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This is my presentation on recent update on changes to the ADA and FMLA
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ADA and FMLA Update 2009ADA and FMLA Update 2009
Presented by:William W. Bowser
Young Conaway Stargatt & Taylor, LLP
Presented by:William W. Bowser
Young Conaway Stargatt & Taylor, LLP
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
AgendaAgenda
ADA Amendments and Regulations FMLA Regulations Defense Authorization Act for 2010
ADA Amendments and Regulations FMLA Regulations Defense Authorization Act for 2010
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA TimelineADA Timeline
History of the ADA 1990 -- ADA enacted. Sept. 25, 2008 -- ADA Amendments Act
(“ADAA”) signed into law. Sept. 23, 2009 – EEOC issues proposed
new regulations. November 23, 2009 – Deadline for public
comments.
History of the ADA 1990 -- ADA enacted. Sept. 25, 2008 -- ADA Amendments Act
(“ADAA”) signed into law. Sept. 23, 2009 – EEOC issues proposed
new regulations. November 23, 2009 – Deadline for public
comments.
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA NOT change? Definition of Disability
Physical or mental impairment “Substantially limits” One or more “major life activities.”
What does the ADAA NOT change? Definition of Disability
Physical or mental impairment “Substantially limits” One or more “major life activities.”
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA change? Definition of disability “shall be
construed in favor of broad coverage”
What does the ADAA change? Definition of disability “shall be
construed in favor of broad coverage”
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA change? Creates non-exhaustive list of Major
Life Activities Caring for oneself; bending; performing manual
tasks; speaking; seeing; breathing; hearing; learning; eating; reading; sleeping; concentrating; walking; thinking; standing; lifting; communicating; and working
Proposed regulations add reaching, sitting, and interacting with others
What does the ADAA change? Creates non-exhaustive list of Major
Life Activities Caring for oneself; bending; performing manual
tasks; speaking; seeing; breathing; hearing; learning; eating; reading; sleeping; concentrating; walking; thinking; standing; lifting; communicating; and working
Proposed regulations add reaching, sitting, and interacting with others
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA change? Congress also created a subset of major life
activities called "major bodily functions" These functions include: functions of the
immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions
Note that any ailment that would be a disability if it were to manifest is still considered a disability if it is in remission or is currently non-episodic
What does the ADAA change? Congress also created a subset of major life
activities called "major bodily functions" These functions include: functions of the
immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions
Note that any ailment that would be a disability if it were to manifest is still considered a disability if it is in remission or is currently non-episodic
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA change? Lowers the standard for what when
person is “substantially limited” in a major life activity Need not “severely restrict” or “prevent”
individual from doing major life activity Six Rules of Construction
What does the ADAA change? Lowers the standard for what when
person is “substantially limited” in a major life activity Need not “severely restrict” or “prevent”
individual from doing major life activity Six Rules of Construction
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
Six Rules of Construction No. 1 -- Focus should be on whether
discrimination occurred, not on whether someone meets the definition of “disability”
No. 2 -- Need not demonstrate a limitation on ability to perform “activities of central importance to daily life”
No. 3 – Impairment need only limit one MLA
Six Rules of Construction No. 1 -- Focus should be on whether
discrimination occurred, not on whether someone meets the definition of “disability”
No. 2 -- Need not demonstrate a limitation on ability to perform “activities of central importance to daily life”
No. 3 – Impairment need only limit one MLA
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
Six Rules of Construction No. 4 – Limitation is compared using
“common-sense standard, without scientific or medical evidence”
No. 5 – An impairment that last less than six months can substantially limit a MLA
No. 6 – Focus on how MLA is substantially limited, not on what an individual can do
Six Rules of Construction No. 4 – Limitation is compared using
“common-sense standard, without scientific or medical evidence”
No. 5 – An impairment that last less than six months can substantially limit a MLA
No. 6 – Focus on how MLA is substantially limited, not on what an individual can do
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA change? Mitigating measures are not to be
considered when determining whether someone is disabled Medication, prosthetics, hearing aids,
surgical interventions, etc. Exception: ordinary glasses or contact
lenses intended to return vision to 20/20 Overturns Sutton v. United Air Lines, Inc.
(1999)
What does the ADAA change? Mitigating measures are not to be
considered when determining whether someone is disabled Medication, prosthetics, hearing aids,
surgical interventions, etc. Exception: ordinary glasses or contact
lenses intended to return vision to 20/20 Overturns Sutton v. United Air Lines, Inc.
(1999)
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA change? Impairments that are episodic or in
remission are analyzed as if the impairment is “active”
Proposed regulations refer to cancer, epilepsy, hypertension, MS, asthma, cancer, depression, bipolar disorder, post traumatic stress disorder
What does the ADAA change? Impairments that are episodic or in
remission are analyzed as if the impairment is “active”
Proposed regulations refer to cancer, epilepsy, hypertension, MS, asthma, cancer, depression, bipolar disorder, post traumatic stress disorder
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA Change? Proposed regulations contain categories of
impairments Certain impairments “will consistently meet the
definition of disability” Blindness, deafness, intellectual disabilities,
missing limbs, mobility impairments that require wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, MS, MD, major depression, bipolar disorder, post-traumatic stress disorder, schizophrenia
Abandons the “case by case” method
What does the ADAA Change? Proposed regulations contain categories of
impairments Certain impairments “will consistently meet the
definition of disability” Blindness, deafness, intellectual disabilities,
missing limbs, mobility impairments that require wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, MS, MD, major depression, bipolar disorder, post-traumatic stress disorder, schizophrenia
Abandons the “case by case” method
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA Change? Proposed regulations contain categories of
impairments Certain impairments that “may be disabling for
some individuals but not others” Asthma, high blood pressure, coronary artery
disease, learning disabilities, back or leg impairment, carpal tunnel syndrome, panic or anxiety disorder, depression, hyperthyroidism
Academic achievement is not relevant Success in overcoming impairment is not
relevant
What does the ADAA Change? Proposed regulations contain categories of
impairments Certain impairments that “may be disabling for
some individuals but not others” Asthma, high blood pressure, coronary artery
disease, learning disabilities, back or leg impairment, carpal tunnel syndrome, panic or anxiety disorder, depression, hyperthyroidism
Academic achievement is not relevant Success in overcoming impairment is not
relevant
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the ADAA Change? Proposed regulations lower standard for
showing impairment substantially limits the MLA of working Need only show impairment substantially limits
ability to perform, or meet the qualifications for the “type of work” at issue
Heavy lifting, extended standing, walking long distances
Fact that individual got work elsewhere is not relevant
Statistical or expert testimony not necessary
What does the ADAA Change? Proposed regulations lower standard for
showing impairment substantially limits the MLA of working Need only show impairment substantially limits
ability to perform, or meet the qualifications for the “type of work” at issue
Heavy lifting, extended standing, walking long distances
Fact that individual got work elsewhere is not relevant
Statistical or expert testimony not necessary
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
ADA Amendments Act of 2008ADA Amendments Act of 2008
What does the AAA change? Employee can state “regarded as” claim under
the ADA if he can show discrimination based on an actual or perceived impairment “whether or not the impairment limits or is perceived to limit a major life activity.
Actions based on impairment symptoms or mitigating measure are evidence
No reasonable accommodation required for “regarded as” individuals
No transitory impairment (less than six months) can form basis of “regarded as” claim
What does the AAA change? Employee can state “regarded as” claim under
the ADA if he can show discrimination based on an actual or perceived impairment “whether or not the impairment limits or is perceived to limit a major life activity.
Actions based on impairment symptoms or mitigating measure are evidence
No reasonable accommodation required for “regarded as” individuals
No transitory impairment (less than six months) can form basis of “regarded as” claim
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
FMLA Military Leave and Regulations
FMLA Military Leave and Regulations
FMLA Expanded on January 28, 2008 to add military family leave provisions
DOL issued new regulations on November 17, 2008
FMLA Expanded on January 28, 2008 to add military family leave provisions
DOL issued new regulations on November 17, 2008
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
FMLA Military LeaveFMLA Military Leave
Created by National Defense Authorization Act (NDAA)
Signed into law on January 28, 2008 Expanded again on October 28, 2009
Created by National Defense Authorization Act (NDAA)
Signed into law on January 28, 2008 Expanded again on October 28, 2009
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
FMLA Military LeaveFMLA Military Leave
Two brand new types of FMLA leave created “Qualifying Exigency” Leave “Military Caregiver” Leave
Two brand new types of FMLA leave created “Qualifying Exigency” Leave “Military Caregiver” Leave
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Military Caregiver LeaveMilitary Caregiver Leave
Up to 26 weeks of leave in a “single 12-month period” to care for an ill or injured servicemember
Up to 26 weeks of leave in a “single 12-month period” to care for an ill or injured servicemember
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Military Caregiver LeaveMilitary Caregiver Leave
Can be taken by son, daughter, spouse, or “next of kin” of covered servicemember
“Next of kin” is new to FMLA Statute says “nearest” blood relative What happens when nearest can’t or won’t
provide care? Can more than kin provide care? Can service member designate kin?
Can be taken by son, daughter, spouse, or “next of kin” of covered servicemember
“Next of kin” is new to FMLA Statute says “nearest” blood relative What happens when nearest can’t or won’t
provide care? Can more than kin provide care? Can service member designate kin?
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Military Caregiver LeaveMilitary Caregiver Leave
Care must be for a “covered servicemember” -- a member of the U.S. Armed Forces, including a member of the National Guard or Reserves undergoing: Medical treatment Recuperation Therapy Is otherwise in outpatient status, or Is otherwise on the temporary disability
retired list due to the injury or illness
Care must be for a “covered servicemember” -- a member of the U.S. Armed Forces, including a member of the National Guard or Reserves undergoing: Medical treatment Recuperation Therapy Is otherwise in outpatient status, or Is otherwise on the temporary disability
retired list due to the injury or illness
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Military Caregiver LeaveMilitary Caregiver Leave
Defense Authorization Act for 2010 expands military caregiver leave to care for veterans if: Veteran was a member of armed forces
within five years of treatment or recuperation
Defense Authorization Act for 2010 expands military caregiver leave to care for veterans if: Veteran was a member of armed forces
within five years of treatment or recuperation
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Military Caregiver LeaveMilitary Caregiver Leave
Service member must be recovering from a serious illness or injury sustained in the line of duty on active duty or one which was aggravated by service in the line of duty
Service member must be recovering from a serious illness or injury sustained in the line of duty on active duty or one which was aggravated by service in the line of duty
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Military Caregiver LeaveMilitary Caregiver Leave
The 26 week entitlement includes other FMLA time
If FMLA time is used, it is deducted from the 26 weeks
Can be taken intermittently
The 26 week entitlement includes other FMLA time
If FMLA time is used, it is deducted from the 26 weeks
Can be taken intermittently
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Military Caregiver LeaveMilitary Caregiver Leave
Leave entitlement is on a per-covered-servicemember, per injury basis
Can take no more than 26 weeks in a single 12-month period
Can take more than one period of 26 weeks of leave
Leave entitlement is on a per-covered-servicemember, per injury basis
Can take no more than 26 weeks in a single 12-month period
Can take more than one period of 26 weeks of leave
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Qualifying Exigency LeaveQualifying Exigency Leave
Up to 12 weeks of leave when family member is called to duty
Note: this is for the family member, not the servicemember
Up to 12 weeks of leave when family member is called to duty
Note: this is for the family member, not the servicemember
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Qualifying Exigency LeaveQualifying Exigency Leave
Can be taken by spouse, parent, son or daughter of covered servicemember
Note: no “next of kin”
Can be taken by spouse, parent, son or daughter of covered servicemember
Note: no “next of kin”
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Qualifying Exigency LeaveQualifying Exigency Leave
Covered service members include: Reserves, National Guard, and active members of the Armed Forces
Covered service members include: Reserves, National Guard, and active members of the Armed Forces
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Qualifying Exigency LeaveQualifying Exigency Leave
Call to active duty need not be in support of a “contingency operation”
Include instances when servicemember is deployed to a foreign country
Call to active duty need not be in support of a “contingency operation”
Include instances when servicemember is deployed to a foreign country
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Qualifying Exigency LeaveQualifying Exigency Leave
Examples of “qualifying exigency” Short notice deployment Military events and related activities Childcare and school activities Financial and legal agreements Rest and recuperation Additional activities agreed to by employer
Examples of “qualifying exigency” Short notice deployment Military events and related activities Childcare and school activities Financial and legal agreements Rest and recuperation Additional activities agreed to by employer
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
FMLA RegulationsFMLA Regulations
Coverage Issues Employee Leave Entitlements Employer Notice Obligations Employee Notice Obligations Medical Certification and Fitness for
Duty
Coverage Issues Employee Leave Entitlements Employer Notice Obligations Employee Notice Obligations Medical Certification and Fitness for
Duty
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Continuing TreatmentContinuing Treatment
Old definition: More than three days’ of incapacity for the
same condition plus: Two or more treatments by a health care
provider; or Two or more treatments by a provider of health
care services (physical therapist); or One treatment by a health care provider which
results in a regimen of continuing treatment under the supervision of the health care provider
Old definition: More than three days’ of incapacity for the
same condition plus: Two or more treatments by a health care
provider; or Two or more treatments by a provider of health
care services (physical therapist); or One treatment by a health care provider which
results in a regimen of continuing treatment under the supervision of the health care provider
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Continuing TreatmentContinuing Treatment
New “continuing treatment” definition is the same, except: Two or more treatments by a health
care provider within the first 30 days of the beginning of the period of incapacity
New “continuing treatment” definition is the same, except: Two or more treatments by a health
care provider within the first 30 days of the beginning of the period of incapacity
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Chronic ConditionsChronic Conditions
Old rule says that “chronic serious health conditions,” such as asthma, diabetes, epilepsy, etc., are conditions that require “periodic visits” to a health care provider for treatment
New rule says that “periodic visits” means two or more visits a year to a health care provider for treatment
Old rule says that “chronic serious health conditions,” such as asthma, diabetes, epilepsy, etc., are conditions that require “periodic visits” to a health care provider for treatment
New rule says that “periodic visits” means two or more visits a year to a health care provider for treatment
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
BonusesBonuses
Old rule says employees who take FMLA leave are entitled to “equivalent benefits” including bonuses for perfect attendance, safety and job performance
New rule says that employer may disqualify employee for a bonus where the employee’s FMLA leave has prevented achievement of the requisite goal, unless similarly situated employees who were out on non-FMLA-related leaves are not disqualified
Old rule says employees who take FMLA leave are entitled to “equivalent benefits” including bonuses for perfect attendance, safety and job performance
New rule says that employer may disqualify employee for a bonus where the employee’s FMLA leave has prevented achievement of the requisite goal, unless similarly situated employees who were out on non-FMLA-related leaves are not disqualified
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Light DutyLight Duty
Old rule says employees on light duty are using their entitlement to take FMLA leave during light duty period
New rule says that light duty does not count toward FMLA leave
Employees are still not required to accept light duty in lieu of FMLA leave
Old rule says employees on light duty are using their entitlement to take FMLA leave during light duty period
New rule says that light duty does not count toward FMLA leave
Employees are still not required to accept light duty in lieu of FMLA leave
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Waiver of RightsWaiver of Rights
Old rule says employees may not waive their rights under the FMLA
New rule says that employees may waive their rights under the FMLA when settling a claim that the employer violated the FMLA in the past
Court or DOL approval will not be required for settlement of claims (DOL says it never was required)
Old rule says employees may not waive their rights under the FMLA
New rule says that employees may waive their rights under the FMLA when settling a claim that the employer violated the FMLA in the past
Court or DOL approval will not be required for settlement of claims (DOL says it never was required)
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Employer Notice RequirementsEmployer Notice Requirements
Eligibility Notice must be provided within 5 business days of request for FMLA leave or employer knowledge of basis for FMLA leave This is up from the current 2 days
Eligibility Notice must be provided within 5 business days of request for FMLA leave or employer knowledge of basis for FMLA leave This is up from the current 2 days
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Employer Notice RequirementsEmployer Notice Requirements
If employee is not eligible, notice must say so and explain why
DOL has published a prototype eligibility notice
If employee is not eligible, notice must say so and explain why
DOL has published a prototype eligibility notice
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Employer Notice Requirements
Employer Notice Requirements
Designation Notice must be provided within 5 business days of receiving information sufficient to determine that leave qualifies as FMLA leave This is up from the current 2 days
If employee is not eligible, notice must say so and explain why
Designation Notice must be provided within 5 business days of receiving information sufficient to determine that leave qualifies as FMLA leave This is up from the current 2 days
If employee is not eligible, notice must say so and explain why
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Employer Notice RequirementsEmployer Notice Requirements
If possible, employer should tell employee how much leave will be FMLA leave
DOL has published a prototype designation notice.
If possible, employer should tell employee how much leave will be FMLA leave
DOL has published a prototype designation notice.
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Penalty for Failure to NotifyPenalty for Failure to Notify
No per se penalty (i.e., time not counted against 12 week entitlement) for failing to notify employees of eligibility or designation (per Ragsdale decision)
Retroactive leave designation is permitted, but employer risks liability for harm, if employee can prove any
No per se penalty (i.e., time not counted against 12 week entitlement) for failing to notify employees of eligibility or designation (per Ragsdale decision)
Retroactive leave designation is permitted, but employer risks liability for harm, if employee can prove any
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Employee Notification Responsibilities
Employee Notification Responsibilities
Employee must come forward with qualifying reason “as soon as practicable” after learning of need Same day, if during working hours Next day, if not
Old Rule allowed 1-2 days after absence
Employee must come forward with qualifying reason “as soon as practicable” after learning of need Same day, if during working hours Next day, if not
Old Rule allowed 1-2 days after absence
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Employee ResponsibilitiesEmployee Responsibilities
Employees must comply with usual call-in requirements for unforeseen absences except for more stringent timing requirements Includes intermittent FMLA absences
Failure to comply may result in delay or denial of FMLA leave (i.e., possible counting of absence as “occurrence”) and disciplinary action
Employees must comply with usual call-in requirements for unforeseen absences except for more stringent timing requirements Includes intermittent FMLA absences
Failure to comply may result in delay or denial of FMLA leave (i.e., possible counting of absence as “occurrence”) and disciplinary action
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Employee Notification Responsibilities
Employee Notification Responsibilities
Employee must give at least 30 days notice if leave is foreseeable
Employee must respond to employer request for explanation if 30 days notice is not provided
Employee must answer employer’s requests for additional information
Employee must give at least 30 days notice if leave is foreseeable
Employee must respond to employer request for explanation if 30 days notice is not provided
Employee must answer employer’s requests for additional information
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Employee ResponsibilitiesEmployee Responsibilities
Employee must provide “sufficient information” for employer to be able to decide whether FMLA applies
“Sufficient information” is: Information showing that employee
cannot perform job functions, or that family member needs care, and
Duration of absence and whether doctor’s visit is planned or has happened
Employee must provide “sufficient information” for employer to be able to decide whether FMLA applies
“Sufficient information” is: Information showing that employee
cannot perform job functions, or that family member needs care, and
Duration of absence and whether doctor’s visit is planned or has happened
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Medical CertificationMedical Certification
DOL has designed a new medical certification form
Employer should request completion of form within 5 business days of learning of need for FMLA leave
DOL has designed a new medical certification form
Employer should request completion of form within 5 business days of learning of need for FMLA leave
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Medical CertificationMedical Certification
Employee must provide completed form within 15 calendar days
If certification form is incomplete or insufficient, employer must state in writing what additional information is needed and give employee 7 calendar days to provide the requested information
Employee must provide completed form within 15 calendar days
If certification form is incomplete or insufficient, employer must state in writing what additional information is needed and give employee 7 calendar days to provide the requested information
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Medical CertificationMedical Certification
If employee notifies employer of inability to obtain the information despite good faith efforts to get it, employer must grant an additional reasonable period of time
If the deficiencies are not corrected in the resubmitted certification, FMLA leave may be denied
If employee notifies employer of inability to obtain the information despite good faith efforts to get it, employer must grant an additional reasonable period of time
If the deficiencies are not corrected in the resubmitted certification, FMLA leave may be denied
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Medical CertificationMedical Certification
Employer may contact health care provider directly (not just through health care provider hired by employer) to obtain clarification of certification
Note: Employer must give employee 7-day chance to obtain clearer certification before contacting provider
Employer may contact health care provider directly (not just through health care provider hired by employer) to obtain clarification of certification
Note: Employer must give employee 7-day chance to obtain clearer certification before contacting provider
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Fitness for DutyFitness for Duty
Employers may still have a uniformly applied policy that requires a “fitness-for-duty” certificate
Employee must provide complete certification or sufficient authorization to provider to supply sufficient information directly to employer
Employers may still have a uniformly applied policy that requires a “fitness-for-duty” certificate
Employee must provide complete certification or sufficient authorization to provider to supply sufficient information directly to employer
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Fitness for DutyFitness for Duty
Employer may provide list of essential functions and require health care provider to certify that employee can perform them
Employees must be informed of this requirement and given the list of essential functions with the eligibility notice
Employer may provide list of essential functions and require health care provider to certify that employee can perform them
Employees must be informed of this requirement and given the list of essential functions with the eligibility notice
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Fitness for DutyFitness for Duty
Employee must bear cost of fitness-for-duty certification
Employee is not entitled to FMLA protections if employee does not provide required certification or request additional leave
Employee must bear cost of fitness-for-duty certification
Employee is not entitled to FMLA protections if employee does not provide required certification or request additional leave
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
Fitness for DutyFitness for Duty
If employee takes intermittent leave and employer has reasonable safety concerns, employer can require fitness-for-duty certifications every 30 days
If employee takes intermittent leave and employer has reasonable safety concerns, employer can require fitness-for-duty certifications every 30 days
© 2009 Young Conway Stargatt & Taylor, LLP www.YoungConway.com
The EndThe End
William W. [email protected]
302-571-6601
William W. [email protected]
302-571-6601