as the nearest blood relative who is able to care for that covered service member.

The second new grouping extends FMLA protection to eligible military family members on the basis of a “Qualifying Exigency Leave.”  This new provision provides protection to eligible employees with a covered military member serving in the National Guard or Reserves.  Note that this leave does not extend to members of the Regular Armed Forces.  Such eligible employees may take up to twelve work weeks for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation.  A “qualifying exigency” may include:

1. short notice deployment;
2. military events and related activities;
3. child care (not routine child care, but child care on an emergency basis for or time taken to seek permanent child care) and school activities;
4. for financial and legal arrangements;
5. counseling;
6. rest and recuperation;
7. pre and post-deployment activities; and
8. additional activities not covered but agreed to by the employer and employee.

Important Notice Requirements

Employer’s Obligations: The employer must post notice of FMLA rights and distribute that same notice to each employee on an annual basis. Under the Final Regulations, the employer must notify an employee of FMLA eligibility within five (5) business days of its determination that the leave may be an FMLA leave by complying with the following Notice obligations:

Designation Notice: Employers must notify employees in writing that a leave is designated as an FMLA leave within five days of receiving sufficient information to determine that the leave is under the FMLA’s protection.  In this notice, employers must inform the employee of the specific amount of hours, days, or weeks which will be counted as FMLA leave, as well as the time will not be counted as FMLA.  Note: The Final Regulations permit an employer to retroactively designate an absence as FMLA in response to Ragsdale v. Wolverine Worldwide, Inc., 534 U.S. 81 (2002).

Employee’s Obligations: As is in all FMLA requests, an employee must provide requested certification to the employer within the time frame requested by the employer (which, at a minimum, is fifteen days after the employer’s request), unless the circumstances render it impractical or impossible.  Moreover, unlike the vague requirements of the current FMLA, the new law provides that employees must follow the employer’s usual and customary call-in procedures for reporting an absence, except in unusual circumstances.  Calling in “sick” without providing more information, does not constitute sufficient notice under the Final Regulations.  Further, the law provides that employees have an affirmative obligation to respond to an employer’s questions regarding the potential for employee’s absence as a qualifying FMLA leave.  Failure to respond to such questions may result in a denial of FMLA protection.

Medical Certification Form WH-380 provides for a more detailed exchange of medical information than contemplated under the prior law.  The expanded FMLA provides for an open exchange of information by permitting direct communication between an employer and a health care provider (which, for the first time explicitly includes a Physician’s Assistant.)  This direct flow of communication, however, does not permit an employer to ask for additional information beyond that which is required on the certification form.  And, in deference to the HIPAA Privacy rules governing employee information, the Final Regulations restrict which representatives of the employer may contact the employee’s health care provider to either a company health care provider, a Human Resources professional, a Leave Administrator, or a Management official.  Under no circumstances may the representative be the employee’s direct supervisor.

In the event that medical certification is incomplete or insufficient, the employer must specifically list which information is missing in writing.  The employee has seven calendar days in which to provide the missing information.

Timing: In the event that leave is taken for the employee’s own serious medical condition, an employer may request re-certification of that ongoing condition every six months in conjunction with the employee’s continued absence.

Continuing Treatment of a Serious Health Condition

The Final Regulations require that, in order to receive the protection of the FMLA for ongoing treatment of a serious health condition, the employee must demonstrate two visits to a health care provider within thirty days of the inception of the incapacity.  The first visit to the health care provider must take place within seven days of the first day of incapacity.  “Periodic visits” for chronic serious health conditions requires at least two visits to a health care provider per year.

What Should Employers Do?

Comply with the law!

Post the new requirements in employee accessible areas and distribute copies of that poster notice to all employees on an annual basis;
Educate its managers and Human Resources professionals about the new requirements and obligations under the FMLA; and
Most importantly, when in doubt, contact an experienced employment attorney.

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Lilly Ledbetter Fair Pay Act Restores Discovery Rule to Pay Discrimination Cases

In one of the first strokes of his pen since his election, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The effect of this legislation was to reverse the U.S. Supreme Court decision in the case of Ledbetter v. Goodyear Tire & Rubber Co., Inc.

That case reversed a judgment in favor of Ledbetter, which she had won after discovering her employer had been giving her unequal pay for over nineteen years.  Although she had been a very productive employee for those nineteen years, Goodyear paid Ledbetter less than the comparable male employees doing similar work. As she was retiring, Ledbetter was informed that this pay discrimination had been on-going for as long as she had worked for Goodyear.  At trial, a jury found that Goodyear was liable for discrimination, and awarded Ledbetter damages. But the Supreme Court reversed the judgment, reasoning in its split (5-4) decision that Ledbetter should have filed her suit 180 days after the first act of discrimination.

The lower courts had consistently held that the 180 day requirement began to run only after the employee had discovered the discriminatory act (commonly known as the “discovery rule”). The Supreme Court upended the discovery rule.  The Lilly Ledbetter Fair Pay Act restores the discovery rule to pay discrimination claims.

The Act also applies to race, gender, color, religious, and national origin claims under Title VII; to age discrimination claims under the Age Discrimination in Employment Act; and handicap discrimination claims under the Americans with Disabilities Act.

Two other aspects of the Act are of importance:  The Act allows employees to claim back pay for a period of up to two years prior to the filing of the claim with the Equality Employment Opportunity Commission. The Act is also retroactive, with an effective date of May 28, 2007.  The Act does not restore the damages awarded to Ledbetter in her case.

What Should Employers Do? Discrimination in its many forms is, of course, illegal. Each unequal paycheck will constitute a separate violation, and employees will have 180 days to file their claims once the acts are discovered.  If you are in doubt about the pay practices of your company, you should promptly consult an experienced employment attorney to address those issues.

Americans with Disabilities Act Update

On September 25, 2008, President Bush signed a bill amending the Americans with Disabilities Act (the “ADA”).  The ADA Amendment Act (“ADAAA”), as it is now known, is effective as of January 1, 2009.  The non-discrimination standards articulated in the ADAAA apply to all employers with fifteen employees or more and extends the protection of these standards to a broad array of individuals.

Substantive Amendments and Related Criteria to Establish a Disability

The ADAAA set forth two lists which illustrate the non-exhaustive examples of disabilities protected by the law.  The changes included in the ADAAA are sweeping.  While it acknowledges the recognized “Major Life Activities” of walking and breathing, the ADAAA expanded its protection to other major life activities such as reading, bending, and communicating, thereby dramatically increasing the likelihood of claims.  And, for the first time, the law acknowledges the category of “Major Bodily Functions” to which its protection extends.  This list includes functions of the immune system, normal cell growth, digestive systems, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.  In short, under the expanded definitions of the ADAAA, few, if any, ailments will not be protected.

The ADAAA explicitly rejects judicial attempts to narrowly define the type of disabilities protected by law and reaffirms its commitment to expand protection from discrimination.  Consequently, the “Mitigating Measures” defense, first articulated by the United States Supreme Court in Sutton v. United Airlines is no longer a viable defense.  Similarly, the law rejects the standard established by Toyota v. Williams which analyzed the measure of “substantial limitations” on a major life activity.  To the extent that the Williams’ standard set too high a threshold of entitlement, the ADAAA lowers that threshold to extend protection. Further, the Act provides that a disability in remission or which is episodic in nature is protected, if it would be so when active.

As a result of multiple interpretations and by state and federal courts, the Act broadens the “regarded as” definition to include protection because of actual or perceived impairment, unless that impairment was transitory or minor in nature.  Note that this protection extends to the broader category of impairment, which is substantially different from an actual disability.  Individuals covered under the “regarded as” protection of the law are not entitled to a reasonable accommodation.  They are limited to anti-discrimination damages alone.

At present, there is no interpretive guidance available despite the ADAAA’s directive to the Equal Employment Opportunity Commission (“EEOC”) to develop such guidelines.  The Act specifically requires that the EEOC develop interpretive guidelines, but it did not require a timeline in which it must to complete the task.  In December of 2008, the EEOC Commissioners who were tasked with developing these guidelines reached a stalemate, effectively resulting in no guidance for the implementation of the Act.  Employers, therefore, should adopt a conservative approach to all claims and ensure that they strictly adhere to the procedural mandates of the ADAAA

Psychological Disabilities

The ADAAA affords protections to individuals who suffer psychological disabilities which impact major life functions.  And, as with physical limitations, the ADAAA also extends the protection of the anti-discrimination law to those who possess mental impairments.  Examples of psychological disabilities which affect major life activities are major depression, bipolar disorders, schizophrenia, anxiety disorders, and post-traumatic stress syndrome.  In addition, the Act extends to those who are not only “regarded as” having disabilities, but also individuals “regarded as” having mental impairments, regardless of whether or not they affect any major life activities.

What Should Employers Do? On January 1, 2009, the ADAAA became law.  And, because there are no guidelines currently in effect from which employers could assess their obligations and potential liability, it is reasonable to assume that the number of claims should increase dramatically.  The prudent course of action in response to the dirth of guidance would be for employers to redirect their focus from determining whether or not an employee is disabled under the law.  Rather, employers should focus on compliance with the obligations imposed under the ADAAA by engaging in the interactive process, attempting to provide reasonable accommodation, and developing strategies to educate its managers and Human Resources professionals to ensure consistent compliance.