Urgent Employee Medical
Leave Updates for 2009
Patrick T. Collins, Esq.
Keith D. McDonald, Esq.
David E. Cassidy, Esq.
The material provided herein is for informational purposes
only and is not intended as legal advice or counsel.
New Jersey Family Leave Benefits
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seminar
2
The New FMLA &
MFLA Regulations
Patrick T. Collins, Esq.
The New FMLA and MFLA Regulations
Introduction
• Final rule issued on November 17, 2008
- Over 20,000 comments
• Overall attempt to clarify communication process
• Q&A format gone
• New forms
• Changes effective January 16, 2009
• DOL website:
www.dol.gov/esa/whd/fmla/finalrule.htm
4
The New FMLA and MFLA Regulations
Introduction
• Final regulations with comments over 750
pages
• Four categories of changes:
1.
2.
3.
4.
Substantive Standards
Notice/Timing Rights and Requirements
Medical Certification Process
Military Family Leave
5
The New FMLA and MFLA Regulations
Substantive Standards
ELIGIBILITY
Old Regulations
• Did not specify how a break in service would affect 12
month employment requirement
• Did not address employees on leave at 12 month
anniversary
New Regulations
• Previous periods of employment count if break in service is
less than 7 years
• Employees on leave at 12 month anniversary become
eligible as long as benefits/compensation provided on leave
6
The New FMLA and MFLA Regulations
Substantive Standards
WAIVERS
Old Regulatory/Case Law
• Employees may not waive FMLA rights
New Regulation
• Employees may waive FMLA rights retroactively
7
The New FMLA and MFLA Regulations
Substantive Standards
PERFECT ATTENDANCE AWARDS
Old Regulations
• Cannot disqualify employee from
awards/bonuses based on attendance on basis of
FMLA leave
New Regulations
• Can be disqualified based on FMLA as long as
non-FMLA leave is treated the same
8
The New FMLA and MFLA Regulations
Substantive Standards
SERIOUS HEALTH CONDITION
Old Regulations
• Period of incapacity for (a) more than 3 consecutive calendar
days and (b) treatments by health care provider (either (i)
one treatment plus regimen of treatment or (ii) two
treatments). No guidance on when treatment must occur.
New Regulations
• Period of incapacity for 3 FULL consecutive calendar days
• In person treatment within 7 days of first day of incapacity
plus (a) regimen of treatment or (b) second in-person
treatment within 30 days of first day of incapacity
9
The New FMLA and MFLA Regulations
Substantive Standards
CHRONIC CONDITIONS
Old Regulations
• “Periodic visits” to health care provider.
No guidance on how many visits or how
often.
New Regulations
•At least 2 visits to health care provider per
year
10
The New FMLA and MFLA Regulations
Substantive Standards
SUBSTITUTION OF PAID TIME OFF
Old Regulations
• Employees may substitute PTO for unpaid FMLA leave
New Regulations
• The right to substitute PTO depends on the employer’s policies
• The employer may enforce all normal rules for PTO
Examples:
Vacation: Minimum increments of 8 hours
Sick Time: Limited to employee’s illness
NOTE: Employees may opt to take unpaid FMLA leave in smaller
increments.
11
The New FMLA and MFLA Regulations
Substantive Standards
LIGHT DUTY
Old Regulations
• Light duty assignments count as FMLA leave
New Regulations
• Light duty assignments do not count as FMLA
leave
• Reinstatement rights exist for up to the full 12month leave year while on light duty
12
The New FMLA and MFLA Regulations
Notice/Timing Rights
POSTER
Old Regulations
• Must have poster posted
New Regulations
• New poster (General Notice)
• Posted hard copy or electronically
• Must be included in Employee Handbooks
• Must be distributed to all current employees, all new hires
and provided to applicants
13
The New FMLA and MFLA Regulations
Notice/Timing Rights
ELIGIBILITY NOTICE
Old Regulations
• 2 Business days
New Regulations
• 5 business days from date of request
• Notice of Eligibility and Rights and Responsibilities (Form
WH-381)
• Part A – Notice of Eligibility
• Part B – Rights and Responsibilities
• Explain 12 month leave year
• Written confirmation required
• PTO included
14
The New FMLA and MFLA Regulations
Notice/Timing Rights
DESIGNATION NOTICE (Form WH-382)
• Designating leave as FMLA leave
• Amount of leave to be counted
• Whether PTO will be applied
• Whether Fitness For Duty Certification will be
required
– Attached list of essential job duties
• Procedures when additional information is needed
15
The New FMLA and MFLA Regulations
Notice/Timing Rights
FAILURE TO DESIGNATE FMLA LEAVE
Old Regulations
• Employee’s leave does not count as FMLA leave unless and
until employer designates leave as FMLA
(RAGSDALE V. WOLVERINE WORLD WIDE,
INC. (535 U.S. 81 (2002))
New Regulations
• Adopts RAGSDALE
• Employer may retroactively designate leave as FMLA leave
unless employee can show harm from failure to timely
designate
16
The New FMLA and MFLA Regulations
Medical Certifications
2 NEW FORMS
• Employee’s Serious Health Condition (Form WH-380-E)
• Family Member’s Serious Health Condition (Form WH-380-F)
• Must provide form with Rights and Responsibilities Notice
• Can request a diagnosis, symptoms, treatment, etc.
• Explain why care is medically necessary
• Probable duration
• “unknown,” “indeterminate,” and “lifetime” are not
acceptable
• 15 calendar days to provide completed certifications
17
The New FMLA and MFLA Regulations
Medical Certifications
INCOMPLETE OR INSUFFICIENT
• Employer must provide written notice to
employee as to specific information still needed
• Employee has 7 calendar days to cure
AUTHENTICATION/CLARIFICATION
• HR, Management, company doctor may contact
employee’s doctor
• Employee’s supervisor MAY NOT
18
The New FMLA and MFLA Regulations
Medical Certifications
• Certifications will request sensitive health information
about employees or family members
• HIPAA consents will be required
• If employee refuses consent, leave can be denied
• Limits on who can contact employee’s doctor
– Employers should designate their employees
• Certifications must be maintained in confidential
medical files
– Separate from general personnel file
• Genetic information concerns
– Restrictions on disclosure
19
The New FMLA and MFLA Regulations
Medical Certifications
RECERTIFICATIONS
Old Regulations
• Every 30 days
New Regulations
• Every 30 days is out!
• More than 30 days, when duration of leave expires
• Every 6 months
• Less than 30 days – not permitted
• Requests for extensions
• Significant changed circumstances
20
The New FMLA and MFLA Regulations
MFLA Leave
21
The New FMLA and MFLA Regulations
MFLA Leave
• Exigency Leave
– Certification of Qualifying Exigency (Form
WH-384)
• Military Caregiver
– Certification for Serious Injury or Illness
for Covered Service Member (Form WH385)
22
The New FMLA and MFLA Regulations
MFLA Leave
EXIGENCY LEAVE
• Employee’s spouse, son/daughter or parent is
on/called to active duty in National Guard or
Reserves
• Federal (not State)
• 12 weeks max, part of regular FMLA
23
The New FMLA and MFLA Regulations
MFLA Leave
QUALIFYING EXIGENCY
1.
2.
3.
4.
5.
6.
7.
8.
Short-notice deployment activities;
Military events and related activities;
Childcare and school activities;
Financial and legal arrangements;
Counseling activities;
Rest and recuperation activities;
Post-deployment activities; and/or
Additional activities
24
The New FMLA and MFLA Regulations
MFLA Leave
MILITARY CAREGIVER
• All employees who are spouse, son, daughter,
parent or next of kin to care for “covered service
member” who incurs serious illness or injury in
line of active duty
• Covers both National Guard or Reserves and
Regular Armed Forces
• 26 weeks in any single 12-month period
• Per covered service member/per injury
25
The New FMLA and MFLA Regulations
Practical Considerations
•
•
•
•
•
•
Download the DOL website onto your Favorites
Familiarize yourself with Regulations
Familiarize yourself with New Forms
Distribute and post the new General Notice
Review Employee Handbooks, FMLA policies
Review polices/safeguards for medical
information
• Train employees who will be dealing with these
issues
26
New Jersey’s Paid
Family Leave Benefits
Keith D. McDonald, Esq.
New Jersey Family Leave Benefits
Overview
•
•
•
•
•
Applies to all New Jersey employers
regardless of number of employees
Administered through the State Temporary
Disability Benefits Program
Employee funded through payroll tax
Wage replacement, not technically “leave”
Benefits available starting July 1, 2009
28
New Jersey Family Leave Benefits
Overview
• Available to all New Jersey employees who
pay into the State Temporary Disability
Benefits Program
• Test: Worked at least 20 weeks or earned at
least 1000 times the hourly minimum wage
during the prior year (for any NJ employer)
• A seven day waiting period is required before
paid leave kicks in
29
New Jersey Family Leave Benefits
Overview
• Provides employees with six weeks of paid
leave over any 12-month period to:
– Care for a newborn or newly-adopted child
– Care for a “family member” with a “serious health
condition”
• Employees receive two-thirds of their wages,
capped at $546 a week
• Tax withholding of 0.09% or approximately
$0.64 per week
30
New Jersey Family Leave Benefits
Definitions
• “Family member”
• “Parent”
• “Child”
• “Care”
• “Serious Health Condition”
31
New Jersey Family Leave Benefits
How Much Leave?
• Six weeks with respect to “any one
period” of continuous leave
• 42 days with respect to leave taken on
intermittent basis to care for sick family
member
• Any 12 month period – not based on
calendar year
32
New Jersey Family Leave Benefits
Medical Certification
• Must state:
– Date of onset of condition
– Probable duration of condition
– Medical facts within knowledge of provider
regarding the condition
– Statement that condition warrants participation of
employee
– Estimate of amount of time care will be needed
– Statement that intermittent care is necessary (if
applicable)
33
New Jersey Family Leave Benefits
Are You In Compliance?
• Employee tax withholdings required to
begin on January 1, 2009
• Posting requirements should have
taken place by December 15, 2008
34
New Jersey Family Leave Benefits
Employer Notice Requirements
•
Notice must be issued:
(1) not later than 30 days after the notification form
is provided by the Department of Labor;
(2) at the time of hire;
(3) whenever an employee provides notice that the
employee is taking covered leave; and
(4) at any time, upon an employee’s first request for
a copy of the notice
35
New Jersey Family Leave Benefits
Employee Notice Requirements
• At least 30 days notice required when
seeking leave to care for a newborn or
newly-adopted child
• Prior notice not required when an
employee seeks leave to care for an ill
family member
– Provided in a reasonable manner
– Intermittent leave – 15 days notice absent
unforeseen circumstances
36
New Jersey Family Leave Benefits
NJFLA and FMLA
• Paid family leave does not affect the
protections provided by the NJFLA and
FMLA
• An employee that qualifies for leave under
these statutes and paid family leave can
receive paid leave for six of the 12 weeks of
unpaid leave
• Paid family leave benefits run concurrent
with NJFLA and FMLA benefits
37
New Jersey Family Leave Benefits
Job Protection
• Unlike the NJFLA and FMLA, paid
family leave does not offer job
protection for employees
• Creates a “small employer exception”
• Risks to small employers
38
New Jersey Family Leave Benefits
Effects on Current Policies
• Employers have the option to require
employees to use up to two weeks of
available PTO before receiving the paid
family leave benefits
• No waiting period
• Policy must be written
39
New Jersey Family Leave Benefits
Payments to Employee
• Employer submission not later than 9th
days after leave begins
• Employee submission not later than 30th
day after leave begins
• State makes determination
• Reasonable delay provision
40
New Jersey Family Leave Benefits
Can Employer Deny a Paid Family
Leave Request?
• No, the State determines whether to grant
Paid Family Leave benefits
• The employer may challenge State’s grant
by way of appeal under same procedures
in the Temporary Disability Statute
41
New Jersey Family Leave Benefits
Private Plans
• Employer can elect to use private plan
instead of State plan
• “Written Election” requirement if
employees are required to contribute
• Contributions cannot exceed State plan
contributions
• All private plans require State approval
42
New Jersey Family Leave Benefits
Disability and Paid Leave
• Receipt of disability benefits does not
affect eligibility for paid family leave
• No waiting period for paid leave to
bond with newborn when leave is taken
immediately following temporary
disability pregnancy-related claim
43
New Jersey Family Leave Benefits
Other Issues
• Employees cannot “opt out” of paid
leave program
• Payments estimated to be made two
weeks after employee’s claim
• State may request that family member
be examined by a State designated
doctor at State expense
44
New Jersey Family Leave Benefits
Additional Resources
• New Jersey Department of Labor website:
http://lwd.dol.state.nj.us/labor/fli.html
• Employee Notification Form and poster
available for download at website and
included in the materials
• Prior Labor & Employment Alerts included
in the materials
45
Americans With Disabilities
Act Amendments Act of 2008:
What Every Employer Should Know
David E. Cassidy, Esq.
Americans with Disabilities Act Amendments Act of 2008
ADA Amendments Act of 2008
• “An act to restore the intent and
protections of the Americans with
Disabilities Act of 1990”
• Purpose: to reinstate “a broad scope of
protection” under the ADA
47
Americans with Disabilities Act Amendments Act of 2008
ADA Amendments of 2008Retroactivity
• Effective January 1, 2009
• But: Individuals not qualified with a
disability before January 1, 2009, may
qualify for an accommodation now
48
Americans with Disabilities Act Amendments Act of 2008
Important Definitions Going Forward
49
Americans with Disabilities Act Amendments Act of 2008
Basic Definition
• ADA’s definition of a disability remains
mostly unchanged
• ADAAA changes how courts must
interpret whether an individual qualifies
as disabled
• ADAAA requires the EEOC to issue new
guidance
50
Americans with Disabilities Act Amendments Act of 2008
Overruling “Demanding
Standards”
• Pre –Amendment standard: disability needed
“to be interpreted strictly to create a demanding
standard for qualifying as disabled”
• The ADAAA: “The definition of disability shall
be construed in favor of broad coverage of
individuals under the Act, to the maximum
extent permitted by the terms of this Act”
51
Americans with Disabilities Act Amendments Act of 2008
Expanding the Meaning of
“Substantially Limits”
52
Americans with Disabilities Act Amendments Act of 2008
Expanding “Substantially Limits”
• Pre-Amendment, a substantial limitation
“prevents or severely restricts an
individual from performing major life
activities” (Toyota v. Williams)
• The ADAAA states that the definition of
disability shall be “construed in favor of
broad coverage”
53
Americans with Disabilities Act Amendments Act of 2008
Expanding “Substantially Limits”
• The ADAAA does not provide a definition of
“substantially limits,” but it does require the
EEOC to adopt a new definition of the term that
is “consistent with the Act”
• The EEOC will almost surely reject the Supreme
Court’s “prevents or severely restricts”
standard and adopt a more lenient one
54
Americans with Disabilities Act Amendments Act of 2008
Expanding the Meaning of
“Major Life Activities”
55
Americans with Disabilities Act Amendments Act of 2008
Expanding “Major Life Activities”
• Neither the original ADA nor the
regulations issued by the EEOC actually
defined the term “major life activities”
• The EEOC came up with a short,
illustrative list of qualifying activities that
left a number of questions unresolved
56
Americans with Disabilities Act Amendments Act of 2008
Expanding “Major Life Activities”
• The ADAAA explicitly rejects that the
term “major life activities” must be
narrowly interpreted
• The ADAAA rejects that only activities
“of central importance to most people’s
daily lives” are “major life activities”
57
Americans with Disabilities Act Amendments Act of 2008
Expanding “Major Life Activities”
• The new ADAAA list of “major life activities”
includes:
Caring for oneself
Seeing
Eating
Walking
Lifting
Speaking
Learning
Concentrating
Communicating
Performing manual tasks
Hearing
Sleeping
Standing
Bending
Breathing
Reading
Thinking
Working
58
Americans with Disabilities Act Amendments Act of 2008
Expanding “Major Life Activities”
• Major bodily functions included
– The ADAA specifies that “major bodily functions”
are a type of “major life activity,” including normal
cell growth, the functions of the immune, digestive,
respiratory, circulatory, or other bodily systems, and
reproductive functions
59
Americans with Disabilities Act Amendments Act of 2008
Mitigating Measures
60
Americans with Disabilities Act Amendments Act of 2008
Mitigating Measures
• Pre –Amendment, “mitigating measures”
were considered when determining if an
individual is substantially limited in a
major life activity
• ADAAA: “mitigating measures” are not
to be considered, except ordinary
eyeglasses/contacts
61
Americans with Disabilities Act Amendments Act of 2008
Episodic Conditions
62
Americans with Disabilities Act Amendments Act of 2008
Episodic Conditions
• Pre- Amendment, some courts have held
that such conditions do not qualify
because the individual is not usually
limited in his activities
• The ADAAA recognizes “episodic”
conditions as potentially “substantially
limiting”
63
Americans with Disabilities Act Amendments Act of 2008
Episodic Condition Examples
–
–
–
–
PTSD
Epilepsy
Diabetes
Others
64
Americans with Disabilities Act Amendments Act of 2008
Changes to What It Means to
Have a “Perceived Disability”
65
Americans with Disabilities Act Amendments Act of 2008
Changes to “Perceived Disability”
• The Supreme Court narrowed the
“regarded as” prong by holding that the
terms “substantially limits” and “major
life activities” must be strictly interpreted
• The Court applied its strict definitions to
claims under the “regarded as”
66
Americans with Disabilities Act Amendments Act of 2008
Changes to “Perceived Disability”
• The ADAAA explicitly rejects the
Supreme Court’s approach
• Under the new standard, an employee can
state a “regarded as” claim even if a real
or perceived impairment did not
substantially limit a major life activity
67
Americans with Disabilities Act Amendments Act of 2008
Changes to “Perceived Disability”
• The effect of the ADAAA is to make a
“regarded as” claim similar to a claim for
discrimination under Title VII
• No assessment of the employee’s
functional abilities or limitations
68
Americans with Disabilities Act Amendments Act of 2008
Changes to “Perceived Disability”
• The focus will likely shift to determining:
– Does the employee have a mental or physical
impairment?
– Was the employee perceived by the employer as
having an impairment?
– Did the employer take “adverse action” against the
employee?
– Was that adverse action based in whole or in part on
the employee’s real or perceived impairment?
69
Americans with Disabilities Act Amendments Act of 2008
Changes to “Perceived Disability”
• Exception: “transitory and minor”
impairments
– The ADAAA defines a “transitory and minor”
impairment as one “with an actual or
expected duration of six months or less”
– “Transitory and minor” impairments (e.g., the
flu) does not qualify under the “regarded as”
prong
70
Americans with Disabilities Act Amendments Act of 2008
No Reverse Discrimination
• “Nothing in this Act shall provide the
basis for a claim by an individual without
a disability that the individual was
subject to discrimination because of the
individual’s lack of disability.”
71
Americans with Disabilities Act Amendments Act of 2008
NJLAD – A Quick Note
• "Disability" means physical disability, infirmity, malformation or
disfigurement which is caused by bodily injury, birth defect or
illness including epilepsy and other seizure disorders, and which
shall include, but not be limited to, any degree of paralysis,
amputation, lack of physical coordination, blindness or visual
impediment, deafness or hearing impediment, muteness or speech
impediment or physical reliance on a service or guide dog,
wheelchair, or other remedial appliance or device; OR
• Any mental, psychological or developmental disability resulting
from anatomical, psychological, physiological or neurological
conditions which prevents the normal exercise of any bodily or
mental functions or is demonstrable, medically or psychologically,
by accepted clinical or laboratory diagnostic techniques.
• Disability shall also mean AIDS or HIV infection.
72
Americans with Disabilities Act Amendments Act of 2008
Summary of Key Changes
• Broader interpretation of disability
• Near elimination of mitigating measures
concept
• Coverage for episodic or dormant
impairments
• Clarifies that reverse disability
discrimination is not cognizable under
ADA
73
Americans with Disabilities Act Amendments Act of 2008
What To Do?
74
Americans with Disabilities Act Amendments Act of 2008
Immediate Action
• Review and Modify Existing Disability Policies
• Train Managers - Create an HR Checklist to
Follow
• Create Accurate Job Descriptions With Essential
Duties
• Conduct Early Assessment of Injuries/Illnesses
• Audit Existing Employee Roster for
“Retroactivity” Issue
75
Questions & Answers
Thank you for coming!