• SUPREME COURT LIMITS ADA PROTECTION
• EMPLOYER OBLIGATIONS CONCERNING INTERMITTENT LEAVE UNDER THE FMLA
• OVERVIEW AND INTERACTION OF THE ADA, FMLA, AND WC LAWS

SUPREME COURT LIMITS ADA PROTECTION

In a collection of cases handed down this past year, the United States Supreme Court reduced the number of those considered "disabled" under the Americans with Disabilities Act (ADA). The Court held that the determination of whether an individual is disabled must be made with reference to measures that mitigate the individual's impairment, such as eyeglasses or medication.

Definition of Disability

The ADA defines "disability" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The Supreme Court has now held that merely having an impairment does not make one disabled for purposes of the ADA. The impairment must be one that "substantially limits one or more major life activities." A fully corrected impairment does not "substantially limit" a major life activity.

Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999) involved twin sisters with severe myopia. Their vision was 20/20 when they used corrective lenses. Both sisters applied for the position of commercial airline pilot with United Air Lines. United refused to hire the sisters because they both failed to meet United's minimum vision requirement, which was uncorrected visual acuity of 20/100 or better. The sisters sued alleging that United discriminated against them on the basis of their disability, or because United regarded them as having a disability in violation of the ADA.

The Court found that the sisters were not disabled under section (A) of the definition of "disability," because they were unimpaired when wearing glasses or contact lenses. The Court used the same analysis in Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999) in finding that a mechanic was not disabled because medication alleviated his high blood pressure.

Self-mitigating factors may be considered as well. In Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999), a truck driver with monocular vision (his left eye was much weaker than his right eye) failed to meet the Department of Transportation vision requirements, and as such, Albertsons refused to hire him. The Supreme Court held that the truck driver had no cause of action under the ADA because his brain compensated for his monocular vision making him able to perform daily functions with the same proficiency as individuals with normal binocular vision. As such, the truck driver was not "substantially limited" in any major life activity. Just because his vision was different from others did not mean that he was disabled.

It must be remembered, however, that an employee may still be substantially impaired even with corrective measures. An individual still may be substantially limited in one or more major life activities (through side effects of a drug, for example). This approach is consistent with the Supreme Court's holding that for purposes of the ADA, one cannot classify an entire group of people with similar impairments as disabled. Whether an employee is "disabled" is an individual inquiry done on a case-by-case basis.

Regarded as Disabled

An employee is still afforded the protection of the Act if his employer "regards" him as having an impairment that "substantially limits" one or more of the major life activities. Although work itself is a major life activity, to be regarded as "substantially limited" in the major life activity of working, at a minimum, the ADA plaintiff must show that his employer regarded him as unable to work in a broad range of jobs. The inability to perform one particular job does not make one substantially limited in the major life activity of working.

For this reason, the employees in Sutton and Murphy could not prove that they were "regarded as" disabled by their employer. The sisters in Sutton were viewed as unable to perform only the specific job of commercial airline pilot. The mechanic in Murphy was regarded as unable to perform only the specific job of driving commercial motor vehicles, an activity that the mechanic admitted was an essential function of his job. Absent proof that the employers regarded the employees as unable to perform a broad range of jobs, the employees were not regarded as being substantially limited in the major life activity of working. Thus, they were not protected by the ADA.

Application

So how do these decisions affect employers? Only an individual protected by the Act is entitled to "reasonable accommodation." An employer need not worry about accommodating an individual with a fully mitigated impairment. However, employers may find it difficult to determine whether an employee's impairment is fully mitigated. This analysis must be made on an case-by-case basis, and we suggest that employers consult legal (and possibly medical) counsel before making employment decisions based on an employee's perceived or real disability.

Eric W. Reecher

Back To The Top

EMPLOYER OBLIGATIONS CONCERNING INTERMITTENT LEAVE UNDER THE FMLA

The Family and Medical Leave Act (FMLA) entitles certain employees to a total of 12 workweeks of job-protected leave during a 12-month period for certain family or medical emergencies. One of these qualifying reasons is for "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a).

"Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason." 29 C.F.R. § 825.203(a). In general, an employee shall not take FMLA leave intermittently unless the employee and employer agree otherwise. 29 U.S.C. § 2612(b). Leave for the employee's own "serious health condition," however, "may be taken intermittently … when medically necessary." Id. The term "medically necessary" means that "there must be a medical need for leave (as distinguished from voluntary treatments and procedures) and it must be that such medical need can be best accommodated through … intermittent" leave. 20 C.F.R. § 825.117.

When an employee may take intermittent leave is not completely the decision of the employee, however. "Employees needing intermittent FMLA leave … must attempt to schedule their leave so as not to disrupt the employer's operations. In addition, an employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee's intermittent" leave. Id.

Serious Health Condition

It is important to note that the employee must have a "serious health condition" as defined in the FMLA before the employee is entitled to intermittent leave. Whether an employee has a "serious health condition" depends on the specific facts of each case. "For purposes of FMLA, 'serious health condition' entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental conditions that involves:" (1) inpatient care (i.e., an overnight stay) in a hospital, or (2) "continuing treatment" by a health care provider. 29 C.F.R. § 825.114(a).

Defined more clearly, the latter category of a "serious health condition" involving "continuing treatment" by a health care provider includes any one or more of the following:

1. A period of incapacity (i.e., inability to work, … or perform other regular daily activities …) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
1. Treatment two or more times by a health care provider …; or
2. Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider…
2. Any period of incapacity due to pregnancy, or for prenatal care.
3. Any period of incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
1. Requires periodic visits for treatment by a health care provider …
2. Continues over an extended period of time …; and
3. May cause episodic rather than a continuing period of incapacity.
4. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective …
5. Any period of absence to receive multiple treatments … by a health care provider …

Notice

The FMLA requires both the employee and the employer to provide a certain amount of notice to each other about the employee's FMLA leave. An employee must explain to the employer the reasons for the needed leave so as to allow the employer to determine whether the leave qualifies under the FMLA. If the employer cannot tell from the information given whether the leave is FMLA qualified, the employer should ask questions of the employee until it can sufficiently analyze whether the leave would be FMLA qualified. If the leave is foreseeable, the employee must give 30 days notice of the need for leave before taking the leave. However, if the leave is not foreseeable, the employee need only provide the employer with notice for leave as soon "practicable."

"In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee … In the case of intermittent leave …, only one such notice is required unless the circumstances regarding the leave have changed." 29 C.F.R § 825.208(a). In other words, once you inform the employee that any leave taken as a result of one particular condition entitling them to intermittent leave will count as FMLA leave, you need not repeat that notice each time the employee misses work because of the same condition. Such leave will still count against the employee's 12-week entitlement. While the regulations say that the employer's notice cannot act retroactively to count days taken before the notice was given against an employee's 12-week entitlement, recent court rulings in some federal circuits have held this regulation to be invalid. These courts say that even leave taken before the employer gave the required notice can count against the employee's 12-week entitlement.

Conclusion

If an employee has a "single qualifying reason" that constitutes a "serious health condition," then the employee may take FMLA leave intermittently when "medically necessary." Once you provide notice that the employer will treat as FMLA-qualified leave any leave the employee takes as a result of that particular condition, any days the employee takes for that reason count against the employee's 12-week entitlement.

Eric W. Reecher

Back To The Top

An important work-issue for most employers is absenteeism. Absenteeism can result from sick days, vacation, disability leave, personal time, or other time off. Regardless of the reason, employers have to face several issues: how much absenteeism should be allowed; what leave should be granted; what benefits should be provided during the period of leave; and should the employee be restored to his former position or an equivalent position?

The following is a brief synopsis and comparison of Americans with Disability Act ("ADA"), Family Leave and Medical Act ("FLMA"), and Workers Compensation ("WC") requirements that an employer should use as a guide for its absentee policy.

Who is Covered?

ADA: Private employers of 15 or more employees who worked in 20 or more weeks in the current or preceding calendar year.
FMLA: Private employers of 50 or more employees within a 75-mile radius who work for 20 or more weeks in the current year and public employees. Employees must have worked for 12 months and 1250 hours to be covered.
WC: VA- all employees, except employers who have less than 3 employees; railroad employees, casual employees, domestic servants, taxi drivers, real estate and sales representatives on commission, and farm or agriculture employers with less than 2 full-time employees. TN- all employers with 5 or more employees, except interstate common carriers, casual employees, domestic servants, agricultural employers, state, county, and municipalities, and voluntary ski patrols.

Qualifying Events.

ADA: Employee has an impairment, a record of an impairment, or is regarded as having an impairment that substantially limits a major life activity.
FMLA: Serious illness/injury (at least 3 days off, continuing medical treatment) of employee or employee's spouse, parent, or child; birth, adoption, foster care placement of child.
WC: Illness or injury "arising out of" and "in the course of" employment.

Leave Requirements.

ADA: Intermittent or temporary leave or change in work schedule may be a reasonable accommodation.
FMLA: Up to 12 weeks, unpaid leave. Vacation, sick leave, and disability coverage can run concurrently; to start time running, employer must designate leave as FMLA leave. (However, some Circuits have recently held that FMLA leave taken before employer notice can count against the 12 week entitlement, for further details see "FMLA" article .)
WC: Health care provider may suggest length of leave and whether employee returns to light or regular duty. Employer must determine its responsibility to cooperate with the provider's suggestions.

*TIP: ADA provides protection only for those disabled individuals who can or could work after a change in work schedule or a temporary leave, while FMLA provides temporary protection for any employee who cannot work, even if there is no likelihood that he will ever return to the job.

Notification.

ADA: Unless disability is obvious, employee must disclose.
FMLA: If foreseeable, must give 30 days notice. If not foreseeable, employee must give notice as soon as practicable.
WC: Both VA and TN- Unless known, employee must give written notification to employer (VA- immediate, TN- reasonable time); no compensation payable unless notice given within 30 days of injury. VA- Employer must report injury to the Worker's Compensation Commission within 10 days. TN- Employer must give notification to Division of Worker's Compensation within 14 days.

Questioning the Job Applicant.

ADA: Cannot ask whether person has a disability, may ask whether person has the ability to perform the specific job requirements; if disability is obvious, may discuss accommodation.

*TIP: Don't - ask applicant how often individual will require leave for treatment or use leave as a result of incapacitation; Do - state attendance requirements of job and inquire whether applicant can meet them.

Medical Documentation.

ADA: May make medical inquiries and examination necessary to determine whether an accommodation is truly needed or would be effective. May use employer's physician.
FMLA: Can require certification (illness, duration, treatment); may have second opinion at employer's expense.
WC: Employer must be kept informed; can gain more extensive information than under ADA and FMLA.

*TIP: Employer cannot use greater access to information from WC case to deny FMLA leave.
*TIP: Medical information collected under ADA must be identified as "confidential medical record" and must be placed in separate medical file, apart from other personnel files.

Benefits.

ADA: May reduce benefits; but watch out for discriminate treatment.
FMLA: Medical coverage and other pre-existing benefits must be maintained during leave; leave cannot count against employee for attendance (including no fault policy), length-of-service, bonus calculations, etc.
WC: Employers must cover expenses for work-related injury/illness.

Disqualifying Events.

ADA: Employee's refusal of a reasonable accommodation; failure to provide medical certification.
FLMA: Employee's failure to provide medical certification.
WC: Illness or injury not work-related; Both VA and TN- willful acts, intoxication (drug or alcohol), violation of safety rules, "going-and-coming" to work, recreational activities; VA- attempt to injure another.

Exceptions for Employers.

ADA: Need not provide accommodation that is an undue burden on business, violates union contract, displaces another employee; need not accommodate employee whose impairment poses a direct or significant risk to self or others.
FMLA: Certain "key employees" cannot demand return to equivalent positions.

Conclustion.

These various requirements must be considered when an employer is developing its leave policy. A well-developed and implemented written attendance policy is the best defense to a claim brought under the ADA, FMLA, or workers compensation laws.

Kristine Kring