Employment Law Update: Age and IllnessJudith Stilz Ogden, JD, LL.M.,MSTClayton State University

This presentation is available at http://business.clayton.edu/jogden/under NEWS AND UPDATES

Judith Stilz Ogden• Associate Professor of Business Law and

Interim Assistant Dean and Director of the MBA Program

School of Business

Clayton State University

• LL.M., Dispute Resolution, Pepperdine University School of Law

J.D., Duquesne University School of LawM.S., Taxation, Robert Morris University

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Charges filed with the EEOC in 2009

• Race 36%• Retaliation 36%• Gender 30%• Age 24.4%• Disability 23%• National Origin 11.9%• Religion 3.6%

AGE

Cher at 64!

Bureau of Labor Statistics recently reported

• The unemployment rate for persons 55 or older increased sharply since December 2007.

• This followed rising labor participation among older workers since the mid-1990s.

• Unemployed older workers tend to spend longer looking for work than younger workers: 35.5 weeks.

• In 2009 the EEOC held a hearing to highlight the “devastating impact” of age discrimination.

• The expert panelists testified about the damaging effect of age stereotyping and recent judicial decisions that have curtailed the ability of older workers to successfully challenge age discrimination.

• These cases include Kentucky Retirement Systems v. EEOC and Gross v. FBL Financial Services, Inc.

KENTUCKY RETIREMENT SYSTEMS et al. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 2008

• Facts: Hazardous duty workers could retire at 55. If they kept working and then became disabled, they would only receive their scheduled retirement benefits.

• Held: Kentucky’s system does not discriminate against workers who become disabled after becoming eligible for retirement based on age.

• The differences in treatment in this particular instance were not “actually motivated” by age.

Gross v. FBL Financial Services, 2009

• Facts: Jack Gross, age 54, had worked for FBL Financial Services for 28 years when he was reassigned. considered this to be a demotion, and filed an age discrimination case under the Age Discrimination in Employment Act (ADEA).

• Held: Age must be the primary reason, rather than a “motivating factor” for the employment action.

• This is a different standard from all other forms of discrimination.

• The Protecting Older Workers Against Discrimination Act introduced in the House & Senate in 2009. It is in Committee.

DISABILITY: The ADA Amendments Act of 2008

• On September 25, 2008, President Bush signed into law the ADA Amendments of 2008 (ADAAA).

• The Act took effect on January 1, 2009. • Passage of the Act received support from

groups for the disabled and employer organizations.

• Reverses several years of precedent and portions of EEOC’s existing ADA regulations considered by many members of Congress as

• too narrowly applying the definition of• “disability.”

Framework of ADA

• In order to be covered by the employment provisions of the Americans with Disabilities Act, both of the following must be true of the employee:

• The employee has a DISABILITY because one of the following is true:

» S/he has an impairment that SUBSTANTIALLY LIMITS a MAJOR LIFE ACTIVITY,

» S/he has a RECORD of having such an impairment, OR» S/he IS REGARDED by the employer as having an

impairment,

AND The employee is a QUALIFIED INDIVIDUAL because the following are true:

» S/he can perform the ESSENTIAL FUNCTIONS of the job either:

» With or without REASONABLE ACCOMMODATIONS that do not impose an UNDUE HARDSHIP.

• Amendments do not apply retroactively.• No federal appellate court cases yet.• EEOC has Filed Three New Cases under

Amended Americans with Disabilities Act– In Atlanta, the agency charged Eckerd

Corporation, with refusing to provide a reasonable accommodation.

– In a case filed in Baltimore, the agency alleges that surveying company, Fisher, Collins & Carter, fired two employees because they had diabetes and hypertension.

– In Lansing, Mich., the agency charged that IPC Print Services fired one of its employees rather than allowing him to work part time while being treated for cancer. 

• ADA applies to employers with 15 or more employees, including state and local governments.

• The Americans with Disabilities Act:A Primer for Small Business http://www.eeoc.gov/facts/adahandbook.html

What do the Amendments do?

• Clarify the definition of a disability

• Broaden the number of individuals covered

• Focus new attention on accommodations

Proposed Regulations• The act authorizes the EEOC to issue regulations implementing the definition of disability

• As part of the required implementation of its provisions, the ADAAA also mandates that the EEOC revise that portion of its existing regulations defining the term “substantially limits” and “major life activities” to comport to the changes enacted by the ADAAA

• Proposed regulations: See 29 C.F.R. section 1630• Questions and answers on the Notice of Proposed

Rulingmaking for the ADA Amendments Act of 2008 – http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html

• Because the ADAAA already is in effect, employers already face the possibility of being called upon to defend their hiring and employment practices under the amended ADAAA definition of disability, even though the EEOC has not issued final guidance.

Definition of a “Disability” under the Amendments

• Can no longer consider mitigating measures such as taking medication in determining whether an individual has a disability.

• An exception still exists, however, for wearing glasses or contacts.

Definition of a “Disability” under the Amendments

• As always, an impairment must substantially limit a major life activity.

• The amendments expand the definition of a major life activity by including two nonexhaustive lists

Definition of a “Disability” under the Amendments

• The first list includes many activities that the EEOC has recognized: – walking, – caring for ones self, – performing normal activities, – seeing, – hearing, – speaking, – breathing, – learning, – working, and – reproduction

Definition of a “Disability” under the Amendments

• As well as activities that the EEOC has not specifically recognized– reading, – bending, and – communicating

Definition of a “Disability” under the Amendments

• The second list includes major bodily functions:

• functions of the immune system, • normal cell growth, • digestive, • bowel, • bladder, • neurological, • brain, • respiratory, circulatory,

endocrine, and reproductive functions

Proposed Regulations Give Examples of Conditions That Would Affect These Functions

• Kidney disease affects bladder function; • Cancer affects normal cell growth; • Diabetes affects functions of the endocrine system

(e.g., production of insulin); • Epilepsy affects neurological functions or functions of

the brain; • Human Immunodeficiency Virus (HIV) and AIDS affect

functions of the immune system and reproductive functions;

• Sickle cell disease affects functions of the hemic system;

• Lymph edema affects lymphatic functions, and• Rheumatoid arthritis affects musculoskeletal • functions.

Proposed Regulations Impairments that will consistently meet the definition of a disability

• Autism• Cancer• Cerebral palsy• Diabetes• Epilepsy• HIV or AIDS• Multiple Sclerosis

or muscular dystrophy

• Major depression, bipolar disorder, post-traumatic stress disorder, OCD, or schizophrenia which substantially limit certain major life activates.

Proposed Regulations: Examples of impairments that may be disabling for some but not others

• Asthma• High blood

pressure• Learning

disability who is substantially limited in reading learning, thinking or concentrating

• Back or leg impairments

• Psychiatric impairment

• Carpal tunnel syndrome

• Hyperthyroidism

Definition of a “Disability” under the Amendments

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity

when active.

Proposed regulations clarify what it means for an impairment to substantially limit

• An impairment is a disability within the meaning of this section if it ``substantially limits'' the ability of an individual to perform a major life activity as compared to most people in the general population

• An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.

The third prong: An individual is protected if he or she is “regarded as” having an impairment.

• An individual is protected if he or she is “regarded as” having an impairment.

– The individual is regarded as unless the impairment is transitory or minor

– If the individual is merely regarded as, he or she is not entitled to a reasonable accommodation

Examples of Impairments That Are Transitory and Minor from the Proposed Regulations

• Example 1: An individual who is not hired for a data entry position because he will be unable to type for three weeks due to a sprained wrist is not regarded as disabled, because a sprained wrist is transitory and minor.

• Example 2: An individual who is placed on involuntary leave because of a broken leg that is expected to heal normally is not regarded as disabled, because the broken leg is transitory and minor.

WHAT DO THESE CHANGES MEAN?

• Some of the cases that were dismissed in the past, will not be dismissed in the future.

• Probably will be more claims and more litigation.

(In 2009, 21,451 charges were filed with the EEOC.)

• Focus will be on other aspects of the ADA, such as what is a reasonable accommodation or an undue hardship?

WHAT SHOULD EMPLOYERS DO?

• Review job description and essential functions• Handbooks and policies may need to be

updated. • Managers, supervisors and HR personnel need

to be retrained.• With a likely increase in the number of requests

for reasonable accommodations, employers should remember to utilize the ADA’s interactive process. (And keep records.)

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) –New Regulations

• November 17, 2008, the Department of Labor published final regulations.

• These regulations became effective on January 16, 2009.

• The regulations are over 720 pages in length.

• The Department of Labor has revised and added some new forms which may help to simplify things.

• FMLA only covers businesses with fifty or more employees, so some small businesses are exempt.

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) –New Regulations

• The regulations address some of the most troublesome topics: – Clarification of the requirements satisfying a

serious health condition.– Employees who take intermittent FMLA leave

must make reasonable effort to schedule so not disruptive.

– If an employee voluntarily does light duty work, the employee need not exhaust any FMLA leave to do so and it does not constitute a waiver of the employee’s prospective rights under the FMLA.

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) –New Regulations

– Employers may deny perfect attendance awards to employees who do not have perfect attendance because they took FMLA leave.

– Employers may contact an employee’s healthcare provider directly, but only for clarification and authentication of a medical certification.

– Clarification is provided for medical certification. The medical certification form has been completely revamped.

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) –New Regulations

– Employers must account for FMLA leave using an increment no greater than the shortest period of time used to account for other forms of leave, provided that it is not greater than one hour.

– Terms and conditions of an employer’s paid leave policies apply & must be followed by the employee in order to substitute any form of accrued paid leave for unpaid FMLA leave.

– Employer may count holidays as FMLA leave if Employee is on FMLA leave the entire week in which the holiday falls.

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) –New Regulations

– Employers are required to provide employees with a general notice of FMLA rights, an eligibility notice, a rights and responsibilities notice, and a designation notice.

– If an employer does not have a handbook, it must provide general FMLA notice to new employees upon being hired.

– An employer has 5 business days to respond to an employee’s request for leave.

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) –New Regulations

– Employee responsibilities are expanded and clarified under the regulations.

– The rules discuss the consequences if an employee does not provide proper notice or fails to satisfy certification requirements.

– Important discretion vested with employer remains unchanged: Employees may be required to exhaust accrued paid leave (vacation/sick) before FMLA is taken as unpaid leave.

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) - Military Family Leave

• The National Defense Authorization Act amended FMLA

• Creates two new types of leaves of absence from work which are newly available to families of members of the armed forces : Military Exigency Leave and Military Caregiver Leave

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) - Military Family Leave

• Military Exigency Leave

(29 U.S.C.§ 2612(a)(1)(E)) – up to 12 weeks because of “any qualifying exigency” arising out of the fact that spouse, child, or parent of employee is a member or the National Guard or Reserve, or is a retired member of regular armed forces or reserve, and that relative has been notified of an impending call to active duty status.

Qualifying Exigencies include

• Short-notice deployment• Military events and related activities• Childcare & school activities• Financial & legal arrangements• Counseling• Rest & recuperation• Post-deployment activities• Additional activities not encompassed

above

DISABILITY ISSUES:– Family and Medical Leave Act (FMLA) - Military Family Leave

• Military Caregiver Leave

29 U.S.C.§2612(a)(3) – entitles employee who is the spouse, child, parent, or “next of kin” of a covered member who is recovering from a “serious illness or injury” sustained while on active duty to a combined total of 26 weeks of leave in a single 12 month period to care for the service member.

“Serious injury or illness” – incurred “while on active duty, that may render the members medically unfit to perform the duties of their office, grade, rank, or rating.

DISABILITY ISSUES: Family and Medical Leave Act (FMLA)- Who is a “son” or “daughter?”

• Parental rights apply to an employee who assumes the role of caring for a child regardless of legal or biological relationship

• Child also includes adopted child, foster child, stepchild, a legal ward, or a child of a person standing in loco parentis.

• The regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child

DISABILITY ISSUES: Family and Medical Leave Act (FMLA)- Who is a “son” or “daughter?”

• Even if child has a biological parent at home, or both a biological mother and father could still be a child of someone with no legal or biological relationship for FMLA purposes.

• There is no limit on how many parents a child may have under the FMLA.

• Would apply to many non-traditional families, including families in the lesbian-gay-bisexual-transgender community. Could also apply to a grandparent.

DISABILITY ISSUES: Family and Medical Leave Act (FMLA) –New Regulations

• Samples of the new and revised forms can be found at http://www.dol.gov/whd/fmla/finalrule.htm

• WH-381, Notice of Eligibility and Rights & Responsibilities,

• http://www.dol.gov/whd/fmla/finalrule/WH381.pdf• Final Regulations,

http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=21763, are available on-line, as is a

Fact Sheet, http://www.dol.gov/whd/fmla/finalrule/factsheet.pdf.

FMLA Regulations: WHAT DO THESE CHANGES MEAN?

• Employers must update FMLA policies and forms.

• Employers must communicate more effectively with employees, and vice versa – Cooperation and Resolution Obligations under 29 C.F.R. § 825.301

• Employers must improve their tracking methods for the reasons given for requesting leave and the employer’s response.

• The forms are more comprehensive, and they are free!