FMLA, ADA Updates
New FMLA Military Leave Amendment
On October 27, 2009, President Obama signed the 2010 National Defense Authorization Act, which contained new amendments to the Family and Medical Leave Act (FMLA). By way of background, the 2008 National Defense Authorization Act created a new leave right under the FMLA for families of service members. The new Act further expands FMLA coverage and available leave for military families in the following ways:
- Leave For A ‘Qualifying Exigency.’ Previously, leave for a qualifying
exigency in connection with a deployment for a contingency operation
was not available to members of the regular Armed Forces, but only
members of Reserves and National Guard units. The new amendments
permit families of regular armed forces personnel who are deployed
to foreign countries to qualify for such leave.
- Leave To Care For A Covered Service Member
With A Serious Illness. So-called ‘military caregiver
leave’ provides up to 26 weeks of leave
to employees caring for a current member of the armed forces, National
Guard or Reserves. The new legislation permits leave to be taken
for retired military service members as well, so long as it is within
five years of the date on which the service member first receives
treatment, recuperation, or therapy for the injury.
- Leave For Aggravation Of Existing Or Preexisting
Injuries. The
2008 regulations specified that a later aggravation or complication
of the same injury would not constitute a ‘subsequent injury’ triggering
another 26 weeks of leave. The new legislation, however, provides
that an aggravation or complication of a prior injury will trigger
a right to another 26 week leave period, although it will remain
the case that the 26 weeks of leave will have to be taken in a single
12-month period for a single injury (and any leave not taken in that
year forfeited).
Lessons Learned: The new amendments
direct the U.S. Department of Labor (DOL) to work with the Secretaries
of Defense and the Veterans Administration to draft regulations implementing
the amendments. The legislation does not make clear whether the law goes
into effect immediately or whether it will become effective after the
new regulations are issued. It would be prudent, however, to proceed
as if the law were in effect if faced with a request by an employee seeking
leave to care for an eligible service member under the expanded law.
-HR That Works!
Leave and light duty policies may run afoul of ADA
The federal Equal Employment Opportunity Commission (EEOC) sued Jewel-Osco
and its corporate parent, saying the Chicago area’s biggest supermarket
chain violated the Americans with Disabilities Act (ADA). Since November
2003, Jewel-Osco allegedly prohibited employees on a one-year paid
disability leave from returning to work unless they had no mental or
physical restrictions, or unless they could return to work “without
any accommodation to full service,” the EEOC
alleges. The suit also challenges the company’s refusal to allow
disabled workers who weren’t injured on the job from participating
in a 90-day light-duty program.
On the heals of the largest ADA lawsuit settlement in the history
of the EEOC (Sears, Roebuck & Co.), this demonstrates the need for
employers to review policies affecting workers with disabilities.
Understanding the ADA Association provision
More “association discrimination” cases are being filed
under the ADA. The association provision is based on an employee’s
relationship with a person who has a disability. A company cannot refuse
to hire an applicant because they are concerned about the applicant’s
responsibilities in caring for a disabled person. Moreover, companies
cannot reject applicants because disabled family members might produce
increased health costs.
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