The start of a new year is a good time to review employee manuals and practices to ensure that they are up-to-date and compliant with state and federal law. Several significant changes to federal employment laws which were enacted in 2008 are now in effect. Failure to comply could expose your company to significant legal liability. Below is a summary of the issues you should be considering:
- Family and Medical Leave Act (FMLA)
The Department of Labor (DOL) issued new FMLA regulations which took effect on January 16, 2009. The new regulations modify the tests for “incapacity” and “treatment.” In particular, employees must now be absent for a total of three full calendar days to qualify for protected leave.
The new regulations make several changes to the way intermittent leave is treated. Employees must now make a “reasonable effort” (instead of a mere “attempt”) to schedule intermittent leave so as to not disrupt the employer’s operations.
In addition, the regulations clarify the DOL’s interpretation of the term “serious health condition.” Employees taking leave based on “three consecutive calendar days of incapacity plus two visits to a health care provider” must do so within 30 days of the start of the incapacity and the first visit must occur within seven days after the start of the incapacity.
Likewise, for employees taking leave involving “three consecutive calendar days of incapacity plus a regimen of continuing treatment,” the first visit must also occur within one week after the start of the incapacity. Finally, under the new regulations, for employees with a “chronic condition,” “periodic visits” to a health care provider are now defined to be at least two visits per year for treatment of the incapacity.
Employers (so long as it is not the employee’s immediate supervisor) may now contact health care providers directly to clarify or authenticate a certification. However, if a certification is insufficient, the employer must first notify the employee in writing of the deficiency and must give the employee seven days to correct the deficiency. Employers may now request a recertification every leave year for any serious health condition lasting longer than a year. Likewise, fitness-for-duty certifications may now specifically address an employee’s ability to perform specific essential functions of the position. Employees must be given at least 15?? days to provide a certification form.
Employees may now be disqualified from bonuses or perfect attendance awards due to FMLA absences, provided that employees on leave for non-FMLA reasons are likewise ineligible for such awards. In addition, employees may now retroactively settle or waive FMLA claims, although employees still cannot be required to waive or settle prospective FMLA rights.
The new regulations also implement active duty and military caregiver leave provisions. Employees are entitled to up to 26 weeks of leave annually to care for a spouse, son, daughter, parent, or next of kin who is a covered servicemember with a serious illness incurred in the line of active duty. The 12-month period of leave begins on the first day the employee takes qualified exigency leave, instead of a date selected by the employer.
In addition, certain “qualifying exigencies” will entitle an employee to up to 12 weeks of FMLA leave if the family member is called to active duty in the National Guard or Reserves. The call to duty must be made by the federal, not state, government. The regulations list eight categories of qualifying exigencies: (1) receiving notification of call to duty seven days or less prior to deployment; (2) attending official military events, ceremonies, and other programs; (3) addressing certain child care or school activities for children of covered military members; (4) making or updating legal or financial affairs; (5) attending non-health care provided counseling; (6) attending to a servicemember on rest and recuperation leave (not to exceed five days); (7) attending post-deployment activities (for up to 90 days after active duty terminates); and (8) other activities agreed upon by the employer and employee.
FMLA leave may now be denied if the employee fails to comply with the employer’s normal notice and procedural requirements for requesting leave. Disciplinary action may also be taken consistent with the employer’s internal rules under such circumstances. However, employees still do not need to specifically mention the FMLA when requesting leave, although they must provide sufficient information for an employer to determine whether the leave may be FMLA-related.
New notice and certification forms were also developed in conjunction with the new regulations. Employers are required to post a general notice regarding FMLA leave. The DOL has published new posters for 2009 which will allow employers to comply with this requirement. Notably, employers who publish employee handbooks are required to ensure that the handbooks contain the same information regarding FMLA leave that is contained in the DOL’s 2009 FMLA poster. In addition, if a significant portion of the employer’s workforce speaks a language other than English, the employer is required to provide the information in the language in which the employees are literate.
Employers must also provide an employee who requests FMLA leave, an initial written within five days of the request. The DOL has published a form to aid employers in this regard, entitled “Notice of Eligibility and Rights & Responsibilities.” If certification will be required, the employer may include a certification form along with the notice.
If the leave is FMLA-qualifying, the employer must provide written notice of specific expectations and obligations during leave, including any certification, re-certification, or fitness-for-duty requirements. Again, the DOL has published a form to aid employers in this regard, entitled “Designation Notice.” If employer determines that the employee is ineligible for FMLA leave, the employer must provide at least one reason for the ineligibility. Notice of ineligibility may be provided on the Designation Notice as well.
Practice Tips:
- Train managers, supervisors, and human resources personnel in the application of FMLA, particularly with regard to intermittent leave.
- Update FMLA policies in their employee handbooks, ensuring that military caregiver leave is addressed
- Clearly spell out any employee call-in procedures and ensure that the call-in policy is applied consistently in all instances.
- Utilize new Notice of Eligibility and Rights and Responsibilities, Medical Certification, and Designation forms
- Post new FMLA poster
- ADA Amendments Act
The ADA Amendments Act (ADAA) took effect on January 1, 2009. The Act unwinds years of federal court case law which focused on whether an individual met a narrow definition of disability, and virtually eliminates an employer’s defense that an individual does not meet the definition of disability.
The Act states that the term “substantially limits”[1] should not be interpreted strictly and directs the EEOC to issue new regulations re-defining this term. This is in sharp contrast to the U.S. Supreme Court’s interpretation of the term “substantially limits” as “prevents or severely restricts.” The Act also encourages courts to broadly construe the definition of disability and to refrain from engaging in an “extensive analysis” as to whether an individual is disabled. Instead, the focus under the Act is whether the employer offered reasonable accommodations.
Significantly, the Act expands the definition of “disability” by eliminating the consideration of mitigating measures when determining whether an employee is disabled under the ADA. Although eyeglasses and contacts may be considered in determining whether an individual is substantially limited in a major life activity under the ADA, “medication, prosthetics, hearing aids, assistive technology, learned behavior or adaptive neurological modification” are not to be considered. The Act also expands the definition of disability to include conditions that are episodic, in remission, or latent, if the condition would substantially limit a major life activity when active. This may result in individuals with conditions such as high blood pressure or diabetes that have no manifested impairment to nevertheless be entitled to protection under the Act.
The Act provides a non-exhaustive list of life activities which constitute major life activities, such as learning, reading, concentrating, thinking, communicating, and working. The Act also expands the definition of “major life activity” to include many functions have no relation to an individual’s ability to work, such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
Notably, the Act clarifies that employers are not required to make reasonable accommodations for individuals who are “regarded as” disabled, although employers are still prohibited from discriminating against individuals “regarded as” disabled, regardless of whether the employee can establish that an impairment limits a major life activity. The amendments also exclude from “regarded as” claims minor or transitory conditions lasting six months or less.
The EEOC has issued guidance which permits employers to apply quantitative and qualitative performance and conduct standards to employees with disabilities, provided that the same standards are equally applied to employees without disabilities. If a rule of conduct is job-related and consistent with business necessity, a disabled employee may be disciplined even if their disability caused the rule violation. However, the guidance makes clear that employers may not require employees with disabilities to perform a job in the same manner as employees without disabilities. Moreover, employers may not cease making a reasonable accommodation simply because an employee is given an unsatisfactory performance rating.
Practice Tips:
- Conduct an annual training session for managers, supervisors, and human resources personnel regarding the application of the ADA, including how and when to engage in the interactive process.
- Update ADA policies in their employee handbooks, and ensure that the policy is applied consistently in all instances.
- Review and revise employee job descriptions to ensure that all essential functions are listed
III. Genetic Information Non-Discrimination Act (GINA)
On May 21, 2008, President Bush signed the Genetic Information Non-Discrimination Act of 2008 (GINA) into law. GINA protects Americans from being treated unfairly because of differences in their DNA that may affect their health. The law prohibits discrimination from group health plans and employers. GINA’s protections extend to applicants and former employees.
The law, which becomes effective in November 2009, prohibits employers from discriminating against employees on the basis of genetic information, or from retaliating against an employee who opposes discrimination. Genetic information is defined to include information about an employee’s genetic tests, the genetic tests of family members of an employee, and manifestation of a disease or disorder in family members of an employee. Accordingly, knowledge that an employee or family member has an inherited disease may trigger the protections of GINA.
The law also prohibits employers from acquiring genetic information, with certain exceptions. For example, an employer is not liable for inadvertently requesting or requiring the family medical history of the employee or family member of the employee. Likewise, an employer who receives genetic information indirectly as part of a wellness program or as part of an FMLA certification is not liable under the act. Similarly, where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the work place, the employer is not liable under GINA. When an employer does acquire genetic information, the information must be stored in a separate confidential medical file, unless it is already publicly available information.
The EEOC issued proposed regulations implementing GINA on February 25, 2009. The deadline for submitting comments on the proposed regulations is May 1.
Practice Tips:
- Train managers, supervisors, and human resources personnel on the requirements of GINA
- Update handbooks to address discrimination on the basis of genetic information
- Refrain from seeking genetic information in connection with the administration of FMLA leave and reasonable accommodations under the ADA
- Ensure that any genetic information which is obtained is kept in a secure location with limited access and completely separate from the employee’s regular personnel or HIPAA file.
- Respond carefully to subpoenas and non-party document requests to ensure that genetic information is not inadvertently released
- Post new EEOC poster by November effective date
- Ledbetter Fair Pay Act
On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act, with a retroactive effective date of May 28, 2007 – the day before the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber. In Ledbetter, the Supreme Court ruled that the statute of limitations for filing a wage discrimination claim with the EEOC begins on the date of the first allegedly discriminatory pay decision. Under the Fair Pay Act, an employer is deemed to have violated the act when it makes a discriminatory compensation decision, or when an individual becomes subject to or affected by a discriminatory compensation practice. As such, the Act starts a new statute of limitations for each paycheck an employee receives. Employers should now be prepared to defend claims arising from employment decisions which may have been made years ago by individuals who are no longer employed by the company.
It is unclear whether a right of action could be extended to family members, as individuals “affected” by a discriminatory practice. Moreover, because the Act applies not only to wages, but to benefits and “other compensation” it is unclear how expansively courts will treat the new law.
Notably, the Act applies to Title VII claims, as well as claims under the ADA and ADEA. Under the Act, claimants are permitted to introduce evidence of “similar or related” discriminatory practices that occurred outside the limitations period, although the amount of back pay an employee can receive under the Act is limited to two years under such circumstances.
Practice Tips:
- Train managers, supervisors, and human resources personnel in preparing and retaining appropriate documentation
- Revise record retention policies to provide for longer periods of storing files longer and/or storing files in electronic format.
- Use objective and measurable factors in making any wage or benefits decisions
- Review compensation practices to ensure that sufficient documentation for approval or denial of raises and other benefits exists
[1] The House version of the Bill, which defined the term “substantially limits” to mean “materially restricts” was not adopted by the Senate.