The New FMLA (Family and Medical Leave Act)
Editor – This is the 4th in a 5 part series from The New York Law Journal discussing legal pitfalls for US employers under the new Americans with Disabilities Amendment Act of 2008 (ADAAA). Canada is one of the few G7 countries without comprehensive disability employment protection legislation that protects persons with disabilities in the workforce and in society. Progress on disabilities and human rights has moved to the back burner as Canada slips behind the rest of the developed world in its treatment of the largest minority in Canada, the disabled.
Last article New ADAAA part 3 – who is disabled?
By Barbara E. Hoey, New York Law Journal, March 23, 2009
The FMLA provides for 12 weeks of leave for employees who suffer a “serious health condition,” need time off to care for a family member with a serious health condition, or have given birth to or adopted a child. The FMLA was amended in 2008, to give military families 26 weeks of “caregiver” leave, to care for wounded military personnel. It also provides 12 weeks of “qualifying exigency leave,” for the parents, spouse or children of members of the Reserve or National Guard who are called to active duty. Employees may use this leave for a broad range of activities, not all of which are related to health, such as military events, childcare, rest and recuperation, counseling, and financial and legal planning.
The FMLA regulations were also amended, effective January 2009, affecting some of the notice and other requirements under the statute. The changes include:
• Employees seeking FMLA leave must follow the employer’s policies in notifying the company of the need for the leave, except in “extenuating” circumstances.
• Employers may implement a policy requiring re-certification of an illness after 12 months, and for chronic conditions every six months.
• A company’s leave administrator or HR department may contact a health care provider to request medical information about an employee, subject to the Health Insurance Portability and Accountability Act (HIPAA) and other medical privacy laws.
The Impact on Employers
The ADAAA will greatly expand the number of employees who have an ADA-covered “disability.” Commentators believe that most employees over 50 will likely have some ailment that will now qualify as a “disability” under the ADAAA – even if the impairment is controlled by medication. The fact that many newly “disabled” employees may not presently be ill, or may have conditions that are “hidden” or “controlled” by medication, makes compliance with the new statute even more daunting.
Not only are more employees covered by the ADAAA, the onus will now be on employers to prove that they are in compliance with the law. Congress stated that the “primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations . . . ” Employers should expect greater scrutiny, and must be ready to defend decisions and establish that reasonable accommodations were provided.
Combining this new ADAAA with the FMLA, every employee who has an ADA “disability” will now likely also qualify for FMLA leave. Employers may see more demands for intermittent FMLA leave, as well as more employees seeking longer periods of time off. Remember, you may not use FMLA leave as a basis to discipline an employee for poor attendance.
Barbara E. Hoey is a partner and co-chair of the labor and employment practice group at Kelley Drye & Warren. She can be reached at bhoey@kelleydrye.com.
Endnotes:
1. In fact, plaintiff had worked for the employer’s predecessor, so was qualified for FMLA leave under Department of Labor regulations, which applied to an employer’s “successor in interest,” 29 USC §2611(2)(A)(ii). Brown v. Nutrition Mgmt Services, 2009 U.S. Dis. LEXIS 4199 (E.D. Pa. 2009).
2. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).
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