Are You Ready For Swine Flu Season?
11/4/2009 -
Updates on FMLA and ADAAA
The Centers for Disease Control has warned the coming flu season may be marked by a widespread outbreak of the H1N1 influenza virus, commonly known as the Swine Flu. Because H1N1 is considered highly contagious, its symptoms can last for several weeks and can be significantly more debilitating than the common cold. An epidemic outbreak could force a significant percentage of the workforce to be out of work for extended periods of time. The United States Department of Commerce has encouraged employers to develop a contingency plan in the event of an outbreak, recommending employers consider such measures as staggering work schedules, reducing face-to-face meetings and discretionary travel, and instructing symptomatic workers to stay home until twenty-four hours after their fever breaks. The United States Government has published additional guidelines at www.flu.gov.
Employers should be aware that some employees may try to invoke federal and state law to ensure their jobs are protected in their absence. The Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”), two laws that may be relied on by employees, have recently been amended. This article addresses the recent changes to these laws.
The FMLA
The United States Department of Labor’s final regulations interpreting the Family and Medical Leave Act took effect on January 16, 2009.nbsp; These regulations do not change the law’s basic provisions that provide eligible employees who work for covered employers the right to take job-protected, unpaid leave of up to twelve weeks (consecutive or non-consecutive) in a twelve-month period for absences due to the birth of a child or to care for a newborn child; the placement of a child with the employee for adoption or foster care; the need to care for a child, spouse, or parent with a serious health condition; or the employee’s own serious health condition that makes the employee unable to perform the employee’s job functions.
The changes in the new regulations relate to employee eligibility, medical certifications, notice requirements, fitness-for-duty certifications upon return from leave, the concurrent use of paid leave, and certain military caregiver/military family member leave provisions under the National Defense Authorization Act. A summary of the most significant changes that are relevant to employees requesting leave follows:
Eligible Employee: To be eligible for FMLA leave, an employee must have been employed by the employer for at least twelve months; must have provided at least 1,250 hours of service to the employer during the twelve months preceding the leave; and must work at a worksite at which the employer employs at least fifty employees. The new regulations specify that although the employment need not be continuous to satisfy the “12-months of employment” eligibility requirement, any period of employment before a continuous break of seven years or more need not be considered. The regulations also define the calculation of the twelve-month period for military service members.
Serious Health Condition: The FMLA definition for “serious health condition” is multi-faceted. The new regulations do not change the six definitions of “serious health condition,” but they do provide clarification of the time frame in which visits to health care providers must be accomplished. The regulations now define a “serious health condition” as one that involves more than three consecutive, full calendar days of incapacity, plus a regimen of continuing treatment. The new regulations also require an employee to visit a health care provider within seven days of the first day of the incapacity, and further require a second visit to a health care provider within thirty days of the onset of the incapacity. For chronic conditions, the regulations clarify that employees must see their health care providers twice per year.
Light Duty: Under the new rules, “light duty” time does not count towards FMLA leave time. If an employee is voluntarily on “light duty,” he is not on leave. Employees need not agree to light duty as an alternative to taking FMLA leave if they are unable to perform their essential job duties.
Medical Certification: The Department of Labor has created two new, expanded medical certification forms. An employee must be given seven days to correct incomplete forms after the employer provides written notice of the deficiencies. Certain representatives of the employer may directly contact providers if the information provided is unclear. Those representatives include health care providers, HR professionals, a leave administrator, or a management official, but exclude the employee’s direct supervisor. Employers may ask only for information that is required by the certification forms. The new regulations also allow (but do not require) that a health care provider state a diagnosis on the forms.
Notice Requirements: Employees must provide notice “as soon as possible and practical,” under the facts of the individual case, after the need for leave is known. This requirement eliminates the “two business-day” rule when the need for leave is known less than thirty days in advance. The rule also contemplates that employees who require unforeseen leave should still be able to comply with an employer’s policy governing requests for leave. Employers can require the use of regular call-in procedures if an employee’s leave is intermittent.
Employers must provide eligibility notices to employees within five business days of the employee’s request for leave (previously, notice was required in two days). Designation notices must be provided within five days of the determination of the qualifying reason for leave. Employers may also retroactively designate leave as FMLA leave if the employee is not prejudiced.
Bonuses: Employers may now proportionally reduce or deduct from a bonus otherwise owed to an employee who takes FMLA leave, or deny a bonus altogether, as long as other employees on non-FMLA leave are treated the same way.
Fitness-for-Duty Certifications: If a reasonable job safety concern exists, an employer may require an employee taking intermittent leave to provide a fitness-for-duty certification before returning to work. The certification can specifically address the employee’s ability to perform the "essential functions" of his job, but the employer must provide a description of the essential job functions.
Holidays Occurring During Leave Period: The new rules clarify that if an employee takes less than a full week of leave, any holiday that falls during the leave period is not counted against the employee’s leave time, but if an employee takes more than a full week, any holiday that falls during the leave period is counted against the employee’s eligible leave time.
Substitution for Paid Leave: The new regulations outline specific requirements for concurrent use or substitution of paid leave for FMLA leave. First, an employer or an employee may substitute paid leave for unpaid FMLA leave. “Substitution” under FMLA means the paid leave and FMLA leave run concurrently. The regulations clarify that employers may apply their normal paid leave policies to the substituted leave, but the employer must notify the employee of any restrictions on the use of paid leave (e.g., that leave must be taken in full-day increments).
The ADA and ADAAA
The ADA Amendments Act (ADAAA) does not change the definition of an actionable “disability,” which is still defined as: (a) a physical or mental impairment that substantially limits one or more of a person’s major life activities; (b) a record of such an impairment; or (c) being regarded as having such an impairment. However, the ADAAA mandates that this definition be “construed in favor of broad coverage” and, thus, dramatically expands the number of conditions that qualify as a “disability” requiring the employer’s reasonable accomodation. Under the ADAAA, a “disability” now includes an impairment that is episodic or in remission if it would substantially limit a “major life activity” when active. Of note, if an employee falls under the “regarded as” category of impairments, the condition will not be considered a “disability” if it is “transitory and minor,” meaning an actual or expected duration of six months or less.
For most employees, even the ADAAA will not justify its use for a case of the Swine Flu. However, for an employee with chronic problems, contraction of the Swine Flu that instigates a recurrence of the chronic illness may justify accomodation. The ADAAA clarifies that “accomodation” may include a leave of absence provided the employee will be able to perform her essential job functions upon her return. The EEOC’s Enforcement Guidance for the ADA clarifies that leave requests under the ADA can be broader than those under FMLA. Thus, the ADAAA requires an employer to provide an employee more than twelve weeks of leave as a reasonable accomodation of a disability, unless the employer can show such an accomodation would create an undue hardship for the employer.
The ADAAA also establishes two categories of “major life activities.” This categorization expands the list of activities that can support the determination that an employee is “disabled.” The first category includes caring for one’s self, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The second category covers major bodily functions such as those involving the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems. The ADAAA clarifies that an impairment to even one of these bodily systems now renders an employee “disabled,” even without a demonstration that the impairment affects the employee’s daily life. Thus, a whole host of medical problems that were not previously considered “disabilities” now qualifies an employee for protection, including such conditions as hearing problems, digestive problems, eating disorders, learning impairments, respiratory compromise such as COPD and many others.
The ADAAA also specifies that “mitigating measures” are no longer to be considered when determining whether an employee is disabled. Thus, if an impairment “substantially limits” a “major life activity,” but can be corrected with hearing aids or medications, the analysis of whether the employee is disabled is to be made without taking into account whether the hearing aids or the medications work to correct or improve the impairment. The only exception to this broad expansion is the correction of vision with the use of eye glasses; if an employee’s glasses correct his vision, he is not to be considered “disabled” because of vision.
At first blush, the ADA and the ADAAA may not be invoked by an employee who contracts H1N1. While employees are more likely to request FMLA leave during an acute illness, the employee may request reasonable accomodation if they suffer any sort of ongoing problem or impairment from contraction of the virus. Under the ADAAA, many more employees will now qualify as “disabled.” Employers should therefore be prepared for extended periods of decreased staffing levels and requests for leave in the event of a widespread outbreak of the H1N1 virus.