1. NAVIGATING THE ADA, THE FMLA and the NEW JERSEY FLA A Presentation by: Laura H. Corvo, Esq. LeClairRyan

2. THE ADA AMENDMENTS ACT

3. The ADA Amendments Act  The ADA Amendments Act (“ADAAA”) Went into effect on January 1, 2009. Significantly broadens scope of the ADA, expanding definition of “disabled” and expanding employers’ obligations.

4. The ADAAA  “DISABLED” IS DEFINED BROADLY  “The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. The Act makes important changes to the definition of the term disability by rejecting the holdings in several Supreme Court decisions and portions of the EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.” -EEOC Notice Concerning the Americans with Disabilities Amendments Act of 2008 (June 17, 2008)

7. The ADAAA  How has the ADAAA broadened the Definition of “Disability?” Temporary and Episodic Illnesses - included if they substantially limit a major ife activity. Major Life Activity - is broadened to include bending, reading, working, learning, concentrating, thinking and communicating. Mitigating Measures - are not included when evaluating whether someone is disabled (even if the disability is treatable, the Act considers the person’s condition in its untreated form) with the exception of corrective lenses.

8. The ADAAA  “Regard as Disabled” is broadened ADA Amendments Act broadens the “regarded as” provision of the ADA to include a larger class of people. ADAAA now states: “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” –Example: An individual who has sleep apnea may have a “disability” under the Act if she is perceived to have an impairment and is not hired as a result, whether or not she mitigates the effects of the sleep apnea and has no trouble sleeping.

9. The ADAAA MENTAL HEALTH ISSUES AND THE ADAAA  More mental illnesses will fall under the new definition of “disabled”.  Due to the stigma given to mental health issues, and the broader definition of “regarded as disabled”, most mental health issues will be covered by the ADA.

10. THE FAMILY AND MEDICAL LEAVE ACT

11. THE FAMILY AND MEDICAL LEAVE ACT – NEW LEAVES  THE NATIONAL DEFENSE AUTHORIZATION ACT OF 2008  Amends the FMLA to permit employees to take additional leave to care for family members serving in the military; and  Creates an additional leave for employees whose family members are called to active duty in the armed services.

12. CAREGIVER LEAVE Who is Eligible?  Any employee who is the "spouse, son, daughter, parent or next of kin of a "covered service member" and seeks leave to care for the "covered service member." Who qualifies as a “Covered Service Member?”  A “Member of the Armed Forces, including the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury.” How Much Time is Available?  26 Weeks of leave in a 12 month period (more than double the amount of leave available under the FMLA).

13. ACTIVE DUTY LEAVE What is the Basis for Leave?  Any “qualifying exigency” that arises “out of the fact that the spouse, or a son, daughter or parent of the employee is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation.” What is a “Qualifying Exigency?”  Attending Military Events and Related Activities  Addressing Financial and Legal Arrangements  Arranging Childcare and Attending School Activities  Attending Counseling Sessions  Spending time with covered military member on short-term temporary rest and recuperation  Attending Post Deployment Activities  Addressing issues arising from Short Notice Deployment  Short Notice Deployments

14. Family and Medical Leave Act Final Department of Labor Regulations Serious health condition – must involve inpatient care or continuing treatment by a health care provider, which includes a period of incapacity combined with medical treatment (definition is clarified). Employee Notice of FMLA Eligibility – employer has 5 business days to provide notice (increased from 2 days). Medical certification – if an employee provides incomplete or insufficient medical certification, employer must provide 7 days to cure deficiency. Substitution of paid leave – permit an employer and employee to agree to substitution of paid leave during FMLA leave if employee would not otherwise receive a regular salary.

15. NEW JERSEY FAMILY LEAVE ACT

16. Which employers are covered by the NJFLA?  All employers with 50 or more employees anywhere worldwide must comply with the NJFLA for their New Jersey employees. Which employees are eligible for leave?  Work for a Covered Employer  Employed for at least 12 months  Worked 1,000 hours in the preceding 12 months

17. NEW JERSEY FAMILY LEAVE ACT What Are the Criteria for Leave?  Birth or adoption of a child  Serious illness of a parent, child or spouse  Employee’s own serious illness is not covered How Much Leave is Available?  Up to twelve weeks of leave in a 24-month period. The 24-month period begins on the first day of the employee's first NJFLA leave.

18. NEW JERSEY FAMILY LEAVE ACT What are the Key Differences between the NJFLA and the FMLA?  “Family leave” only: NJFLA does not provide leave for employee’s own serious health condition.  Step-Parents and Civil Union Partners:  The definition of parent under NJFLA includes step-parent.  Provides leave to care for Civil Union Partner.  Amount of leave  FMLA provides for 12 weeks leave in 12 month period.  NJFLA provides for 12 weeks leave in 24 month period.

19. THE INTERSECTION OF THE ADA, FMLA and NJFLA

20. ADDITIONAL LEAVE LEAVES UNDER THE FMLA and NJFLA Simultaneous FMLA and NJFLA Leaves: Leaves under the FMLA and NJFLA only run simultaneously if for the same purpose. Consecutive FMLA and NJFLA Leaves (the 24 week leave possibility)  An Employee may be entitled to take 12 weeks “medical leave” under the FMLA for their own serious health condition.  Plus an additional 12 weeks “family leave” for the birth or adoption of a child or to care for a seriously ill family member.

21. ADDITIONAL LEAVE REASONABLE ACCOMMODATION UNDER THE ADA  Leave of Absence as a Reasonable Accommodation: The ADA may require employers to provide a leave of absence for disabled employees beyond leave entitled under the FMLA as a Reasonable Accommodation.  What is Reasonable?  Indefinite Leaves Not Reasonable  Relaxing Time and Attendance Policies May be Reasonable

22. ADDITIONAL LEAVE WHEN IS AN ACCOMMODATION AN “UNDUE HARDSHIP?”  Case by Case Basis: Employers can’t assume an accommodation would be an undue hardship. It must investigate all options and carefully document its efforts.  An employer cannot show undue hardship just because: The cost of the accommodation is high in relation to the employee’s pay. Providing the accommodation would have an adverse effect on co- workers. Providing the accommodation may leave other employees to request accommodations.

23. INTERMITTENT LEAVE Intermittent Leave under FMLA and NJFLA:  Available to Employees who Suffer a Serious Health Condition or Care for a Family Member with a Serious Health Condition  Only available for care of a newly born or adopted child if employer consents. Intermittent Leave under ADA:  May be available as a reasonable accommodation.

24. What Do Changes Mean to Employers?  An Increase in: –Impairments Categorized as Disabilities –Requests for Leave –Demands for Accommodations –Increased Litigation Over Undue Hardship Defense

25. The ADAAA  What can we expect as a result of the Amendments to the ADA and FMLA? An Increase in: –Impairments Categorized as Disabilities –Requests for Leaves –Demands for Accommodations –The Number of Cases Brought by Individuals With Impairments –The Success Rate of Lawsuits Brought Under the ADA –Litigation Over Undue Hardship Defense

26. What Should Employers Do?  Revise Policies and Handbooks  Examine Leave of Absence Policies  Examine Job Descriptions  Train Managers and Supervisors  Train Employees  Consistently Enforce Polices and Procedures

27. QUESTIONS AND ANSWERS