November-December 2009

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

• FMLA leave and the flu
• New ADA regulations pending
• Recent settlement a good reminder to employers to examine "bright line" leave policies

FMLA leave and the flu

The U.S. Department of Labor has issued an information sheet titled "Pandemic Flu and the Family and Medical Leave Act: Questions and Answers," addressing coverage for flu-related absences under the Family and Medical Leave Act (FMLA). The sheet confirms that, just as with other serious health conditions, if an employee is unable to work due to the pandemic flu, or is required to stay home to care for a family member with the pandemic flu, the FMLA protected-leave would apply (assuming the employee is otherwise eligible for such leave). The Minnesota Department of Labor encourages employees to stay home in order to minimize the risk of spreading the flu if a family member is ill with the pandemic flu virus. However, an employee would not be eligible for FMLA-protected leave if the employee chose to stay home in order to avoid exposure to the flu.

The information sheet also addresses the question whether an employee would be eligible for FMLA-protected leave if the employee needed to provide care for children who were dismissed from daycare or school. If the daycare or school closed due to flu-related absences, but the employee's children were not ill with the pandemic flu virus, the employee would not qualify for FMLA leave. FMLA leave does not cover employees who are caring for healthy children or family members.

Before an employee who was on leave due to the pandemic flu returns to work, the employer may require the employee to be symptom-free for a certain time period, or bring in a doctor's slip confirming readiness to return to work, but the Minnesota Department of Labor encourages flexibility and reasonableness in this requirement during times of pandemic illness, reminding employers that healthcare providers may be overwhelmed and unable to provide timely routine appointments.

The question and answer sheet addresses methods employers may use to help minimize abuse of FMLA leave, and discusses issues relating to layoffs and widespread absences. View full text of the question and answer information sheet.

New ADA regulations pending

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008, which was effective January 1, 2009. On September 23, 2009, the Notice of Proposed Rulemaking was published in the Federal Register, setting forth the Equal Employment Opportunity Commission's (EEOC) proposed regulations implementing these amendments to the ADA. The time period for public comment ended on November 23, 2009, The EEOC will review the comments, possibly make additional revisions to the proposed regulations, and then issue the final regulations for the ADA Amendments Act of 2008 sometime in 2010.

The Notice of Proposed Rulemaking was published in the Federal Register. The EEOC has published a helpful "Question and Answers" document on its website, concerning this proposed rulemaking. While the regulations are still pending, employers are expected to act in compliance with the ADA Amendments Act of 2008. A few of the areas addressed in the regulations that provide additional insight into the amended ADA are summarized below. While some of these changes were addressed in a newsletter earlier this year, they are worth revisiting as the EEOC takes a step closer to finalizing the regulations. Employers should continue to err on the side of caution in considering the ADA's impact on disability-related employment decisions, including decisions relating to employees with work-related disabilities.

Disability
The ADA Amendments Act of 2008 redefines "disability" by rolling back the recent case law that more narrowly defined disability and limited eligibility for protection under the Act. Congress found that the courts had improperly narrowed the scope of the Act and incorrectly found in many cases that individuals were not qualified individuals with a disability despite having a wide range of substantially limiting impairments.

Significantly, the Act found that some impairments will consistently meet the definition of "disability"--essentially a disability per se: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia. The EEOC cautions that this list is not exhaustive.

Similarly, the EEOC provides a list of impairments that may substantially limit some individuals, but not others, including asthma, back and leg impairments, and learning disabilities.

Substantial limitations
Congress also found that the Equal Employment Opportunity Commission's (EEOC) regulations created too high of a standard of proof for an individual to establish that they were "substantially impaired," by requiring the person to show that he or she was "significantly restricted" as to the manner or duration under which the person could perform a particular major life activity. Therefore, an employee will have an easier time establishing that he or she is "substantially limited" by an impairment under these amendments.

The substantial limitation must be in comparison to most people in the general population. As explained in the EEOC's Q&A:

[D]etermination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual's ability to perform a specific major life activity with that of most people in the general population.

Major life activities
Under the ADA Amendments Act of 2008, the definition of "major life activities" has been expanded, but not exhaustively defined through the following lists of "general" and "major bodily functions" major life activities:

The proposed regulation also includes three additional examples of major life activities: sitting, reaching and interacting with others.

In assessing whether a person is substantially limited in the activity of working, one should consider whether someone is substantially limited in performing a "type of work," as opposed to a "class" or "broad range" of jobs (as defined under the old regulations). Therefore, type of work may include commercial truck driving, assembly line jobs, food service jobs, clerical jobs or law enforcement jobs. Or type of work may be determined by looking at job-related requirements like duties requiring repetitive bending, reaching or frequent lifting.

The proposed regulation also includes hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular.

Mitigating measures
The new amendments state that determining whether a major life activity is substantially limited shall not be determined by taking into account the improvement or assistance obtained through mitigating measures, other than ordinary eyeglasses or contact lenses. Therefore, an employer may not factor in items such as medication, prosthetics, mobility devices, assistive technology or other reasonable accommodations in evaluating a potential disability. Instead, determination of whether the employee is disabled under the ADA is based on whether he or she would be substantially limited in performing a major life activity without taking into consideration the mitigating measure.

The amendments do allow an employer to take into account negative effects from application or use of the mitigating measure (e.g., side effects from medication). If the side effects substantially limit the employee, then the mitigating measure may qualify the employee for ADA protection. Similarly, consideration of these negative effects may be considered in determining reasonable accommodations or whether the individual poses a "direct threat."

Duration of disability
Under the 2008 amendments, the Act will consider the person as a qualified individual with a disability even if the impairment is in remission or only episodic in nature, if the impairment would substantially limit a major life activity if and when it was active. The proposed regulation provides examples of conditions that may invoke this aspect of the Act: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder and schizophrenia. Cancer that is in remission also may qualify as a disability under this section of the Act.

"Regarded as" disabled
The 2008 amendments also provide that even if an impairment would not otherwise qualify as a disability under the Act, because it did not impair a major life activity, the employee will be protected by the Act so long as the employee was "regarded as" disabled because of the perceived impairment. This amendment broadens the concept of "regarded as" having a disability under the Act because previously the perceived impairment had to meet the definition of disability under the Act. If the impairment is minor and transitory in nature, with actual or expected duration of impairment 6 months or less, a person may not have ADA protection for "being regarded as" disabled.

Recent settlement a good reminder to employers to examine "bright line" leave policies

Earlier this fall, the Equal Employment Opportunity Commission (EEOC) announced the largest settlement in a single lawsuit under the Americans with Disabilities Act (ADA). The EEOC had filed suit against Sears Roebuck & Company (Sears), alleging that it violated the ADA by terminating employees at the end of an inflexible workers' compensation leave policy. A Sears employee had filed a charge of discrimination after Sears terminated him at the end of his workers' compensation leave. The employee continued to experience disability from his work-related injuries, but alleged he had repeatedly tried to return to work at Sears and Sears never provided any reasonable accommodations to facilitate his return.

When the EEOC conducted its investigation into the Sears employee's claim of discrimination, the EEOC reported finding more than a hundred other employees terminated in similar circumstances. The EEOC claimed that Sears terminated employees on workers' compensation leave without considering reasonable accommodations or reasonable extensions of their leaves. The press release issued by the EEOC on September 29, 2009, following the Sears settlement reveals the agency's attitude toward "bright line" leave policies: "[I]nflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law."

In addition to significant equitable relief and a three-year monitoring or injunctive period, Sears was required to pay $6.2 million in settlement. Following on the heels of the AVI Foodsystems settlement discussed in the June/July 2009 issue of "Up North," these settlements demonstrate the EEOC's intent to aggressively enforce the liberal intent of the ADA, particularly when evaluating return to work issues related to disabled or potentially disabled employees.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.

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