Good afternoon and welcome to the ADA Distance Learning 2000 series. Our first program for the year 2000 is Interplay between the Americans with Disabilities Act and the Family Medical Leave Act. The program is hosted by your regional Disability and Business Technical Assistance Center. Currently this session is being real time captioned on the Great Lakes web site at www.adagreatlakes.org We will be taking questions on line as well, so if you have a question, you can log into the web site. If you have questions about today''s session, you can also fax those in advance of our question-and-answer session. You can fax those questions to 312-413-1856. Three resource materials were provided in advance of this session. If you don''t have those with you, you can download them after the session from the Great Lakes web site. The three resources that are being provided are the EEOC Facts About the ADA, FMLA and Title VII, the EEOC Guidance on Reasonable Accommodations, and the Family Medical Leave Act Frequently Asked Questions and Answers developed by the U.S. Department of Labor. I think this is probably a good time of year to talk about medical leave, especially with the recent flu epidemic. As you can tell, I''m kind of recuperating from that, too. We''re very excited to have with us Carol Miaskoff from the Equal Employment Opportunity Commission. Hi Carol.
Hi there. How are you?
Good. Carol is the Assistant Legal Counsel at EEOC. Her responsibility there is focused on interagency coordination and policy development under the statutes enforced by EEOC. Prior to joining EEOC, Carol was an associate attorney with the Washington D.C. law firm of Steptoe and Johnson, where she did litigation and counseling on employment discrimination, family leave and drug-free workplace issues. Carol is a graduate from the George Washington University National Law Center and Harvard University. Carol, we''re thrilled to have you with us, especially this time of year when we''re talking about a lot of medical leave issues, and especially talking about the interplay and kind of overlap between the Americans with Disabilities Act and the Family Medical Leave Act. I''m goings to turn it over to you.
Thank you very much. I''m delighted to be here, and I''m always glad for my advice to be helpful. Although I wish not so many folks were sick with the flu so it wasn''t so immediately needed. In any event, as I was sitting here thinking about what to say to you, I thought that the biggest challenge is to try to see through the forest despite all the trees, i.e. to look at the big picture about ADA and FMLA. I''m sure I don''t have to tell you, these topics can quickly become very technical and very detailed. What I''ve tried to do today to benefit you is to think about it and to extract some general principals and points that I hope will be helpful. First of all, as a general matter, the tendency under the FMLA is to be very specific. Whereas the tendency under the ADA is to be quite general. For example, as to the duration of a medical leave, the FMLA says straight out, twelve work weeks within any twelve month period. Very specific. The ADA says you can have as much leave as long as it won''t be an undue hardship on the employer. Very general. Similarly, in terms of the medical condition under the ADA, the concept of disability is very abstract. I think increasingly so after some of the Supreme Court decisions last summer. By contrast, the definition of serious health condition under the FMLA is very specific. That was drove home to me as I was reading the regulation again, and you go through all of the different scenarios if you are out one day, if you are out two days, if you are out three days, if you have this condition or that condition. So there are different approaches. Also, I think the other major difference is that the general matter, the ADA goes to more serious medical conditions and the FMLA goes to a broad range of conditions that includes the serious ones, but notably also extends to the more minor conditions. For example, as we were talking about this terrible flu epidemic that is going on, if someone was very sick with the flu and got medical treatment for it or was hospitalized overnight for it, they would probably have a serious health condition. But if all they had was the flu, they definitely would not have an ADA disability. So those are some of the very major differences. What I''ll do now is talk about the concept of eligibility for leave. The FMLA again has very specific requirements for eligibility for leave for the individual worker. First of all, obviously, the employer itself must be covered by the FMLA. That means that the employer must have 50 or more employees. So very small employers are not covered. By contrast, the ADA covers employers with 15 employees, so the ADA covers much smaller employers. Under the FMLA, there are also specific requirements for the employee. First, the employee has to work at a work site where the employer has 50 employees within a 75 mile radius. So you couldn''t be covered if you were at a location where there are only twelve employees within a 75 mile radius. Probably most significantly, in terms of giving advice to folks is that an employee must have 12 months of total employment under their belt. And those 12 months need not be consecutive, but it must total twelve months. Also, the individual must have worked 1,250 hours in the previous twelve month period immediately before the leave started. Now, I was looking through some cases, and it is interesting how these develop, but there are several cases that have developed around the principal that someone has to have that 1,250 hour service record in order to be eligible for FMLA leave. A fairly typical FMLA case that came up in this regard is called Butler v. Owens Brockway. This case, both in addition to involving the 1,250 requirement, involves one of these absentee policies that sometimes are called "no fault policies" or point policies under which an employer has basically a strict rule in place that if someone has more than a certain number of absences or accumulates a certain number of absentee points, they are terminated. It is just an unqualified rule out there. The case of Butler v. Owens Brockway involved a Cincinnati factory worker who worked on the production line, and was fired under a no fault absentee policy for absenteeism. What happened here is that the individual had been absent a fair amount in the year preceding his termination. Three of those leaves he contended, however, were covered by the FMLA. The employer agreed that those leaves were covered by the FMLA, but what the employer tried to argue is that when the person came back to work after those FMLA leaves, he was no longer protected, because lo and behold, if you count the number of hours he then worked in the last twelve months, it had slipped below the1,250. Now, what the court held here is that when you look at the 1,250, you don''t count it from the time of the disciplinary action, i.e. after the leave. You count it from the time when the leave would start. So what mattered in this case was that before the individual took his leave, he did have those 1,250 hours. So he was protected by FMLA. And that is the way that case was decided. It is interesting and this is somewhat of a digression, but I''ll talk to you later about another case involving a no fault absentee policy. The EEOC has also addressed that issue under the ADA in our guidance on reasonable accommodation and has taken a view similar to this court''s view under the FMLA. Specifically, that if someone takes leave as a reasonable accommodation under the ADA, that leave cannot be held against them under an objective absentee policy. So in that respect, both laws are coming from the same place. So that is the eligibility of the employee under the FMLA. Under the ADA in terms of eligibility, again the theme emerges that the ADA has general principals. There is no set service requirement under ADA. The employee need not have served for any specific amount of time to be entitled to reasonable accommodation and leave as a reasonable accommodation. Rather, what is required is that the individual be a qualified individual with a disability. This is a complicated concept that I would guess most of you probably have some familiarity with at this point if not a lot. And the bottom line here is that the person must be qualified for the job in an objective way. They must have the right degrees, the right experience for the job. And they also have to be able to show that they can do the essential functions of the job with or without reasonable accommodation. So those are the requirements going to basically eligibility, so to speak, under the ADA. What I''d like to do now is to segue into a short discussion of disability under the ADA versus serious health condition under the FMLA. As I said, these concepts are somewhat overlapping, and also significantly different. First of all, under the FMLA, one is entitled to medical leave under two circumstances. One is if a spouse, son, daughter or parent has a serious health condition and the employee needs to care for them. The second one, more significantly for our discussion here, is if the employee herself has a serious health condition that makes her unable to perform the functions of the job. And what that means is that the person can''t work at all at that time or that they cannot perform one of the essential functions of the job at that time. By contrast, under the ADA, a disability is an impairment that substantially limits a major life activity, a record of such impairment or regarded as such an impairment. I''ll talk now in a little more detail about disability versus serious health condition. As I mentioned earlier, the Supreme Court decided three very important cases under the ADA as to the meaning of disability last summer. Those cases were led by the case of Sutton v. United Airlines. What the Supreme Court decided there is that when you are assessing whether an impairment substantially limits a major life activity, you have to assess the actual limitations faced by the employee at the time of the alleged discrimination. When you look at the actual limitations, you look at them in their mitigated state. Now, that is sorts of a legalistic term. But what that means is if at the time of the alleged discrimination the person was taking medication or had a device that enabled them to do a function which they otherwise could not do or had great difficulty doing due to their condition, you consider them in their corrected state, in their improved state. And then you therefore consider whether after those improvements they still face a substantial limitation of a major life activity. Now, a few points here. First of all, I will say a little more on mitigating measures. It is very hard to pack all this in, but this is a light digression, and I think an important one. Mitigating measures are measures which help an individual to personally perform a major life activity that otherwise would be impossible or difficult to perform because of a disorder or a condition. So, for example, mitigating measures include corrective lenses, hearing aids, a cane, walker or some other device that would help an individual to walk, like prosthetic limbs. It would include medication, including insulin and arguably, it might include implants or hip replacements, for example. However, there are arguments that other devices may not be mitigating measures. Consider a wheelchair, for example. A wheelchair gets someone around, but it doesn''t enable them to personally do a major life activity, like walking which they can''t otherwise do. Similarly, a service animal may assist someone in getting around, but it doesn''t enable them to do something. I wanted to make sure that you had some concept of really what I mean by mitigating measures.
Carol? Excuse me. Also I would direct people to the couple different sessions both on the Supreme Court decisions and on the definition of disability. So people can go back and refer to those transcripts if they wanted to look more at the issue of the mitigating measure. So I think where you''re going as far as someone that might have an illness versus a disability....
That is where I''m going with this. And really, what my point is that we look at disability after consider these mitigating measures. As a very sort of general matter, the ADA is going to apply to people with the more or even most severe conditions. Those conditions that even after these interventions are still substantially limiting. Whereas a serious health condition under the FMLA clearly would include those serious conditions, but it is also going to include people with much more minor conditions. For example, someone who was just overnight in a hospital one night. Or someone who is getting continuous treatment by a health care provider and they''re incapacitated, basically out of circulation for three or more calendar days. So the contrast here I think is obvious and the point is that the FMLA covers the more minor conditions and perhaps also that in the aftermath of these cases it may be easier to make an informal initial assessment as to which law is pertinent when someone asks for leave. Where I''m going to go now is sort of the heart of it. When an employee or an individual comes in and asks his or her employer for time off due to a medical condition, does the employee and does the employer look at it under the FMLA, do they look at it under the ADA, and how do they decide this? The first thing which I''ll quickly get out of the way is obviously the individual can specify which law they''re asking under. And in some situations, some individuals may choose to only ask under the FMLA at the outset. And one of the reasons for that is the scope of medical information that the employer can request under the FMLA is a lot more limited than under the ADA. So in the interest of protecting the privacy, the individual may limit the request to FMLA. However, if you''re not so lucky and if that doesn''t happen, if someone comes in with an open-ended request and says I need time off for treatment of my bad back, for example, a very broad request, what do you do? First of all, the regulation. The FMLA regulation that is at 29 CFR, Section 825.702, states that the employee is entitled to leave under whichever statutory provision provides the greater rights to the employee. Now, you should read, if it is of interest to you, the whole section, which is fairly extensive. But what this principal means is that the employee is entitled to in a sense the best of both worlds. They''re entitled to the stronger points under each law. For example, they might be entitled to the continued health insurance under FMLA when they''re working part time. But then be entitled under the ADA if they''re covered by both laws, obviously, to reasonable accommodation in the part-time job. Now, let me back up a bit. Let us look at the practicality here. As I was thinking through this today, what dawned on me is that if someone comes in and asks for full time leave, i.e. they need five weeks off for medical treatment. They''re not going to work part time, they just need time off for medical treatment, in that circumstance, as a practical matter, the FMLA is going to be the law that will be largely pertinent if not entirely pertinent for that period of leave. The employer is required to provide leave under whichever statutory provision provides the greater right. But the FMLA requires the employer to continue coverage under group health insurance. That is such an important right, such as important positive which is not affirmatively required under the ADA. Under the ADA, all that is required is that the employee be treated the same as people without disabilities. So if people without disabilities don''t get health insurance, the individual with a disability would not get it either during the leave. Because of that critical difference, if someone comes in and asks for a leave, really I think at first we are talking FMLA. The implications there go to the scope of the initial inquiries by the employer and also the return to work inquiries, the medical inquiries. Where this may get a little more complicated is if the person who initially asked for five weeks, contact the employer at four weeks and they say I can''t come back at five weeks, and this goes on until it becomes clear that they need to be out for the entire twelve weeks that are allotted under FMLA. They may either ask for more time off from the job or they may want to come back to the job in some altered capacity. The significance there is as follows. First, as to extending the leave beyond the twelve weeks. I think this is a key point which is in the materials we gave you. The FMLA entitles someone to twelve work weeks of leave. The ADA is indeterminate, limited only by undue hardship. And undue hardship in this case is what really inconveniences the employers'' operations seriously. So, for example, if someone is out twelve weeks and asks for more leave, at that point they won''t be covered by the FMLA anymore, but they will be covered by the ADA. And the employer will need to decide whether, without an undue hardship it can provide them with more than twelve weeks leave. If the employer cannot provide more leave in the current job, the employer will need to look and see if there is another vacancy, in which the person could be accommodated with additional leave. So this is an important difference. Another difference I think goes to reinstatement. This indeed may be really one of the most important ones. Under FMLA, the employer satisfies its legal duty if at the end of the twelve weeks it offers the employee to return to the same or an equivalent position that he or she left at the beginning of the leave. That is the extent of the duty. If the individual is in a position where they now have medical restrictions and they cannot perform that job, say full time or they can work full time but they can''t do all the functions, the employer does not have to take them back. They only need to offer the same job and the individual needs to be able to do that job. So that is a critical point where ADA kicks in. If that individual is a qualified individual with a disability under the ADA, the employer may be required as an accommodation to let them work part time, say, after twelve weeks or to provide accommodations in the original job that would enable them to do the job within their medical restrictions. There was just a recent case about that called Reynolds v. Phillips in October 1999. This case, like the earlier one I mentioned, involved one of these no fault absentee policies where an individual who was a shipping clerk and had a back injury in a car accident was fired on his second week out of the job because he didn''t successfully convey to the employer a physician absence form that was required under the employer''s policy. The employer terminated him because that was its policy. The employee challenged the termination saying he really was entitled to FMLA leave, which meant reinstatement into the same job. But the court in this case held that because of the severity of the back injuries he got in the car accident, he could not have performed the same or equivalent job as a shipping clerk, because in that job he would have had to lift 100 lbs packages and he just could not do that. So the court upheld the termination, saying that in that situation the FMLA did not entitle him to get the job back. However, his attorney really should have raised the issue to see if he was an individual with a disability at that point. Because then we could have looked at whether an accommodation would have been possible in that job or whether he could have been reassigned to some other job at the same employer. Where does this leave us? My sort of personal conclusion, looking at this is as follows. If someone comes in and asks for leave, probably the best way to go is to do it under the FMLA, for say the first four or five, six weeks. At that point, both sides can reassess the continued need for leave. And that is permitted under the FMLA. If it looks like the person is going to need more leave at that point and if it looks like they may rub up against these reinstatement issues due to some limitations, at that point it probably is wise to start pulling in the ADA and looking into whether or not the individual is an individual with a disability. The reason why, to be honest, I basically would advise procrastinating on that is the FMLA and ADA have different schemes for asking for medical information. The FMLA scheme is limited and is clearly laid out. The FMLA has a medical certification form that spells out the questions that may be asked of the individuals health care provider in terms of determining whether they''re entitled to the leave. And it has a clear scheme under which up to three medical opinions can be obtained if the initial information submitted by the employee is not credible. So it is limited, it is clearly spelled out. By contrast, the ADA is more open-ended. Under the ADA, the employer can ask for any medical information that is relevant for determining whether the individual has an ADA-covered disability and whether they''re entitled to the accommodations that they claim are necessitated by that disability. And as the short discussion of ADA mitigating measures, they have suggested, just that question of ADA coverage can get quite fact-specific in nuance these days. So as I was looking at this, I was trying to think how can we look at this so the person''s ADA rights are protected. But also frankly that their medical confidentiality is protected until it is clear that the ADA issues may need to kick in. So that is why I suggest in a leave situation, waiting until about halfway through the twelve week period. The other situation in which there is a real difference, and this kicks in to some degree with the reinstatement issues or ties into the reinstatement issue, is that the scope of return to work inquiries is different under the two laws, and it is different in similar ways to the initial inquiries. The FMLA only allows one return to work inquiry. The employer can notify the employee ahead of time that it is going to require return to work exam. The employee has to pay for it. It is basically a one-shot deal and that is it. The ADA is more open-ended and the question is "is there going to be objective evidence in the return to work situation that the person has the ability to perform essential functions of the job with or without accommodation?" And that again may get into a more nuance inquiry. One other thing I would like to point out to you is that FMLA and ADA also often overlap when you get into a situation where an individual with a medical condition does not need to go out on full time leave, but rather needs to work some reduced hours, needs to work part time or do what under the FMLA is legalistically called "intermittent leave." This is an area where the different requirements of the laws interact in a way that the FMLA provision that the employee gets basically the best rights under both laws has some real meaning. As follows... If someone is working part time, under the ADA the person probably would not be entitled to medical insurance if that employer did not provide medical insurance to other part-timers in the same situation. However, the ADA would entitle someone to reasonable accommodation to enable them to do the part-time job, and the ADA also would only allow the employer to force the person to take another job for the duration of the part-time work only if the person literally could not do the job or if keeping them in the job with accommodation would be an undue hardship. Under the FMLA, the person is entitled to the health insurance, which probably would not be under the ADA. But under the FMLA, the employer can transfer the person into another job for the duration of the part time period. So if you put that together, in a sense, the best under both worlds is that the person... if they''re covered by both laws would get health insurance under the FMLA, they would get reasonable accommodations to do the job under the ADA, and they would be shielded from the compulsary reassignment under the ADA. I think what this means if someone comes in asking for part-time work and if they have what appears to be a serious condition, then it is important at the get-go to determine whether they are covered by both laws. I think I''m pretty... pretty much running out of time here. Before I conclude, though, I just wanted to share with you two examples from the ADA''s recent Guidance on reasonable accommodation. I know that you have had a presentation on that also. But I think there are some examples in here that show the interaction of ADA and FMLA. And I would like to share them with you. The first example for those of you who have that Reasonable Accommodation Guidance with you is in question 18. Does an employer have to hold open an employee''s job as a reasonable accommodation? The answer is yes. The example is as follows. An employee needs 8 months of leave for treatment and recuperation related to a disability. The employer grants the request. But after four months, the employer determines it can no longer hold open the position for the remaining four months without undue hardship. Let me stop at that point. The person has been off for four months. They have already exhausted their FMLA leave, so and at that point they are into ADA leave. They had basically one month of ADA leave after the FMLA leave and at that point the employer says "boy, I gave you three months under FMLA, I''ve given you another month under ADA, and I just cannot hold open this job any longer without really incurring a substantial major burden on my operations." So therefore, the example continues by stating that the employer must then consider whether or not it could continue the leave by reassigning the person to a vacant equivalent position in which the employee would be able to take off more time without seriously inconveniencing the employer. If that is not possible, if there is not a vacant equivalent position or if there is not a position at a lower level to which the person could be reassigned to continue the leave, then the employer can establish undue hardship. And what that means is the employer no longer needs to give the person leave for the disability. And the employer can terminate the person at that point because they have shown undue hardship. And I''ll conclude with one other example. And then we''ll go into questions. This example for those of you with the Guidance is in question 6, which is a very long question about the kinds and the amount and specificity of medical documentation that an employer may request after a person asks for a reasonable accommodation which would include leave. This is example C. And as you will see right away, it is also a typical FMLA situation. An employee''s spouse phones the employee''s supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis and needed to be hospitalized and thus requires time off. Under the ADA, the supervisor can ask the spouse to send in documentation from the employee''s treating physician that confirms that the hospitalization was related to the multiple sclerosis and provide information on how long an absence may be required from work. This employee also may be covered under the FMLA. And if so, the employer would also need to comply with those requirements. I might point out that the employer in this specific example might want to simply use the FMLA certification, because that does ask the kind of questions that are described here. Sort of limited, contained questions. Is the hospitalization related to the MS and how long does the person need to be off? I think the FMLA certification could address those. As I think about this example, it strikes me that the context here, I think suggests that the employer probably is already aware that this individual has MS and the issue really is more linking the leave to the MS. Which can be accomplished under either ADA or FMLA for purposes of the leave. If we were in a situation by contrast that this is the first time that the employer learned about the condition, we might be in a very different posture where the employer might want to get more detailed information under ADA than under FMLA. Okay. I will conclude there. And I''d be happy to take questions on anything that you may want to explore further.
I have a question regarding when to tell people about the ADA in a request for accommodation or when an accommodation has been made, actually. If you have an employee and this employee has been given a reasonable accommodation and another employee sees this as being treated differently, of course you can''t tell the employee that its an ADA accommodation. But what if the employee grievances the situation through a union process. What is your obligation there? Can you tell an arbitrator or what do you do there?
Okay. Let me answer that. First of all, the position of EEOC and I''m fairly sure the Department of Labor also, would be different from what you stated there at the get-go. If someone has been given a reasonable accommodation, be it leave or something on the job, and it is obvious to others and other employees ask about it, our position is that the employer should not tell the other people that it is an ADA accommodation or it is FMLA leave, because they have a serious medical condition or they have a disability, so they need this time off. I hesitate here because I want to be clear that we''re not trying to pretend sort of an emperor''s new clothes kind of thing. This is obvious. But what we''re trying to do is to enforce the very strict confidentiality requirements under ADA and FMLA, both of which were implemented by Congress when they passed the laws. And those laws do forbid employers from sharing medical information or information that is likely to disclose medical concerns or conditions with other employees purely on an informational basis. What we do say, though, recognizing that this is a difficult situation, is that one way of addressing this is for employers at the beginning of employment as parts of their orientation materials or their employee handbook to fully brief individuals about their ADA rights, about their FMLA rights, and about the employer''s commitment to comply with those laws and to addressing those rights, along with other employee needs that may be need to be addressed. At a conference once I met a medium-sized employer who I thought had a wonderful answer for this situation. This individual''s answer, when approached and when asked about how come so-and-so is getting this time off or how come so-and-so can sit on a stool when I can''t, or can take more breaks, would simply say something along the lines of saying that when employees need assistance, the employer provides it and the employer also respects their confidentiality and their privacy. And that similarly, if the person who is asking the question were to come forward and to need in some capacity, be it required undered federal law or not, the employer also would respect their privacy and do what they could to make appropriate arrangements. So I felt that that was really sort of in a ideal way of handling the situation. In terms of a situation where it is grieved, obviously I wouldn''t want to see it get to that point, but in terms of grievances as a legal matter, the ADA and FMLA confidentiality provisions are a matter of federal law and that can be considered in that regard. There are some CBAs maybe a fair number even by now, that do reference ADA obligations and possibly FMLA obligations. So I''m familiar with the ADA side. So I think those requirements could be factored in to the considerations that way.
Is there any legislation pending to add siblings to the list that you can help care for?
Not that I''m aware of, no.
Hello. This is Kathleen from the Independent Living Resource Center. Can employers with less than 50 employees observe the FMLA by choice? I mean we''ve been sort of doing that anyway, and I was wondering if there were some restrictions about that.
The question was whether employers with less than 50 employees can voluntarily observe the FMLA. My reaction when I heard you say that was wonderful. Please do. That is delightful. And I am not aware of any... certainly no prohibitions on doing that. Being a lawyer, the wheels in my head immediately started to turn trying to see if from the sort of defensive perspective of an employer if there might at some point be some negative ramifications of voluntarily taking on these obligations: And that would be very case by case and I think frankly that would come up if and when the employer decided to change its voluntary policy, to no longer voluntarily comply with the FMLA or, say, to only voluntarily comply. And that is when that might become a problem. So I guess for the employer, I would just advise to really think through the ramifications of what you''re doing. But if it is something that you''re comfortable with and you can live with, more power to you.
Hi. This is Deanna. I''m the human resources director here. I have a question on FMLA. Do you see a problem if the employer continues with the FMLA even though ADA would be a possibility, and just let FMLA play itself out and then address the ADA issue?
Well, the only problem I would see there is that you might end up with sort of a no man''s land when the twelve weeks expire. It really would depend when you start addressing the ADA issue. And that really would depend on the specific case. If it were for a complicated situation where the existence of a disability at that point or the need for continued leave might not be obvious or easily discernable, for example sometimes mental illness situations involve that. Sometimes, not always. But in a complicated situation, you might then be in a situation where the twelve weeks of FMLA protected leave have expired. Say the person cannot go back into the identical job without accommodation. But it is still not determined whether or not they''re protected by ADA. Then really you''re going to get into a situation of great time sensitivity, and I think from the perspective of the employer, perhaps increased exposure if only because the employee is going to have increased urgency about what is my status. So it is going to sort of increase the pressure on all the parties. So I would just say as you make the judgment about when to get into the ADA, I would not procrastinate unduly.
Thanks, Carol. We have a faxed question here. And that is in regards to the application for FMLA and how often do you need to renew an FMLA form.
That I know is specifically addressed in the FMLA regulation. There is a specific question on that. As I page through here looking for it, I''m not sure if they specifically say it is, for example, everyone month or every two months. But I think it is more on an as-needed basis. Yes. Actually, I found it. It is in 29 CFR 825.308. The section is titled with the question under what circumstances may an employer request subsequent re-certifications of medical conditions? And the first part actually says that for pregnancy, chronic or permanent long term conditions, the employer may request re-certification no more often than every 30 days. And only in connection with the absence of the employee, unless circumstances change significantly from the previous certification or the employer receives information that casts doubts the employee''s stated reason for the absence. The regulation goes on to say that if a minimum duration of incapacity specified on the initial certification is more than 30 days, the employer may not request re-certification until that minimum duration has passed. Unless one of the following conditions have been met. This is the true regulation. And then they go on to say... I think that basically the circumstances have changed. And then there are some other wrinkles here. But I would advise you to look at the specific section and look at what subsection addresses the particular circumstance you''re concerned about.
Thanks, Carol. We do have time for one more question.
Hi. This is Martha White. And I was wondering what the obligation of the employer to inform employees of their right, both for reasonable accommodation as well as their rights under FMLA?
Again, the FMLA is more specific. Perhaps more specific than the ADA. In the regulation, again I don''t mean to be too technical, but this will give you a way to really look into this in 29 CFR 825.300 and 301, they go into specific posting requirements and notification requirements for FMLA by employers. Under ADA, basically an employer is required to post the basic EEO poster that says i.e. EO, it is the law, something along those lines. It is the basic posting requirement just like there is for Title VII. Indeed, as I''m thinking about this, some of the employers in the audience may be familiar. I know I have seen sort of unified posters that included ADA, FMLA, Title VII, the Age act, all on one poster. And I''m sure those would satisfy it.
This is Margaret Vernon, and I''m a case worker who does constituent service. And I just wondered... we have a constituent who coincidentally is coming in this afternoon and wants to talk about ADA and FMLA. But her general question is getting FMLA leave for her child who is a student in school and has ADHD. So would that be considered any differently than or could that type of school problems be considered do you think under the Family Medical Leave Act?
I think it would be considered. What the FMLA says is that a parent may get leave to care for a child with a serious health condition for children under age 18, which I presume was the case here. All that means is the child has to meet one of the many prongs of the definition of serious health condition. And I would guess that probably... well, it is hard to say, but it depends on the situations there. But a child with ADHD who is obtaining any kind of treatment for it probably will be able to fit in that definition. And if the child is not receiving treatment, it is possible that you may be able to fit them in under one of the other prongs that for example, a condition that causes episodic incapacity on and off. So I would think you can get the child under, if you can do that then the parent is entitled to the leave
Thanks, Carol. I''m going to turn it back to you in a second. If you could just give us some final closing thought when we talk about the interplay between ADA and FMLA.
Right. My final thoughts are really that these laws I think are very complimentary, and maybe like I said at the beginning, we need to make an effort not to lose the forest for the trees. Not to lose the overall consideration of the goals of these two laws by getting caught up too much in the intricacies of it. I think given the fact that the ADA now may be limited to people with quite serious conditions, the FMLA is going to more clearly apply in more situations, and therefore really the straightforward way to go is to first approach something as an FMLA situation, and then perhaps as the information becomes fleshed out and if one learns that indeed there are more serious health concerns than initially appeared, to start looking at the ADA ramifications also. And I guess my final word will be on behalf of confidentiality concerns, which I hope I''ve made a thread through today''s discussion, which are the very obviously very important to respect in terms of both the initial inquiry and discussion between the employer and employee, and also in terms of keeping the information private vis-a-vis other employees. I always try to think of this in a direct way about if I were in that situation, if I were requesting leave, how much information about myself would I want shared? And probably the answer frankly would be not very much. So those are my closing thoughts. I surely hope this is helpful to everyone. And thank you very much.
Carol, thank you so much for joining us this afternoon. You''ve been a wealth of information. We hope to have you back again sometime soon.
I would love to.
For those of you who might have additional questions after this session, please consider contacting your regional Disability and Business Technical Assistance Center at (800) 949-4232, where a technical assistant specialist may be able to assist you or refer you to additional resources on the topic. For those of you that are joining us for next month''s session, we are going to have a session specific to the Notice of Proposed Rulemaking on the ADA Accessibility Guidelines. We''re going to feature Marsha Mazz from the U.S. Access Board talk about some of the changes in the proposed rule, where we will also have supplemental materials up on the web for you to view as well. And then in March, we will have Mark Charmatz from the National Association of the Deaf-Law Center, where he will be talking about the issue of effective communication. So we hope that you''ll be back to join us next month and in the coming months. Thank you for calling in this afternoon.
Ladies and gentlemen, that concludes our conference for today. Thank you for your participation.