LEAVE, LEAVE AND MORE LEAVE! Tara Aschenbrand tara.aschenbrand@squiresanders.com Lew Clark lew.clark@squiresanders.com Traci Martinez traci.martinez@squiresanders.com February 15, 2012 36 Offices in 17 Countries www.squiresanders.com www.employmentlawworldview.com
Presenters D. Lewis Clark Jr. lew.clark@squiresanders.com Tara A. Aschenbrand tara.aschenbrand@squiresanders.com Traci L. Martinez traci.martinez@squiresanders.com www.squiresanders.com www.employmentlawworldview.com
Agenda •Family Medical Leave Overview and Update •Military Leave Update •Americans with Disabilities Amendments Act Update www.squiresanders.com www.employmentlawworldview.com
FMLA Regulations, Amendments and Case Update www.squiresanders.com www.employmentlawworldview.com
Covered Employers •All persons employing 50 or more employees for 20 or more calendar workweeks in the current or preceding calendar year. www.squiresanders.com www.employmentlawworldview.com
Eligible Employees •Employees are eligible for leave if they: Worked for their employer at least 12 months; Worked at least 1,250 hours over the past 12 months; Work at a location where the company employs 50 or more employees within 75 miles. www.squiresanders.com www.employmentlawworldview.com
Qualifying Reasons For Leave •Eligible employees are entitled to 12 workweeks of leave for the following reasons: birth and care of the employee’s newborn child; placement with the employee of a child for adoption or foster care; to care for the employee’s spouse, child, or parent with a serious health condition -- but not “in-laws”; when the employee is unable to perform the essential functions of the employee’s position because of a serious health condition. www.squiresanders.com www.employmentlawworldview.com
Other Qualifying Reasons For Leave •The amendments to the FMLA created two new family military leave provisions: o Qualifying Exigency Leave Allows for up to 12 workweeks of leave o Military Caregiver Leave Allows for up to 26 workweeks of leave www.squiresanders.com www.employmentlawworldview.com
What Is A Qualifying Exigency? •Regulations provide a list of specific examples: Short-notice deployment (7 days or less); Military events and related activities; Childcare and school activities; Financial and legal arrangements; Counseling (non-medical); Rest and recuperation (limited to 5 days for each instance); Post-deployment activities (for a period of 90 days following the termination of active duty status); and Additional activities (the employer and employee must agree to the timing and duration of such leave). www.squiresanders.com www.employmentlawworldview.com
Employee Notice Requirements: •Foreseeable Leave Employees must give 30-days advance notice for foreseeable leave, or if that is not possible, notice must be given “ as soon as practicable .” •Unforeseeable Leave When the need for leave is not foreseeable, an employee must provide notice “ as soon as practicable .” www.squiresanders.com www.employmentlawworldview.com
Certifications •Employees must be given at least 15 calendar days to return a complete and sufficient certification. •If the returned certification is either incomplete or insufficient, the employer must advise the employee in writing as to the deficiencies and give the employee at least 7 calendar days to cure the deficiencies. •Employer may communicate directly with the healthcare provider only to “ clarify ” or “ authenticate ” a certification form after providing the employee with seven calendar days to cure any deficiencies. •Contact must be made by a human resources professional, a leave administrator, or a management official; but at no time may the employee’s supervisor contact the employee’s healthcare provider. www.squiresanders.com www.employmentlawworldview.com
Recertifications •Generally, employer may require recertification of a serious health condition no more frequently than the duration of the prior certification or every 30 days, whichever period is longer. •More recertification possible when: The employee requests an extension of the leave. The circumstances described by the previous certification have changed significantly. The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. www.squiresanders.com www.employmentlawworldview.com
Proper Standard of Proof in FMLA Interference Cases Donald v. Sybra, Inc ., Case No. 10-2153 (6th Cir. 2012) •On January 17, 2012, nearly twenty years after the introduction of the Family and Medical Leave Act (“FMLA”), the Sixth Circuit clarifies the proper standard of proof for FMLA interference claims by applying the burden-shifting framework announced in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). www.squiresanders.com www.employmentlawworldview.com
Interference with FMLA Rights Pereda v. Brookdale Senior Living Comm., Inc. 1/10/2012 •Employee alleged that the employer began harassing her after the employer was advised that she was pregnant and would be requesting FMLA leave •At the time the employee requested leave, she was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event. •Employee was terminated after 11 months for performance issues. •Employee sued alleging claims for interference and retaliation under the FMLA. www.squiresanders.com www.employmentlawworldview.com
Abuse of Medical Leave? Pellegrino v. Communications Workers of America , 2011 U.S. Dist. LEXIS 54052 (May 18, 2011) •Policy required employees who were on FMLA leave to remain in the immediate vicinity of their homes. •If an employee wanted to leave the immediate vicinity of his or her home for travel, he or she needed written permission to do so. •Employee on leave took a vacation to Cancun, Mexico, during her FMLA leave and was terminated. •The employee sued, claiming that the employer violated the FMLA by terminating her employment. www.squiresanders.com www.employmentlawworldview.com
Calculating FMLA Leave Thom v. American Standard, Inc ., 2012 FED App. 0016P (6th Cir. 2011) • Employee took FMLA leave for a non-work related injury. • Extended leave was granted until June 27 (beyond his remaining FMLA leave). • Employee was released to light duty beginning May 31 and to full duty on June 13. • Employer did not allow return to work on May 31 to perform light duty because it was a non-work related injury. • Employee did not show up on June 14 and turned in a doctor’s note on June 18 that he was having unexpected problems. • Employee was terminated for unexcused absence between June 13 and 18 and he was out of FMLA leave. www.squiresanders.com www.employmentlawworldview.com
Out of FMLA Leave so no worries, right? Hofferica v. St. Mary Medical Center , 2011 U.S. Dist. LEXIS 133810 (Nov. 18, 2011) •Employee was advised of the date her FMLA would expire •Employee attempted to notify the employer that her physician had recommended extending her leave by one week. •Employee did not return as scheduled and was terminated. •Employee sued alleging retaliation. www.squiresanders.com www.employmentlawworldview.com
Possible FMLA Changes Ahead? • January 30, 2012 : Department of Labor released a proposed rule that implements the (FMLA) amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act. •Both laws enacted in 2009 entitle more employees to family and medical leave under the federal FMLA. www.squiresanders.com www.employmentlawworldview.com
ADA Amendments Act www.squiresanders.com www.employmentlawworldview.com
Overview of the Americans with Disabilities Act •The ADA protects qualified individuals with disabilities from discrimination in employment. •The ADA applies to employers who have at least fifteen employees. •An individual has a disability under the ADA if the person has a physical or mental impairment that substantially limits one or more major life activity, has a record of such an impairment, or is regarded as having such an impairment. •To be a “qualified” individual under this framework, the person must be able to perform the essential functions of the job, with or without reasonable accommodation. www.squiresanders.com www.employmentlawworldview.com
ADA Amendments Act of 2008 (ADAAA) Effective January 1, 2009 •After the ADAAA, the definition of “disability” has been expanded and will encompass most medical conditions. •Overturned several past U.S. Supreme Court decisions. •The inquiry has shifted from whether a person is “disabled” under the law to whether that person is “qualified” and can perform the essential functions of the job, with or without reasonable accommodations. •EEOC issued final regulations www.squiresanders.com www.employmentlawworldview.com
What is a disability? •The ADA defines “ disabilit y” as: A physical or mental impairment that substantially limits one or more major life activities; Having a “ record ” of such an impairment; or Being “ regarded as ” having such an impairment. www.squiresanders.com www.employmentlawworldview.com
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