1. The Family And Medical Leave Act Of 1993 (FMLA) and The Americans With Disabilities Act Of 1990 (ADA): Implications for Human Resource Management By Angela Hall, J.D., Ph.D.

2. Learning Objectives To learn key concepts of the Family and Medical Leave Act of 1993 (FMLA) and the Americans with Disabilities Act of 1990 (ADA). The FMLA and the ADA are important federal statutes that affect human resource management.

3. Why are the FMLA and ADA important to HR professionals? FMLA and ADA affect the way organizations do business. FMLA and ADA impose requirements on employers that are often handled by HR professionals. FMLA and ADA violations can expose organizations to legal liability.

4. Balancing Personal Issues with Work When Congress passed the FMLA, it recognized that workers do not exist in a vacuum. Personal issues can affect work.

5. Family and Medical Leave Act of 1993 (FMLA) Key Definitions (29 U.S.C. § 2611) Employer: Any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Employee: The term "eligible employee" means an employee who has been employed  For at least 12 months by the employer, and  For at least 1,250 hours of service with such employer during the previous 12-month period.

6. FMLA Leave Requirements Eligible employees are entitled to 12 weeks of leave during any 12-month period for one or more of the following: (A) The birth of a child of the employee and to care for the child. (B) The placement of a child with the employee for adoption or foster care. (C) To care for the spouse, child or parent of the employee who has a serious health condition. (D) Because of a serious health condition that makes the employee unable to perform the functions of the their job.

7. FMLA and Intermittent Leave Employees do not have to take the leave all at one time. Intermittent leave can be taken if it is medically necessary for the employee and the employer agrees to it. If the employer grants intermittent leave, the employer can temporarily transfer the employee to an available alternative position for which he/she is qualified, that has equivalent pay and benefits and which can better accommodate periods of leave than the employee’s regular job.

8. FMLA and Employee Rights Health insurance continuation. Guarantee that the employee’s job will be restored with the same pay and benefits (exception for those who are paid the top 10% salary). Protected against discrimination or retaliation for taking the leave.

9. FMLA and Employee Responsibilities Advise the employer as soon as possible of the need for FMLA leave. If required by the employer, provide certification from a medical professional attesting to the personal illness or the illness of a family member. If required by the employer, provide recertification of the illness on an ongoing, but reasonable, basis.

10. FMLA and Employer Responsibilities Employers must notify employees of their rights under the FMLA.* *As promulgated in the Code of Federal Regulations (CFR)

11. FMLA and Employer Responsibilities Employers must notify employees about the FMLA by: 1. Posting an FMLA poster in the workplace. 2. Advising employees of their rights under the FMLA in an employee handbook (if applicable). 3. Notifying employees of their eligibility status. 4. Providing written notice of when the employer receives an employee’s FMLA leave request.

12. FMLA Summary FMLA requires employers to offer up to 12 weeks of leave for an employee’s own illness, the illness of a family member or the birth or adoption of a child. The employer is not required to pay the employee on FMLA leave, but the employer must continue health insurance coverage. Employers must notify employees of their rights under the FMLA.

13. The Americans With Disabilities Act Of 1990 (ADA) The ADA was enacted, in large part, because of studies that showed that Americans with disabilities were not fully integrated into society. The ADA covers issues on a wide range of topics, including public transportation, education and employment issues facing persons with disabilities.

14. The Relationship Between the FMLA and the ADA The FMLA and the ADA are interrelated statutes. For example, an employee might take FMLA leave and return to work and require an ADA accommodation.

15. The ADA’s Purpose (1) To provide a clear and comprehensive mandate to eliminate discrimination against individuals with disabilities. (2) To provide clear, strong, consistent and enforceable standards to address discrimination against individuals with disabilities. (3) To ensure that the federal government plays a central role to enforce the law on behalf of individuals with disabilities. (4) To invoke congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day­to­day by people with disabilities.

16. Who is covered under the ADA? Under the ADA, all covered entities (employers) must make reasonable accommodations for qualified individuals with a disability unless it would create an undue hardship on the employer.

17. ADA Definitions A covered entity is an employer, employment agency, labor organization or joint labor­management committee. An employer is a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

18. ADA Definitions A qualified individual with a disability is a person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job that the person has or wants. Under the law, a person has a disability if he or she has a physical or mental impairment that substantially limits a major life activity.

19. ADA Definitions Reasonable accommodations may include: (a) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (b) Job restructuring; part­time or modified work schedules; reassignment to vacant positions; acquisition or modification of equipment or devices; appropriate adjustment or modifications of examinations, training materials or policies; the use of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.

20. ADA Definitions Undue hardship is an action requiring significant difficulty or expense.

21. ADA Provisions It is unlawful to discriminate in employment practices such as recruitment, pay, hiring, firing, promotion, job assignments, training, leave, lay-off, benefits and all other employment-related activities.

22. ADA Provisions Employers cannot require medical exams from job applicants or ask job applicants if they have a disability. Tests to diagnose mental illnesses are considered medical tests. Employers can ask if job applicants can perform job-related functions.

23. ADA Summary The ADA requires employers to make reasonable accommodations for disabled employees unless the accommodations would create an undue hardship on the employer.

24. FMLA and ADA: Legal Implications and Trends FMLA > Nevada Dept. of HR v. Hibbs, 538 U.S. 721 (2003) The 11 th Amendment does not prevent state employees from suing for money damages for violations of the FMLA. > Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002) The court invalidated a U.S. Dept. of Labor regulation which said that any leave an employer fails to designate as FMLA leave should not count against an employee’s FMLA entitlement. ADA – What is a “disability”? > Sutton v. United States, 527 U.S. 471 (1999) The court ruled that myopia (near-sightedness) is not a disability under the ADA. Implication: Only serious illnesses are considered disabilities under the ADA. Courts usually have construed “disability” very narrowly. > Toyota v. Williams, 534 U.S. 184 (2002) To be considered a disability, an injury or illness must be serious and long-term.

25. FMLA and ADA Independent Assignments  Write a one-page essay on whether you think intermittent leave should be allowed. In this paper, address the burdens that intermittent leave places on employers.  Read materials for case simulation.