EEOC Issues Regulations for ADAAA

On March 24, 2011, the Equal Employment Opportunity Commission issued its Final Regulations to the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA").  Most significantly, the Final Regulations tend to simplify the determination of who is disabled, and and make it easier for employees to establish that they are disabled within the meaning of the Americans with Disabilities Act (the "ADA").   

While not every serious health condition that may qualify an employee for leave under the FMLA also qualifies as a disability within the meaning of the ADAAA, the ADAAA makes it easier for employees to establish that they qualify as covered under both Acts.  Often, this issue arises when an employee exhausts his or her leave under the FMLA, and then requests additional leave time as a reasonable accommodation under the ADA.  Because the ADAAA expands significantly the scope of who will be considered disabled under the ADA, employers should tread carefully when evaluating whether an employee qualifies for additional leave time.


Good Advice Regarding FMLA Information on the Internet

I recently read an article advising employers to beware where they get their FMLA information.  Apparently, there are some Internet resources that are not entirely accurate. 

Thankfully, this blog was on their list of favorite free FMLA resources.  Please also refer to the other resources listed in the article if you don't see what you are looking for here. 

New GINA Case Highlights Need To Ensure Compliance with GINA When Requesting FMLA Certifications

Recently, I was interviewed in connection with an article about a new charge of discrimination filed under the Genetic Information Nondiscrimination Act (GINA) by a woman who had a double mastectomy because she carried a gene linked to breast cancer, and subsequently was terminated from her employment.  She is alleging that her employer was aware that she carried the gene in question, and terminated her as a result.  To date, approximately 80 charges of discrimination alleging GINA violations have been filed with the EEOC, although this appears to be the first case alleging termination in violation of GINA. 

During my interview, I noted that I advise employers to keep medical and personnel records separate to comply with the Americans with Disabilities Act and to avoid the potential for conflicts, and not to request more detailed information about an employee's medical condition than is required to substantiate the need for leave.  Of course, under the FMLA, employers are generally restricted to the areas of inquiry contained in the certification of health care provider form to be completed by the employee's, or the employee's family member's, health care provider. 

Please see my prior blog post (authored by Erin Fitzgerald, Esquire) regarding whether employers run afoul of GINA when requesting FMLA certifications. 



DOL Issues Question and Answer Publication Concerning Pandemic Flu and FMLA

Recently, the Department of Labor (DOL) issued a Question and Answer publication concerning Pandemic Flu and the FMLA.  While the publication does not change the analysis concerning whether an employee is eligible for FMLA leave, it suggests that the DOL is evaluating whether the current FMLA regulations need to be amended to address a severe influenza pandemic. 

Of course, should the regulations be amended, I will update this blog immediately. 

The FMLA Military Leave Amendments in Action

You may have read about Alexis Hutchinson, who is an Army cook and single mother who is facing potential criminal charges for refusing to deploy to Afghanistan because she did not have child care for her ten-month-old son.  She claims that her superiors told her to put her son in foster care.

This is one of the scenarios that the National Defense Authorization Act of 2010 is designed to address.  Under the Fiscal Year 2010 National Defense Authorization Act, Specialist Hutchinson's immediate family members would be eligible for exigency leave of up to 12 weeks to make child care and other related arrangements for Specialist Hutchinson's deployment.  Under the recent Act, exigency leave is now available to family members of active duty service members in the Armed Forces who are deployed to a foreign country.  Previously, this exigency leave was only available to family members of National Guard members and reservists. 

Employers should be proactive about notifying their employees about the potential military leave options available to them.  At a minimum, they should ensure that they update their FMLA handbook policies and postings to include information about military leave.



Employers Need To Remember Their FMLA Obligations When Faced With Absences Due To Swine Flu

Happy Halloween!

While trick-or-treating with my children tonight, I saw several people dressed as the swine flu, replete with pig noses, bathrobes, and TAMIFLU.  Swine flu, or more accurately the H1N1 virus, has certainly captured the nation's attention.  Recently, President Obama declared the H1N1 flu outbreak a national emergency.  Despite this, swine flu vaccine is still in short supply, and the number of H1N1 flu cases is expected to rise.

Many employers have implemented H1N1 preparedness plans that require their employees to stay home if the employees or their family members have the H1N1 virus.  Employers need to ensure that they remember their obligations under the FMLA when requiring, or granting, leave time in connection with the H1N1 virus.  Earlier this year, I discussed in a post whether swine flu cases qualify for FMLA leave.  If an employee or an employee's family member with the H1N1 virus has a serious health condition within the meaning of the FMLA, and the employee otherwise qualifies for FMLA leave, covered employers need to ensure that they provide the employee with the required FMLA notices, make available up to 12 weeks of FMLA leave, reinstate the employee at the conclusion of the leave, and avoid retaliation.  In addition, employers should ensure that their  H1N1 preparedness plans provide that any leave due to swine flu runs concurrently with FMLA leave for qualifying employees. 


As Students Return to School, CDC Issues Updated Guidance for Employers on H1N1 Flu

As children and young adults return to school, it's time to prepare for flu season again. 

On August 19, 2009, the U.S. Department of Health and Human Services' Center for Disease Control and Prevention (CDC), with input from the U.S. Department of Homeland Security, issued updated guidance for businesses and employers to plan and respond to the 2009-10 flu season

In its guidance, the CDC recommends that sick employees stay at home.  Consistent with this recommendation, the CDC suggests that employers should develop flexible leave policies to allow workers to stay home to care for themselves and sick family members, or to care for children whose schools are closed due to influenza.  The CDC advises employers to expect that employees with the flu will be out of work for 3 to 5 days in most cases, and that students in schools that are dismissed will be out of school for at least 5 to 7 calendar days. 

As I discussed in a prior posting, cases of H1N1 flu may rise to the level of a serious health condition, as defined in the FMLA.  Accordingly, employers need to be prepared to be proactive about offering FMLA leave to employees who qualify. 

As the CDC recommends in its guidance, now is the perfect time for employers to review their existing leave policies to ensure that they comply in all respects with state and federal law.  Prudent employers also will develop a flexible influenza pandemic plan to respond promptly should H1N1 or other serious flu cases arise in the workplace or their community. 




The Catch-22 of Timing: Can You Still Terminate An Employee Who Has Requested FMLA Leave?

An employer client recently told me that the company was poised to terminate an employee for a serious violation of one of the company's policies, when the employee's spouse called the employer and advised that his wife was being checked into a drug rehabilitation facility.  Should the employer move forward with the termination, or wait until the employee completes rehabilitation, returns to work, and then terminate her?  

Of course, the company was concerned about the well-being of its employee, but it also knew that it would be delaying the inevitable if it were to wait to terminate the employee.  Also, it knew that, by waiting, it might later run the risk should the employee dispute her termination that the termination would appear to be fabricated and a pretext for retaliation.

In this scenario, the employer could be damned if it did, and damned if it didn't.  The FMLA does not preclude an employer from terminating an employee on FMLA leave who would have been terminated regardless of her FMLA leave status.  However, if the company terminated the employee on the heels of her request for FMLA leave, she still might be able to claim interference with her FMLA rights and/or retaliation.  If the company terminated her following her FMLA leave, she also could claim retaliation.  What should an employer do in this situation?

1.  Ensure that the reason for termination is as iron-clad as possible.   The company should confirm that the conduct in question contravenes its policies, and evaluate what it has done in the past when faced with similar violations.  In this case, the company had terminated another employee (who had not requested FMLA leave) recently for the same violation.  Evidence that other employees who did not request FMLA were treated the same is very helpful in defending against potential FMLA claims.  Of course, if other employees who engaged in similar conduct had simply received a "slap on the wrist," the company would need to reevaluate why it was moving forward with termination in this instance.

2.  Document, document, document.  Document the policy violation clearly as soon as it occurs.  If the company decides to move forward with the termination now, the company should send a termination letter to the employee detailing the reason for the termination. 

3.  Be decent.  We hear so often from laid off employees and jurors alike that they want to punish the employer in question because the termination was communicated in a nasty, impersonal way.  The scenario described above presents a difficult dilemma, because the employee is not available to talk now, but the company does not necessarily want to postpone the termination.  The company could send a termination letter, but ask in the letter that the employee let them know when the employee is available to discuss the decision, and then follow up to discuss the termination with the employee.  In addition, the company could send its assurances to the employee that it would continue to cover her under its health insurance plan, if feasible and permitted under the health plan, for the remainder of the month.  (In the scenario above, under the employer's health insurance plan the employee's coverage would not terminate until the end of the month).  Another alternative is offering the employee some severance, or payment for a period of time of premiums for health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), in exchange for the employee signing a release of any claims against the company.

Whether the timing is right requires an individualized analysis.  By following the tenets above, employers should be able to reduce the risk that they will be sued for violating the FMLA.   

(If you know someone who would benefit from this Blog, please pass it along.)

Do Swine Flu Cases Qualify for FMLA Leave?

Yesterday, the World Health Organization raised the worldwide pandemic alert level to Phase 4 in response to the growing number of international cases of swine flu. The CDC is reporting that there are 64 laboratory-confirmed cases of the swine flu in the United States.

With the number of suspected swine flu cases in the United States continuing to rise, there will be employees who will be requesting FMLA leave because they have or are suspected of having swine flu, or need to care for a family member with an actual or suspected case of swine flu.   Does swine flu qualify as a serious health condition under the FMLA?

The swine flu may be sufficiently serious to constitute a serious health condition.  Under the Revised Regulations, a serious health condition must involve: (1) inpatient care in a hospital or medical care facility, or (2) continuing treatment by a health care provider.  To qualify as "continuing treatment", the employee must have a period of incapacity of more than three consecutive, full calendar days.  In addition, the employee must receive subsequent treatment, or have a period of incapacity relating to the same condition, that also involves treatment two or more times within thirty days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider or under the orders or referral or a health care provider, or treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment.  A "regimen of continuing treatment" includes a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition. 

While the run-of-the-mill flu often does not meet the definition of a serious health condition (see 29 C.F.R. Section 825.113(d)), courts have held that the flu may qualify for FMLA leave if the condition otherwise meets the definition of a serious health condition.  See, e.g., Miller v. AT & T Corporation, 250 F.3d 820 (4th Cir. 2001).  Given the current press concerning the swine flu, one could envision a scenario in which an employee is hospitalized as a result of the swine flu, and/or is absent from work for more than three consecutive days, and treating with a physician while taking anti-viral medications. 

As always, employers are encouraged to require the employee requesting FMLA leave to submit a completed Certification of Health Care Provider for Employee's Serious Health Condition, or Certification of Health Care Provider for Family Member's Serious Health Condition, as appropriate.