The New Bermuda Triangle

If anyone is still under the illusion that world geopolitical events do not reshape employment law and regulations, think again.

In the last five years, tens of thousands of civilian military reservists who left their jobs to fight overseas have completed tours of duty and returned to the nation’s workforce. As the effects of this large-scale re-integration have become better understood, human resource professionals have seen:

New Uniformed Services Employment and Reemployment Rights Act regulations issued, effective Jan. 18, 2006, providing guidance on employer obligations to employees called to or enlisting for active military duty and returning to work after their service.

Two separate amendments to the Family and Medical Leave Act (FMLA), signed into law in January 2008 and October 2009. Both added new forms of protected leave for eligible employees whose family members are called up for and serve on military duty or are injured in the course of such duty.

New FMLA regulations from the U.S. Department of Labor (DOL), effective Jan. 16, 2009, providing guidance on the two new forms of military-related leave, with further regulations promised regarding the October 2009 amendments.

According to the U.S. Department of Defense’s Employer Support of the Guard and Reserve, military reservists make up as much as 48 percent of the nation’s total available military personnel. Hence, employees have literally been on the front lines of the nation’s 21st century military conflicts, and the new laws and regulations govern issues not generally seen by HR professionals prior to 2001.

On top of that, significant amendments were made to the Americans with Disabilities Act (ADA)—known as the Americans with Disabilities Act Amendments Act, effective Jan. 1, 2009—and the U.S. Equal Employment Opportunity Commission (EEOC) issued proposed ADA regulations in September 2009.

Taken together, all these changes make it clear that old ways of thinking about coordinating compliance issues among the FMLA, ADA and state workers’ compensation laws—called the Bermuda Triangle of employment law—will no longer do.

Two Sides of the Triangle

Without repeating every detail of the FMLA’s military-oriented leave amendments and regulations or the ADA amendments and their proposed regulations, a summary of those changes nevertheless provides context for considering how the waters of the Bermuda Triangle have been stirred up on two sides.

New leave regulations had been promised for the better part of the Bush administration’s second term. The regulations had not yet been proposed when, on Jan. 28, 2008, former President George W. Bush signed a national defense and military operations funding reauthorization bill into law. The law amended the FMLA to permit an otherwise FMLA-eligible employee who was the "spouse, son, daughter, parent or next of kin" of a "member of the armed forces, including a member of the National Guard or Reserves," to take up to 26 workweeks of leave to care for that military family member when he or she was undergoing medical treatment, recuperation or therapy; was in outpatient status; or was on the military’s temporary disability retired list for a "serious injury or illness."

A second form of military-related leave was added for "any qualifying exigency" arising from the fact that an eligible employee’s spouse, son, daughter or parent was on active duty or notified of an impending call to active duty. The law did not define "qualifying exigency," expressly deferring to the DOL to issue regulations that would define the parameters.

The DOL’s long-promised rewrite of the FMLA’s original regulations was issued in February 2008, finished that November and effective Jan. 16, 2009. Although the proposed regulations were issued too soon after the first military-oriented leave amendments were enacted to address military leave issues, the final regulations did so. They:

• Describe the right to caregiver leave.
• Define seven specific situations that would constitute "qualifying exigency" leave.
• Provide new model certification forms, WH-384 and WH-385, for employees to submit when requesting "qualifying exigency" or military caregiver leave.

At almost the same time, the ADA amendments went into effect on Jan. 1, 2009. Passed in some measure in response to a series of U.S. Supreme Court decisions that narrowed the scope of the original disabilities act, the amendments clarified that the definition of "disability" should be construed broadly and without regard to the ameliorative effects of medications or therapies that might otherwise negate the effect of a disability.

The amendments also lowered the threshold for showing that an impairment substantially limits a major life activity and identified major life activities that had not been defined in the original law. Congress helpfully noted in two new sections that employers have no duty to provide accommodation for employees only regarded as being disabled, and that the broadened definition of disability would not alter or otherwise affect state workers’ compensation benefits eligibility determinations.

Nine months later, on Sept. 23, 2009, the EEOC issued proposed regulations to flesh out the changes in the ADA amendments. Not unexpectedly, and in keeping with the amendments’ stated purpose, the commission’s proposed rules would relax the standard for showing that an individual is "substantially limited" in a major life activity. The proposed rules also add to the list of major life activities in the ADA amendments and provide more guidance on "transitory" impairments, therein defined as those of a minor nature and expected to be of short duration.

Military Caregiver Leave

In late October 2009, President Barack Obama signed a national defense funding law. It expands the military family leave provisions added to the FMLA in 2008, extending the availability of "qualifying exigency" leave to eligible employees whose covered family members serve on active duty.

The funding law also expanded the military caregiver leave provisions of the FMLA, extending leave entitlement to situations where the employee’s military family member needs care for treatment undertaken at any time within five years following the individual’s military service. Finally, the funding law expanded the FMLA’s definition of a "serious injury or illness." The definition now includes conditions that existed before the beginning of the member’s active duty and were aggravated by service on active duty; for veterans, it includes conditions that were incurred during, or aggravated by, active duty service but that manifested themselves only after the service member became a veteran.

The law directs the DOL to propose regulations to further define qualifying injuries and illnesses for veterans in relation to an eligible employee’s request for military caregiver leave for that individual. As of this writing, these regulations remain forthcoming.

If you are feeling like you can’t keep up, don’t worry—you’re not alone. Not even government officials can keep up with all the changes.

Old Guidance

The EEOC has a fact sheet on ADA and workers’ compensation compliance and enforcement guidance on FMLA, ADA and Title VII coordination. Each document is more than a decade old and contains a boldface notice that the commission is still evaluating the impact of the ADA amendments on its prior guidance. In its proposed regulations for the amendments’ changes, the commission predicts that it will issue a new or revised small-business handbook to update literally dozens of existing enforcement guidances and other technical assistance documents. It has not yet done so.

Similarly, the DOL’s Office of Disability Employment Policy has not updated its descriptions of workplace disability laws and how they interact with the ADA, the FMLA, the Occupational Safety and Health Act and state workers’ compensation laws for at least five years. Even a fairly new and helpful Wage and Hour Division fact sheet on the FMLA’s 2008 military leave amendments acknowledges that it does not yet address the nearly year-old revisions to "qualifying exigency" and military caregiver leave entitlements.

Rethinking the Triangle

The FMLA and ADA landscapes have changed significantly in the last few years—and may change more in coming months. Even if your state’s workers’ compensation laws have not changed, attention should now be given to coordinating compliance issues in the new Bermuda Triangle of employment law.

First, recognize what has not changed. For example, it remains true that an employee with a protected disability may or may not have a "serious health condition" under the FMLA, and that a workplace injury triggering workers’ compensation rights may or may not trigger FMLA or ADA considerations. Indeed, in frequently asked questions that accompanied its newly proposed ADA amendments rules, the EEOC specifically notes that the amendments’ definitional changes do not alter the standards for determining eligibility for benefits under state workers’ compensation laws. Employers are clearly still responsible for meeting—and coordinating—the obligations of all three laws whenever their respective thresholds for coverage are triggered.

But some new coordination of compliance issues have arisen in light of the military-oriented leave amendments and the broadened definition of disability.

Coordination of Compliance

The new forms of leave now available for eligible employees with covered family members called to duty or serving in the military, or in need of care for injuries sustained or aggravated during their service, do not directly raise ADA accommodation or other coordination issues. These leave entitlements do not relate to the employee’s condition or status, but rather to the family member’s.

Still, remember that the original ADA prohibits discriminating against an employee because of his or her association with an individual who has a known disability. The act’s regulations extend this protection to an employee’s association with his or her family members. So, to the extent that an employee takes advantage of military caregiver leave for a family member with a defined "serious injury or illness," the ADA amendments’ expanded definition of disability could result in the employee’s entitlement to FMLA leave and the related legal protections, as well as to the ADA’s protection against associational discrimination.

Perhaps the most significant coordination issue in light of the January 2009 FMLA regulations and the ADA amendments, however, is conceptual: Since the ADA’s enactment in 1990, many employers have grown accustomed to linking an employee’s disability with the requirement to provide—or the employee’s need for—a reasonable accommodation, absent undue hardship for the employer or a direct threat to the employee’s or co-workers’ safety. Stated differently, it all too often was assumed that employees who didn’t request accommodation were not covered by the law.

The ADA amendments and their proposed rules, however, make it clear that the expanded definition of disability, along with the broad construction courts are directed to give it, should result in many more employees meeting the threshold for having a protected disability but not presently needing or requesting accommodation.

By contrast, the FMLA has been, and remains, a strict entitlement statute. If an employee has a legally defined, certified "serious health condition," the entitlement to leave is automatic—practically without condition.

Conceptually, then, while it often may have been safe to assume before the ADA amendments that an employee with a serious health condition did not necessarily have a disability, the safer assumption today will be that a disability may be present—with corresponding protections against discrimination and retaliation.

But beyond FMLA leave entitlement, the employee may not presently need or request a disability accommodation.

That said, the old FMLA-ADA coordination rules apply. When an employee with both a serious health condition and a disability needs accommodation, the employer may not choose to provide a reasonable accommodation that would permit the employee to remain at work instead of granting a certification-supported leave request.

The employee’s legal right to leave is automatic, essentially trumping—at least temporarily—the obligation to make non-leave-based reasonable accommodation, provided the employee is FMLA-eligible and has not exhausted his or her leave entitlement.

If the employee has exhausted FMLA leave entitlement, additional leave or a reduced work schedule remain possible reasonable accommodations that should be considered. The employer has latitude under the ADA, when FMLA leave is no longer available, to choose a non-leave accommodation if appropriate under the circumstances.

Coordination Affected

An in-depth explanation of all of the nuances of the resulting coordination of compliance issues under the FMLA amendments and the ADA amendments would likely fill a full-length treatise. Still, HR professionals will go a long way toward satisfying new compliance obligations by understanding the basic expansion of the definition of disability in the ADA amendments and the notice and military leave requirements in the FMLA amendments and regulations, and considering how their compliance obligations fit together.

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The author is an attorney with the Lansing, Mich., office of Miller, Canfield, Paddock and Stone PLC, and is past president of the SHRM-affiliated Human Resource Management Association of Mid-Michigan.

Web Extras

• Online Sidebar: Internal FMLA Coordination (HR Magazine)
• SHRM article: ADA Game Changer (HR Magazine)
• SHRM article: Presumed Disability (HR Magazine)
• SHRM article: Final FMLA Provides New Certification Forms (SHRM Online Legal Issues)
• SHRM article: DOL Posts New FMLA Poster, Certification Forms (SHRM Online Legal Issues)
• SHRM article: DOL on Schedule to Release New FMLA Regs in November (SHRM Online Legal Issues)