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MOVING
TARGETS…
Managing Employee
Leave Issues
(FMLA/ADAAA)
Ann Holden Kendell
[email protected]
(515) 242-2450
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At-Will Employment
Employment may be terminated by the employee or
employer at any time for any reason.
Therefore, unless there is a contract, it
is employment at will.
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Except for…

Terminations in violation of law or public
policy

State and federal law protects certain classes
of people from discrimination

State and federal law protects employees
who engage in certain activity from
discrimination or retaliation
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Employer Expectations

Employers do have a right to an “at work”
workforce

Employees must be able to perform the
essential functions of the job with or without
reasonable accommodation

Attendance is an essential job function
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Purpose of Webinar

Empower you to manage your employees
while identifying potential problem issues

Handle potential problem issues in
compliance with the law and as business
needs necessitate

Focus employment decisions based upon the
facts of the situation – not assumptions and
only facts necessary to the business needs
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Managing Employee Leave
Issues
FMLA
 ADAAA

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Family and Medical Leave Act
(Protected Activity)
Covered Employer – 50 employees
 Covered Employee – works at a location that
has 50 employees within 75 miles, has
worked for Employer for 12 months and has
worked1250 hours over the last 12 months

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Family and Medical Leave Act

Employees are entitled to:

12 weeks of unpaid leave and

job reinstatement for:

the birth or adoption of a child or placement of a
foster child,

serious health condition or to care for a family
member with a serious health condition.
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Family and Medical Leave Act

Military Family Leave Provisions: Final Rule Published
2-6-2013; implements amendments to the military
leave provisions made by the National Defense
Authorization Act for Fiscal Year 2010


For employees with a family member that is in the
Regular Armed Forces, National Guard or is a
Reservist, there is “qualifying exigency” leave under
the FMLA. If the family member is a service member
who became injured or sick in the line of duty, the
leave can be 26 weeks.
Similar to the “historic” FMLA provisions, spouses
employed by the same employer share the leave.
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Family and Medical Leave Act

Qualifying exigency leave: made available to
family members of the National Guard and
Reserve components under the FY 2008 NDAA,
is expanded to include family members of
members of the Regular Armed Forces.
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Family and Medical Leave Act

Substituted the term “covered active duty” for “active
duty” and defined “covered active duty” for a member
of the Regular Armed Forces as ``duty during the
deployment of the member with the Armed Forces to a
foreign country'', and for a member of the Reserve
components of the Armed Forces as ``duty during the
deployment of the member with the Armed Forces to a
foreign country under a call or order to active duty.”
Prior to the FY 2010 NDAA amendments, there was no
requirement that members of the National Guard and
Reserves be deployed to a foreign country.
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Family and Medical Leave Act

Qualifying exigency leave: Employee is allowed
to take Rest and Recuperation qualifying
exigency leave for the same amount of time as is
provided to the military member for the member's
Rest and Recuperation leave, up to a maximum
of 15 days.

The employee may choose to take the leave in a
continuous block of time or intermittently over the
duration of the military member's R and R, up to 15
calendar days.
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Family and Medical Leave Act

Servicemember Care: The definition of a
serious injury or illness for current members
of the Armed Forces expanded to include an
injury or illness that existed prior to service
and was aggravated in the line of duty on
active duty and that renders the member
medically unfit.
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Family and Medical Leave Act
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Covered Service Member: Broadened to
include a veteran with a serious injury or
illness who is receiving medical treatment,
recuperation, or therapy, if the veteran was a
member of the Armed Forces at any time
during the period of five years preceding the
date of the medical treatment, recuperation,
or therapy.
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Family and Medical Leave Act

Serious Injury or illness for a veteran: An
“injury or illness that was incurred by the
member in line of duty on active duty in the
Armed Forces (or existed before the
beginning of the member's active duty and
was aggravated by service in line of duty on
active duty in the Armed Forces) and that
manifested itself before or after the member
became a veteran.''
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Family and Medical Leave Act

Final Rule also amends the regulations to
implement the Airline Flight Crew Technical
Corrections Act, which establishes eligibility
requirements specifically for airline flight
crewmembers and flight attendants for FMLA
leave and authorizes the Department to issue
regulations regarding the calculation of leave for
such employees as well as special recordkeeping
requirements for their employers.
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Family and Medical Leave Act

Final Rule includes clarifying changes
concerning the calculation of intermittent or
reduced schedule FMLA leave
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Family and Medical Leave Act

Clarifying Changes:

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1) Clarify that an employer may not require an
employee to take more leave than is necessary to
address the circumstances that precipitated the
need for leave.
2) Insertion of an example to illustrate that when an
employer uses different increments to account for
different types of leave, the employer must use the
smallest of the increments to account for FMLA
leave usage.
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Family and Medical Leave Act

Clarifying Changes:

3) Emphasis that an employer may only reduce an
employee's FMLA entitlement by the amount of leave
actually taken, excluding any time after an employee
has returned to work.

Accordingly, where an employer chooses to waive its
increment of leave policy in order to return an employee to
work--for example, where an employee arrives a half hour
late to work due to an FMLA-qualifying condition and the
employer waives its normal one-hour increment of leave
and puts the employee to work immediately--only the
amount of leave actually taken by the employee may be
counted against the FMLA entitlement.
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Family and Medical Leave Act

The FMLA, 29 U.S.C. Section 2615(a)(1),
subjects an employer to money damages and
potential injunctive relief for interfering with,
restraining or denying the exercise of an
employee’s FMLA rights. No retaliation!
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ADA and ADAAA
(Protected Class)
 The
federal Americans with Disabilities
Act and recent amendments protect
people with disabilities from
discrimination.
 Fifteen or more employees = coverage

Also, don’t forget the ICRA = coverage for
employers with 4 or more employees
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ADA and ADAAA

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Expansion of ADA: Signed into law on Sept. 25,
2008
Effective on Jan. 1, 2009
Purpose: Restore intent of the original Americans
with Disabilities Act and overturn 4 U.S. Supreme
Court decisions that narrowed the interpretation of
the ADA
Final regulations approved and published March
25, 2011
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Americans with Disabilities Act
Amendments Act - ADAAA

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Retains 3 categories, but requires a broad application
Episodic impairments/impairments in remission are a
disability if they would substantially limit a major life
activity when active.
Modifies the 3rd Category – Regarded As

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Regarded as having an actual or perceived physical or mental
impairment--whether or not the impairment limits or is perceived
to limit a major life activity (Overrules Sutton v. United Air Lines,
Inc., 527 U.S. 471 (1999) )
Does not apply to minor and transitory (expected to or does last 6
months or less) impairments
Does not require Reasonable Accommodation
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Americans with Disabilities Act
Amendments Act - ADAAA
Substantial Limit on one major life activity is
sufficient
 Directed EEOC to revise regulations on
“substantially limits”

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Americans with Disabilities Act
Amendments Act - ADAAA
Added list of MLAs to the Statute – Includes
new ones not in old regulations
 Added the Operation of MBFs (Major Bodily
Functions) as MLAs

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Americans with Disabilities Act
Amendments Act - ADAAA

Formerly, MLA’s only listed in Regulations; New MLA’s (not in
former regulations) =
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Eating, Sleeping
Standing, Lifting, Bending
Reading, Concentrating, Thinking, Communicating
--New Major Bodily Functions (All are new)
Immune system
Cell growth
Digestive, Bowel, Bladder
Neurological, Brain
Respiratory
Circulatory
Endocrine
Reproductive
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Americans with Disabilities Act
Amendments Act - ADAAA

Burden to prove the individual with a disability
is “qualified” for the job remains on the
Employee/Applicant
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Americans with Disabilities Act
Amendments Act - ADAAA

Clarifies that no claims for reverse disability
discrimination are allowed under the ADA
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Americans with Disabilities Act
Amendments Act - ADAAA

Don’t forget about Workers’ Compensation
issues, too
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Real Life Scenarios
Employee has work injury that qualifies as
a “serious health condition” but employee
doesn’t want leave counted as FMLA
leave.
 Employee is off on FMLA leave and needs
time in addition to 12 weeks. (1 week, 1
month, indefinite)

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Real Life Scenarios
Employee is on FMLA leave and is seen
out in the community or on Facebook.
 Employee has a work injury and has been
off work. Employee gets new restrictions
and we can provide light duty work to
meet those. Employee refuses to come
back to work.
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When in Doubt
Provide the FMLA notice even if you are not
sure the time off will qualify.
 Do not make assumptions about employee
health issues - communicate with the
employee but make sure that the
communication revolves around the job
(hours, weight restrictions, mobility issues,
etc.)

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Additional FMLA Resources
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FMLA final rule fact sheet:
http://www.dol.gov/whd/fmla/finalrule/factsheet.pdf
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FMLA comparison of 2008 and 2013 regulations:
http://www.dol.gov/whd/fmla/2013rule/comparison.htm
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FMLA Notice of Eligibility and Rights & Responsibilities:
http://www.dol.gov/whd/fmla/finalrule/WH381.pdf
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Additional ADAAA Resources

ADAAA final rule fact sheet:
http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm

ADAAA Questions and Answers on the final rule:
http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm
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Thank You!
Ann Holden Kendell
666 Grand Avenue, Suite 2000
Des Moines, IA 50309-2510
Telephone: 515-242-2450
Facsimile: 515-323-8550
E-mail: [email protected]