ADA/FMLA - Case StudiesADA/FMLA - Case StudiesWhat the courts can tell usWhat the courts can tell us

Presented by: Presented by: Geoffrey Lindley and V. Latosha DexterGeoffrey Lindley and V. Latosha Dexter

FMLA: Designating the FMLA: Designating the 12-month Period12-month Period

An employer is permitted to choose any one of the following An employer is permitted to choose any one of the following methods for determining the “12–month period” in which the methods for determining the “12–month period” in which the 12 weeks of leave entitlement described in paragraph (a) of 12 weeks of leave entitlement described in paragraph (a) of this section occurs:this section occurs:(1) The calendar year;(1) The calendar year;(2) Any fixed 12–month “leave year,” such as a fiscal year, a (2) Any fixed 12–month “leave year,” such as a fiscal year, a year required by State law, or a year starting on an employee's year required by State law, or a year starting on an employee's “anniversary” date;“anniversary” date;(3) The 12–month period measured forward from the date any (3) The 12–month period measured forward from the date any employee's first FMLA leave under paragraph (a) begins; or,employee's first FMLA leave under paragraph (a) begins; or,(4) A “rolling” 12–month period measured backward from the (4) A “rolling” 12–month period measured backward from the date an employee uses any FMLA leave as described in date an employee uses any FMLA leave as described in paragraph (a).paragraph (a).

29 C.F.R. § 825.200(b)29 C.F.R. § 825.200(b)

FMLA: Designating the FMLA: Designating the 12-month Period cont’d 12-month Period cont’d

““[T]he alternative [must be] applied [T]he alternative [must be] applied consistently and uniformly to all employees. consistently and uniformly to all employees. An employer wishing to change to another An employer wishing to change to another alternative is required to give at least 60 days alternative is required to give at least 60 days notice to all employees, and the transition notice to all employees, and the transition must take place in such a way that the must take place in such a way that the employees retain the full benefit of 12 weeks employees retain the full benefit of 12 weeks of leave under whichever method affords the of leave under whichever method affords the greatest benefit to the employee.greatest benefit to the employee.

29 C.F.R. § 825.200(d)(1)29 C.F.R. § 825.200(d)(1)

FMLA: Designating the FMLA: Designating the 12-month Period cont’d12-month Period cont’d

If an employer fails to select one of the If an employer fails to select one of the options in paragraph (b) of this section options in paragraph (b) of this section for measuring the 12–month period for for measuring the 12–month period for the leave entitlements described in the leave entitlements described in paragraph (a), the option that provides paragraph (a), the option that provides the most beneficial outcome for the the most beneficial outcome for the employee will be used. employee will be used.

29 C.F.R. § 825.200(e)29 C.F.R. § 825.200(e)

FMLA: Reasons for LeaveFMLA: Reasons for Leave

1) For birth of a son or daughter, and to care 1) For birth of a son or daughter, and to care for the newborn child;for the newborn child;

(2) For placement with the employee of a son (2) For placement with the employee of a son or daughter for adoption or foster care;or daughter for adoption or foster care;

(3) To care for the employee's spouse, son, (3) To care for the employee's spouse, son, daughter, or parent with a serious health daughter, or parent with a serious health condition;condition;

(4) Because of a serious health condition that (4) Because of a serious health condition that makes the employee unable to perform the makes the employee unable to perform the functions of the employee's job;functions of the employee's job;

FMLA: Reasons for LeaveFMLA: Reasons for Leave

((5) Because of any qualifying exigency arising out of 5) Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, the fact that the employee's spouse, son, daughter, or parent is a military member on covered active or parent is a military member on covered active duty (or has been notified of an impending call or duty (or has been notified of an impending call or order to covered active duty status; andorder to covered active duty status; and

(6) To care for a covered servicemember with a serious (6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered daughter, parent, or next of kin of the covered servicemember. servicemember.

29 C.F.R. § 825.11229 C.F.R. § 825.112

FMLA: Employer Call-In FMLA: Employer Call-In PoliciesPolicies““Complying with employer policy. An employer may require Complying with employer policy. An employer may require

an employee to comply with the employer's usual and an employee to comply with the employer's usual and customary notice and procedural requirements for customary notice and procedural requirements for requesting leave, absent unusual circumstances. For requesting leave, absent unusual circumstances. For example, an employer may require that written notice set example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave.duration of the leave, and the anticipated start of the leave.An employee also may be required by an employer's policy An employee also may be required by an employer's policy to contact a specific individual…Where an employee does to contact a specific individual…Where an employee does not comply with the employer's usual notice and procedural not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the requirements, and no unusual circumstances justify the failure to comply, FMLA–protected leave may be delayed failure to comply, FMLA–protected leave may be delayed or denied.” or denied.” 29 C.F.R. 825.302(d)29 C.F.R. 825.302(d)

FMLA: Medical CertificationsFMLA: Medical Certifications

““An employer may require an employee to obtain a An employer may require an employee to obtain a medical certification from a health care provider….” medical certification from a health care provider….” 29 CFR 29 CFR §§ §§ 825.305(a) and 825.306(a)825.305(a) and 825.306(a)

At the time of the request, “the employer must also At the time of the request, “the employer must also advise an employee of the anticipated consequences advise an employee of the anticipated consequences of an employee’s failure to provide adequate of an employee’s failure to provide adequate certification.” certification.” 29 CFR 825.305(d)29 CFR 825.305(d)

The employee must provide the requested certification The employee must provide the requested certification to the employer within 15 calendar days after the to the employer within 15 calendar days after the employer's request, unless it is not practicable …” employer's request, unless it is not practicable …” 29 C.F.R. § 825.305(b)29 C.F.R. § 825.305(b)

““The employee must provide a complete and sufficient The employee must provide a complete and sufficient certification to the employer …” certification to the employer …” 29 C.F.R. § 825.305(c)29 C.F.R. § 825.305(c)

FMLA: Medical Certifications FMLA: Medical Certifications cont’dcont’d

If an employer finds an employee's initial response If an employer finds an employee's initial response either incomplete or insufficient, the employer shall either incomplete or insufficient, the employer shall advise her of such and “shall state in writing what advise her of such and “shall state in writing what additional information is necessary to make the additional information is necessary to make the certification complete and sufficient” and allow certification complete and sufficient” and allow “seven calendar days…to cure any such deficiency.” “seven calendar days…to cure any such deficiency.” 29 CFR 825.305(c)29 CFR 825.305(c)

““If the deficiencies specified by the employer are not If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer cured in the resubmitted certification, the employer may deny the taking of FMLA leave…. A certification may deny the taking of FMLA leave…. A certification that is not returned to the employer is not that is not returned to the employer is not considered incomplete or insufficient, but considered incomplete or insufficient, but constitutes a failure to provide certification.” constitutes a failure to provide certification.” 29 29 C.F.R. § 825.305C.F.R. § 825.305

FMLA: Interference with FMLA: Interference with RightsRights

(c) The Act's prohibition against interference prohibits an (c) The Act's prohibition against interference prohibits an employer from discriminating or retaliating against an employer from discriminating or retaliating against an employee or prospective employee for having employee or prospective employee for having exercised or attempted to exercise FMLA rights. For exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would example, if an employee on leave without pay would otherwise be entitled to full benefits (other than otherwise be entitled to full benefits (other than health benefits), the same benefits would be required health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault actions; nor can FMLA leave be counted under no fault attendance policies.attendance policies.

29 C.F.R. § 825.22029 C.F.R. § 825.220

ADA: Duty to Reasonably ADA: Duty to Reasonably AccommodateAccommodate

(a) It is unlawful for a covered entity not (a) It is unlawful for a covered entity not to make reasonable accommodation to to make reasonable accommodation to the known physical or mental limitations the known physical or mental limitations of an otherwise qualified applicant or of an otherwise qualified applicant or employee with a disability, unless such employee with a disability, unless such covered entity can demonstrate that the covered entity can demonstrate that the accommodation would impose an undue accommodation would impose an undue hardship on the operation of its business.hardship on the operation of its business.

ADA: The Interactive ADA: The Interactive ProcessProcess

(3) To determine the appropriate reasonable (3) To determine the appropriate reasonable accommodation it may be necessary for the accommodation it may be necessary for the covered entity to initiate an informal, covered entity to initiate an informal, interactive process with the individual with a interactive process with the individual with a disability in need of the accommodation. This disability in need of the accommodation. This process should identify the precise limitations process should identify the precise limitations resulting from the disability and potential resulting from the disability and potential reasonable accommodations that could reasonable accommodations that could overcome those limitations.overcome those limitations.

29 C.F.R. § 1630.2(o)(3).29 C.F.R. § 1630.2(o)(3).

ADA: Interactive ProcessADA: Interactive Process

The interactive process requires The interactive process requires

communication and a good-faith communication and a good-faith

exploration of possible exploration of possible accommodations. accommodations.

ADA: Medical Exams ADA: Medical Exams

(c) Examination of employees. A covered (c) Examination of employees. A covered entity may require a medical entity may require a medical examination (and/or inquiry) of an examination (and/or inquiry) of an employee that is job-related and employee that is job-related and consistent with business necessity. A consistent with business necessity. A covered entity may make inquiries into covered entity may make inquiries into the ability of an employee to perform the ability of an employee to perform job-related functions.job-related functions.

29 C.F.R. 29 C.F.R. § 1630.14(c)§ 1630.14(c)

ADA: EEOC Guidance - ADA: EEOC Guidance - Definition of Medical Definition of Medical

Examination Examination ““a procedure or test that seeks a procedure or test that seeks

information about an individual's physical information about an individual's physical or mental impairments or health.” or mental impairments or health.”

““psychological tests that are designed to psychological tests that are designed to identify a mental disorder or impairment” identify a mental disorder or impairment” are “medical examinations,” while are “medical examinations,” while “psychological tests that measure “psychological tests that measure personality traits such as honesty, personality traits such as honesty, preferences, and habits” are not.preferences, and habits” are not.

Medical Examinations: Medical Examinations: EEOC 7 Factor TestEEOC 7 Factor Test

1.1. Whether the test is administered by a health care Whether the test is administered by a health care professionalprofessional

2.2. Whether the test is interpreted by a health care Whether the test is interpreted by a health care professionalprofessional

3.3. Whether the test is designed to reveal and impairment Whether the test is designed to reveal and impairment or physical/mental healthor physical/mental health

4.4. Whether the test is invasiveWhether the test is invasive5.5. Whether the test measures an employee’s Whether the test measures an employee’s

performance of a task or measures his/her performance of a task or measures his/her physiological responses to performing the taskphysiological responses to performing the task

6.6. Whether the test normally is given in a medical settingWhether the test normally is given in a medical setting7.7. Whether medical equipment is usedWhether medical equipment is used

Interaction of FMLA and ADAInteraction of FMLA and ADA

(b) If an employee is a qualified individual with a (b) If an employee is a qualified individual with a disability within the meaning of the ADA, the disability within the meaning of the ADA, the employer must make reasonable accommodations, employer must make reasonable accommodations, etc., barring undue hardship, in accordance with the etc., barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an ADA. At the same time, the employer must afford an employee his or her FMLA rights. ADA's “disability” employee his or her FMLA rights. ADA's “disability” and FMLA's “serious health condition” are different and FMLA's “serious health condition” are different concepts, and must be analyzed separately. FMLA concepts, and must be analyzed separately. FMLA entitles eligible employees to 12 weeks of leave in entitles eligible employees to 12 weeks of leave in any 12–month period due to their own serious health any 12–month period due to their own serious health condition, whereas the ADA allows an indeterminate condition, whereas the ADA allows an indeterminate amount of leave, barring undue hardship, as a amount of leave, barring undue hardship, as a reasonable accommodation. reasonable accommodation.

29 C.F.R. § 825.70229 C.F.R. § 825.702

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