1. Josh Jones, JD University of Tennessee
ADA / FMLA Update 2012
Josh Jones, JD
University of Tennessee

2. Americans with Disabilities Act
ADA

3. Background
Passed in 1990, the ADA prohibits discrimination in all aspects of employment, public services, transportation, etc.
Applies to public and private entities, state and local government agencies, and organizations offering public services, transportation and utilities

4. Background
“Mandate for the elimination of discrimination against individuals with disabilities”
Disability is a physical or mental impairment that substantially limits one or more major life activities
Employers must provide with reasonable accommodation unless such would lead to an undue hardship on employer

5. Early Judicial Interpretation
Focused on who is covered as an individual with a disability
Interpreted very narrowly by US Supreme Court in:
Sutton v. United Air Lines – Impairments must be considered in their mitigated state
Toyota v. Williams – 1) “Substantially limited” means prevents or severely restricts; 2) “Major life activity” means of central importance to daily life

6. ADA Amendments Act of 2008 ADAAA signed into law September 25, 2008
Effective January 1, 2009
Final rules effective May 24, 2011
Significantly expands scope of covered persons
Requires definition of disability to “be construed in favor of broad coverage”
Overturns case law and regulation that limited definition of disability

7. ADAAA Stated Purpose
To carry out the ADA’s objectives of providing a clear and comprehensive national mandate for the elimination of discrimination and clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA.

8. ADAAA Changes the Question
Pre ADAAA:
Is the employee disabled?
Post ADAAA:
Can employer provide reasonable accommodation?

9. ADAAA Key Themes Definition of disability remains constant
Interpretation disability and other key terms changed:
Major life activity
Episodic condition
Mitigating measure
Substantially limiting
Regarded as
Mandating new EEOC Regulations

10. Who Has a Disability?
An “individual with a disability” is an individual who:
has a physical or mental impairment that substantially limits a “major life activity,” or;
has a record of such an impairment, or;
is regarded as having such impairment

11. Major Life Activity
Under ADAAA major life activity need not be “of central importance to daily life”
Overturns Supreme Court ruling
Greatly expands types of conditions considered disabilities

12. Major Life Activities expanded
Caring for oneself
Standing
Communicating
Lifting
Working
Performing manual tasks
Bending
Operation of a major bodily function
Speaking
Seeing
Breathing
Hearing
Learning
Eating
Reading
Sleeping
Concentrating
Walking
Thinking

13. Operation of a Major Bodily Function
This inclusion greatly expands disability
Includes: Immune system, normal cell growth, digestive system, bowel and bladder function, neurological, respiratory, circulatory, endocrine and reproductive functions
Think about how broad this is.
Is anyone here not covered by this?

14. Pre-ADAAA: Protected status required:
“Regarded As”
Pre-ADAAA: Protected status required:
Prove the action against them was due to a perception of impairment; and
The employer viewed the impairment as substantially limiting a major life activity
Regarded as prong is to keep employers from making employment decisions based on myths, fears, stereotypes.
Employee no longer must show that employer believed the impairment substantially limited ability perform a major life activity.

15. “Regarded As” Post ADAAA:
No showing that employer viewed impairment as substantially limiting a major activity required
Employer has “regarded” employee as disabled if it takes employment action against individual because of an actual or perceived impairment – even if not substantially limiting
Does not include “minor and transitory” condition (less than six months)

16. “Regarded As”
No obligation to make reasonable accommodation under “regarded as” prong
Where reasonable accommodation not an issue court need not consider the “actual disability” or “record of disability” prongs
Bar for proving discrimination lowered significantly
*”minor” not defined

17. Mitigating measures under ADAAA
Employers may no longer consider mitigating measures in determining whether a disability exists. E.g. hearing aid, insulin, prosthetic, etc.
Overturns years of Supreme Court case law
Eyeglasses may still be used as mitigating measure except where uncorrected vision is job-related and consistent with business necessity

18. Common Mitigating Measures
Medication
Use of assistive technology
Medical supplies, equipment or appliances
Reasonable accommodations
Low vision devices (excluding glasses and contact lenses)
Learned behavior or adaptive neurological modifications
Prosthetics
Psychotherapy, behavioral therapy or physical therapy
Hearing aides and cochlear implants
Mobility devices
Oxygen therapy equipment and supplies

19. Exceptions
Mitigating measures can be taken into account when determining:
Whether employee is entitled to a reasonable accommodation; and
Whether employee poses a direct threat to self or others

20. Episodic Condition
Episodic condition constitutes a disability even when inactive or dormant “if it would limit a major activity when active”

21. Episodic Conditions Epilepsy Bipolar disorder Schizophrenia
Post-traumatic stress disorder
Cancer
Hypertension
Diabetes
Major depressive order

22. Per Se Disabilities Blindness Multiple sclerosis Deafness
Muscular dystrophy
Intellectual disability
Major depressive
Missing limbs
disorder
Mobility impairments
Bipolar disorder
requiring wheelchairs
Post-traumatic stress
Autism
Cancer
Obsessive-compulsive
Cerebral palsy
Diabetes
Schizophrenia
Epilepsy
Severe obesity*
HIV infection

23. EEOC v. Resources for Human Dev.
Claimant fired from job as daycare manager
Claimant alleged that employer regarded her as disabled because of her obesity (400+ lbs.)
Prior to ADAAA an underlying physiological issue had to be present for obesity to qualify as a disability under ADA
EEOC argued that if obesity limits a major life activity then it qualifies regardless of underlying physiological issue

24. EEOC v. Resources for Human Dev.
EEOC argued “"[t]he cause of a condition has no effect on whether that condition is an impairment."
Court agreed that requiring only obese persons to prove an underlying cause "would epitomize the very prejudices and stereotypes which the ADA was passed to address."
That the impairment is preventable is likewise not relevant
This trend will surely lead to an increase in disability claims, especially “regarded as” claims related to obesity. And they will be very difficult to defend.

25. BNSF Railway Co. v. Feit
Montana Supreme Court ruled severe obesity can be a qualifying disability without an underlying physiological cause
Claim filed under Montana Human Rights Act
Court utilized EEOC ADA Compliance Manual
Court relied on EEOC v. Resources for Human Dev. and other post-ADAAA federal court rulings
Severe obesity here is 100% over the norm

26. Reasonable Accommodation
Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities

27. Reasonable Accommodation
Making existing facilities accessible
Job restructuring
Acquiring or modifying equipment
Modified work schedules
Modifying workplace policies
Leave (not indefinite)

28. Reassignment Accommodation of last resort
Reassignment to a vacant position required when employee can no longer perform essential functions of current position and transfer would not pose undue hardship on employer
Employee must possess requisite skills and be able to perform essential functions
Employee does not have to be best qualified for new position

29. Reassignment
Vacant at the time of reasonable accommodation request or when employer knows position will become vacant in reasonable amount of time
Employer not required to transfer another employee or create a new position

30. Equal Employment Opportunity Commission v. United Airlines Inc.
7th U.S. Circuit Court of Appeals, No
Plaintiff was airline mechanic with brain tumor on involuntary leave.
“(We) hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer”

31. Reasonable Accommodation
Employer need not eliminate or lower essential functions of the job, productivity standards or quality standards
Employer may have to eliminate functions if they cannot show function is essential

32. Telecommuting as reasonable accommodation
Courts have held that telecommuting is a reasonable accommodation where such is not an undue burden
If employer allows other similarly-situated employees to telecommute proving undue burden will be difficult

33. Limitations on duty to accommodate
Undue hardship – where accommodation would cause significant difficulty or expense to employer
Direct threat – where accommodation poses a direct threat to the health and/or safety of other employees

34. Requests for Accommodation
Generally, employee must request accommodation
Employer may ask for written notice but cannot ignore oral request
No specific language required
Third party may make request

35. Regular Attendance as essential function
Courts have held that regular attendance can be an essential function of a job
Look at position and duties to determine how much absenteeism can be accommodated
If accommodating absences requires the hiring of a new position, it is not reasonable
Simply adding regular attendance as an essential job function on a PDQ/job description does not relieve employer of duty to accomodate

36. Employer-Initiated Requests
If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer

37. Family Medical Leave Act
FMLA

38. Background Family Medical Leave Act (FMLA) passed in 1993
National Defense Authorization Act effective 2008
FMLA federal regulations effective 2009
NDAA expanded in 2010 protections for military personnel and their families
DOL proposed rules still pending as of September 2012

39. Background Employee Eligibility
12 months worked during preceding 7 years
1,250 hours worked in the 12 months immediately preceding date leave is to begin
Duration of leave
12 weeks of medical and/or qualifying exigency FMLA leave in fiscal

40. Serious Health Condition
Section 101(11) of FMLA defines a Serious Health Condition as “an illness, injury, impairment, or physical or mental condition that involves: (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.

41. Continuing Health Care Treatment
Employee or eligible dependent may have serious health condition if:
Incapacitated for more than 3 consecutive days; and
Undergoes continuing treatment from a health care provider 2 or more times within a 30-day period
In order for continuing treatment to exist, the employee must have a visit with a health care provider within 7 days of the onset of incapacity and have a 2nd visit within 30 days of the incapacity
2009 final rules

42. Chronic Serious Health Condition
To qualify as a chronic serious health condition, the employee must make at least two visits to a health care provider per year, but employers cannot require employees to make more than two visits per year to demonstrate a chronic condition.

43. Consolidated Notice Requirements
Employer must provide:
General FMLA notice (poster, handbook, etc.)
Eligibility notice
Notice of rights and responsibilities
Timeframe for providing eligibility notice increased from 2 to 5 days from date of employee request
New notice only required if employee eligibility status changes during same leave year
From 2009 Regs.

44. Eligibility Notice
Eligibility notice must be provided within 5 business days of employer determination of whether employee qualifies for FMLA
Employer must specify amount of leave at time of eligibility notice if such is known. If not known at the time, such must provide within 30 days
Eligibility notice must state if a fitness-for-duty certification is required

45. Rights & Responsibilities Notice
Employers must provide a written rights and responsibilities notice each time an eligibility notice is required and any time the information changes thereafter
E.g. – Change in expectations, obligations and/or consequences
Can be mailed with other notices such as medical certification form

46. Medical Certification
Employer representative contacting health care provider should be HR professional or other management official
CANNOT be employee’s direct supervisor
Only request information required on certification form
Employer must allow employee 15 days to obtain medical certification
If certification is incomplete employer should respond in writing and provide employee 7 days to remedy
An employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. 

47. Medical Certification
Employer may require second medical certification (at employer’s expense)
Employer may choose 2nd provider
If certifications conflict, 3rd certification, from jointly-approved provider, is binding (at employer’s expense)
DOL Forms WH-380-E (employee) & WH-380-F (employee‘s family member)

49. Employee Notice Requirement
Employee must comply with employer leave policy for reporting unless circumstances prevent such
Employers may require employee to call a designated number or direct FMLA requests to a specific person
Once FMLA granted, employee must specifically reference qualifying reason or mention FMLA
Prior to 2010 employer could not deny or delay request for failure to follow protocol
Calling in sick not sufficient to trigger FMLA

50. Employee Notice Requirements
Foreseeable leave – Employee must provide employer 30 days notice if reason for FMLA leave is foreseeable. When employee becomes aware of need for FMLA leave less than 30 days prior, employee must provide notice as soon as practicable
Unforeseeable leave – Employee must provide notice as soon as practicable and within the time prescribed by employer’s usual and customary notice requirements
As soon as practicable means day employee finds out or next day

51. Substitution of Paid Leave
FMLA makes no distinction between sick, vacation, personal leave. All paid leave treated same regardless of nomenclature or designation
Employees requesting paid leave concurrent with FMLA leave must follow employer policies and procedures applying to the paid leave
Employers can require employee to take available paid leave concurrently

52. Light Duty
If employee accepts light duty work, employer cannot count time spent in light duty against FMLA entitlement
Does not matter whether light duty is presented as optional or mandatory
Employee’s right to job restoration held in abeyance during light duty or until end of 12 month period
Change from 2009 Regs.
Overturns federal case law

53. Return To Duty
Employers may require fitness-for-duty certifications to specifically address ability to perform essential functions of the job
Employer may require fitness-for-duty certification prior to return to work from intermittent leave where safety concern exists
Fitness-for-duty certification can be required every 30 days

54. Military Leave NDAA provisions
Qualifying Exigency Leave – Provides for 12 weeks of leave in a single 12 month period
Caregiver leave – Provides for 26 weeks of leave in a single 12 month period
DOL military FMLA certification forms available online

55. Qualifying Exigency Leave
12 weeks of leave for the following that arise out of covered member’s active duty status, notification of an impending call to active duty:
short notice deployment (less than 7 days);
military events and related activities (ceremonies);
childcare and school activities;
financial and legal arrangements;
counseling;
rest and recuperation (up to five days);
post-deployment activities; and
any additional activities not listed but agreed to by the employer and the employee.

56. Caregiver Leave
26 weeks of FMLA leave in a 12-month period to care for a covered service member recovering from injury or illness incurred on active duty
Cannot use calendar year recording. Leave period begins to toll when employee begins using leave
Can be used to care for more than one service member but capped at 26 weeks

57. Care for Adult Children
Read in conjunction with ADA
A parent can take FMLA leave to care for adult child if:
the adult child is incapable of self care, or
has a disability as defined by ADA
Incapable means requiring direct assistance with 3 or more daily living activities (cooking, eating, grooming, etc.)

58. FMLA & GINA Genetic Information Nondiscrimination Act
restricts employers and insurers in obtaining and using genetic information,
requires confidentiality where genetic information is acquired
prohibits employment discrimination and harassment based on restricted genetic information

59. FMLA Issues related to GINA
Genetic information could be obtained in FMLA administration
EEOC advises that when making FMLA information request to specifically warn employee and health care provider not to provide genetic information
EEOC provides safe harbor language

60. GINA Safe Harbor Language
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services

61. GINA Exceptions
Inadvertent Acquisitions – e.g. overheard conversation. Not inadvertent where supervisor actively listens to third-party conversation or follows up with probing questions
Publicly available sources – e.g. newspapers. Not where employer searching with intent of finding genetic information
Information obtained through voluntary wellness programs
Employer requests for medical information of employee’s family member during FMLA request
No violation where information acquired under an exception
Inadvertent acquisition applies where info is acquired through social media

62. 2012 Proposed DOL Amendments
Expands military caregiver leave to cover family members of veterans with serious injury or illness (now covers only family of currently serving service members)
Expands the definition of “serious injury or illness” for military caregiver leave to include an injury or illness that existed prior to service and was aggravated in the line of duty
Adding private health care providers not affiliated with DOD or VA to list of authorized health care providers that may provide certification for caregiver leave

63. 2012 Proposed DOL Amendments
Extending qualifying exigency leave to qualifying family members of regular armed forces service members called to active duty (currently only family members of guard, reservists, and retired members)
Requires service members to be called to duty in a foreign country before becoming entitled to qualified exigency leave
Increases amount of rest and recuperation exigency leave from 5 days to amount of time provided to the military member but not to exceed 15 days

64. Additional Resources