2011 was a busy year for the FMLA. In 2011, the Obama administration and the courts have continued to expand the scope and effect of the FMLA, as well as other laws related to medical conditions and liability. This year brought major developments to the FMLA, including the new ADAAA regulations, GINA’s safe harbor rules, DOL’s interpretation of the in loco parentis rule, and several court cases interpreting the FMLA and related issues.

ADAAA Changes to Disability Coverage—FMLA Serious Health Conditions
Effective May 24, 2011, final regulations were issued by EEOC implementing the ADAAA and reflecting the ADAAA’s broader definition of the term “disability.” As a result of the ADAAA and final regulations, more individuals now have covered disabilities and qualify for protection under the ADA. For employers, this generally means shifting their approach from one that focuses on verifying that a person has an ADA disability to one that uses the interactive process to see if there’s an effective accommodation that will allow an employee to perform the essential functions of his or her job.

According to EEOC, the primary focus in ADA cases should now be whether employers have complied with their obligations under the ADA and whether discrimination has occurred, not whether the individual meets the definition of the ADA “should not demand extensive analysis.”

The practical effect of the ADAAA on FMLA compliance is the increased crossover between ADA-protected disabilities and FMLA-protected serious health conditions. As a result, employers will be called upon to offer not only FMLA leave, but more often now, an extension of leave to accommodate those employees who have both a serious health condition and a disability.

Steps Employers Should Take. The following are steps employers should take to address the changes brought about by the recent changes to the ADA:

• Ensure that employees who qualify for FMLA leave because of their own serious health condition are also considered for ADA coverage, additional leave, and/or other accommodation.
• Coordinate medical certification process so that the two legal standards (for serious health conditions and potential disability qualification) are met individually and documented sufficiently.
• Review job descriptions to ensure regulatory compliance—detailing the essential functions in a job description will help ensure that applicants and employees with disabilities are not discriminated against because they cannot perform marginal job duties.
• Train supervisors and managers about complying with the amended ADA, in particular about the interactive process, requests for accommodation, and types of reasonable accommodation. Training supervisors not to retaliate in response to disability claims or requests for accommodation is also critical.
• Check recordkeeping processes to ensure adequate documentation of accommodation requests, steps in the interactive process, and reasons for granting/denying an accommodation request.
• Check equal employment/nondiscrimination policies to make sure they comply with the amended ADA and regulatory requirements.

EEOC’s Final GINA Regulations—And How They Affect FMLA Compliance
In January 2011, EEOC’s final regulations that interpret and implement the nondiscrimination requirements of GINA became effective. The final regulations include new information about the obligation of covered employers to avert possible disclosures of genetic information by healthcare providers, including during the processing of FMLA leave.

With some exceptions, GINA prohibits employers from requesting or acquiring genetic information about employees and the family members of employees. It also prohibits employers that obtain genetic information (whether legitimately or not) from discriminating against an employee, job applicant, or former employee on the basis of genetic information.

Safe Harbor Language for Medical Inquiries. The GINA statute and regulations recognize that employers may come into possession of some kinds of genetic information legitimately as part of the FMLA certification process. Specifically, GINA provides that it is not unlawful for an employer to request family medical history as part of a medical certification for leave taken under the FMLA or similar state leave laws.

The safe harbor language warns healthcare providers not to reveal any genetic information in their response. If a medical provider discloses genetic information to the employer in spite of this warning, such disclosure will be deemed inadvertent and not in violation of GINA.

It is also recommended that employers also include the safe harbor language in requests for fitness-for-duty certification and in their instructions to any healthcare provider who is conducting a fitness-for-duty exam at the employer’s request.

DOL Issues Expansive Interpretation of In Loco Parentis Standard
The U.S. DOL released a new “administrator interpretation” that clarifies the circumstances in which an employee may take leave to care for a child toward whom they act as a parent, but are not legally recognized as such. The so-called in loco parentis provision also applies to situations where a person or people acted in the place of a parent for the employee when the employee was a child.

According to the administrator interpretation, in loco parentis status requires a consideration of multiple factors, including:

• The age of the child;
• The degree to which the child is dependent on the person claiming to be standing in loco parentis;
• The amount of support, if any, provided; and
• The extent to which duties commonly associated with parenthood are exercised.

The key is the employee’s intent to assume the status of a parent, which can be inferred from the employee’s actions with regard to the child.

In addition, although DOL does not come right out and say it, it appears that the most important factor is the extent to which the employee exercises—or intends to exercise, for newborn or newly adopted children—parental duties.

In addition to same-sex couples, the administrator interpretation also enunciates certain principles that may be applied to other nontraditional family settings. The first principle is that employees who care for a child on a daily basis will be considered in loco parentis even if they provide no financial support for the child. The second principle is that there is no limit as to how many people can be considered in loco parentis to a particular child.

Recent Court Decisions
In the continuing evolution of FMLA law, several judicial decisions changed the way in which the FMLA will be interpreted and enforced. Included in those changes are an employer’s obligations to provide more ADA leave than the FMLA requires, the extension of retaliation protection to third parties, and the addition of “cat’s paw” liability to discrimination and FMLA cases.

Obligations to Provide Leave. Several cases recently decided or settled address an employer’s obligations to provide more leave that the FMLA requires as a reasonable accommodation under the ADA. Most recently, EEOC entered into a consent decree with Verizon, the agency collected $20 million to settle claims that it refused to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Verizon’s attendance policy provided that after an employee accumulated a certain number of “chargeable absences,” the employee would be subject to progressive disciplinary steps that could result in termination. EEOC asserted that Verizon failed to provide a reasonable accommodation—i.e., flexibility in its attendance policy—for employees who incurred absences caused by their disabilities.

It is becoming clearer that EEOC has been paying particular attention to employers that have a policy of automatically terminating employees who fail to return to work after they’ve exhausted FMLA and/or workers’ compensation leave. EEOC, which is responsible for enforcing the employment discrimination provisions of the American with Disabilities Act (ADA), has responded by bringing enforcement actions against such employers.

EEOC’s ADA Enforcement Guidance concludes that an employer may not apply a no-fault leave policy—under which employees are automatically terminated after they have been on leave for a certain period of time—to an employee with a disability who needs leave beyond the designated leave period.

When a disabled employee has exhausted his leave under the FMLA, workers’ comp, or the employer’s internal policies, the employer may be required to provide him or her with additional leave as a reasonable accommodation under the ADA. The only exceptions are if there is another effective accommodation that would return the employee to work, or granting additional leave would cause the employer an undue hardship.

These cases demonstrate that EEOC has its sights firmly set on inflexible fixed-term leave policies. In light of the agency’s continued doggedness on this topic, employers are well advised to take a close look at their leave of absence policies—not just those under the FMLA—as well as their procedures in administering and enforcing them. That is true even if the employer’s policy is more generous than the law requires.

FMLA Retaliation Protection Extended to Third Parties. Another notable case applicable to the FMLA came from the U.S. Supreme Court in 2011 in Thompson v. North American Stainless (NAS), LP. In the Thompson case, the Supreme Court found that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct, including third-party retaliation.

Justice Scalia wrote in his opinion, “[w]e expect that firing a close family member will almost always meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

Although the Thompson case was decided under Title VII, the FMLA’s highly similar antiretaliation clause makes it likely that employees’ attorneys and DOL will seek to apply the Court’s logic in Thompson to third-party retaliation claims under the FMLA.

Cat’s Paw Liability and the FMLA. Finally, 2011 brought the application of so-called “cat’s paw” liability to Title VII discrimination and then to the FMLA.

Under the cat’s paw theory, an employer can be held liable when an unbiased manager bases his or her employment decision on the recommendation of a biased one.

In Staub v. Proctor Hospital (2011), the Supreme Court ruled that an employer may be liable for an adverse employment action of an unbiased manager if the action is based on the recommendation of a biased, lower-level supervisor.

The Court ruled that an employer may be liable if all of the following are established: A supervisor performs an act motivated by unlawful bias, the act is intended to cause an adverse employment action, and the act is the proximate cause of the ultimate employment action.

Although this case was brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court noted that USERRA’s language regarding a “motivating factor” is similar to Title VII. Therefore, this ruling could open the door for courts to apply “cat’s paw liability” in cases brought under Title VII, the ADA, and the FMLA.

In fact, recently, in the case of Blount v. Ohio Bell Telephone Co. No. 1:10-CV-01439 (U.S. Dist. Ct., N.D. Ohio 2011), a district court applied the cat’s paw theory of liability to a FMLA case.

As employers head in to 2012, what changes will they face in leave management and FMLA compliance? Next week’s white paper will discuss possible changes in 2012.