§ 35.136 Service animals

(a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

(b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if —

(1) The animal is out of control and the animal’s handler does not take effective action to control it; or
(2) The animal is not housebroken.

(c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.

(d) Animal under handler’s control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

(e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.

(f) Inquiries. A public entity shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).

(g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity’s facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.

(h) Surcharges. A public entity shall not ask or require individuals with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

(i) Miniature horses.

(1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
(2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—
(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(ii) Whether the handler has sufficient control of the miniature horse;
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
(3) Other requirements. Paragraphs 35.136 (c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.

Should you have questions about these changes, the Department of Justice has a very easy to read and understand one-page fact sheet available [2].

Federal Law
Effective March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (PPCA) that includes a provision for nursing mothers in the workplace. The regulations amended Section 7 of the Fair Labor Standards Act that provides new requirements for employers to accommodate nursing mothers. The new requirements state that “employers are required to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has a need to express breast milk.”

These changes to the Fair Labor Standards Act (FLSA) also apply to exempt employees, which are employees who are exempt under section 213 of FLSA and meet the executive, administrative, professional, outside sales or computer professional exemptions.

State Law
The FLSA requirement does not pre-empt state laws that may provide greater protections to employees (i.e., providing break time beyond one year after the child’s birth). Since Tennessee state law does not specify an infant’s age limitation, employees are permitted to express breast milk for as long as they are breast-feeding their child. The Tennessee state law applies to exempt employees as well as non-exempt employees. This means exempt and non-exempt employees shall be provided reasonable break time for the purpose of expressing milk. Effective July 31, 2011, the Tennessee legislature passed Chapter No. 91 (HB0871/SB0083), which removed the age limit on children who can be breast-fed in public. This statute amends T.C.A. §§ 39-13-511 and 68-58-101 by removing the current 12-month age limit on children who can be legally breast-fed publicly.

Employers with Fewer than 50 Employees
Employers with less than 50 employees are not subject to the FLSA break time requirement if the breaks would pose an undue hardship on the employer. Undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size of the employer. All employees, regardless of work site, are counted when determining whether the exemption may apply. The Department of Labor is expected to provide additional guidance on this exemption.

Employers with 50 or More Employees
Employers with 50 or more employees must comply with the regulation, regardless of hardship. All work sites and employee statuses are counted for purposes of employee count. This differs from T.C.A. § 50-1-305 (1999), which allowed Tennessee employers of all sizes to opt out if the breaks created an undue hardship on the employer.

Tennessee Legislative History
In 1999, the Tennessee legislature passed T.C.A. § 50-1-305 that requires Tennessee employers to provide daily unpaid break time for a mother to express breast milk for her infant child. When possible, the break time should run concurrently with any break time already provided to the employee. In addition, there was an exemption to the law if the practice unduly disrupts the operations of the employer. (Note: this exemption now only applies to employers with fewer than 50 employees.) The law also stated that the employer should make reasonable efforts to provide a room, other than a bathroom, where the employee could express milk in close proximity to the work area.

In 2006, the Tennessee legislature passed T.C.A. § 68-58-101 et seq. that permits a mother to breast-feed an infant, 12 months or younger, in any location public or private, that the mother is authorized to be, and prohibits local governments from criminalizing or restricting breast-feeding. In addition, the law specifies that the act of breastfeeding shall not be considered public indecency, nudity, sexual in nature or obscene. In 2011, the Tennessee legislature removed the age limit on breast-feeding in public. Amends T.C.A. §§ 39-13-511 and 68-58-101.

To remain up-to-date with current Tennessee legislation regarding breastfeeding laws, visit the state's Department of Health website [3].

Space
A bathroom, even if private, is not an acceptable location under the law. The employer must provide a space that is functional for expressing breast milk. A clean small office with electricity, a light, chair and a locked door is an appropriate space. The space can also be converted into a nursing room on an as-needed basis as long as it is available on demand. The space must be shielded from view and free from any intrusion of co-workers or the public. Nursing equipment can be somewhat noisy, so a closed office space is recommended. 

Duration of Breaks
The legislation specifically states that the duration and frequency of breaks will vary. Each mother will need a different duration and frequency. In addition, women are biologically programmed to express as much milk as their growing child needs at that time which constantly varies from birth. This means that your employees may need differing durations depending on stage of child’s development and the mother’s needs. In addition to expressing milk, there is the sanitation of the equipment, storage of the milk and washing hands that should be factored into these break times. 

Compensation for Non-Exempt Employees
State and federal laws do not require nursing breaks to be paid. Your city cannot limit the number of breaks an employee takes to express milk, but your city can elect to designate the nursing breaks as unpaid. However, if an employer provides regular break times, FLSA requires that all employees be paid for those breaks. Hence, nursing mothers are free to use these break times for expressing milk. Aside from the amendment to the PPACA, there is no state or federal law that requires Tennessee municipalities to offer break times. 

Exempt Employees
Tennessee state law provides that exempt employees be provided break times to express milk. It is generally not recommended to dock salaried exempt employees’ pay because salary is not based on number of hours worked per day but on a per job basis.

Non-Traditional Positions
How will an employee who drives a patrol car express breast milk? While it seems difficult, many employees in non-traditional office positions nurse their children. If the employee works in a non-traditional office setting, your city should have dialogue with the employee to make sure she feels comfortable with her options for expressing breast milk. This may require the employer to be flexible and to educate co-workers on the accommodation to ensure proper personnel coverage at all times. In summary, the benefits to having breast-fed children are not just good for the employer and employee, but a healthier society for everyone and for workplaces that respect the needs of growing families.

Some Tips for Best Practices

• Provide educational materials for all employees;
• Provide training for supervisors and management;
• Have a nursing mothers workplace policy that is visible to all employees;
• Have an accessible, private, clean space with appropriate signage, electricity, a locked door and comfortable chair designated for nursing mothers. Be flexible with work schedules to provide time for nursing;
• Ensure a sink for proper sanitizing is nearby for washing hands and sanitizing equipment;
• Allow the nursing parent access to hygienic storage options (refrigerator) for secure milk storage;
• Have continuous dialogue with expectant mothers and new parents; and
• Survey employees about family friendly work policies.

Q: My employee is required to travel frequently as part of her job. Should I recommend she consider formula feeding?
A: Absolutely not. The choice to formula feed vs. breast-feed is an intensely personal and important decision for parents. As an employer, you should find ways to encourage, not discourage making breast-feeding work, after all it is a temporary circumstance and your city’s family friendly policies will go a long way in making your employees happier and more productive. 

Q: Am I required to eliminate travel from my nursing employee’s schedule?
A: No. However, if travel is able to be modified without an undue hardship on the employer, you should consider working with the nursing mother to limit overnight or excessive travel while nursing. For some nursing mothers, travel will be feasible, for others it might be more difficult. Have the dialogue with the employee to determine what the best course of action is.

Q: Can we require the nursing mother to use her normal breaks to nurse?
A: While you cannot require your employee to forgo regular breaks (if provided to other employees), Tennessee state law says you can require the nursing mom to take them back-to back, which provides for less interruption and only one period away from the workstation rather than two.

Q: What is considered excessive under the new regulations?
A: This is not defined in the regulations and it is important to note every nursing mother will have different needs as their baby’s needs change. That nursing breaks are generally unpaid will likely serve as an incentive for employees to express milk efficiently and report back to work.

Q: How do I keep track of nursing breaks?
A: This is up to the employer to track on a per employee basis. If you provide breaks to all employees, you should not count nursing breaks as a regular break, because employees cannot be required to use their regularly provided breaks for nursing.

Q: Can I require nursing moms to sign in and out of a room for nursing breaks?
A: Yes. Some employers have a designated nursing room and employees sign in and out of the space through a central human resources office. This allows a central place for the storage of the key and ensures that the room is not used for other purposes that may prevent or impede a nursing mother from expressing milk.

Q: We have no space available to create a nursing room. Can I allow the employee to use my office until we make other arrangements?
A: Yes, but this means your office needs to be available whenever the employee needs to express milk. However, if you are required by law to provide space for your nursing mothers, it is advisable you work on a solution such as moving as soon as your lease agreement or rental agreement is up. If this is not a feasible solution, you may want to consider allowing the employee to work remotely until adequate nursing space is available. Another option would be to convert someone’s office into a nursing room and move the employee in the office into another space.

Q: Is our city required to provide a refrigerator or freezer for the storage of expressed breast milk?
A: No. At this point, the legislation does not require an employer to provide a storage unit such as a refrigerator or freezer for the storage of breast milk. However, if your city can provide such an accommodation, it would go a long way in making nursing easier for families.

The ADA prohibits employers from discriminating against a qualified person who has a disability. This protection extends to applicants as well as employees. Title I requires employers with 15 or more employees to provide qualified individuals with disabilities equal employment opportunities commensurate to that of others. The law requires that employers make reasonable accommodations to qualified individuals with disabilities.

ADA is enforced by the Equal Employment Opportunity Commission (EEOC) and the Department of Justice. Title I complaints must be filed within 180 days of the date of discrimination or 300 days if the charge is filed with a designated state or local fair employment practice agency. The new law makes it clear that the focus should be on “accommodating employees and applicants” and not the impairment itself from which the individual suffers. Employers should not need extensive analysis to determine if a condition qualifies under ADA.

ADA does not say your city has to give preference to those with disabilities, or hire someone who is not qualified to perform the essential functions of the job. ADA simply gives a qualified person with a disability the same opportunity as a qualified person without a disability. This protection covers all aspects of the employment process, including:

• application process
• assignments
• benefits
• compensation
• disciplinary actions
• evaluation
• hiring
• layoff/recall
• leave
• medical examinations
• promotion
• termination
• testing
• training

On Sept. 25, 2008, President George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) with an effective date of January 1, 2009 (S. 3406). The ADAAA ensures protections for people with disabilities whose conditions have been denied as ADA eligible through years of Supreme Court ADA interpretation. The ADAAA greatly expands the number of persons eligible under the ADA of 1990.

On March 25, 2011, the final regulations implementing the ADAAA were made available on the Federal Register’s website www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as [4].

These changes to ADA are significant and impacted many cases that were previously thought to be settled. Two notable cases that were reversed by U.S. Pub.L. 110-325, (2009) are Toyota Motor Manufacturing Kentucky, Inc. v. Williams 534 U.S. 184 122 S. Ct. 681 (2002) and Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999). The ADAAA changed the Supreme Court’s interpretation of who is considered to be eligible under the new ADA, in effect, leading to a much larger segment of the American population that have conditions that now qualify as disabled under ADA.

More importantly for employers, the new laws brought central focus to employer compliance. “Did the employer reasonably accommodate the disabled employee?” rather than “Is the condition really considered a disability?”

The amendments restore benefits by making changes to the definition of the term disability that more closely mirrors the intentions of the original act as passed in 1990. Perhaps just as significantly, the ADAAA overturns more than a decade of court cases involving those with conditions such as epilepsy, mental health disorders, diabetes, autism, attention deficit disorder, developmental delays, intellectual disabilities, muscular dystrophy, and cancer. Additionally, other illnesses that affect major life activities such as working, communicating, concentrating, thinking, reading, and other activities of central importance now fall under the protections of ADA and are considered a protected disability.

As stated in the new legislation, the purpose of this act is:

(1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA.

In Section 3, DEFINITION OF DISABILITY under the regarded section, coverage is now expanded to persons who are not truly disabled, but who may be regarded as disabled, regardless of whether the impairment or perceived impairment limits major life activity. An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she 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. The new 2008 ADA amendments ensure that those with serious conditions or conditions that substantially limit major life activities are now covered by ADA regardless of mitigating measures.

The ADAAA legislation: prohibits consideration of mitigating measures other than “ordinary contact lenses or eyeglasses” when determining whether someone has a disability. The Supreme Court previously allowed medications or assistive devices people used to control their disability into account when determining if that person qualified as having a disability. The ADAAA no longer allows such factors to be taken into consideration when determining whether someone is disabled under the ADA. Previously, a diabetic on medication to regulate his/her condition might have been deemed “not to have a covered disability.” Now, items such as medication, cochlear implants, oxygen therapy, hearing aids, prosthetics, etc., cannot be taken into consideration when determining the definition of disability. Additionally, because the definition of disability has been expanded, that person would likely qualify as having a disability under ADA. This change to the law overturns the intent of the Supreme Court ruling in Sutton v. United Airlines, which determined that people with disabilities were not covered by the ADA if their condition could be mitigated by medication, assistive technology and equipment, or learned behavioral adaptations. 527 U.S. 471 (1999).

The ADAAA says that the condition or impairment is a disability if it “materially restricts” a major life activity, more specifically, if it is a physical or mental impairment that substantially limits one or more major life activities. Previously, the courts held that a person had to be significantly restricted” in order to qualify under ADA.

Congress deemed this standard too restrictive and attempted to correct more than a decade of unfavorable interpretation by passing the ADAAA, which includes “bodily functions” as part of major life activities. ADAAA provided that major bodily functions covered under the ADA include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This drastically expanded the list of conditions that fall under the protections of ADA. In the past, some serious conditions were not considered disabilities under ADA because they did not substantially affect a major life activity. Now, the ADAAA provides that major bodily functions are major life activities.

Perhaps the most critical component of dealing with ADA is ensuring that employees and applicants are engaged in the interactive process and documenting that process. This can be an on-going process that may look like a series of conversations, meetings, correspondence, and hands-on problem solving. It may involve consulting with an ADA expert or checking with other employers to determine creative solutions to accommodating individuals with covered disabilities. It may involve observing the employee to determine what physical and spatial changes would best serve this individual. More often than not, the individual will have excellent suggestions as to what equipment or accommodations are needed to help the applicant/employee perform the essential job functions.

Employers don’t want to be faced with a “she said/he said” situation in court. For this reason employers should document the interactive process carefully. Courts will almost always look first at the interactive process to determine if the employer acted in good faith by working with the individual to identify barriers to applying for or performing job duties as well as reviewing the individual’s limitations to determine possible accommodations. Additionally, the interactive process is the best tool employers have to avoid liability for disability discrimination and the failure to provide reasonable accommodations. Most problems occur during the interactive process, which is completely avoidable in most cases by simply making sure you engage in dialogue with the individual.

The ADA law defines a current disability as a medical condition or disorder referred to as an” impairment” that substantially limits one or more major life activities. For an impairment to rise to the level of a disability under ADA, it must substantially limit a major life activity. An impairment alone is not automatically a disability.

An “individual with a disability” is an individual who:

• has a physical or mental impairment that substantially limits a “major life activity,” or;
• has a record of such an impairment, or;
• is regarded as having such impairment.

According to the Federal Register, in the final regulations from 2011, the commission added a new provision to the final regulations (o)(4) in § 1630.2(o) which states that a covered entity is not required to provide a reasonable accommodation to an individual who meets the definition of a disability solely under the “regarded as” prong (§ 1630.2(g)(1)(iii)). However, if the individual meets the “regarded as” prong and one or both of the other two prongs of the definition of disability, the employer is required to provide reasonable accommodations.

Impairments that are short term (six months or less) are considered transitory and do not fall under the “regarded as” part of the definition. For example, an employer may choose not to hire an individual for a temporary position due to impairment such as a sprained ankle because it would prevent the individual from being able to perform an essential function of the job for the next four to six weeks.

Please note that the ADA statute and regulations do not have a list of covered conditions. These are simply some examples of conditions that may be covered under ADA, provided the individual meets the additional criteria. With courts ruling more frequently on ADA, it is important to consider the impact of recent court decisions and interpretations under ADA.

Individuals should always be assessed on a case-by-case basis. There is no one size fits all approach to determining what conditions are covered. Most importantly, to qualify under ADA the individual must have an impairment that substantially limits one or more major life activities. Some examples of impairments covered under ADA may be: HIV, AIDS, brain tumors, severe accident trauma, migraines, certain mental health disorders, psychological disorders, specific learning disabilities, mental retardation, organic brain syndrome, epilepsy, diabetes, post traumatic stress disorder (PTSD), multiple sclerosis, cancer, hypertension, asthma, and heart disease.

Some examples of impairments not covered under ADA may be: appendicitis, short bouts of depression, weight conditions within normal ranges, normal height deviations, traits and behaviors, cultural or economic disadvantages, normal pregnancies, quick temper, poor judgment, irritability, physical characteristics such as being left-handed, hair color, eye color, homosexuality, bi-sexuality, gender disorders, broken limbs, gambling addiction, eye or hair color, height, weight, lack of education, old age, poor judgment, sprains, current use of illegal drugs, sexual behavioral disorders, and disorders caused by the use of illegal drugs.

Stress
According to the EEOC, stress may be shown to be related to a mental or physical impairment. Similarly, traits such as irritability, chronic lateness, and poor judgment are not, in themselves, mental impairments, although they may be linked to mental impairments.

Other Examples of Non-covered Conditions
Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be disabilities. A broken leg that heals normally within a few months, for example, would not be a disability under the ADA. However, if a broken leg took significantly longer than the normal healing period, and during this period the individual could not walk, he or she would be considered to have a disability. Or, if the leg did not heal properly, and resulted in a permanent impairment that significantly restricted walking or other major life activities, he or she would be considered to have a disability.

This list is not all inclusive and does not cover all possible scenarios related to these conditions. Additionally, each individual should be assessed on a case-by-case basis. Complications to common non-covered conditions can often result in eligibility under ADA.

The regulations no longer include a six-month durational requirement in order to establish a disability. It is often difficult to determine the duration of a medical condition or impairment. The EEOC says that if a condition is severe with an indefinite and unknown duration, it may qualify as a disability.

How long an impairment lasts is a factor to be considered, but does not by itself determine whether a person has a disability under the ADA. The basic question is whether an impairment “substantially limits” one or more major life activities. This question is answered by looking at the extent, duration, and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and have little or no long-term impact usually are not disabilities.

According to the EEOC, some conditions may be long-term, or potentially long-term, in that their duration is indefinite and unknowable or is expected to be at least several months. Such conditions, if severe, may constitute disabilities under ADA.

The regulations were loosened with ADAAA to be more flexible with episodic conditions and illnesses in remission. ADA applies when an impairment or illness is active rather than dormant. When symptoms are in remission, individuals may still be covered if they require an accommodation to continue controlling symptoms. Episodic conditions and illnesses in remission could be impairments such as: Bi-polar disorder, depression, cancer, PTSD, multiple sclerosis, GI diseases, migraine headaches, etc.

While the original ADA statute makes no mention of obesity under ADA, the 2008 amendments to ADA make it somewhat posible that obesity may be seen as a protected disability under ADA at some point in the future. The 7th Circuit joined the 2nd, 6th and 8th circuits in ruling that, absent evidence that it was caused by an underlying physiological disorder or condition, extreme obesity is not a physical impairment under the ADA. The 1st Circuit found otherwise.

Whether obesity qualifies as a disability under the ADA is largely dependent on a variety of factors, including jurisdiction. Most jurisdictions that have considered the issue have held that obesity alone, without an underlying physiological disorder, does not constitute a protected physical impairment.  Even still, cities should proceed cautiously when making employment decisions that could involve these issues, and should consult with the their city attorney, or risk underwriter to ensure they are acting in accordance with the law.

A healthy pregnancy is generally not considered a disability under ADA because it does not meet the definition of a disability on its own. However, a pregnant individual with complications resulting from pregnancy, or impairments provoked by pregnancy may be considered disabled under ADA. To be covered under ADA, the pregnant individual must have an impairment that substantially limits one or more major life activities.

Regardless of ADA status your agency should be attentive to other pregnancy protections such as Family and Medical Leave Act (FMLA), Pregnancy Discrimination Act (PDA), Title VII, and state discrimination laws.

General Pregnancy Accommodations
It should be expected that individuals who are pregnant may have restrictions in lifting, walking, standing for long periods, sitting, and being exposed to certain chemicals or conditions. As an employer you should consider offering accommodations such as: closer parking, rest breaks, a chair or stool for prolonged standing, ergonomic tools, a flexible work schedule, telecommuting, limited travel, relaxed dress code, and periodic rest breaks.

Light Duty and Reduced Work Schedules for Pregnancy
Cities are not required to provide light duty work or part-time work to accommodate a pregnancy. However, an individual who is pregnant should be treated in the same manner as other individuals with non-work related injuries. If a health care provider indicates that a pregnant employee needs part-time work for health reasons, you should consider such schedule as a possible accommodation.

Positions that may be Considered Dangerous during Pregnancy
Frequently cities ask if they can make their female police officer take leave for the safety of the fetus. The answer is No. According to the EEOC, if an employee is able to perform her job functions then she must be considered eligible for employment regardless of the presence of workplace hazards to the fetus. However, if the employee is unable to perform the essential functions of the job, an offer of accommodation in the form of a transfer to another position (if available), or an offer for the employee to take leave under FMLA and or your employer’s policies, have been seen as reasonable.

Employers who have women in positions that might endanger a fetus must warn women of the potential risk and provide alternatives, if available. However, if a woman chooses to continue to work in her capacity, the employer may not interfere with her right to work unless she cannot perform the essential functions of the job. International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, 499 U.S. 187 (1991).

What if a Health Care Provider Determines She must Stop Working?
If at any point a health care provider deems it medically necessary for a female to stop working prior to delivery, a covered employer likely should accommodate that request by offering leave. While most women can work up to their due date, other women may experience health conditions that require them to stop working until delivery and postpartum recovery.

Courts have held that regular attendance is an essential function of many jobs. Therefore some cases of chronic absenteeism can prevent an employee from being able to perform the essential functions of the job. However, it is important to look at the individual’s position and duties and determine how much absenteeism or leave can be accommodated. Courts have ruled that certain positions such as bank manager or restaurant manager simply require more regular attendance in order to be able to fulfill the essential job functions. If the severity of absences requires the organization to hire a new staff member, incur unreasonable overtime costs, it may not a reasonable accommodation. Courts emphasize that there is no specific formula for determining length of leave as a reasonable accommodation. It is important to look at each position on a case-by-case basis.

Note: Please use caution with using regular attendance as an essential function of the job. Some employers are under the false notion that adding a line to each job description listing regular attendance as an essential function means that they will not have to accommodate unprotected and extended absences.

When discussing ADA the term “essential function of the job” is used quite frequently. This is because all individuals are required to be able to perform the essential functions of their job either with or without accommodations.

It is important to be able to distinguish between an essential function and a marginal function. To determine this, employers should consider the following items:

• Does the job exist to do this function?
• Would taking this function from the job fundamentally change the job?
• Would there be significant consequences if this function were not performed?
• Can other employees do this function if necessary?
• What equipment is used to do this function?  How frequently is the equipment used?
• How much time per week is spent doing this function?
• What are the minimum qualifications and job standards?
• Could this function be performed in another way?

ADAAA says mitigating measures can no longer be used as a factor in determining if someone’s impairment qualifies under ADA. This is a significant change from ADA prior to ADAAA. Mitigating devices can be things such as: medication, medical supplies and equipment, prosthetics, hearing aids and other hearing devices such as cochlear implants, mobility devices, oxygen, and vision devices (except ordinary eyeglasses or contact lenses). Additionally, mitigating measures could also mean assistive technology, behavioral and neurological modifications, psychotherapy, therapy etc. For example, an individual who has insulin dependent diabetes and takes an insulin regulator will still be covered under ADA, and the employer may not use the mitigating measure (prescription) to determine limitations.

Cities and towns that fall under ADA are required to make reasonable accommodations for those applicants and employees with disabilities. This is a critical component of ADA administration. Notably, there is always much discussion surrounding what “reasonable” means.

A reasonable accommodation* is a 'feasible' or 'plausible' change in the work environment or in the way things are usually done that result in equal employment opportunity for a qualified individual with a disability. An individual with a qualified disability is not entitled to the accommodation of his choice, but only to a reasonable accommodation under ADA.

*A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases; "this means it is "reasonable" if it appears to be "feasible" or "plausible." An accommodation also must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy. https://www.eeoc.gov/policy/docs/accommodation.html [5]

An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business. Some examples of reasonable accommodation include but are not limited to:

• Acquiring or modifying equipment or devices;
• Adjusting or modifying examinations, training materials, or policies;
• Change in work hours, shifts, or schedules;
• Division of tasks among employees: (i.e. allowing a bookkeeper who is deaf to trade phone duties with another employee in exchange for filing duties.)
• Job restructuring;
• Lowering shelves, chairs or raising furniture;
• Making existing facilities used by employees readily accessible to, and usable by, an individual with a disability;
• Modifications of job tasks: i.e. allowing a blind office worker to substitute transcription and duplicating duties for proofreading and filing;
• Provide large-button touch-tone telephone for someone who has low vision or poor hand coordination;
• Providing a quiet room for someone who suffers from migraine headaches to rest for a few minutes after taking medication;
• Providing qualified readers or interpreters;
• Reassignment to a vacant position;
• Replacing handles or knobs to make opening and closing of cabinetry more accessible;
• Telecommuting;
• Allowing flexible use of leave;
• Providing closer parking;
• Dimming lights/ brightening lights;
• Time off and/or an extension of approved leave.

An employer is not required to lower quality or quantity standards to make an accommodation. Nor is an employer obligated to provide personal use items, such as glasses or hearing aids, as accommodations. However, there may be limited circumstances where a personal use item is appropriate. Employers should be mindful about setting precedence, as the law does not require you to provide personal items as an accommodation under ADA. Keep in mind, the city should always have documented dialogue(s) with the individual requesting the accommodation.

When can an employer not provide a reasonable accommodation?

• If an employer is unaware of the need.
• If providing the accommodation would cause undue hardship*

*The only statutory limitation on an employer's obligation to provide "reasonable accommodation" is that no such change or modification is required if it would cause "undue hardship" to the employer. "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. The ADA's "undue hardship" standard is different from that applied by courts under Title VII of the Civil Rights Act of 1964 for religious accommodation. https://www.eeoc.gov/policy/docs/accommodation.html [5]

The employee or individual bears the burden of identifying a workplace barrier and communicating that to the employer. Once an accommodation is requested, the individual must also take responsibility for demonstrating how the accommodation assists him or her in performing the essential job functions. Employers are free to choose accommodations and can provide those less expensive or easier to obtain.

The Genetic Information and Non Discrimination Law (GINA) was signed into law by President Bush in May of 2008 and took effect November 21, 2009. As one could imagine GINA and ADA commonly intersect because disabilities are often the result of genetic issues.

GINA prohibits discrimination based on the possibility that someone will acquire a condition in the future. ADA protects individuals who currently have impairments or who are perceived as having impairments if they meet the definition of disability under ADA.

GINA restricts employers and insurers from acquiring and using genetic information except in limited circumstances. With respect to employment, GINA:

• prohibits discrimination and harassment on the basis of genetic information;
• prohibits employers from obtaining genetic info except in narrow circumstances; and
• requires employers to keep genetic such as: results of genetic tests for cancer genes, hereditary diseases, and other disorders. Results information confidential.

When an employer requests medical information in the course of administering ADA, there is a potential to obtain information that could be protected by GINA, including genetic information such as: results of genetic tests for cancer genes, hereditary diseases, and other disorders. Results of genetic information on family members are also protected under GINA. GINA protections include requests for genetic information by an employer about employees or their family members as well as genetic information regarding a fetus or embryo. It also includes the manifestation of a disease or disorder that may pertain to employees or their family members.

If you do use ADA accommodation forms, be sure to provide a disclaimer stating you are not soliciting genetic test results from employees or their family members or anything that may not be applicable to the ADA and covered by GINA.

Tests that are not considered genetic are:

• tests for the presence of a virus not composed of human DNA, RNA, proteins;
• metabolites;
• tests for the presence of alcohol or illegal drugs;
• cholesterol tests, liver function tests, and complete blood counts.

The FMLA regulations define son or daughter as the “biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is under 18 years of age.” The definition is expanded to include a child 18 years of age or older if the child is incapable of self-care because of a mental or physical disability. The FMLA defers to the ADA’s definition of the term “disability.” As an employer you need to proceed cautiously when FMLA and ADA intersect. The new legislation makes it clear that an employee who performs well also may be substantially limited in one of the major life activities of learning, reading, writing, thinking, and speaking. This employee will still need to establish that he or she has limitations and needs a “reasonable” accommodation.

Some clarifications have been made since the ADA Amendments Act of 2008 was passed those include:

• ADA amendments do not apply retroactively (Sixth Circuit Milholland).
• The regulations clarify that “major life activities” include “major bodily functions” such as functions of the immune system, normal cell growth, brain, neurological, and endocrine functions.
• Under the old ADA, not every impairment will constitute a disability.
• The new ADA standards will allow more adult children of your employees to qualify as being disabled. This will result in more employees requesting FMLA to care for their adult children with disabilities.

Employers are increasingly using social media as a way to screen and learn more information about potential job candidates. Absent a social media hiring policy and a qualified screener, this is problematic because the employer may view protected information such as what disabilities individuals or their family members may have. Once the employer sees this information there is no way to undo this. This information is protected, and not job related, it is information that should not be used during the application process. If an adverse employment decision is made, individuals may claim it was due to the employer seeing their disability status. Having a qualified third party, or a non-hiring authority screen social media avenues would prevent this protected information from being passed on to hiring authorities or to those in decision making positions and greatly reduce the employers liability.

With the expansion to the scope of ADA by the ADAAA, it is easier for an employee to take leave to care for an adult child who has a serious health condition. Under the FMLA, parents may be eligible to take family leave (FML) to care for adult children who are not in the military and are not veterans if the children are “incapable” of self-care and have a disability defined by ADA. Generally this means the adult children must require direct assistance or supervision providing self-care in three or more activities of daily living such as grooming, hygiene, bathing, dressing, and eating. These could also include instrumental activities of daily living such as essential errands, cooking, cleaning, shopping, transporting, paying bills, using communication devices, and maintaining a residence.

There are many different disabilities or conditions that could deem an adult child incapable of self-care. Conditions such as developmental disabilities including Down Syndrome, brain damage, paralysis, and any other long-term serious illness are just a few examples. If an adult child is incapacitated in a car accident this could also provide the opportunity for an eligible parent to provide care under FMLA. Temporary conditions or illnesses such as pregnancy related restrictions or routine surgeries would likely not result in someone being “incapable of self-care” as defined by the regulations.

Title II of ADA addresses the right of access to public services by individuals with disabilities. In some cases an accommodation may be as simple as providing assistance filling out utility forms, or as complex as making sure bathrooms, drink fountains, hallways, and other spaces can accommodate those in wheelchairs.

Public entities include any state or local government and any of its departments, agencies, or other instrumentalities. All activities, services, and programs of public entities are covered, including activities of state legislatures and courts, town meetings, police and fire departments, motor vehicle licensing, and employment. Unlike section 504 of the Rehabilitation Act of 1973, which only covers programs receiving federal financial assistance, Title II extends to all the activities of state and local governments whether or not they receive federal funds. Public transportation services operated by state and local governments are covered by regulations of the department of transportation.

Qualified Individuals
DOT’s regulations establish specific requirements for transportation vehicles and facilities, including a requirement that all new buses must be equipped to provide services to people who use wheelchairs. A “qualified” individual with a disability is one who meets the essential eligibility requirements for the program or activity offered by a public entity.

The “essential eligibility requirements” will depend on the type of service or activity involved. For some activities and essential job requirements the ability to meet specific skill and performance requirements may be “essential.” For other activities, such as where the public entity provides information to anyone who requests it, the “essential eligibility requirements” would be minimal. This means that a city may not refuse an individual with a disability from participating in events, parks and recreation facilities, and anything else that could be discriminatory toward those individuals with a disability. This may include such things as:

• allowing working dogs to be in buildings, events, and facilities;
• providing supporting aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result;
• ensuring facilities are easily accessible to those with disabilities;
• not charging or penalizing those with disabilities for using services; and
• removing barriers that would adversely impact those with disabilities (i.e., requiring a driver’s license as a sole means of ID).

Safety Concerns
Restrictions due to documented safety hazards may be imposed, as long as they are valid and not speculative in nature.

A city may not charge a person with a disability for the use of an auxiliary aid. Cities are required to furnish auxiliary aids unless the purchase or creation of the auxiliary aid would result in an undue burden (financial or administrative). A city is not required to provide auxiliary aids that would translate to a fundamental change in the nature of a service, program, or activity.

E-911 and Emergency Services
Emergency telephone services, including 911 services, must provide direct access to individuals with speech or hearing impairments.

Building Accessibility
Cities should continually check building standards and architectural standards, as they have been revised since the inception of ADA.

Note the Safe Harbor provision of Title II requires that public entities ensure their programs are accessible to individuals with disabilities. This does not always mean the city is required to make structural changes to buildings. The determination of whether a program is accessible is made by looking at the totality of circumstances for each activity or program.

The department’s Title II regulations for state and local governments are found at Title 28, Code of Federal Regulations, Part 35 (abbreviated as 28 CFR pt. 35). The ADA Standards for Accessible Design are located in Appendix A of Title 28, Code of Federal Regulations, Part 36 (abbreviated as 28 CFR pt. 36 app. A and amended by 76 FR 13287, March 11, 2011). Those regulations, the statute, and many helpful technical assistance documents are located on the ADA website at www.ada.gov [6] and on the ADA technical assistance CD-ROM available without cost from the toll-free ADA Information Line at 1-800-514-0301 (voice) and 1-800-514-0383 (TTY).

Note: This section is not intended to provide comprehensive information on the spatial, physical, or construction issues surrounding ADA. For information related to these issues please check with your MTAS consultant for additional assistance.

Title III
Title III covers public accommodations, commercial facilities, and private entities that offer certain opportunities to the public. Places of public accommodation include restaurants, hotels, theaters, convention centers, retailers, shopping centers, dry cleaners, laundromats, pharmacies, provider’s offices, hospitals, museums, libraries, theaters, parks, zoos, amusement parks, private schools, day care centers, health spas, and bowling alleys. Entities controlled by religious groups including churches, and places of worship are not covered. Private clubs are not covered, unless aspects of that club are open to the public. State and local governments are not covered by Title III regulation, but are covered by the department of justice’s Title II regulation.

Title IV
Title IV amends the Communications Act of 1934 to require that telephone companies provide telecommunication relay services. Also included under Title IV are Closed Captioning (CC) services, namely, televisions 13 inches or more in size must provide CC services.

Title V
Title V is miscellaneous provisions. This section provides supplemental regulations that are not covered elsewhere in the act. Title V includes state immunity, retaliation, attorney’s fees, coverage of Congress, and other federal and state laws.

Dos and Don’ts for Employers

• Don’t ask an applicant about disabilities. You may, however, ask if they can perform the essential functions of the job.
• Don’t have supervisors contact healthcare providers.
• Do address conduct prohibited in the handbook even if that conduct is a result of a disability.
• Don’t allow supervisors to determine ADA eligibility. Supervisors should not be determining if someone has a disability; but they should be able to recognize plain language that may infer the need for an accommodation based on a workplace barrier.
• Don’t collect information that may violate GINA.
• Do put descriptions in writing and identify the essential tasks of each job.
• Don’t keep medical information in regular HR files. Keep medical information separate and secure.
• Do review application forms, interviewing practices, and selection procedures to assure that uniform questions are asked of all applicants, and that disabled individuals are evaluated on whether or not they can perform the fundamental tasks of the job.
• Don’t deny someone a reasonable accommodation unless you have explored all possible options.
• Do review office layout to determine reasonable accommodations that could be made to existing facilities to permit accessibility and use by the disabled. This includes identifying auxiliary services for the visual and hearing impaired and considering job restructuring.
• Don’t make assumptions about performance issues being a result of a disability.
• Do review personnel policies to assure that none adversely impact the disabled in terms of the workplace and benefits.
• Don’t require medical exams until after an offer is made.
• Do educate employees and supervisors about ADA.
• Don’t refer to someone’s disability during a discussion about work-related performance issues.
• Do consider creating an ADA reasonable Accommodation Request Form.
• Don’t require employment tests that may violate ADA.
• Do discipline someone appropriately for being unable to perform the essential functions of the job, which may include attendance for many positions.
• Do not count absences protected by FMLA or ADA against employees for performance consideration.

Q1: Are individuals who engage in illegal drugs protected by ADA?
Individuals who currently engage in the use of illegal drugs are not protected by the ADA when an action is taken on the basis of their current illegal use of drugs. Individuals who currently use illegal drugs are not individuals with disabilities protected under the act when an employer takes action because of their continued use of drugs. This includes people who use prescription drugs illegally as well as those who use illegal drugs. However, people who have been rehabilitated and do not currently use drugs, or who are in the process of completing a rehabilitation program may be protected by the ADA.

Q2: Are Homosexuals or Bi-sexuals protected by ADA?
The act states that homosexuality and bisexuality are not impairments and therefore are not disabilities under the ADA. In addition, the act specifically excludes a number of behavior disorders from the definition of “individual with a disability.” However, if homosexual or bi-sexual employees ask for an accommodation under ADA they should be treated the same as any other employee.

Q3: Are temporary conditions covered under ADA?
How long impairment lasts is a factor to be considered, however, it does not by itself determine whether a person has a disability under the ADA. The basic question is whether an impairment “substantially limits” one or more major life activities. This question is answered by looking at the extent, duration, and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and have little or no long-term impact usually are not disabilities.

According to http://askjan.org [7] “The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage does not apply to the “actual disability” prong or the “record of” prong. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section. For example, if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability. At the same time, “the duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.”

Q4: Does the ADAAA apply to discriminatory acts that occurred prior to January 1, 2009?
No. The ADAAA does not apply retroactively. For example, the ADAAA would not apply to a situation in which an employer allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability in December 2008, even if the person did not file a charge with the EEOC until after January 1, 2009. The original ADA definition of disability would be applied to such a charge. However, the ADAAA would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009. (Source: EEOC)

Q5: Do I need a special recordkeeping process for ADA information?
Although the ADA and GINA have different exceptions to confidentiality, employers may keep genetic information in the same confidential file as medical information subject to ADA.

Q6: Who is a “qualified individual with a disability?”
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job. (Source: www.ada.gov [6])

Q7. What limitations does the ADA impose on medical examinations and inquiries about disability?
An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how he would perform these functions. An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be job-related and consistent with business necessity.

However, if an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and consistent with business necessity. The employer also must show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship. A post-offer medical examination may disqualify an individual if the employer can demonstrate that the individual would pose a “direct threat” in the workplace (i.e., a significant risk of substantial harm to the health or safety of the individual or others) that cannot be eliminated or reduced below the direct threat level through reasonable accommodation. Such a disqualification is job-related and consistent with business necessity. A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.

After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity. Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current fitness to perform a particular job, and voluntary examinations that are part of employee health programs. Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions. Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions of such examinations. (Source: www.ada.gov [6])

Q8: Does the ADA require employers to develop written job descriptions?
No. The ADA does not require employers to develop or maintain job descriptions. However, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. If an employer uses job descriptions, they should be reviewed to make sure they accurately reflect the actual functions of a job. A job description will be most helpful if it focuses on the results or outcome of a job function, not solely on the way it customarily is performed. A reasonable accommodation may enable a person with a disability to accomplish a job function in a manner that is different from the way an employee who is not disabled may accomplish the same function in a manner that is different from the way an employee who is not disabled may accomplish the same function. Note: MTAS recommends that you have job descriptions on file for each position.

Q9. Is testing for the illegal use of drugs permissible under the ADA?
Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests. If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record. (Source: www.ada.gov [6])

Q10. How does the ADA affect workers’ compensation programs?
Only injured workers who meet the ADA’s definition of an “individual with a disability” will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers’ compensation or other disability laws. A worker also must be “qualified” (with or without reasonable accommodation) to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Also, many on-the-job injuries cause temporary impairments that heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers’ compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA.

An employer may not inquire into an applicant’s workers’ compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person’s workers compensation history in a medical inquiry or examination that is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job injury unless all applicants in the same job category are required to have an examination. Also, an employer may not base an employment decision on the speculation that an applicant may cause increased workers’ compensation costs in the future. However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.

An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-offer inquiry about his condition or worker’s compensation history. An employer also may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers’ compensation offices and “second injury” funds without violating ADA confidentiality requirements. (Source: www.ada.gov [6])

Q11. Is time off under ADA a reasonable accommodation? What if the employee already exhausted all other protected forms of leave such as FMLA?
Generally, the FMLA gives eligible employees up to 12 weeks of unpaid leave per year. Employers are free to discharge employees who cannot return to work after that time is up — that’s legal under the FMLA. (Note: In some cases FMLA can go up to 26 weeks). But before you fill out that pink slip, consider whether the employee may be disabled under the ADA. If so, he may be entitled to more time off as an accommodation. The FMLA allows leave for a serious health condition, which may or may not be a disability under the ADA. That’s because “serious health condition” and “disability” aren’t synonymous. Under the ADA, disability is defined as a condition that substantially limits a major life activity. Thus, a disabled employee (even one who wasn’t eligible for FMLA leave because he hadn’t worked for his employer for a year or more, or for 1,250 hours in the last year) may be eligible for leave as a reasonable accommodation under ADA.

Q12. Should we be using an ADA request form?
An ADA Reasonable Accommodation Request form for current employees is helpful for your organization. It will also allow you to put a GINA disclaimer on there if necessary. Have your legal counsel review any forms prior to use. A sample form from the state of Alaska uses is available. [8]

Q13. Can an employer use additional information such as scientific, medical or statistical evidence to help determine if a condition is covered under ADA?

According to http://askjan.org [7], the comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing prohibits the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.

Q14. As an employer, may I ask for medical documentation for a condition that is not obvious?
Yes, employers can ask for documentation when an employee requests an accommodation and the disability and or need for an accommodation is not obvious. The documentation required should not be excessive. Instead, the employer’s focus should be on the accommodation, determining if it is reasonable and whether there are other accommodations that could be considered.

Q15. I keep reading that the focus should be on the accommodation and not the condition. Does this mean we should just assume all requests are legitimate without checking to see if their impairment falls under the definition of an ADA disability?
No. You should still be sure that the condition or impairment qualifies under the present law. Each situation must be determined on a case by case basis because conditions affect individuals differently. However, the law is clear in that the employer should not have to do extensive research to see if a condition qualifies.

Q16. My employee has an impairment that substantially limits his immune system however, this major life activity is not one that is required to perform his job. Do we still have to accommodate him?
Yes. Don’t confuse the definition of disability with an accommodation. Even though he doesn’t need his “immune system” working normally to perform work, the employee still has a covered disability and is entitled to an accommodation for any limitations associated with the disability whether significant or not. Perhaps in this case a reasonable accommodation is a plastic panel that helps protect him from germs and infections.

Q17. Am I required to allow a pregnant employee to work from home?
Many courts have held that telecommuting is a reasonable accommodation under ADA. If a pregnancy qualifies under ADA and telecommuting is not an undue burden on the employer then you may be required to allow it as a reasonable accommodation. If your organization allows other disabled employees to telecommute or allows similar positions the option of telecommuting it is likely that you would need to approve such a request.

Q18. When can an employer ask an applicant to “self-identify” as having a disability?
Federal contractors and subcontractors who are covered by the affirmative action requirements of section 503 of the Rehabilitation Act of 1973 may invite individuals with disabilities to identify themselves on a job application form or by other pre-employment inquiry, to satisfy the section 503 affirmative action requirements. Employers who request such information must observe section 503 requirements regarding the manner in which such information is requested and used, and the procedures for maintaining such information as a separate, confidential record, apart from regular personnel records. A pre-employment inquiry about a disability is allowed if required by another federal law or regulation such as those applicable to disabled veterans and veterans of the Vietnam era. Pre-employment inquiries about disabilities may be necessary under such laws to identify applicants or clients with disabilities in order to provide them with required special services. (Source: www.ada.gov [6])

Q19. Can we offer pregnant employees more leave than we offer employees with other temporary disabilities?
Although employers may not treat pregnant employees worse than other temporarily disabled employees, some preferential treatment of pregnant employees may be lawful. In California Federal Savings and Loan v. Guerra, 479 U.S. 272 (1987), the Supreme Court held that a state can require employers to provide a benefit to pregnant employees, such as additional leave, which is not granted to other temporarily disabled employees. This decision appears to allow employers to give pregnant employees more leave than is given to other employees.

One caveat should be noted. This preferential treatment may apply only during the period when the employee is actually disabled as a result of the pregnancy. Employers generally must give the same leave benefits to both male and female employees who take parental leave to care for a newborn. Therefore, if you offer female employees leave for childcare when no disability exists, you also should offer male employees equivalent leave.

Q20. Can we discipline a pregnant employee for performance and attendance problems?
Generally, yes. Although a pregnant employee is protected from discrimination, you do not have to tolerate poor performance or attendance simply because she is pregnant. You may hold her to the same work standards as other employees, as long as you apply them consistently. If her performance or attendance problems are related to her pregnancy (for example, she is late to work because of morning sickness or cannot lift boxes as required to perform her job), the PDA requires only that you treat her the same as you would any other employee with a temporary medical condition. Thus, if you allow employees with temporary medical conditions to be late because of their conditions or accommodate their lifting restrictions, you should apply the same standards to a pregnant employee. Note, however, if she is covered under the FMLA, you should take her pregnancy into consideration if her attendance problems are caused by pregnancy-related medical conditions. Absences that qualify as FMLA leave should not be counted when determining whether an employee’s attendance problems warrant discipline or discharge.

Q21. Is drug testing permitted under the ADA?
Yes. Public entities may utilize reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs. (Source: www.ada.gov [6])

Q22. May an employer withdraw a telework arrangement or a modified schedule provided as a reasonable accommodation because the employee is given an unsatisfactory performance rating?
No. An employer may not withdraw a reasonable accommodation as punishment for the unsatisfactory performance rating. Simply withdrawing the telework arrangement or a modified schedule is no different than discontinuing an employee’s use of a sign language interpreter or assistive technology as reasonable accommodations. Nor should an employer assume that an unsatisfactory rating means that the reasonable accommodation is not working. The employer can proceed with the unsatisfactory rating, but may also wish to determine the cause of the performance problem to help evaluate the effectiveness of the reasonable accommodation. If the reasonable accommodation is not assisting the employee in improving his performance as intended, the employer and employee may need to explore whether any changes would make the accommodation effective, whether an additional accommodation is needed, or whether the original accommodation should be withdrawn and another should be substituted. (Source: www.eeoc.gov [9])

Q23. If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?
Yes, if the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard. The ADA does not protect employees from the consequences of violating conduct requirements even where the conduct is caused by the disability. The ADA generally gives employers wide latitude to develop and enforce conduct rules. The only requirement imposed by the ADA is that a conduct rule be job-related and consistent with business necessity when it is applied to an employee whose disability caused her to violate the rule. Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this standard, such as prohibitions on violence, threats of violence, stealing, or destruction of property. Similarly, employers may prohibit insubordination toward supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers. Employers also may:

• prohibit inappropriate behavior between coworkers (e.g., employees may not yell, curse, shove, or make obscene gestures at each other at work);
• prohibit employees from sending inappropriate or offensive e-mails (e.g., those containing profanity or messages that harass or threaten coworkers); using the Internet to access inappropriate websites (e.g., pornographic sites, sites exhibiting crude messages, etc.); and making excessive use of the employer’s computers and other equipment for purposes unrelated to work; and
• require that employees observe safety and operational rules enacted to protect workers from dangers inherent in certain workplaces (e.g., factories with machinery with accessible moving parts); and prohibit drinking or illegal use of drugs in the workplace.

Whether an employer’s application of a conduct rule to an employee with a disability is job-related and consistent with business necessity may rest on several factors, including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment. These factors may be especially critical when the violation concerns “disruptive” behavior which, unlike prohibitions on stealing or violence, is more ambiguous concerning exactly what type of conduct is viewed as unacceptable. The following examples illustrate how different results may follow from application of these factors in specific contexts.

Example A: Steve, a new bank teller, barks, shouts, utters nonsensical phrases, and makes other noises that are so loud and frequent that they distract other tellers and cause them to make errors in their work. Customers also hear Steve’s vocal tics, and several of them speak to Donna, the bank manager. Donna discusses the issue with Steve and he explains that he has Tourette Syndrome, a neurological disorder characterized by involuntary, rapid, sudden movements or vocalizations that occur repeatedly. Steve explains that while he could control the tics sufficiently during the job interview, he cannot control them throughout the work day; nor can he modulate his voice to speak more softly when these tics occur. Donna lets Steve continue working for another two weeks, but she receives more complaints from customers and other tellers who, working in close proximity to Steve, continue to have difficulty processing transactions. Although Steve is able to perform his basic bank teller accounting duties, Donna terminates Steve because his behavior is not compatible with performing the essential function of serving customers and his vocal tics are unduly disruptive to coworkers. Steve’s termination is permissible because it is job-related and consistent with business necessity to require that bank tellers be able to (1) conduct themselves in an appropriate manner when serving customers and (2) refrain from interfering with the ability of coworkers to perform their jobs. Further, because Steve never performed the essential functions of his job satisfactorily, the bank did not have to consider reassigning him as a reasonable accommodation.

Example B: Steve works as a bank teller but his Tourette Syndrome now causes only infrequent throat clearing and eye blinks. These behaviors are not disruptive to other tellers or incompatible with serving customers. Firing Steve for these behaviors would violate the ADA because it would not be job-related and consistent with business necessity to require that Steve refrain from minor tics that do not interfere with the ability of his coworkers to do their jobs or with the delivery of appropriate customer service.

Example C: Assume that Steve has all the severe tics mentioned in Example A, but he now works in a noisy environment, does not come into contact with customers, and does not work close to coworkers. The environment is so noisy that Steve’s vocalizations do not distract other workers. Steve’s condition would not necessarily make him unqualified for a job in this environment.

Example D: A telephone company employee’s job requires her to spend 90 percent of her time on the telephone with coworkers in remote locations, discussing installation of equipment. The company’s code of conduct requires workers to be respectful toward coworkers. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers on several occasions, and uses derogatory nicknames for coworkers when talking with other employees. The employer first warns the employee to stop her unacceptable conduct, and when she persists, issues a reprimand. After receiving the reprimand, the employee requests a reasonable accommodation. The employee’s antagonistic behavior violated a conduct rule that is job-related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having received a request for reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.

Example E: Darren is a long-time employee who performs his job well. Over the past few months, he is frequently observed talking to himself, though he does not speak loudly, make threats, or use inappropriate language. However, some coworkers who are uncomfortable around him complain to the division manager about Darren’s behavior. Darren’s job does not involve customer contact or working in close proximity to coworkers, and his conversations do not affect his job performance. The manager tells Darren to stop talking to himself but Darren explains that he does so as a result of his psychiatric disability. He does not mean to upset anyone, but he cannot control this behavior. Medical documentation supports Darren’s explanation. The manager does not believe that Darren poses a threat to anyone, but he transfers Darren to the night shift where he will work in relative isolation and have less opportunity for advancement, saying that his behavior is disruptive.

Although the coworkers may feel some discomfort, under these circumstances it is not job-related and consistent with business necessity to discipline Darren for disruptive behavior. It also would violate the ADA to transfer Darren to the night shift based on this conduct. While it is possible that the symptoms or manifestations of an employee’s disability could, in some instances, disrupt the ability of others to do their jobs that is not the case here. Employees have not complained that Darren’s voice is too loud, that the content of what he says is inappropriate, or that he is preventing them from doing their jobs. They simply do not like being around someone who talks to himself. (Source: www.eeoc.gov [9])

Q25. What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?
If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation. If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help her avoid future misconduct. If an accommodation is requested, the employer should begin an “interactive process” to determine whether one is needed to correct a conduct problem, and, if so, what accommodation would be effective. The employer may seek appropriate medical documentation to learn if the condition meets the ADA’s definition of “disability,” whether and to what extent the disability is affecting the employee’s conduct, and what accommodations may address the problem.

Employers cannot refuse to discuss the request or fail to provide reasonable accommodation as a punishment for the conduct problem. If a reasonable accommodation is needed to assist an employee with a disability in controlling his behavior and thereby preventing another conduct violation, and the employer refuses to provide one that would not cause undue hardship, then the employer has violated the ADA.

Example A: Tom, a program director, has successfully controlled most symptoms of his bipolar disorder for a long period, but lately he has had a recurrence of certain symptoms. In the past couple of weeks, he has sometimes talked uncontrollably and his judgment has seemed erratic, leading him to propose projects and deadlines that are unrealistic. At a staff meeting, he becomes angry and disparaging toward a colleague who disagrees with him. Tom’s supervisor tells him after the meeting that his behavior was inappropriate. Tom agrees and reveals for the first time that he has bipolar disorder. He explains that he believes he is experiencing a recurrence of symptoms and says that he will contact his doctor immediately to discuss medical options. The next day Tom provides documentation from his doctor explaining the need to put him on different medication, and stating that it should take no more than six to eight weeks for the medication to eliminate the symptoms. The doctor believes Tom can still continue working, but that it would be helpful for the next couple of months if Tom had more discussions with his supervisor about projects and deadlines so that he could receive feedback to ensure that his goals are realistic. Tom also requests that his supervisor provide clear instructions in writing about work assignments as well as intermediate timetables to help him keep on track. The supervisor responds that Tom must treat his colleagues with respect and agrees to provide for up to two months — all of the reasonable accommodations Tom has requested — because they would assist him to continue performing his job without causing an undue hardship.

Practical Guidance: Ideally, employees will request reasonable accommodation before conduct problems arise, or at least before they become too serious. Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including termination) warranted by misconduct. Employees should not assume that an employer knows that an accommodation is needed to address a conduct issue merely because the employer knows about the employee’s disability. Nor does an employer’s knowledge of an employee’s disability require the employer to ask if the misbehavior is disability-related.

Example B: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct. (Source: www.eeoc.gov [9])

Q26. May an employer ask a pregnant employee to sign a waiver to release the employer of liability when she works in positions that carry potential risks to the fetus?
No. According to the LSU Law Center, a woman may not absolve the employer of this liability by signing a waiver because the right to compensation belongs to the baby — not to the mother.

For additional information about ADA, contact:

ADA Information Line
U.S. Department of Justice

For ADA publications and questions:

800-514-0301 (voice) 800-514-0383 (TTY)
www.ada.gov [6]

U.S. Equal Employment Opportunity Commission
 

For publications
800-669-3362 (voice) 800-800-3302 (TTY)

For questions
800-669-4000 (voice) 800-669-6820 (TTY)
www.eeoc.gov [9]

On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA) of 2010. While the general purpose of the law was to authorize funding for the defense of the United States and its interests abroad, this law contained several amendments to FMLA provisions.

Among other things, NDAA expanded the scope of FMLA for military families that includes:

• Expanded Eligibility: Qualifying exigency leave is expanded to include members of the regular Armed Forces who are deployed to a foreign country. Previously, qualifying exigency leave was only available for covered military members in the Reserves or Guard.
• Veteran Leave: Eligible employees will be able to elect military caregiver leave for those veterans who served in the regular Armed Forces or the Military Reserves within five years of the date the veterans undergo medical treatment,recuperation, or therapy. Previously, military caregiver leave was only available to care for current members of the Armed Forces, Guard, or Reserves.
• Federal Expansion, Title II: The legislation includes qualifying exigency leave for federal employees covered by Title II of the FMLA. Previously, federal employees covered by Title II did not have the right to take qualifying exigency leave.
• Pre-existing Condition Expansion: Military caregiver leave was expanded to cover aggravation of existing or pre-existing injuries incurred in the line of duty while on active duty. Previously, Department of Labor (DOL) regulations did not consider aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave under the FMLA. Previously, the illness or injury had to rise to the level of a subsequent injury or illness to be considered as eligible for the FMLA.

In early 2008, President Bush first amended the FMLA law to provide two new family leave entitlements for military families.

The new law was expanded to provide:

• Qualifying Exigency Leave: Up to 12 weeks of FML leave for certain qualifying exigencies arising out of a covered military member’s active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation, and;
• Covered Servicemember Leave (also called Military Caregiver Leave): Up to 26 weeks of FML in a single 12-month period to care for a covered servicemember recovering from a serious injury or illness incurred in the line of duty on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FML during the single 12-month period.

In November 2008, the DOL issued the final regulations, which not only addressed these new military entitlements, but also aimed at clarifying existing FMLA rules. After much discussion, the final regulations sought to enhance communication between employees, health care providers, and employers. While these new regulations do provide clarity, there are regular circumstances in which judgment is required. This was the first significant change to the FMLA in more than a decade.

After a two-year period that involved nearly 20,000 comments, the DOL released a significant update to the Family and Medical Leave Act that took effect January 16, 2009.

The final update included clarifications to the military benefit enhancements that were released in early 2008 (NDAA) and specifies how to administer the changes that came about as a result of the amendment.

In addition, the rule re-organized the traditional FMLA regulations and clarified the statute’s rights and obligations. The DOL also used this occasion to amend and create new forms that should be used for certification requirements regarding the use of FML and military family leave. Find the forms on the DOL website [12].

On February 23, 2015, the US Department of Labor's Wage and Hour Division announced a final rule to revise the definition of 'spouse' under the Family Medical Leave Act of 1993. The final rule amends the definition of spouse so that eligible employees in legal same-sex marriages will be able to take leave under protection of the FMLA to care for their spouse or family member, regardless of state of residence, effective March 27, 2015.

With the addition of the change to include same sex marriages as covered spouses, Family Medical Leave (FML) eligibility continues to entail:

• Employees must be employed by or with a covered employer for a total of 12 months. These months do not have to be consecutive. Time the employee is employed by a temporary agency does count toward this 12-month period.
• Employees are required to have actively worked at least 1,250 hours over the previous 12 months before becoming eligible for FML and;
• Employees must work for a covered employer where at least 50 employees are employed by the employer (within a 75-mile radius). However, notification requirements apply to all governmental agencies regardless of size.

Break-in-Service
Under the law, if an employee has a break in employment that lasts seven years or less, the employee’s service prior to the service must be counted when determining if the employee has been employed for at least 12 months.

Breaks in service of more than seven years need not be counted unless the break in service was caused by:

• The fulfillment of National Guard or Reserve military duties
• A written agreement including collective bargaining agreement
• The employer’s agreement to re-hire the employee after the break

The regulations that came about in 2009 provided more definitive requirements for health care provider visits and the proper administration of the FMLA for an employee or eligible family member’s serious health condition.

An employee or eligible dependent may have a serious health condition if he or she is incapacitated for more than three consecutive days and undergoes continuing treatment from a health care provider two or more times within a 30-day period. In order for continuing treatment to exist, the employee must have a visit with a health care provider within seven days of the onset of the incapacity and have a second visit within 30 days of the incapacity. Prior to these changes, FMLA regulations simply provided that a serious health condition involved more than three consecutive, full days of incapacity.

In addition, the final rule clarifies that in the case of an employee taking more than three consecutive calendar days of incapacity (days off) plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. This may also include treatment by a health care provider on one occasion followed by and resulting in a regimen of continuing treatment under the provider’s supervision. The final rule states that periodic visits to a health care provider for chronic serious health conditions require at least two visits to a health care provider per year. 29 C.F.R § 825.115(c)(1).

The final rules which became effective January 16, 2009, do not change the fundamental definition of what constitutes a serious health condition.

Section 101(11) of FMLA defines a Serious Health Condition as “an illness, injury, impairment, or physical or mental condition that involves:
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.” (defined above)

Examples of Serious Health Conditions
The definition of Serious Health Condition continues to be heavily debated. It is intended to cover illnesses and injuries that require an employee be absent from work more than a few days or on a recurring basis. Serious Health Conditions under FMLA are not intended to cover short and minor illnesses such as seasonal allergies, colds, stomach bugs, single asthma attacks, and viruses. However, complications that result in serious health that the medical certification is used to qualify each situation separately. It is certainly possible for one diagnosis to affect one person drastically differently from another. conditions (i.e., hospitalizations or advancement to pneumonia, etc.) would certainly qualify as a serious health condition. It is important to note that the medical certification is used to qualify each situation separately. It is certainly possible for one diagnosis to affect one person drastically differently from another.

Some common examples could be: terminal illness, critical injury, most cancers, emphysema, appendicitis, severe respiratory conditions (such as chronic asthma), heart attacks, heart conditions requiring bypass or valve operations, back conditions requiring surgery or extensive therapy, strokes, spinal injuries, severe arthritis, pneumonia, severe nervous disorders, any serious injury caused by an accident on or off the job, childbirth, kidney disease, injuries caused by serious accidents, Alzheimer’s, and multiple conditions that if not treated would likely result in someone being incapacitated for more than three days.

Some additional examples are: depression, routine pregnancy and prenatal care, complications related to pregnancy including severe morning sickness, migraines, substance abuse treatment administered by a health care provider, emotional distress following a miscarriage, and mental health conditions.

Conditions that generally do not normally meet criteria (unless serious complications arise): Common cold, flu, virus, earaches, upset stomach, minor ulcers, non-migraine headaches, routine dental work or orthodontic procedures, absence due to substance abuse (note: active treatment is generally covered), and stress etc.

Note: Each individual FMLA request needs to be judged independently along with careful review of health care provider notes. You should also pay attention to new case law, as the courts may deem that certain aliments are in fact serious health conditions under FMLA. Additionally, just because a condition does not qualify under FMLA does not mean that it may not qualify under ADA.

Burden of Proof
Employees who take FML for their own serious health condition are held to a somewhat higher standard than when they take leave to help an immediate family member with such a condition. As a result, documenting that an employee’s own illness qualifies for FML usually requires furnishing the employer with more detailed medical information than when proving that a child, spouse or parent has a serious illness. For this reason documentation and a completed health care provider’s statement are very important. In the event that more information is needed to determine FMLA eligibility, the human resource professional or FMLA administrator should seek immediate clarification from the employee’s healthcare provider. Note: An employee’s direct supervisor may not contact the health care provider for additional information.

Employees, absent unusual circumstances, are required to follow an employer’s policy relating to proper call-in procedures for reporting FML absence(s). Employers may require employees seeking FML to call a "designated number or a specific individual to request leave." 29 C.F.R. § 825.303(c). Under old regulations, an employer could not delay or deny FML if an employee failed to follow protocol.

It is specified that once FML has been granted for an employee's health condition, the employee must thereafter “specifically reference either the qualifying reason or the need for FML. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.” 29 C.F.R. § 825.303(b).

For unforeseeable absences, it should be “practicable” for employees to request leave “either the same day or the next business day.” 29 C.F.R. § 825.302(b).

• Foreseeable Leave – Employees must provide employers with at least 30 days advance notice before FML is to begin if the need for leave is foreseeable. When the employee becomes aware of the need for leave and it is less than 30 days out, the employee needs to notify the employer as soon as “practicable,” such as the same day the employee becomes aware or the next day.
• Unforeseeable Leave – Employees must provide notice as soon as practicable and within the time prescribed by the employer’s usual and customary notice requirements. This means following the procedure such as calling in or using a specified number, if requested, by the employer.

Employees on Intermittent Leave
Remember, if you have employees on intermittent FML, it is imperative that they follow your city’s call in procedures for every absence (scheduled or unscheduled) and specify if each leave request will be FMLA related or not FMLA related. Without this information on every absence you will be unable to properly track FML time used.

Employers’ policies determine if employees will be paid or unpaid and they can require that employees use any and all paid time off concurrently with FML.

Under the regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee using paid leave concurrently with FML must follow the same rules of the employer’s policy that apply to other employees. The statute provides that employees may choose to take annual, personal, sick leave concurrently with FMLA. Employers can require their employees to take paid leave concurrently with FML. If a city does not choose to do this, its employees will then be able to “stack” time, which can result in an undue burden on the employer. (Example: An employee takes five weeks off for surgery and uses all of his available sick leave. The employer does not start FMLA protection until the employee runs out of sick leave, which means the employee will get five weeks sick leave and then the employer will start 12 weeks of FML when the employee is out of sick leave.)

Light Duty
Time spent in light duty positions cannot be used against an employee’s FML entitlement.

The law now states that employees who accept light duty work need not exhaust their FML by agreeing to perform light duty. Whether light duty is presented as an option or as a mandatory provision, it may not be counted toward an employee’s FMLA benefit. 29 C.F.R. § 825.207(e).

Overtime
Many employees are regularly required to work overtime in their positions. However, when they go out on FML they are unable to do so.

The hours that the employee would have been required/mandated to work as overtime may be counted against the employee’s FMLA entitlement (i.e., counted as intermittent or reduced schedule leave, as applicable). However, if that overtime is voluntary, those hours may not be counted against an employee’s leave entitlement.

The most recent rules combine several of the old notices into one section of the regulations and remove some inconsistencies that existed in regard to time periods. Employers are required to provide employees with the General Notice about FMLA (this could be via a poster and a handbook, an eligibility notification, a rights and responsibilities notice, or a designation notice). Employers are given additional time to provide the notices, which is now five days.

• General Notice: The employer should generate the General Notice to all employees. This can be done via a handbook or other written means. Consider how new hires and employees on leave of absence will be notified. Employers may also opt to post this information online via the intranet or Internet. The regulations specify the distribution of this notice to new hires via handbooks if such manuals exist.
• Eligibility Notice: When an employee requests FML, or when an employee is out of work due to an illness or injury that may qualify under the FMLA, the employer must notify the employee of the employee’s eligibility to take FML within five business days, absent extenuating circumstances. If the employer determines the employee is ineligible, the notice must state at least one reason why he is ineligible for FML. If FML is approved, all FML absences for the same qualifying reason are considered a single leave and will not change during the designated FML 12-month period.
• Rights and Responsibilities Notice: Employers must provide a written rights and responsibilities notice each time an eligibility notice is required and any time the information changes thereafter, which includes the expectations, obligations and consequences (i.e., failure to pay premiums will result in termination of coverage). This notice can be mailed in tandem with other notices such as the medical certification form.

Content and Clarification

• Employer representatives responsible for contacting the employee’s health care providers must be an HR professional, leave administrator, health care provider, or management official. They cannot be the employee’s direct supervisor.
• Employers should ask for information required by the certification form only.
• Once the employer has received a complete and sufficient certification, the employer may not request additional information from the health care provider. However, the employer may use a human resources professional, a leave administrator, another health care provider, or a management official to contact the health care provider to authenticate or to clarify the certification. For example, the employer’s appropriate representative could ask the health care provider if the information contained on the form was completed or authorized by him or her, or ask questions to clarify the handwriting on the form or the meaning of a response. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.  Excerpted from Fact Sheet #28G, U.S. DOL: http://www.dol.gov/whd/regs/compliance/whdfs28g.pdf [13]
• The final rule allows the health care provider to give a diagnosis of the patient’s health condition as part of the certification, but does not require this.
• The DOL may have separate forms available and required for applicable/eligible family members. Refer to those forms as necessary.

Medical Certification and Timing

• Employers may request a new medical certification each leave year for health conditions that last more than one year.
• Employers may request a re-certification of an on-going condition every six months in conjunction with an absence. (Except when a minimum duration of incapacity has been specified in the certification, in which case recertification generally may not be required until that duration has passed). Previously, under the law, an employer could require re-certification no more than every 30 days.
• Employers now have five (versus two) days after the employee provides notice to request that an employee furnish a medical certification. (NOTE: There are now two separate medicalcertification forms – one for the employee’s own serious health issues and one for the employee’s family member. To find updated forms and other valuable information, including FMLA posters, visit http://www.dol.gov/whd/fmla/index.htm [14].

Fitness for Duty Certification
Restrictions still apply for those employers requesting fitness for duty certificates for employees on intermittent FML. Under the legislation, employers are able to request a fitness for duty certificate once every 30 days “if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave.”

Waiver of Rights
Under updated rules, employees may elect to voluntarily settle their FMLA claims without the interference of court or DOL. Prospective waivers of FMLA are prohibited. Employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA.

Military Caregiver Leave

The National Defense Authorization Act (NDAA) provided a new leave entitlement of up to 26 weeks to care for a covered service member with a serious injury or illness. An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member, who is recovering from a serious illness or injury sustained in the line of duty, is entitled to up to 26 weeks of leave in a single 12-month period to care for the service member.

Definition of Covered Service Member

A covered service member is a member of the Armed Forces (including a member of 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 or illness; or a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

Qualified Exigency Leave (QE)

The NDAA provides a new reason for leave under FMLA to allow families of National Guard, regular Armed Forces, Reserve personnel, and eligible veterans to take FMLA job-protected leave to manage their responsibilities called qualifying exigencies.

• An eligible employee may be entitled to up to 12 weeks of leave due to a “qualifying exigency” arising from the fact that the spouse, son, daughter, or parent of the employee is in the line of duty on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.
• Qualifying Exigency Leave was recently clarified by NDAA of 2010 to apply to veterans who served in the regular Armed Forces or the Reserves within five years of the date the veterans undergo medical treatment, recuperation or therapy. Previously, military caregiver leave was only available to care for current members of the Armed Forces, Guard or Reserves.

Qualified Exigency: As defined by DOL Fact Sheet 28A

Qualifying exigencies include:

• Issues arising from a covered military member’s short notice deployment (i.e., deployment on seven or less days of notice) for a period of seven days from the date of notification;
• Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member;
• Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at a school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member;
• Making or updating financial and legal arrangements to address a covered military member’s absence;
• Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or the child of the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member;
• Taking up to five days of leave to spend time with a covered military member who is on short-term temporary, rest and recuperation leave during deployment;
• Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status, and addressing issues arising from the death of a covered military member;
• Any other event that the employee and employer agree is a qualifying exigency. 

Family Medical Leave to Care for Adult Children

Typically when we think of parents taking FML to care for children we assume the eligible children are under 18 or permanently disabled. However, with the expansion to the scope of ADA (Americans with Disabilities Act) by the ADA Amendments Act, it is easier for an employee to take leave to care for an adult child who has a serious health condition and is incapable of selfcare under ADA.

Under the FMLA, a parent can take family leave (FML) to care for his or her adult children who are not in the military and are not veterans if the children are “incapable” of self-care or have a disability defined by ADA. Generally this means the adult child must require direct assistance or supervision providing self-care in three or more activities of daily living such as grooming, hygiene, bathing, dressing, and eating. These could also include instrumental activities of daily living such as essential errands, cooking, cleaning, shopping, transporting, paying bills, using communication devices, and maintaining a residence. There are many different disabilities and conditions that could deem an adult child incapable of self-care. It could be a serious accident, surgery, illness, or more permanent conditions such as developmental disabilities, Down syndrome, brain damage, paralysis, etc.

Temporary conditions or illnesses such as pregnancy-related restrictions or routine surgeries would likely not result in someone being “incapable of self-care” as defined by the regulations.

FMLA and GINA (Genetic Information NonDiscrimination Act)
GINA was signed into in law by President Bush in May of 2008 and took effect November 21, 2009.

Title I addresses the use of genetic information in health insurance.

Title II addresses discrimination in employment based on genetic information.

GINA restricts employers and insurers from acquiring and using genetic information except in limited circumstances.

With respect to employment, GINA makes it illegal to discriminate against employees or applicants because of genetic information. GINA prohibits employers or employment agencies and labor organizations from requesting, requiring, or purchasing genetic information of employees and applicants (as well as their family members).

Specifically it:

• prohibits discrimination and harassment on the basis of genetic information;
• prohibits employers from obtaining genetic information except in narrow circumstances;
• requires employers to keep what they do get confidential; and
• prohibits employers from making any employment-related decisions based on genetic information.

The Link between GINA and FMLA
When asking for medical information in the course of administering FML (or ADA), there is a potential to obtain information that could be protected by GINA, including genetic information such as: results of genetic tests for cancer genes, hereditary diseases, and other disorders. Results of genetic information on family members can also fall under FMLA/ADA due to GINA. GINA protections include requests for genetic information by an employer about employees or their family members as well as genetic information regarding a fetus or embryo. It also includes the manifestation of a disease or disorder that may pertain to employees or their family members.

The EEOC issued regulations under GINA that define terms and provide guidance for employers administering the act’s provisions. They specifically reference certain issues under FMLA. https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/gina [15]

Inadvertent Acquisition of Genetic Information
GINA, as originally written, makes the mere acquisition of genetic information on employees and their family members illegal. As a general matter, employers seem to understand this, but with the passage of GINA, employers were worried about facing GINA violations due to inadvertent acquisition of information (i.e., raising money for a family member’s condition, or knowledge of an employee or family member’s condition via social media or water cooler talk at the office). Employers questioned whether simply receiving the information (inadvertently) would be a violation of GINA. The EEOC offered clarifications [16] to these concerns.

Social Media
Final regulations make clear that the inadvertent acquisition exception applies in the workplace as well as incidents that take place online such as on Facebook or other social media avenues. They provide for a specific situation where a manager or supervisor inadvertently learns of a genetic condition of an employee or their family member via a social media platform where the manager or supervisor has been given permission to access the profile (i.e., friends on Facebook).

An employer would not violate GINA if a supervisor and employee are friends on a social media site and the employee posts about money being raised for his father’s Alzheimer’s. However, this exception (employer protection) would not apply if the employer needed special permission to access a profile and the employer went around those privacy safeguards to get the information. If the employer sought out that information it could be a GINA violation. In this case the inadvertent exception would not apply.

As an HR best practice, it is not recommended to “friend” employees or applicants on social media sites. While it is not illegal, the implications can be complex and can potentially place your city at unnecessary exposure.

Casual Conversations
According to the EEOC this depends on the nature of the situation. If the employer inadvertently requests information about a genetic health issue in a casual conversation it may not violate GINA.

For instance, a supervisor may make general health inquiries such as “How are you?” “How do you feel today?” Those kinds of questions are acceptable and are generally not a GINA violation. But if the employer goes further by probing for information such as asking if other family members have the condition, or if the employee has been tested for a condition, then according to the regulations the employer has crossed the line and is likely to be in possession of protected genetic information acquired illegally. The outer limits of this water cooler exception will surely be tested in the courts. Be cautious!

Requests for Medical Leave: FMLA/ADA/Worker's Compensation
GINA specifically prohibits an employer from asking about an employee’s family genetic health information. There is an exception to this: when the employer is specifically asking for medical info for purposes of FMLA/ADA/Workers’ Compensation certification it should be following certain steps in order to make sure it falls within the exceptions that are allowed under GINA.

If an employee is seeking leave to care for a family member then obviously the employer will have access to a family member’s health information that may be protected under GINA (family history of medical information specifically). This is a limited exception and only applies to an employee’s family member, which may include family history information. So in this case, under FMLA; an employer could legally receive information on a family member’s medical history information. Note: This exception does not apply to the employee’s request for his own serious health condition.

GINA makes clear that if a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of medical information will generally not be considered inadvertent unless the individual directs the employer in writing or verbally not to request genetic information. In other words, the employer needs to state up front that it does not want genetic information on health care certification forms. Otherwise a situation may be created where genetic information under GINA will likely be acquired.

Safe Harbor Language
Employers can include this with the request for information/health care certification forms. This is essentially a disclaimer on any medical information requests that explicitly state employers do not want protected genetic information under GINA.

The EEOC has provided sample safe harbor language as follows that you may choose to utilize in your communications:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Bottom line: When you are asking for medical information under FMLA make sure it falls under a GINA exception and does not violate the law. Note: The most recent forms produced for FMLA purposes by the DOL [12] have included compliant safe harbor language for applicable situations addressed by each.

Employer Checklist

• Update FMLA policies to include GINA regulations (include safe harbor language)
• Update FMLA policies to include changes as a result of ADA amendments
• Review your FMLA policies
• Review applicable benefit forms
• Consider changes to payroll system, databases, HRIS system, etc.
• Revise current policies to reflect changes
• Plan a communication strategy; consider newsletter articles, bulletin boards, handbooks, departmental memos, payroll stuffers, etc.
• Consider employees on leave (military, family leave, maternity, workers compensation and other types of leave)
• Consider placing information on company’s website (intranet or internet)
• Allow employees to ask questions; often employees do not understand change.
• All public employers subject to notice requirements; even if no employees are currently eligible for FMLA.

http://www.dol.gov/whd/fmla [17]

The following FAQ’s are samples from the U.S. Dept of Labor, Wage and Hour Division’s page ‘FMLA Frequently Asked Questions.’ Further questions can be found: http://www.dol.gov/whd/fmla/fmla-faqs.htm [18]

**For Expanded FMLA under the FFCRA as it relates to the COVID-19 pandemic of 2020, please follow this link: https://www.dol.gov/agencies/whd/fmla/pandemic [19] **

Coverage
(Q) What types of businesses/employers does the FMLA apply to?

(A) The FMLA applies to all:

• public agencies, including local, State, and Federal employers, and local education agencies (schools); and
• private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

Eligibility
(Q) Who can take FMLA leave?

(A) In order to be eligible to take leave under the FMLA, an employee must:

• work for a covered employer;
• have worked 1,250 hours during the 12 months prior to the start of leave;
• work at a location where the employer has 50 or more employees within 75 miles; and
• have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee’s fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement.

Hours of Service Requirement

(Q) Does the time I take off for vacation, sick leave or PTO count toward the 1,250 hours?

(A) The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

Unpaid leave
(Q) Is my employer required to pay me when I take FMLA leave?

(A) The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.

Qualifying conditions
(Q) When can an eligible employee use FMLA leave?

(A) A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons:

• for the birth of a son or daughter, and to bond with the newborn child;
• for the placement with the employee of a child for adoption or foster care, and to bond with that child;
• to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
• to take medical leave when the employee is unable to work because of a serious health condition; or
• for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.

Birth and bonding
(Q) Are there any restrictions on when an employee can take leave for the birth or adoption of a child?

(A) Leave to bond with a newborn child or for a newly placed adopted or foster child must conclude within 12 months after the birth or placement. The use of intermittent FMLA leave for these purposes is subject to the employer’s approval. If the newly born or newly placed child has a serious health condition, the employee has the right to take FMLA leave to care for the child intermittently, if medically necessary and such leave is not subject to the 12-month limitation.

(Q) When can a parent take leave for a newborn?

(A) Mothers and fathers have the same right to take FMLA leave to bond with a newborn child. A mother can also take FMLA leave for prenatal care, incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can also use FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth.

Intermittent/reduced leave schedule
(Q) Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?

(A) When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.

Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement.

(Q) Can an employer change an employee’s job when the employee takes intermittent or reduced schedule leave?

(A) Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.

Serious health condition
(Q) What is a serious health condition?

(A) The most common serious health conditions that qualify for FMLA leave are:

• conditions requiring an overnight stay in a hospital or other medical care facility;
• conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication); chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).

(Q) Can I continue to use FMLA for leave due to my chronic serious health condition?

(A) Under the regulations, employees continue to be able to use FMLA leave for any period of incapacity or treatment due to a chronic serious health condition. The regulations continue to define a chronic serious health condition as one that (1) requires “periodic visits” for treatment by a health care provider or nurse under the supervision of the health care provider, (2) continues over an extended period of time, and (3) may cause episodic rather than continuing periods of incapacity. The regulations clarify this definition by defining “periodic visits” as at least twice a year.

(Q) Can I take FMLA leave for reasons related to domestic violence issues?

(A) FMLA leave may be available to address certain health-related issues resulting from domestic violence. An eligible employee may take FMLA leave because of his or her own serious health condition or to care for a qualifying family member with a serious health condition that resulted from domestic violence. For example, an eligible employee may be able to take FMLA leave if he or she is hospitalized overnight or is receiving certain treatment for post-traumatic stress disorder that resulted from domestic violence.

Certification
(Q) Am I required to prove that I have a serious health condition?

(A) An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.

(Q) What happens if my employer says my medical certification is incomplete?

(A) An employer must advise the employee if it finds the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. The employer must state in writing what additional information is necessary to make the certification complete and sufficient and must allow the employee at least seven calendar days to cure the deficiency, unless seven days is not practicable under particular circumstances despite the employee’s diligent good faith efforts.

(Q) Can my employer make me get a second opinion?

(A) An employer may require a second or third medical opinion (at the employer’s expense) if he or she has reason to doubt the validity of the medical certification.

(Q) Do I have to give my employer my medical records for leave due to a serious health condition?

(A) No. An employee is not required to give the employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.

(Q) How soon after I request leave does my employer have to request a medical certification of a serious health condition?

(A) Under the regulations, an employer should request medical certification, in most cases, at the time an employee gives notice of the need for leave or within five business days. If the leave is unforeseen, the employer should request medical certification within five days after the leave begins. An employer may request certification at a later date if he or she has reason to question the appropriateness or duration of the leave.

(Q) May my employer contact my health care provider about my serious health condition?

(A) The regulations clarify that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Under the regulations, employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official. In order to address employee privacy concerns, the regulations makes clear that in no case may the employee’s direct supervisor contact the employee’s health care provider. In order for an employee’s HIPAA-covered health care provider to provide an employer with individually-identifiable health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.

(Q) Must I sign a medical release as part of a medical certification?

(A) No. An employer may not require an employee to sign a release or waiver as part of the medical certification process. The regulations specifically state that completing any such authorization is at the employee’s discretion. Whenever an employer requests a medical certification, however, it is the employee’s responsibility to provide the employer with a complete and sufficient certification. If an employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee's request for FMLA leave may be denied.

(Q) How often may my employer ask for medical certifications for an on-going serious health condition?

(A) The regulations allow recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days. For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee. The regulations also allow an employer to request recertification in less than 30 days if the employee requests an extension of leave, the circumstances described in the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

Additionally, employers may request a new medical certification each leave year for medical conditions that last longer than one year. Such new medical certifications are subject to second and third opinions

(Q) Can employers require employees to submit a fitness-for-duty certification before returning to work after being absent due to a serious health condition?

(A) Yes. As a condition of restoring an employee who was absent on FMLA leave due to the employee’s own serious health condition, an employer may have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to submit a certification from the employee’s own health care provider that the employee is able to resume work. Under the regulations, an employer may require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the position if the employer has appropriately notified the employee that this information will be required and has provided a list of essential functions. Additionally, an employer may require a fitness-for-duty certification up to once every 30 days for an employee taking intermittent or reduced schedule FMLA leave if reasonable safety concerns exist regarding the employee's ability to perform his or her duties based on the condition for which leave was taken.

(Q) What happens if I do not submit a requested medical or fitness-for-duty certification?

(A) If an employee fails to timely submit a properly requested medical certification (absent sufficient explanation of the delay), FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave is not FMLA leave.

If an employee fails to submit a properly requested fitness-for-duty certification, the employer may delay job restoration until the employee provides the certification. If the employee never provides the certification, he or she may be denied reinstatement.

Employee notice

(Q) What and when do I need to tell my employer if I plan to take FMLA leave?

(A) Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave.

Employees must provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider.

When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave, however, due to a FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for the leave or the need for FMLA leave.

(Q) Is an employee required to follow an employer’s normal call-in procedures when taking FMLA leave?

(A) Yes. Under the regulations, an employee must comply with an employer’s call-in procedures unless unusual circumstances prevent the employee from doing so (in which case the employee must provide notice as soon as he or she can practicably do so). The regulations make clear that, if the employee fails to provide timely notice, he or she may have the FMLA leave request delayed or denied and may be subject to whatever discipline the employer’s rules provide.

Employer notice

(Q) Are employers required to tell their employers of the existence of FMLA and the employee’s right to take FMLA leave?

(A) Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division. An employer that willfully violates this posting requirement may be subject to a civil money penalty of up to $110 for each separate offense.

Additionally, employers must include this general notice in employee handbooks or other written guidance to employees concerning benefits, or, if no such materials exist, must distribute a copy of the notice to each new employee upon hiring.

When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his or her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.

(Q) How soon after an employee provides notice of the need for leave must an employer determine whether someone is eligible for FMLA leave?

(A) Absent extenuating circumstances, the regulations require an employer to notify an employee of whether the employee is eligible to take FMLA leave (and, if not, at least one reason why the employee is ineligible) within five business days of the employee requesting leave or the employer learning that an employee’s leave may be for a FMLA-qualifying reason.

(Q) Does an employer have to provide employees with information regarding their specific rights and responsibilities under the FMLA?

(A) At the same time an employer provides an employee notice of the employee’s eligibility to take FMLA leave, the employer must also notify the employee of the specific expectations and obligations associated with the leave. Among other information included in this notice, the employer must inform the employee whether the employee will be required to provide certification of the FMLA-qualifying reason for leave and the employee’s right to substitute paid leave (including any conditions related to such substitution, and the employee’s entitlement to unpaid FMLA leave if those conditions are not met). If the information included in the notice of rights and responsibilities changes, the employer must inform the employee of such changes within five business days of receipt of the employee’s first notice of the need for FMLA leave subsequent to any change. Employers are expected to responsively answer questions from employees concerning their rights and responsibilities.

(Q) How soon after an employee provides notice of the need for leave must an employer notify an employee that the leave will be designated and counted as FMLA leave?

(A) Under the regulations, an employer must notify an employee whether leave will be designated as FMLA leave within five business days of learning that the leave is being taken for a FMLA-qualifying reason, absent extenuating circumstances. The designation notice must also state whether paid leave will be substituted for unpaid FMLA leave and whether the employer will require the employee to provide a fitness-for-duty certification to return to work (unless a handbook or other written document clearly provides that such certification will be required in specific circumstances, in which case the employer may provide oral notice of this requirement). Additionally, if the amount of leave needed is known, an employer must inform an employee of the number of hours, days or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice. Where it is not possible to provide the number of hours, days, or weeks that will be counted as FMLA leave in the designation notice (e.g., where the leave will be unscheduled), an employer must provide this information upon request by the employee, but no more often than every 30 days and only if leave was taken during that period.

For an updated guide to COBRA (Consolidated Omnibus Budget Reconciliation Act of 1986)  click on any or all of the sections below to obtain the specific information you want.  To print off the complete guide, click on view PDF section on this page.   

The U.S. Citizenship and Immigration Service publishes handbooks and manuals to help employers comply with the verification rules. The most important is the M-274, Handbook for Employers: Guidance for Completing Form I-9 (Employment Eligibility Verification Form) (Rev. April 2020) (https://www.uscis.gov/i-9-central/handbook-employers-m-274 [25]). This section summarizes the employer I-9 verification responsibilities as outlined in the handbook. Both the form and the manual have been revised and prior versions can no longer be used after September 18th, 2017.

Current law (8 U.S.C. § 1324(b)) requires all employers in the U.S. to complete an Employer Eligibility Verification form (Form I-9) for each newly hired employee to verify each employee’s identity and eligibility to work. According to the manual, “to comply with the Immigration Reform and Control Act’s I-9 requirements, the verification should be done by an in-person inspection of the original document that shows an employee’s identity and his/her eligibility to work in the United States. A record of the employer’s verification is made and retained on the Form I-9 for each person hired by the organization.”

Employers should see https://www.uscis.gov/i-9 [26] for the form and I-9 Central for the most up-to-date information.

The I-9 form must be completed for all employees hired on or after November 7, 1986, as well as for any existing employee who requires re-verification. You do not need to complete a Form I-9 for persons who are:

• Hired on or before November 7, 1986, who continued in their employment and have a reasonable expectation of employment at all times;
• Employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
• Independent contractors;
• Providing labor to you but are employed by a contractor providing services (i.e. employee leasing or temporary agencies); or
• Not physically working on U.S. soil.

Section 1 of the Form I-9 must be completed on or before the employee’s first day of work. The new form can be completed on line or by hand. The on-line form is not for electronic submission by purely fillable. Instructions for completing for forms are also available.

The employee must provide his/her full legal name and other names used in the past. The employee must provide a home address, apartment number, city or town, state, and zip code. PO boxes are not allowed. The employee must also provide data of birth, social security number, e-mail address and telephone number. The employee must read and attest to their citizenship or immigration status by checking the appropriate box. If the employee attests to "alien authorized to work", then the employee must provide either their alien registration number or the employer's form I-9 admission number. The employee must sign and date the form. You should ensure that the employee prints the information clearly. The instruction handbook provides that if the employee cannot complete Section 1 without assistance or if he/she needs Form I-9 translated, someone may assist him or her. The preparer or translator must then complete the Preparer/Translator Certification block on Form I-9.

Section 2 of the Form I-9 must be completed within three (3) days of the employee’s actual start date. The employee must present to you an original document or documents that establish identity and employment authorization. Some documents establish both identity and employment authorization (List A documents). Other documents establish identity only (List B documents) or employment authorization (List C documents) only. The employee can choose which documents he or she wants to present.

Section 3 of the Form I-9 must be completed for employees who are rehired or whose employment authorization requires reverification or who has changed his/her name.

See https://www.uscis.gov/i-9-central/complete-and-correct-form-i-9 [27] for more information.

The handbook [28] provides that the employers must examine the original document or documents the employee presents to determine if it reasonably appears to be genuine and relates to the person presenting it and then complete Section 2 of the Form I-9. The employee must be physically present during the examination of the employee's documents.

One document from List A must be examined, or one document from List B and one document from List C. The employer must record the necessary information (title, issuing authority, number) and expiration date (if any); fill in the date of hire and correct information in the certification block; and sign and date the form. Signing the form attest to physically examining the documents provided. Complete the form by entering the business name and address.

Any document(s) from the list of acceptable documents presented by the individual that reasonably appear on their face to be genuine and to relate to the person presenting them must be accepted. Return the original documents to your employee when finished.

The following documents establish both identity and employment authorization from List A of the list of acceptable documents:

• U.S. Passport or Passport Card
• Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
• Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
• Employment Authorization Document (Card) that contains a photograph (Form I-766)(including expired EADs in conjunction with Forms I-797 bases n an EAD automatic extension in certain circumstances
• In the case of a non-immigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien’s non-immigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form
• Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating non-immigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

Employers presenting a List A document should not be asked to present any other documents.

List B documents [30] establish identity only for individuals 18 years of age or older and must not be expired. The list includes:

• Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address.
• ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address.
• School ID card with a photograph
• Voter’s registration card
• U.S. military card or draft record
• Military dependent’s ID card
• U.S. Coast Guard Merchant Mariner Card
• Native American tribal document
• Driver’s license issued by a Canadian government authority

Acceptable List B documents for persons under age 18 who are unable to present a document list above include:

• School record or report card
• Clinic, doctor or hospital record
• Day-care or nursery school record

For minors under the age of 18 and certain individuals with disabilities who are unable to produce any of the listed identity documents, special notation may be used in place of a List B document.

Employees who chose to present a List B document must also present a document from List C for Section 2.

For minors under the age of 18 and certain individuals with disabilities who are unable to produce any of the listed identity documents,special notation may be used in place of a List B document.

If a minor (a person under the age of 18) is unable to present a List A document or an identity document from List B, the employer should have the Form I-9 completed as follows:

• A parent or legal guardian must complete Section 1 and write "individual under age 18" in the space for the employee's signature.
• The parent or legal guardian must complete the "Prepare/Translator Certification" block;
• Enter the employee's name from Section 1 at the top of Section 2;
• Write "Individual under age 18" in Section 2, under List B, and
• The minor must present a List C document showing his/her employment authorization. Record the required information in the appropriate space in Section 2.

An individual with a disability, who is placed in a job by a non-profit organization, association, or as part of a rehabilitation program, who cannot present a List A document or an identity document from List B, should complete Form I-9 as follows:

• A representative of the non-profit organization, a parent or legal guardian must complete Section 1 and write "Special Placement" in the space for the employee's signature;
• The representative, parent or legal guardian must complete the "Preparer/Translator Certification" block;
• Enter the employee's name from Section 1 at the top of Section 2;
• Write "Special Placement" in Section 2, under List B; and
• The employee with a disability must present a List C document showing his/her employment authorization; and record the required information in the appropriate space in Section 2.

Documents from List C [31] establish employment authorization and include:

• U.S. Social Security account number card other than one that specifies on the face that (1) the issuance of the card is not valid for employment in the United States (Note – A copy (such as a metal or plastic reproduction) is not acceptable), (2) the card is valid for work only with INS authorization, and (3) the card is valid for work only with DHS authorization.
• Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545, DS-1350, FS-240)
• Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States bearing an official seal
• Native American tribal document
• U.S. Citizen Identification Card (Form I-197)
• Identification Card for Use of Resident Citizen in the United States (Form I-179)
• Employment authorization document issued by Department of Homeland Security (other than those listed under List A). For examples, please visit uscis.gov/i-9-central [32].

Special rules apply when verifying the employment authorizations for other special categories also exist. Among the categories are:

• Lawful Permanent Residents
• Native Americans
• Refugees and Asylees (Form I-94 or I-94A)
• Temporary Protected Status (Form I-766)
• Exchange Visitors and Students (Form DS-2019)
• F-1 Non-Immigrant Students (Foreign students pursuing academic and language training programs)
• M-1 Non-Immigrant Students (Foreign students pursuing non-academic or vocational studies (Form I-20))
• H-1B Special Occupations
• H-2A Temporary Agricultural Worker Program

When an employer rehires an employee, the employer must ensure that the individual is still authorized to work. This is done by completing a new Form I-9 or the employer may re-verify or update the original form by completing the Reverification and Rehires section (Section 3). If an employee, who has previously completed a Form I-9, is rehired, the employer may re-verify on the employee’s original Form I-9 if:

• The employer rehires the employee within three years of the initial date of hire; or
• The employee remains employment authorized as indicated on the previous Form I-9;
• The employee’s previous grant of employment authorization has expired, but he/she is now eligible to work under a new grant of employment authorization;
• If you already used Section 3 of the employee's previously completed Form I-9.

To re-verify, the employer must:

• Record the date of rehire in Block B of Section 3;
• Record the document title, number and expiration date (if any) of the document(s) the employee presented in Block C;
• Sign and date Section 3;
• If re-verifying on a new Form I-9, write the employee’s name at the top of page 2 and complete Section 3; and
• Re-verify the employee on a new form if the previous version is no longer valid.

NOTE: U.S. Citizens and noncitizen nationals never need reverification.

To update an employee's name (optional), the employer must:

• Record the date of rehire in Block B and the employee’s new name, if applicable in Block A of Section 3;
• Sign and date Section 3; and
• If updating on a new Form I-9, write the employee’s name at the top of page 2 and use Section 3 of the new Form I-9 to update, retaining the new Form I-9 with the previously completed revision.

If you discover an error on the employee's Form I-9, you should bring the form into compliance immediately and ask the employee to correct the error.  Employers may only correct errors made in Section 2 or Section 3 of Form I-9. If you discover an error in Section 1 of the employee's Form I-9, you should ask your employee to correct the error.

The best way to correct the form is to:

• Draw a line through the incorrect information.
• Enter the correct information.
• Initial and date the correction.

To correct multiple recording errors on the form, redo the section on a new Form I-9 and attach it to the old form. Complete a new Form I-9 if major errors (such as entire sections being left black or Section 2 being completed based on unacceptable documents) need to be corrected. A note should be included in the file regarding the reason you made changes to an existing Form I-9 or completed a new Form I-9.

Be sure that you DO NOT to conceal any changes made on the form (other than simple notation errors when copying document information). Doing so may lead to increased liability under federal immigration laws.

If you have made changes on a Form I-9 using correction fluid, it is recommended that you attach a signed and dated note to the corrected Form I-9 explaining what happened. More information about making corrections to the form can be found at I-9 Central [33].

The Form I-9 must be maintained for as long as the individual works for you. Once the individuals employment has terminated, the Form I-9 must be maintained for at-least three years after the date of hire or one year after the date of termination, whichever is later. The handbook provides that "the forms can be retained in paper, microfilm, microfiche, or electronically".

Form I-9 can be signed and stored in paper format. A simple photocopy or printed I-9 form can help ensure that the employee received the instruction for completing the form. You may retain the completed paper forms on-site, or at an off-site storage facility, for the required retention period, as long as the employer is able to present the form within three days of an inspection request from DHS, OSC, or the U.S. Department of Labor.

8 C.F.R. Part 274a.2(b)(2)(iii) provides that Form I-9 may also be stored on microfilm or microfiche or electronic version of the form. You only have to keep the pages of the Form I-9 which you or the employee entered data. To do so:

• Select film stock that will preserve the image and allow its access and use for the entire retention period, which could be 20 years or more.
• Use well-maintained equipment to create and view microfilms and microfiche that provides clear viewing and can reproduce legible paper copies. DHS must have immediate access to clear, readable documents should they need to inspect the employer’s forms.
• Place indexes either in the first frame of the first roll of film, or in the last frames of the last roll of film of a series.

USCIS provides a “Portable Document Format” (PDF) printable form I-9 from its website, https://www.uscis.gov/i-9 [26]. Employers may electronically generate and retain Form I-9 as long as:

• The resulting form is legible;
• No change is made to the name, content, or sequence of the date elements and instructions;
• No additional data elements or language are inserted;
• The employee receives Form I-9 instructions; and
• The standards specified under 8 C.F.R. § 274a.2(e) are met.

The standard specifies that to store records electronically, the employer may complete or retain the forms in an electronic generation or storage system that includes:

• Reasonable controls to ensure the integrity, accuracy, and reliability of the electronic storage system.
• Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored record, including the electronic signature, if used.
• An inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Form I-9, including the electronic signature, if used.
• A retrieval system that includes an indexing system that permits searches by any data element.
• The ability to reproduce legible paper copies.

Part Three of the handbook [28], Guidance for Completing Form I-9, now includes information about electronically signing and retaining I-9 forms. If you complete Form I-9 electronically using an electronic signature, your system for capturing electronic signatures must allow signatories to acknowledge that they read the attestation and attach the electronic signature to an electronically competed Form I-9. In addition the system must:

• Affix the electronic signature at the time of the transaction;
• Create and preserve a record verifying the identity of the person producing the signature; and
• Provide a printed confirmation of the transaction, at the time of the transaction, to the person providing the signature.

If you retain Forms I-9 electronically, you must implement an effective records security program that:

• Ensures only authorized personnel have access;
• Provides for backup and recovery of records;
• Ensures that employees are trained to minimize risk of unauthorized alteration or erasure of electronic records; and
• Ensures that whenever an individual creates, completes, updates, modifies, alters, or corrects an electronic record, the system creates a secure and permanent record that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken.

You may choose to copy or scan documents an employee presents when completing Form I-9, which you may, but are not required to do, retain with his/her Form I-9. If copies or electronic images of the employee's documentation are made, they must either be retained with Form I-9 or stored with the employee's records.

As an employer, you can violate federal law by using the Form I-9 in a discriminatory manner. Employer sanctions and anti-discrimination provision of the Immigration and Nationality Act (INA) were added by the Immigration Reform and Control Act and prohibits four types of unlawful conduct:

• Citizenship or immigration status discrimination;
• National origin discrimination;
• Unfair documentary practices during the Form I-9 and E-Verify process (document abuse); and
• Retaliation or intimidation

Discriminatory documentary practices related to verifying the employment authorization and the identity of employees during Form I-9 or E-Verify process is called "document abuse" according to the handbook. Document abuse occurs when employers treat individuals differently on the basis of national origin or citizenship or immigration status in the Form I-9 or E-Verify process. Document abuse can be categorized into four types of conduct:

• Improperly requesting that employees produce more documents than are required;
• Improperly requesting that employees present a particular document;
• Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and
• Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound foreign to produce particular documents the employer does not require other employees to produce.

Immigration status or citizenship discrimination occurs when employees are treated differently based on their real or perceived citizenship or immigration status in regard to hiring, firing, or recruitment or referral for a fee. Employer must treat all groups the same.

When an employer treats employees differently in the employment process based on their national origin, that behavior constitutes national origin discrimination. An employee’s national origin relates to the employee’s place of birth, country of origin, ethnicity, ancestry, native language, accent or the perception that they look or sound "foreign".

The handbook [28] specifically states that “retaliation occurs when an employer or other covered entity intimidates, threatens, coerces, or otherwise retaliates against an individual because the individual has filed an immigration–related employment discrimination charge or complaint; has testified or participated in any immigration–related employment discrimination investigation, proceedings, or hearing; or otherwise asserts his/her rights under the INA’s anti-discrimination provisions.”

The Office of Special Council for Immigration-Related Unfair Employment Practices, Civil Rights Division, Department of Justice (OSC), enforces the anti-discrimination provisions of the INA. Title VII of the Civil Rights Act of 1964 (Title VII), as amended, also prohibits national origin discrimination, among other types of conduct. OSC and EEOC share jurisdiction over national origin discrimination charges. Generally, the EEOC has jurisdiction over larger employers with 15 or more employees, whereas OSC has jurisdiction over smaller employers with between four and 14 employees.

The DHS or an administrative law judge may also impose penalties if it is revealed that an employer knowingly hired or knowingly continued to employ an unauthorized worker, or failed to comply with the employment eligibility verification requirements with respect to employees hired after November 6, 1986. “If DHS or an administrative law judge determines that you knowingly hired unauthorized aliens, continued to employ aliens knowing that they were not authorized or have become unauthorized to work in the United States, or practiced unlawful discrimination, you may be ordered to cease and desist from such activities and pay a civil penalty. The penalty can also include possible imprisonment. Failure to properly complete, retain, and/or make available for inspection Forms I-9 could result in a civil penalty for each violation.”

On June 11, 2008, then President George W. Bush amended Executive Order 12989 to direct all federal departments and agencies to require contractors to use an electronic employment eligibility verification system to verify the employment authorization of employees performing work under a federal contract. The DHS designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use.

Formerly referred to as the Basic Pilot Program, E-Verify is an Internet-based system operated by the U.S. Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). E-Verify is voluntary and free to employers and provides an automatic link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers. E-Verify works by electronically comparing the information on an employee’s Form I-9 with SSA and DHS records to verify the identity and employment eligibility of newly hired employees.

On September 17th, 2018, E-Verify expanded to access Department of Motor Vehicles records. Now, if an employee presents a driver's license or state ID card as a list B document and if the document is issued by one of the states and territories under E-Verify's expanded access, E-Verify will prompt the user to enter the document information. E-Verify is using this process to prepare for an expansion of driver's license and state ID verification capabilities.

In some circumstances, the employer must accept a receipt in lieu of a List A, List B, or List C document if one is presented by an employee. Acceptable receipts include:

• A receipt for a replacement of a lost, stolen, or damaged document;
• The arrival portion of the Form I-94 or I-94A containing a temporary I-551 stamp and photograph;
• The departure portion of Form I-94 with an unexpired refugee admission stamp

When a receipt is provided, the employer enters the word "receipt" and its document number in the document number space, and enters the last day that the receipt is valid in the "Expiration Date" field. A receipt indicating that an initial or extension of an expiring employment authorization document (Form I-776) is not acceptable. Additionally, receipts are not acceptable if employment last less than three (3) business days.

To update the I-9 form, the employer must

• Record the date of rehire and the employee's name, if applicable:
• Sign and date Section 3; and
• If updating on a new Form I-9, write the employee's name in Section 1.

You are not required to update Form I-9 when your employee has a legal change of name. However, it is recommended that you maintain correct information on forms I-9 and note any name changes in Section 3. form I-9 regulations do not require that employee present documentation to show that they have changed their name. You should take steps to be reasonably assured your employee's identity and the accuracy of tour employee's legal name change. Such a change may call into question your continued ability to rely on the documents presented by your employee in their previous name as reasonably relating to them. These steps may include asking the employee to provide documentation of the legal change of name to keep with Form I-9, so that your actions are well-documented if the government asks to inspect your Form I-9.

You may encounter situations other than a legal change of name where an employee informs you that their identity is different from that previously used to complete Form I-9. If your employee informs you that their name, date of birth, or Social Security number is substantially different from that previously provided on form I-9, and is unable to provide evidence linking the new information to the identity previously used, you should:

• Complete a new Form I-9.
• Write the original hire date in "The employee's first day of employment (MM/DD/YYYY)" space, and attach the new Form I-9 to the previously completed Form I-9.
• If the Section 1 information has not substantially changed but the employee has offered different evidence of work authorization, then you should examine the documentation to determine if it appears to be genuine and to relate to your employee presenting it. If so, complete Section 3 of the previous Form I-9.

According to the act (15 U.S.C. § 1681(a), the definition of a consumer report includes:

“any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for credit or insurance to be used primarily for personal, family,or household purposes, employment purposes, or any other purpose authorized under section 604 [§ 1681b].”

Consumer information is defined as any record about an individual that is a consumer report or is derived from a consumer report. However, according to the FACTA amendment, “a consumer report does not include communications made to an employer while investigating suspected employee misconduct relating to employment or employee compliance with applicable laws or with pre-existing written policies of the employer”. 15 U.S.C.§ 603(y)(1)(B)(i) and 15 U.S.C.§ 603(y)(1)(B)(ii).

Generally, a city that accesses a consumer report while conducting a background check on an applicant has eight (8) main obligations: “(1) show a permissible purpose. (15 U.S.C. 604(a)(3)(B) and 604(b)), (2) provide certification of compliance (15 U.S.C. 604(f)), (3) notify consumers when adverse actions are taken (15 U.S.C. 603(k)), (4) Limit on use of information when a fraud or active duty alerts are on file (15 U.S.C. §605A), (5) comply with regulations when notified of an address discrepancy (15 U.S.C. 605(h)(1)(A)) , (6) establish procedures to dispose of records (15 U.S.C. §628); (7) make a clear and conspicuous written disclosure to the consumer before the report is obtained, in a document that consists solely of the disclosure,that a consumer report may be obtained (15 U.S.C. 604(b)(2)(A)(i)), and (8) obtain from the consumer prior written authorization to access reports (U.S.C. 604(b)(2)(A)(ii)),

Before a consumer reporting agency may provide or prepare a consumer report for an applicant, the employer must certify to the agency that: (1) it has provided the required “clear and conspicuous disclosure” to the individual who is the subject of the report; (2) it has received written authorization to obtain the report. 15 U.S.C. § 604(b)(2)(A).

If an applicant applies for employment by mail, telephone, computer, or other similar means, at any time before a consumer report is procured or caused to be procured in connection with that application: (1) the person who procures the consumer report on the applicant for employment purposes shall provide to the applicant, by oral, written, or electronic means, notice that a consumer report may be obtained for employment purposes, and a summary of the consumer’s rights under section 615(a)(3); and (2) the applicant shall have consented, orally, in writing, or electronically to the procurement of the report by that person. 15 U.S.C. § 604(b)(2)(B).

Once the employer has the consumer report, it may decide to take an action based on the consumer report (or based in part on the consumer report). An adverse action includes a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee. 15 U.S.C. § 603(k)(B). Before taking any adverse employment action against someone based in whole or in part on the consumer report, the employer must provide the affected individual with an adverse action disclosure that includes a copy of the consumer report as well as a summary of that individual’s rights under the FCRA. 15 U.S.C. § 604(b)(3)(A). In other words, when the employer receives the consumer report, he/she must immediately send a copy of the report and the individual’s rights statement to the applicant.

Then, if the employer takes adverse action based upon the subject of the report, the employer must by oral, written or electronic means: (1) provide oral, written or electronic notice of the adverse action to the affected individual; (2) written or electronic disclosure of a numeric credit score used in taking any adverse action, the range of possible credit scores, all the key factors that adversely affected the credit score, the date on which the credit score was created and the name of the person or entity that provided the credit score or credit file; (3) provide orally, written or electronically the name, address, and telephone number of the consumer reporting agency that provided the report to the employer (the telephone number provided must be the toll-free number where the individual can reach the agency, if the agency maintains files on consumers on a nationwide basis) and a statement that the agency did not make the decision to take adverse action and thus cannot tell the applicant or employee the specific reason for the actions; (4) provide notice of the individual’s right to obtain a free copy of the report on which the adverse action was based within 60 days of notice of the action; and (5) provide notice of the individual’s right to dispute the accuracy or completeness of any information in the report with the consumer reporting agency. 15 U.S.C. § 615(a).

Similarly, an employer must provide an adverse action notice to an existing employee who is subject to an employment decision that adversely affects his or her employment, such as termination or discipline, based in whole or in part on a consumer report. U.S.C. § 603(k)(1)(B)(ii). An adverse action notice also is required in employment situations if credit information is used to deny employment. 15 U.S.C. 615(b)(2).

If an applicant applies for employment by mail, telephone, computer, or other similar means, and if a person who procured a consumer report on the consumer for employment purposes takes an adverse action on the employment application based in whole or in part on the report, then the person must provide the consumer within 3 business days of taking such action, an oral, written or electronic notification: (1) that adverse action has been taken based on a consumer report received from a consumer reporting agency; (2) the name, address and telephone number of the consumer reporting agency that furnished the report (including a toll free telephone number if the agency compiles and maintains files on consumers on a nationwide basis); (3) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken; and (4) that the applicant may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report. 15 U.S.C. § 604(b)(3)(B).

An investigative consumer report, which is viewed as a much more intrusive inquiry and which contains information collected from personal interviews with neighbors, friends, or associates of the consumer, requires additional obligations. The act (15 U.S.C. § 603(e)) defines an investigative consumer report as:

“a consumer report or portion thereof in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information”.

If a city wants to use an investigative consumer report, it must disclose to the applicant, in a notice mailed, or otherwise delivered to the applicant, no later than three days after the date the report is first requested, that “the investigative consumer report may be obtained” and “inform the employee or applicant that he or she has a right to request additional disclosures of the nature and scope of the investigation” and provide the current or prospective employee with a “summary of the consumer’s rights.” 15 U.S.C. § 606(a)(1). The city also would have to certify to the consumer reporting agency that it “made the appropriate disclosures and will comply with the disclosure on request of nature and scope of the investigation”. 15 U.S.C. § 606(a)(2). This would not affect investigative reports generated using internal investigators for public safety departments. If a city, however, uses an outside firm to conduct investigative consumer reports, then it must comply.

If the city decides to reject the applicant based in whole or in part on an investigative consumer report, the city must provide oral, written or electronic notice of the adverse action and also provide the applicant with a copy of the report and the summary of rights before taking such action. After taking adverse action, the city must provide notice to the applicant or employee of the adverse action, provide the name, address and telephone number of the agency that furnished the consumer report on which the adverse action was based and notify the applicant or employee of the right to obtain the report. 15 U.S.C. § 615(a). The city must also provide a statement that the consumer reporting agency did not maike the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken. 15 U.S.C.§ 615(a)(3)(B)

Individuals may dispute inaccurate information that appears in a credit report. 15 U.S.C § Section 611(a)(1)(A) provides that “if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file …, before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.” The 30-day period may be extended for not more than 15 additional days.

Individuals may also dispute inaccurate information with the furnisher of the consumer information (15 U.S.C. 623(a)(8)). 15 U.S.C. § 623(b) requires the furnisher of the consumer information to investigate good faith disputes, considering “all relevant information” submitted by the consumer. If the investigation shows that the information was inaccurate, the furnisher is required to promptly notify each Consumer Reporting Agency to which it reported the information, and provide to the CRA any correction necessary to make the information accurate.

Question: You advertise vacancies for cashiers and receive 100 applications. You want credit reports on each applicant because you plan to eliminate those with poor credit histories. What are your obligations?
Answer: You can get credit reports if you notify each applicant in writing that a credit report may be requested and if you receive the applicant’s written consent. Before you reject an applicant based on credit report information, you must make a pre-adverse action disclosure that includes a copy of the credit report and the summary of consumer rights under the FCRA. Once you’ve rejected an applicant, you must provide an adverse action notice if credit report information affected your decision.

Question: You are considering a number of your long-term employees for a major promotion. You want to check their consumer reports to ensure that only responsible individuals are considered for the position. What are your obligations?
Answer: You cannot get consumer reports unless the employees have been notified that reports may be obtained and have given their written permission. If the employees gave written permission in the past, you need only make sure that the employees receive or have received a “separate document” notice that reports may be obtained during the course of their employment — no more notice or permission is required. If employees have not received notice and given permission, you must notify the employees and get their written permission before you get their reports. In each case where information in the report influences your decision to deny promotion, you must provide the employee with a pre-adverse action disclosure. The employee also must receive an adverse action notice once you have selected another individual for the job.

Question: A job applicant gives you the okay to get a consumer report. Although the credit history is poor and that’s a negative factor, the applicant’s lack of relevant experience carries more weight in your decision not to hire. What’s your responsibility?
Answer: In any case where information in a consumer report is a factor in your decision — even if the report information is not a major consideration — you must follow the procedures mandated by the FCRA. In this case, you would be required to provide the applicant a pre-adverse action disclosure before you reject his or her application. When you formally reject the applicant, you would be required to provide an adverse action notice.

Question: The applicants for a sensitive financial position have authorized you to obtain credit reports. You reject one applicant, whose credit report shows a debt load that may be too high for the proposed salary, even though the report shows a good repayment history. You turn down another, whose credit report shows only one credit account, because you want someone who has shown more financial responsibility. Are you obliged to provide any notices to these applicants?
Answer: Both applicants are entitled to a pre-adverse action disclosure and an adverse action notice. If any information in the credit report influences an adverse decision, the applicant is entitled to the notices — even when the information isn’t negative.

The FCRA amendment also requires that any person who maintains or possesses consumer information must be prepared to dispose of those records in a way that ensures that the information will not be accessed or used improperly. 16 C.F.R. § 682.3(a). This requirement is intended to protect consumer privacy and to prevent identity theft. It addresses only the disposal of consumer information, not all employment information. It also does not address retention schedules or how records should be kept or maintained.

Consumer information is covered if it is in paper, electronic or other forms. If a city acquires consumer information, the city must take “reasonable measures to protect against unauthorized access to or use of the information” (16 C.F.R. § 682.3(b)), when the city disposes of it. Disposal under the act means “the discarding or abandonment of consumer information or the sale, donation, or transfer of any medium, including computer equipment, upon which consumer information is stored”. 16 C.F.R. § 682.1(c). Reasonable measures for disposing of consumer report information, as suggested by the act (16 C.F.R. § 682.3(b)(1-3)), could include establishing and complying with policies to:

• Burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed
• Destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed
• Conduct due diligence, and hire a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the rule

Under the act (16 C.F.R. § 682.3(b)(3)), “due diligence” includes:

• Reviewing an independent audit of a disposal company’s operations and/or its compliance with the rule
• Obtaining information about the disposal company from several references
• Requiring that the disposal company be certified by a recognized trade association
• Reviewing and evaluating the disposal company’s security policies or procedures

Legal consequences exist for employers who fail to get an applicant’s permission before requesting a consumer report or who fail to provide pre-adverse action disclosures and adverse action notices to unsuccessful job applicants. The FCRA allows individuals to sue employers for damages in federal court. A person who successfully sues is entitled to recover court costs and reasonable legal fees (15 U.S.C. §§ 616) and (15 U.S.C. §§ 617). The law also allows individuals to seek punitive damages for deliberate violations. In addition, the Federal Trade Commission (FTC), other federal agencies, and he states may sue employers for non-compliance and obtain civil penalties. 15 U.S.C. §§ 621(a),15 U.S.C. §§ 621(b) and 15 U.S.C. §§ 621(c).

NOTE: The Fair Credit Reporting Act has been amended to establish "Red Flag and Identity Theft" provisions 15 U.S.C. § 605A and 15 U.S.C. § 605B.

Employers who fail to comply with the rules are subject to FTC fines and penalties, which can be substantial if a large number of files are involved. In the event a person willfully fails to comply with any requirement imposed by the law, the employer is liable to that consumer in an amount equal to the sum of (a) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000 or in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater. 15 U.S.C. §§ 1681. The person could also be held liable for such amount of punitive damages as the court may allow (15 U.S.C. §§ 1681n(a)(2)) and, in the case of any successful action to enforce any liability, the cost of the action together with reasonable attorney’s fees as determined by the court. 15 U.S.C. §§ 1681n(a)(3).

In the event of a knowing violation, the individual/company that obtains the consumer report is liable to the consumer reporting agency for actual damages sustained by the consumer reporting agency or $1,000 whichever is greater. 15 U.S.C. § 616(b). Additionally, if the state has reason to believe that any person has violated the act, it may bring action to enjoin such violation in any appropriate United States district court and fine such person damages of not more than $1,000 for each willful or negligent violation. In the case of any successful action, the individual/company will have to pay for the cost of the action and reasonable attorney fees as determined by the court. 15 U.S.C. §§ 621(c)(1). If your city routinely conducts credit checks on applicants or employees, you may want to consider only conducting the checks on positions involving money (finance department employees, police officers, etc.). Then be sure to provide notice and follow the guidelines when an adverse decision is made.

Additionally, Section 1681s(a)(2)(a) gives the Federal Trade Commission authority to seek civil penalties for violations of the FCRA in an amount not more than $2,500 per violation. In setting a civil penalty amount, it requires a court to consider “the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.”15 U.S.C. §§ 1681s(a)(2)(b).

If your city routinely conducts credit checks on applicants or employees, you may want to consider only conducting the checks on positions involving money (finance department employees, police officers, etc…). Then be sure to provide notice and follow the guidelines when an adverse decision is made.

The CFPB has issued updated FCRA notices that employers and consumer reporting agencies must use when conducting background checks on employees or applicants. The revised form, effective as of January 1, 2013, are available in Appendices K, M and N at the end of Title 12 of the Code of Federal Regulations, Part 1022 and are substantively the same as the old forms. Each form was revised to replace references to the FTC with reference to the CFPB and to provide a link to the new website. They include:

• Appendix F to Part 698 - Summary of Consumer Rights [38],
• Appendix G to Part 698 - Notice of Furnishers Responsibilities [39], and
• Appendix H to Part 698 - Notice of User Responsibilities [40].

The Summary of Consumer Rights is the form used mostly by employers, most notably when obtaining "investigative consumer reports" and sending pre-adverse action letters.

A SUMMARY OF YOUR RIGHTS UNDER THE FAIR CREDIT REPORTING ACT

The federal Fair Credit Reporting Act (FCRA) promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies. There are many types of consumer reporting agencies, including credit bureaus and specialty agencies (such as agencies that sell information about check writing histories, medical records, and rental history records). Here is a summary of your major rights under the FCRA. For more information, including information about additional rights, go to www.ftc.gov/credit [41]or write to: Consumer Response Center, Room 130-A, Federal Trade Commission, 600 Pennsylvania Ave. N.W., Washington, D.C. 20580.

• You must be told if information in your file has been used against you. Anyone who uses a credit report or another type of consumer report to deny your application for credit, insurance, or employment – or to take another adverse action against you – must tell you, and must give you the name, address, and phone number of the agency that provided the information.
• You have the right to know what is in your file. You may request and obtain all the information about you in the files of a consumer reporting agency (your “file disclosure”). You will be required to provide proper identification, which may include your Social Security number. In many cases, the disclosure will be free. You are entitled to a free file disclosure if:
  • a person has taken adverse action against you because of information in your credit report;
  • you are the victim of identify theft and place a fraud alert in your file;
  • your file contains inaccurate information as a result of fraud;
  • you are on public assistance;
  • you are unemployed but expect to apply for employment within 60 days.

In addition, since September 2005 all consumers are entitled to one free disclosure every 12 months upon request from each nationwide credit bureau and from nationwide specialty consumer reporting agencies. See www.ftc.gov/credit [41]for additional information.

• You have the right to ask for a credit score. Credit scores are numerical summaries of your credit-worthiness based on information from credit bureaus. You may request a credit score from consumer reporting agencies that create scores or distribute scores used in residential real property loans, but you will have to pay for it. In some mortgage transactions, you will receive credit score information for free from the mortgage lender.
• You have the right to dispute incomplete or inaccurate information. If you identify information in your file that is incomplete or inaccurate, and report it to the consumer reporting agency, the agency must investigate unless your dispute is frivolous. See www.ftc.gov/credit [41]for an explanation of dispute procedures.
• Consumer reporting agencies must correct or delete inaccurate, incomplete, or unverifiable information. Inaccurate, incomplete or unverifiable information must be removed or corrected, usually within 30 days. However, a consumer reporting agency may continue to report information it has verified as accurate.
• Consumer reporting agencies may not report outdated negative information. In most cases, a consumer reporting agency may not report negative information that is more than seven years old, or bankruptcies that are more than 10 years old.
• Access to your file is limited. A consumer reporting agency may provide information about you only to people with a valid need -- usually to consider an application with a creditor, insurer, employer, landlord, or other business. The FCRA specifies those with a valid need for access.
• You must give your consent for reports to be provided to employers. A consumer reporting agency may not give out information about you to your employer, or a potential employer, without your written consent given to the employer. Written consent generally is not required in the trucking industry. For more information, go to www.ftc.gov/credit. [41]
• You may limit “prescreened” offers of credit and insurance you get based on information in your credit report. Unsolicited “prescreened” offers for credit and insurance must include a toll-free phone number you can call if you choose to remove your name and address from the lists these offers are based on. You may opt-out with the nationwide credit bureaus at 1-888-5-OPTOUT (1-888-567-8688).
• You may seek damages from violators. If a consumer reporting agency, or, in some cases, a user of consumer reports or a furnisher of information to a consumer reporting agency violates the FCRA, you may be able to sue in state or federal court.
• Identity theft victims and active duty military personnel have additional rights. For more information, visit www.ftc.gov/credit. [41]

States may enforce the FCRA, and many states have their own consumer reporting laws. In some cases, you may have more rights under state law. For more information, contact your state or local consumer protection agency or your state Attorney General. Federal enforcers are:

T.C.A. §§ 47-18-2108 provides that employees/applicants have a right to place a "security freeze" on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without their express authorization. A security freeze must be requested in writing by certified mail or by electronic means as provided by a consumer reporting agency. The security freeze is designed to prevent credit, loans, and services from being approved in the employee or applicants' name without their consent. If the employees/applicants are actively seeking a new credit, loan, utility, or telephone account, you should understand that the procedures involved in lifting a security freeze may slow your applications for credit. Employees/Applicants should plan ahead and lift a freeze in advance of actually applying for new credit. When a security freeze is placed on a credit report, the employee/applicant will be provided a personal identification number or password to use if they choose to remove the freeze on your credit report or authorize the release of your credit report for a period of time after the freeze is in place. To provide that authorization the employee/applicant must contact the consumer reporting agency and provide all of the following:

(1) The personal identification number or password;

(2) Proper identification to verify their identity; and

(3) The proper information regarding the period of time for which the report shall be available.

A consumer reporting agency must authorize the release of your credit report no later than fifteen (15) minutes after receiving the above information.

A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which the employees/applicants have an existing account, that requests information in the credit report for the purposes of fraud control, or, reviewing or collecting the account. Reviewing the account includes activities related to account maintenance.

The employee/applicant should consider filing a complaint regarding their identity theft situation with the Federal Trade Commission and the Tennessee department of commerce and insurance, division of consumer affairs, either in writing or via their Web sites.

The employee/applicant has a right to bring civil action against anyone, including a consumer reporting agency, who improperly obtains access to a file, misuses file data, or fails to correct inaccurate file data.

A consumer report agency shall not charge a Tennessee consumer to place, temporarily lift, or permanently remove a security freeze (T.C.A. § 47-18-2108(l).

Additonally, T.C.A. § 47-18-2111 gives parents or legal guardians the ability to enact a security freeze on persons under 16 yeas of age or an incapacitated person under the care of a guardian or conservator (protected consumer). When the freeze is in place, consumer reporting agencies cannot release that person's credit report or any other information regarding that person unless the security freeze is removed. The maximum fee for placing or lifting a freeze for a "protected consumer" is ten dollars ($10.00) for each action. A consumer reporting agency shall not charge any fee if the protected consumer's representative (1) has obrained a police report of alleged identity fraud and the protected sonsumer is the alleged victim; and (2) provides a copy of the police report to the consumer reporting agency; or a request for the placement or removal of a protected consumer security freeze is for a protected consumer who is under sixteen at the time of the request and the consumer report ing agency has a consumer report pertaining to the protected consumer.

This document details the specifics of the act: what the act requires, who is covered, who is not covered, hours worked and compensation, overtime pay, record keeping, and penalties. It should become a well-used resource in your municipal government library.

When passed in 1938, the act did not apply to local governments. It specifically covered “employees engaged in interstate commerce, employees engaged in the production of goods for commerce, and employees in an enterprise engaged in commerce or in the production of goods for commerce” (private sector employees). State and local government employees first became subject to the minimum wage and overtime pay provisions of the Fair Labor Standards Amendments of 1966, which became effective February 1, 1967.

The 1966 amendments specifically extended coverage to state and local government employees engaged in the operation of hospitals, residential care facilities, schools and mass transit systems. The Education Amendments of 1972 extended the provisions to virtually all remaining state and local government employees who were not covered as a result of the 1966 amendments.

On June 24, 1976, the Supreme Court ruled in National League of Cities v. Usery (NLOC), 426 U.S. 833 (1976), that, under the 11th Amendment, “the minimum wage and overtime pay provisions of the FLSA were not constitutionally applicable to the integral operations of the states and their political subdivisions in areas of ‘traditional governmental functions’.” The court specifically found that such functions included, among others, schools and hospitals, fire prevention, police protection, sanitation, public health, and parks and recreation. The court’s decision did not affect application of the minimum wage and overtime pay provisions to state and local government employees engaged in activities that were not traditional functions of government or of the other substantive provisions of FLSA (the child labor and the equal pay provisions).

On February 19, 1985, the Supreme Court ruled in Garcia v. San Antonio Metropolitan Transit Authority et al. 469 U.S. 528 (1985), and Donovan v. San Antonio Metropolitan Transit Authority et al., 468 U.S. 1213, 104 S.Ct. 3582-83, 82L.Ed.2d 880 (1984), that the minimum wage and overtime pay provisions of FLSA applied to public mass transit employees of the San Antonio Metropolitan Transit Authority. In so doing, the courts overruled their earlier decision in National League of Cities v. Usery, thus allowing the minimum wage and overtime pay provisions to be applied “in toto” to state and local government employees who are engaged i traditional governmental activities.

The application of the Garcia decision, however, was delayed by legislative action in November 1985 with passage of the Fair Labor Standards Amendment of 1985. The amendment provided that no state or local government would be liable for minimum wage or overtime violations until April 15, 1986, and established new guidelines for compensatory time off and for volunteers. On April 18, 1986, the Department of Labor issued proposed regulations extending the minimum wage and overtime provisions of the act to state and local governments. The proposed regulations did not take effect until January 16, 1987.

In 1987, the final regulations were released by the Department of Labor, Wage and Hour Division (29 C.F.R. § 541 et seq.); however, on May 5, 1986, the Wage and Hour Division of DOL issued a memo to all assistant regional wage and hour administrators stating that the DOL:

“... would not assert a violation of the act against any employer who, in good faith, relies on an interpretation contained in the proposed rules, which is subsequently revised in the final rules.”

The inclusion of public employees under the act presented some unusual problems for state and local governments resulting from the pay practices of public employers. Basically, the salary basis test eliminated the executive, administrative and professional exemptions from use by public employers because principles of public accountability prevented them from paying employees for time not worked. To remedy the situation, the DOL released final regulations in August 1992 to amend the salary basis test for public employers to allow docking of exempt employee’s pay for partial-day absences. The regulations provided that “the executive, administrative and professional exemptions would not be lost for public sector employees who were subject to a pay system established by statute, ordinance or regulation or by a policy or practice established pursuant to principles of public accountability.” 29 C.F.R. § 541.710.

On April 23, 2004, the DOL unveiled sweeping changes to its regulations implementing the “white collar” exemption to the FLSA. The rule changes established a new salary test and pay-docking rules, adjusted the job duty test and established a new “highly compensated employee” provision.  

The Fair Minimum Wage Act of 2007 made the first increase in the minimum wage rate since 1997. Introduced on January 5, 2007, the act established an incremental increase in the minimum wage. The current rate, as of July 24, 2009, is $7.25 per hour.

Requirements of FSLA

The FLSA requires employers to comply with the minimum wage, overtime pay, equal pay, record keeping and child labor standards for employees who are covered by the act. Except for the child labor restrictions, the act does not impose any limitations on the number of hours that may be worked by employees covered under the act. Instead, it seeks to limit the number of hours worked by requiring additional pay, called overtime pay, for hours worked in excess of the established 40-hour maximum during any seven consecutive 24-hour periods. Work may begin at any time of day and any day of the week.

The FLSA covers a wide range of employees in the public sector. The act does not, however, apply to all employees. Some individuals simply are not covered (non-covered employees). Others, while covered by the act, are exempted from certain provisions (exempt employees).

Non-covered employees are not bound by any provisions of the FLSA. Exempt employees, while covered by the FLSA, are exempt from its minimum wage and overtime provisions. Employers must keep records for non-exempt and exempt employees, however, there are no FLSA record keeping requirement for non-covered employees.

The central overtime provision of the FLSA states that “no employer shall employ any of his employees ... for a work week longer than forty hours unless such employee receives compensation ... at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a). Section 29 U.S.C. § 203(d) of the act defines an employer to include “any person acting directly or indirectly in the interest of an employer in relation to an employee,” including a public agency.

There are checklists provided below which will assist you in determining the correct Fair Labor Standards Act category of an employee. There is also a sample Safe Harbor Policy located on page 31.

All employees not exempted or excluded from the FLSA must be paid a minimum wage for all hours worked. 29 C.F.R. §785.5. Hours worked has been defined as “all hours that an employee is ‘suffered or permitted to work’ for the employer.” 29 C.F.R.. § 785.11. Hours worked include any time in which the employee is required to be on the employer’s premises, on duty or at a prescribed work place. 29 C.F.R. § 785.7.

Understanding the concept of “hours worked” is crucial to complying with the FLSA. According to the U.S. Supreme Court (Tn. Coal, Iron & R.R. Co. v. Muscodol Local No. 123, 321 U.S. 590 (1944)), an employee must be compensated for “all time spent in physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” Working time is not limited to the hours spent in active productive labor, but includes time given by the employee to the employer even though part of the time may be spent in idleness. Some of the hours spent by employees, under certain circumstances, in such activities as waiting for work, remaining “on call”, traveling on the employer's business or to and from workplaces, and in meal periods and rest periods are regarded as working time and some are not. 29 C.F.R. § 778.223.

The courts and DOL have recognized that insubstantial or insignificant periods of time outside scheduled working hours, which may not be precisely recorded, may be disregarded in recording working time. 29 C.F.R. § 785.47. The rule applies only where a few minutes of work are involved and where the failure to count such time is due to considerations justified by “operational realities.” Such time is called "de minimis", i.e., minor or trivial. The Portal-to-Portal Act of 1947 helps clarify the working time issue.

Employees, who, with the knowledge or consent of their employer, continue to work after their shifts are over, though voluntarily, are engaged in compensable working time. The reason for the work is immaterial; as long as the employer “suffers or permits” employees to work on its behalf, overtime compensation may be due. 29 C.F.R. § 785.11. This is true whether the work takes place at the place of business or the employee’s home. For example, preliminary activities such as filling out time, material or requisition sheets; checking job locations; removing trash; and fueling cars are all compensable work if done at the employer’s behest and for the employer’s benefit. This broad definition of hours worked may require employers to compensate employees for time worked that the employer may not consider “working time,” such as waiting time, travel time, certain meals and training time.

The FLSA (29 U.S.C. §§ 206 and 207) requires payment of prescribed wages, including overtime compensation, in either cash or check or similar medium. Overtime compensation must be at time and a half the employees regular rate of pay. The statute allows payment to include the “reasonable cost” or “fair value” of furnishing for an employee with board, lodging or other facilities. 29 C.F.R. § 778.116.

207(k) Exemption

As previously discussed, the executive, administrative and professional exemptions from overtime pay do not apply to police officers, detectives, investigators, inspectors, park rangers, firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers, and similar employees regardless of rank or pay level who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of laws; performing surveillance; pursing, restraining and apprehending suspects; detaining or supervising suspects and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work. 29 C.F.R. § 541.3(b)(1). Therefore, unless exempt as bona fide executive or administrative employees, public safety employees are eligible for overtime compensation just as regular non-exempt employees.

The primary duty test prevails in deciding whether the employee is exempt. This is especially the case for employees who have the discretion to perform regular police duties in addition to their executive or administrative duties. The FLSA, however, still provides “an exemption for employees engaged in law enforcement or fire protection activities.”29 C.F.R. § 553.200(a) . If the agency employs fewer than five employees during the workweek (29 U.S.C. § 213(b)(20)), then the full exemption applies. Public agencies not qualifying for the complete exemption may be eligible for a partial exemption as provided in 29 U.S.C. § 207(k). This exemption is commonly known as the “7(k)” or “207(k)” exemption.

“Employers who are subject to the FLSA must keep records for both exempt and nonexempt employees.” 29 U.S.C. § 211(c) and 29 C.F.R. § 516.1(a). There are no civil penalties for employers who fail to keep accurate work records. However, the failure to keep accurate records can expose the employer to FLSA lawsuits brought by employees seeking back wages or overtime. An employee may sue an employer in federal or state court for violating the act.

The regulations do not prescribe a particular order or format in which records should be maintained. “Records may be maintained on paper, microfilm, or an automatic data processing system, provided viewing equipment is accessible and reproductions are identifiable.” 29 C.F.R. § 516.1(a). Additionally, employers may use “any timekeeping method they choose” for keeping track of employees’ hours worked as long as the method is “complete and accurate.”

Enforcement
The FLSA authorizes the Secretary of Labor to initiate investigations to determine whether an employer has violated the provisions of the FLSA. The Department of Labor “may investigate and gather data concerning wages, hours, payment of back wages and other employment practices. They may enter and inspect an employer’s premises and records. They may also ask any question of employees to determine whether any person has violated any provisions of the act.” 29 U.S.C. § 211(a).

DOL has identified the following investigative procedures (WH Publication 1340 (Rev. Aug. 1979)) for a compliance officer to use when conducting an investigation. The compliance officer will:

1. Identify himself and show the employer official credentials.
2. Confer with the employer or a designated representative, making any necessary explanation about the records that need to be seen and the approach to be taken. The compliance officer also will ask the employer’s permission to conduct private interviews with some employees.
3. Ask the employer to make space available for his use and to designate some staff member who can help with questions about the employer’s records and payroll system.
4. Ask to see certain records to determine what laws apply and what, if any, exemptions are available.
5. Review payroll and time records, often on a spot-check basis, and make notes or transcriptions essential to the investigation. Information from the employer’s records will not be revealed to any unauthorized person.
6. Interview certain employees privately to confirm payroll or time records, identify workers’ duties in sufficient detail to decide if any exemptions apply, and determine if minors are illegally employed.

When all the fact-finding steps have been completed, the compliance officer will ask to meet with the employer or representative about the investigative findings. If no violations are discovered, the employer is told. If violations were found, the employer is told what they are and how to correct them.

29 C.F.R. Part 516, Fair Labor Standards Act Regulations, Records to be Kept by Employers.

29 C.F.R. Part 519, Fair Labor Standards Act Regulations, Employment of Full-Time Students at Sub-minimum Wages.

29 C.F.R. Part 520, Fair Labor Standards Act Regulations, Employment under Special Certificates of Messengers, Learners, and Apprentices.

29 C.F.R. Part 525, Fair Labor Standards Act Regulations, Employment of Workers with Disabilities under Special Certificates.

29 C.F.R. Part 531, Fair Labor Standards Act Regulations, Wage Payments under the Fair Labor Standards Act of 1938.

29 C.F.R. Part 541, Fair Labor Standards Act Regulations, Defining and Delimiting the Terms “Any Employee Employed in a Bona Fide Executive, Administrative, or Professional Capacity or in the Capacity of Outside Salesman.”

29 C.F.R. Part 548, Fair Labor Standards Act Regulations, Authorization of Established Basic Rates for Computing Overtime Pay.

29 C.F.R. Part 553, Fair Labor Standards Act Regulations, Application of the Fair Labor Standards Act to Employees of State and Local Government.

29 C.F.R. Part 570, Fair Labor Standards Act Regulations, Child Labor Regulations, Orders and Statement of Interpretation.

29 C.F.R. Part 578, Fair Labor Standards Act Regulations, Minimum Wage and Overtime Violations — Civil Money Penalties.

29 C.F.R. Part 579, Fair Labor Standards Act Regulations, Child Labor Violations — Civil Money Penalties.

29 C.F.R. Part 580, Fair Labor Standards Act Regulations, Civil Money Penalties — Procedures for Assessing and Contesting Penalties.

29 C.F.R. Part 778, Fair Labor Standards Act Regulations, Overtime Compensations.

29 C.F.R. Part 785, Fair Labor Standards Act Regulations, Hours Worked.

29 C.F.R. Part 790, Fair Labor Standards Act Regulations, General Statement as to the Effect of the Portal-to-Portal Act of 1947 on the Fair Labor Standards Act of 1938.

29 C.F.R. Part 791, Fair Labor Standards Act Regulations, Joint Employment Relationships under the Fair Labor Standards Act of 1938.

29 U.S.C., Chapter 8, Fair Labor Standards Act of 1938.

29 U.S.C., Chapter 9, Portal-to-Portal Act of 1947.

Aitchison, William Bruce, The Fair Labor Standards Act — A User’s Manual (1991).

Athey, Julie, Defusing the Overtime Bomb: How to Comply with the FLSA, M. Lee Smith Publishers LLC (1999).

Ginsburg, Gilbert J. Esq. et al., Fair Labor Standards Handbook for State, Local Governments and Schools, Thompson Publishing Group (1998).

Pols, Cynthia M., et. al., FLSA: What It Means, What to Do, International City Management Association and the National League of Cities (1991).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Handy Reference Guide to the Fair Labor Standards Act (White House Publication 1285).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, State and Local Governments under the Fair Labor Standards Act (Fact Sheet No. 007).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Police and Firefighters under the Fair Labor Standards Act (Fact Sheet No. 008).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Deductions from Wages for Uniforms and Other Facilities under the Fair Labor Standards Act (Fact Sheet No. 016).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Exemption for Executive, Administrative, Professional, and Outside Sales Employees under the Fair Labor Standards Act (Fact Sheet No. 017).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Section 13(a)(3) Exemption for Seasonal and Recreational Establishments Under the Fair Labor Standards Act (Fact Sheet No. 018).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Recordkeeping Requirements Under the Fair Labor Standards Act (Fact Sheet No. 021).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Hours Worked Under the Fair Labor Standards Act (Fact Sheet No. 022).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Overtime Pay Requirements of the Fair Labor Standards Act (Fact Sheet No. 023).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, 1996 Amendments to the Fair Labor Standards Act (Fact Sheet No. 029).

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division — FLSA Advisor, What Does the Fair Labor Standards Act Require?

U. S. Department of Labor, Employment Standards Administration Wage and Hour Division — FLSA Advisor, What Does the Fair Labor Standards Act NOT Require?

U. S. Department of Labor Website - http://www.dol.gov/ [22]

Under the Tennessee Occupational Safety and Health Act, T.C.A. § 50-3-104, all cities must comply with occupational safety and health standards or regulations promulgated by this act. The law requires employers, including local governments, to "... furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or harm ..." and to comply with certain other requirements. T.C.A. § 50-3-105. Cities may elect to be treated as private employers or to establish their own safety and health training programs consistent with state regulations. Municipalities have until July 1, 2006, to make this decision. Municipalities created after July 1, 2004, have two years after their creation to make the election. T.C.A. § 50-3-910(b).

A program must inform employees of state regulations applicable to their work environments and instruct them to recognize and avoid unsafe conditions. If a city establishes its own program, civil penalties will not be imposed against the local government for violations. The state Department of Labor merely inspects for compliance and reports non-compliance. T.C.A. § 50-3-911.

Special federal requirements have recently been enacted regarding employees, such as sewer operators and paramedics, who work in "permit-required confined spaces." Cities must assure that emergency medical technicians (EMTs), public works employees, water and wastewater workers, and others at "high risk" are protected from toxic, explosive, or asphyxiating atmospheres and possible engulfment from small particles such as liquids, grain, or sawdust (29 C.F.R. § 1910.146).

Cities also must adopt and administer an infection control program to eliminate, or at least minimize, worker exposure to bloodborne pathogens, such as the hepatitis B virus and the human immunodeficiency virus (HIV) (29 C.F.R. § 1910.1030). To meet these federal requirements, cities must:

• Establish and adopt a written exposure control plan;
• Adopt a universal precautions policy (a strategy that assumes every direct contact with body fluids is infectious);
• Provide protective equipment where there are exposure hazards;
• Ensure that the workplace is clean and sanitary;
• Properly dispose of contaminated waste;
• Provide training for "high-risk" employees;
• Provide hepatitis B vaccinations and post-exposure evaluations/follow-up; and
• Establish and maintain accurate records.

Congress passed the Occupational Safety and Health Act in 1970. The Act allowed states to run their own OSHA program. Currently 28 states have adopted their own OSH plans. TN assumed OSH responsibility in 1973. The final TN state plan was approved by federal OSH in 1985.

Most TOSHA standards and regulations are the same as the federal OSHA regulation. The TN Commissioner of Labor and Workforce Development adopts and the Division of Occupational Safety and Health (TOSHA) enforces the federal occupational safety and health standards codified in Title 29 of the Code of Federal Regulations, Part 1910. The standards apply with respect to all workplaces in the State of Tennessee with a couple of exceptions. The rules of the TN Department of Labor and Workforce Development can be found at: https://www.tn.gov/workforce/employees/safety-health/tosha.html [55].

The Occupational Safety and Health Administration (OSHA) recordkeeping rules (29 CFR Part 1904 - Recording and Reporting Occupational Injuries and Illnesses) require affected employers, to record and report work-related fatalities, injuries and illnesses. The act also prohibits employers from “discriminating against an employee for reporting a work-related fatality, injury or illness”. The provisions protect the employee “who files a safety and health complaint, asks for access to records, or otherwise exercises any rights afforded by the act”. Compliance with the rules does not imply that an employer or employee is at fault, that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits (29 CFR 1904.36).

In the March 2012 edition of the Federal Register (77 FR 17574), OSHA published its revisions to the OSHA Hazard Communication Standard (HCS). The revisions align OSHA requirements with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals, commonly called the GHS. To provide time for compliance, OSHA established a phase in program for the requirements over a period of several years. The transition period ended June 1, 2016.

The revisions improve the quality and consistency of hazard information in the workplace, making it safer for workers by providing easily understandable information on appropriate handling and safe use of hazardous chemicals. Two significant changes in the standard require the use of new labeling elements and a standardized format for Safety Data Sheets (SDSs), formerly known as Material Safety Data Sheets (MSDSs). The new label elements and SDS requirements improve worker understanding of the hazards associated with the chemicals in their workplace. The standard applies to all chemicals known to be present in the workplace in such a manner that employees may be exposed under normal conditions or in a foreseeable emergency.

Employers have a duty to provide adequate training on these changes to the communication standards at no cost to all employees (full-time, part-time or temporary). Employers must also include volunteer firefighters for purpose of the training and must train all employees even if the employees are illiterate or have learning disabilities. Employers must also measure the effectiveness of their training by verbal recall and evaluate training through employee interviews.

The employer must maintain SDS for as long as the chemical is used or stored. You must maintain the chemical list for 30 years

Because TN is a federally approved "state-plan" the TN Occupational Safety and Health Act (TOSH Act) adopted the federal OSHA standards but some of the provisions of the TN Hazardous Chemical Right to Know Act are still in effect. Tennessee OSHA (TOSHA) has a video presentation that an agency can download and use for training on the revisions and the GHS. The person who conducts the training should be familiar with OSHA's Hazard Communication Standard. The video (TOSHA Hazard Communications: Protecting Yourself from Chemical Hazards) is available at https://www.youtube.com/watch?v=F41FCs2V5uE [64].

The general military leave law provides four basic entitlements to employees returning from active service:

• prompt reinstatement,
• accrued seniority,
• training or retraining to ensure that the employee can perform the functions of the job, and
• special protection against discrimination and retaliation in addition to special protection against discharge for 180 days following periods of service from 31 days to 180 days (except for cause). This protection is extended to one year for periods of service of 181 days or more.

Under USERRA, re-employment rights are required for any person who is absent from work because of service in the uniformed services. The "uniform services" consist of the following (20 CFR 1002.5(o)):

• Army, Navy, Marine Corp, Air Force and Coast Guard
• Army Reserve, Naval Reserve, Marine Corp Reserve, Air Force Reserve and Coast Guard Reserve
• Army National Guard and Air National Guard
• Commissioned Corps of the Public Health Service
• Any other category of persons designated by the President in time of war or emergency

USERRA requires that returning service members be re-employed in the job they "would have attained" had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. 38 U.S.C. § 4316(a). Additionally, returning employees are entitled to any other benefits not based on seniority. 38 U.S.C. § 4316(b).

All employers are required to notify employees of their rights under USERRA. The notice must explain what rights and protections employees have under the Act, including the right to re-employment after uniformed service, freedom from discrimination and retaliation for serving in uniform and certain health insurance protections (38 U.S.C § 4334).

The U.S. Department of Labor, Veterans Employment and Training Service (VET) has prepared a poster that may be used to fulfill the requirements. It can be downloaded from https://www.dol.gov/vets/programs/userra/USERRA_Private.pdf [65].

“Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including [38 USC. § 4303(13) & (16)]:

• active duty and active duty for training,
• initial active duty for training,
• inactive duty training,
• full-time National Guard duty,
• absences from work for examinations to determine fitness for any of the above types of duty,
• funeral honors duty by National Guard or Reserve members, and
• certain duties performed by National Disaster Medical System, which is part of the Department of Health and Human Services, when activated for a public health emergency, and approved training to prepare for such service (added by Pub. L. 107-188, June 2002). See Title 42. U.S. Code, Section 300hh-11(d).

According to a Thompson Publishing Company’s Special Report, "Return from Duty, Return to Work: Understanding the Employer’s New USERRA Obligations" (2006), there is no exclusion for executive, managerial, or professional employees. The law even protects temporary, part-time, probationary, and seasonal employees, as well as employees on strike, layoff, or leave of absence. It does not, however, apply to individuals who act as independent contractors rather than as employees.

20 CFR, § Sec. 1002.18 provides that "an employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her membership, application for membership, performance of service, application for service,or obligation for service in the uniformed services". The Act also prohibits employers from taking actions against an individual for any of the activities protected by the Act, whether or not he or she has performed service in the uniformed services. The Thompson Publishing Company Report also provides that it is illegal for an employer to “retaliate against someone who exercises his or her rights under USERRA”.

The law requires all affected civilian employees to provide their employers with advance notice (written or oral) of their military service orders. 32 CFR Part 104 was revised to provide that "although oral notice is allowed pursuant to USERRA, written notice of pending uniformed service provides documentary evidence that this basic prerequisite to retaining reemployment rights was fulfilled by the service member and serves to avoid unnecessary disputes". [32 CFR § 104.6(a)(2)(iii)(A)(2)]. Section (3) recommends that the advance notice be provided at least 30 days prior to departure.

The notice can also be provided by an “appropriate officer” of the Department of Defense. An "appropriate officer" is a commissioned, warrant, or non-commissioned officer authorized to give such notice by the military service concerned. No notice, however, is required if military necessity prevents giving advance notice or if giving notice is impossible or unreasonable. [38 USC. § 4312(a)(1)].

Employees may also need additional time off before starting military service. 20 CFR § Sec. 1002.74 of the regulations recognize that absences for military service may include a period of time between the date the employee leaves the job and the date the employee actually begins service. In addition, the Thompson Publishing Company Report suggests that “employees may need intermittent time off from work prior to military service for brief periods to put their affairs in order, for example, to interview child care providers, meet with bank officers regarding financial matters, or seek assistance for elderly parents”.

20 CFR § Sec. 1002.74 also suggests that the amount of time an employee may need to prepare for military service will vary. “Relevant factors include:

• the duration of the military service,
• the amount of notice given an employee called to military service, and
• the location of the service.”

The Act established that the length of time an individual may be absent from work for military duty and retain re-employment rights is not to exceed five years. 38 U.S.C. § 4312(a)(2). Upon completing service in the uniformed services, the employee must notify the pre-service employer of his/her intent to return to the employment position by either reporting the work or submitting a timely application for re-employement. The time depends on the length of the employee’s military service as outlined in 20 C.F.R. § 1002.115) below:

Service of fewer than 31 days (or any length of the absence that was for an examination to determine fitness to perform military service): The employee must report back to work not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the military service and the expiration of eight hours after a period allowing for safe transportation from the place of military service to the employee’s residence. So, if an employee completes his or her period of service and arrives home at 10 p.m., an employer cannot require the employee to report to work until the beginning of the next full regularly scheduled work period that begins at least eight hours after arriving home (in this example, no earlier than 6 a.m. the next morning). If it is impossible or unreasonable for the employee to report in that time frame through no fault of his or her own, the employee must report to work as soon as possible after the expiration of the eight-hour period.

Service for more than 30 but fewer than 181 days: The employee must submit an application for re-employment (written or oral) no later than 14 days after completing service. If this is impossible or unreasonable through no fault of the employee, the employee must submit the application no later than the next full calendar day after it becomes possible to do so.

Service for more than 180 days: The employee must submit an application for re-employment (written or oral) no later than 90 days after completing service.

In 2011, 38 U.S.C. § 4312 was amended by Pub.L. 112-81, § 575(3), and states the following:

(f) A person who submits an application for reemployment shall provide to the person’s employer (upon the request of such employer) documentation to establish that—

(A) the person’s application is timely;

(B) the person has not exceeded the service limitations set forth in subsection (a)(2) (except as permitted under subsection (c)); and

(C) the person’s entitlement to the benefits under this chapter has not been terminated pursuant to section 4304 [66].

(2) Documentation of any matter referred to in paragraph (1) that satisfies regulations prescribed by the Secretary shall satisfy the documentation requirements in such paragraph.

However, under subsection (3),

(A) Except as provided in subparagraph (B), the failure of a person to provide documentation that satisfies regulations prescribed pursuant to paragraph (2) shall not be a basis for denying reemployment in accordance with the provisions of this chapter if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the employer. If, after such reemployment, documentation becomes available that establishes that such person does not meet one or more of the requirements referred to in subparagraphs (A), (B), and (C) of paragraph (1), the employer of such person may terminate the employment of the person and the provision of any rights or benefits afforded the person under this chapter.

(B) An employer who reemploys a person absent from a position of employment for more than 90 days may require that the person provide the employer with the documentation referred to in subparagraph (A) before beginning to treat the person as not having incurred a break in service for pension purposes under section 4318 (a)(2)(A) [67].

Subsection (f)(4) provides that an employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available. 38 C.F.R. § 4312(f)(4). Documents that satisfy the requirements of USERRA (20 C.F.R, Sec. 1002.123) include the following:

1. DD 214 Certificate of Release or Discharge from Active Duty;
2. Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service;
3. Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority;
4. Certificate of completion from military training school'
5. Discharge certificate showing character of service; and
6. Copy of extracts from payroll documents showing periods of service;
7. Letter from National Disaster Medical System (NDMS) Team Leader or Administrative Officer verifying dates and time of NDMS training or Federal activation.

Exceptions to the five-year service limitation include situations in which initial enlistments last longer than five years, periodic training is required, or there are involuntary active-duty extensions or recalls, especially during a time of national emergency. 38 U.S.C. § 4312(c). Additionally, employees recovering from injuries received during the service or training may have up to an additional two years to return to their jobs. 38 U.S.C. § 4313(e).

An employer is not required to re-employ a returning service member if the employer’s circumstances have so changed as to make re-employment impossible or unreasonable 20 C.F.R. 1002.139(a). Thompson Publishing Company’s Report provides a excellent example. The employer would not be required to create a useless job or reinstate an employee after a reduction in the workforce that reasonably would have included the service member. The employer cannot, however, refuse to re-employ the service member just because another employee was hired temporarily during the service member’s absence.

20 C.F.R. § 1002.139 (c) and 38 U.S.C. § 4312(d) (1)(c) also provide that an employer is not required to re-employ a returning service member if the position vacated by the service member was for a brief, non-recurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period.

Re-employment must occur as soon as practicable under the circumstances of each case. Absent unusual circumstances, reemployment must occur within two weeks of the employee’s application for reemployment. For example, prompt reinstatement after a weekend National Guard duty generally means the next regularly scheduled working day. On the other hand, prompt reinstatement following several years of active duty may require more time, because the employer may have to reassign or give notice to another employee who occupied the returning employee’s position. 20 C.F.R. § 1002.181.

38 U.S.C. § 4313(a)(1) provides that after military service of less than 91 days, the military service person is entitled to reinstatement in the “escalator position,” to the position in which he or she would have been employed if not for the interruption in employment. 20 C.F.R. § 1002.196(b) provides that the employer must make reasonable efforts to help the employee become qualified for that position. 20 C.F.R. § 1002.196(c) also provides that if the employee cannot become qualified for that position, the employee is entitled to the position in which he or she was employed when military service started. If the employee is not able to perform the duties of the escalator position or the pre-service position, after reasonable efforts by the employer, the employee must be reemployed in any other position that is the nearest approximation first to the escalator position and then to the pre-service position.

After military service of more than 90 days, an employee is entitled to reinstatement in the escalator position, however, 20 C.F.R. § 1002.191 provide that upon the specific circumstances the employer may have the option, or may be required, to re-employ the employee in a position other than the escalator position. The employer must make reasonable efforts to help the employee qualify for one of those positions. 20 C.F.R. § 1002.197(a). If the employee cannot become qualified, the employee is entitled to be placed in any other position that is the closest approximation to the escalator position. 20 C.F.R. § 1002.197(b). If there is no such position for which the employee is qualified, the employer must place the employee in any other position that is the closest approximation to the pre-service position. 20 C.F.R. § 1002.197(c).Note: The employer is not required to reemploy the employee on his or her return from service if he or she cannot, after reasonable efforts by the employer, qualify for the appropriate reemployment position. 20 C.F.R. § 1002.198.

The Thompson Publishing Company article states that “employers may treat missed opportunities for promotions differently, depending on whether the promotions are automatic or, as with many white collar jobs, based primarily on the employer’s discretion.” If an opportunity for promotion or eligibility for promotion that the employee missed during service is based on a skills test or examination, then the employer should give him or her a reasonable amount of time to adjust to the employment position and then give a skills test or examination. No fixed amount of time for permitting adjustment to reemployment will be deemed reasonable in all cases. 20 C.F.R. § 1002.193(b).

The Department of Labor (DOL) acknowledges that if a promotion is not based simply on seniority or other forms of automatic progression, but depends on the employer’s discretion, a re-employed veteran would have to demonstrate that it was reasonably certain that he or she would have received the benefit if he or she had remained continuously employed. 20 C.F.R. § 1002.194.

Employers must make “reasonable efforts” to allow the returning service member to qualify for the position to which the employee is entitled. “Reasonable efforts” include training and retraining that does not place an undue hardship on the employer. 20 C.F.R. § 1002.5(i). "Qualified" means that the employee has the ability to perform the essential tasks of the position. The employee's inability to perform one or more non-essential tasks of a position does not make the employee unqualified. The employer, however, is not required to re-employ an individual into a position that he/she is not qualified to perform.

An employee leaving a job for military service is not required to decide at that time whether he or she intends to return to the employer upon completion of military service but can defer that decision until after completing service. 20 C.F.R. § 1002.88. The employer may, however, prohibit the individual from seeking employment with a competitor. The burden of proving that the employee does not intend to seek re-employment with that employer following military service still rest with the employer. The individual must provide “clear, written notice” of their intent not to return to the employment of the organization. Even with such notice, the employee does not losses rights and benefits to re-employment after completing service.

Under USERRA, employee can obtain employment with a different employer while waiting for reinstatement without giving up re-employment rights with the first employer. But if this alternative employment during the application period violates the pre-service employer’s employment policies (such as a city’s prohibition against second jobs) to such a degree that it would be just cause for discipline or termination, then there is no right to re-employment. 20 U.S.C. § 1002.120. Additionally, a returning employee loses his or her re-employment rights if he or she is discharged from military service for

• dishonorable or bad conduct,
• other than honorable conditions,
• dismissed by general court martial; in commutation of a sentence of a general court martial; or, in time of war, by order of the President, or
• dropped from the roll due to an absence for at least three months; separated by reason of a sentence to confinement adjudged by a court-martial; or a sentence to confinement in a Federal or State penitentiary or correctional institution. 20 U.S.C. § 1002.135.

USERRA establishes re-employment rights to a job but does not require that employers pay employees their regular pay while absent for military service, although employers may choose to do so. 20 U.S.C. § 1002.7(c). Some employers provide “differential pay,” which is the difference between the employee’s military pay and civilian pay. Differential pay is not required but it is “a generous show of support by employers for their employees who are in service to the nation. 20 U.S.C. § 1002.7(d) also provides that if an employer provides additional benefits such as full or partial pay when the employee performs service, the employer is not excused from providing other rights and benefits to which the employee is entitled under the act.

Under Tennessee state law, however, eligible service members are entitled to 20 days of paid leave per year for active duty. T.C.A. § 8-33-109. If an employee has not used his military leave during the year, he is entitled to the first 20 days of his service at full pay. Whether the organization supplements the difference between an employee’s military pay and regular pay is a decision the employer can make. T.C.A. § 58-1-109 also provides that reservists called to duty by the governor “... in case of invasion, disaster, insurrection, riot, attack, or combinations ...” shall be paid from appropriated funds by the military. No member shall receive less than $50 per day. No member shall receive less than $55 per day when called to active duty in cases of grave emergencies.

20 U.S.C. § 1002.149 provides that an employer must treat an employee during his or her period of military service as being on furlough or leave of absence. The employee is entitled to the non-seniority rights and benefits that the employer generally provides to other employees who are on furlough or leave of absence with similar seniority, status, and pay. The non-seniority rights and benefits are those that the employer provides to similarly situated employees by an employment contract, agreement, policy, practice, or plan.

During an employee’s leave of absence for military service, decisions about employee benefits must be made. USERRA provides for health insurance continuation coverage, but employees may elect to continue their health plan coverage while in the military. The plan must permit the employee (and dependents, if the plan offers dependent coverage) to elect to continue the coverage for a period that is the shorter of the following two periods: the 24-month period beginning on the date on which the employee’s absence begins, or the period beginning on the date on which the employee’s absence begins and ending on the date on which the employee fails to return to the job or apply for re-employment. 20 C.F.R. § 1002.164(a).

20 C.F.R. § 1002.166 provides that the amount the employee must pay for continuing health coverage varies according to how long the employee is absent. If the individual’s military service is fewer than 31 days, health coverage should be provided as if the employee had remained employed, and the employer cannot require the employee to pay more than the employee’s share (if any) for coverage. If the military duty exceeds 31 days, the employee must be offered continued health care and may be required to pay up to 102 percent of the full premium (the employee’s share plus the employer’s share) for coverage. In any case, the payment obligation begins on the 31st day of absence. On return from service, health insurance must be reinstated, and a waiting period or exclusions for preexisting conditions cannot be imposed. 38 C.F.R § 4317(b).

Pension plans that are tied to seniority are specifically covered by the law. The law provides that while away performing military service, the employee must be treated as not having incurred a break in employment. The military service also must be considered service for an employee for vesting and benefit-accrual purposes. C.F.R. § 1002.259. The employer is liable for continuing to fund the plan and any resulting obligations. C.F.R. § 1002.261.

If an employer offers a defined contribution plan, once the employee is re-employed, the employer must allocate its make-up contribution, the employee’s contribution, and the employee’s elective deferrals in the same manner that it would allocate these amounts for other employees. For defined benefit plans, the employee’s accrued benefits will be increased for the period of service once he or she is re-employed and, if applicable, has re-paid any amount previously paid to the employee and made any employee contributions that are required under the plan. 20 C.F.R. § 1002.265(b).

A re-employed service member has the right to make contributions or elective deferrals but is not required to do so. The employee’s right to make up missed contributions is conditioned on continued employment with the post-service employer. 20 C.F.R. § 1002.265(c). Employee contributions to a pension plan that is not dependent on employee contributions must be made within 90 days following re-employment or when contributions are normally made for the year in which the military service was performed, whichever is later. 20 C.F.R. § 1002.262(a).

If employers match employee contributions, the re-employed service member may make his or her contributions or deferrals during the period starting with the date of re-employment and continuing for up to three times the length of the employee’s immediate past period of military service, but the re-payment period may not exceed five years. Employer contributions that are contingent on employee contributions or elective deferrals must be made according to the plan’s terms. 20 C.F.R. § 1002.262(b).

38 U.S.C. § 4318 provides that the re-employed person is entitled to any accrued benefits from the employee’s banked benefits. Vacation and sick leave accrual generally are not tied to seniority: however, if an employer allows employees to accrue vacation while on leave without pay, the employee in military service is entitled to the same benefit. USERRA provides that service members must, at their request, be allowed to use any vacation leave that had accrued before beginning their military service instead of unpaid leave. The employer, however, cannot force the employee to use vacation leave for military service. 38 U.S.C. § 4316(d). The employee is not entitled to use accrued sick leave unless the employer allows employees to use sick leave for any reason or allows employees on comparable furlough or leave of absence to use accrued paid sick leave.

The National Defense Authorization Act for FY 2010 established new benefits for service members and their families. FMLA now allows eligible employees to take time off for family emergencies resulting from a covered spouse, parent, or child being called to active military duty in the Armed Forces, including members of the National Guard or Reserve (called “qualifying exigency leave”) and for emergencies resulting from the need to care for family members who become seriously ill or injured in the line of duty during active military service.

Qualifying exigency leave allows eligible employees of covered employers to take up to 12 weeks of FMLA leave arising from the fact that their spouse, child, or parent is on active duty or called to active duty in the armed forces in support of a “contingency operation.” The qualifying exigency leave applies to families of members of any regular component of the armed services. An eligible employee whose spouse, parent or child is a member of the Armed Forces may take FMLA leave for a qualifying exigency related to the fact that they are deployed with the Armed Forces to a foreign county.

The regulation 29 C.F.R. § 825.126(b) contains a specific list of reasons for qualifying exigency leave. They include:

• Short-notice deployment, meaning a call or order that is given seven or fewer calendar days before deployment. The employee can take up to seven days beginning on the date of notification.
• Military events and related activities, such as official military-sponsored ceremonies and family support and assistance programs sponsored by the military and related to the family member’s call to duty.
• Urgent (as opposed to recurring and routine) child-care and school activities such as arranging for child care.
• Financial and legal tasks, such as making or updating legal arrangements to deal with a family member’s active duty.
• Counseling for the employee or his or her minor child that is not already covered by the FMLA.
• Spending time with the covered service member on rest and recuperation breaks during deployment for up to five days per break.
• Post-deployment activities such as arrival ceremonies and reintegration briefings, or to address issues from the service member’s death while on active duty.
• Other purposes arising out of the call to duty, as agreed upon by the employee and employer.

Employees seeking qualifying exigency leave must give reasonable and practical notice if the exigency is foreseeable. The notice must (1) inform the employer that a covered family member is on active duty or call-to-active duty status, (2) give a listed reason for leave, and (3) give the anticipated length of absence. 29 C.F.R. § 825.302(c).

Regulation 29 C.F.R. § 825.309(d) provides that the employer may require certification for qualifying exigency leave by requiring the employee to provide a copy of the service member’s active duty orders; for example a DOL form WH-384 may be used for qualifying exigency certification. The regulations also allow employers to verify with a third party that an employee met with the third party (e.g., a teacher) during qualifying exigency leave.

The National Defense Authorization Act (NDAA) for FY 2010 also established a new “military caregiver” leave category. This type of leave allows an eligible employee to take up to 26 work weeks of leave during a 12-month period to care for a covered service member. 29 C.F.R. § 825.127 redefines a covered service member as the employee's spouse, son, daughter, or parent on active duty or call to active duty status. The employee may be a spouse, parent, child, or next of kin of the service member.

A veteran is considered a covered service member if he or she meets both of the following:

• He or she is undergoing medical treatment, recuperation or therapy for a serious injury or illness that was incurred or aggravated while on active duty in the Armed Forces, whether or not the illness or injury manifested itself before or after the member became a veteran.
• He or she was a member of the Armed Forces, National Guard or Reserves at any time during the five-year period before he or she began treatment, recuperation or therapy. In other words, the FMLA now allows the caregiver to take up to 26 weeks of leave to care for a veteran for up to five years after the service member leaves military service.

The military caregiver regulations also establish a new category of eligible employees called “next of kin.” Next of kin excludes a service member’s spouse, parents or children, and is defined in 29 C.F.R. § 825.122(e) as the following blood relatives, in order of priority:

• Blood relatives with legal custody of the service member by court order or statute
• Siblings
• Grandparents
• Aunts and uncles
• First cousins

If no designation of a next of kin is made, and there are multiple family members with the same level of relationship to the service member, all such family members shall be considered the covered service members next of kin and may take FMLA leave to provide care, either consecutively or simultaneously. The service member, however, may designate any specific blood relative as “next of kin” in writing. Employers can ask employees for reasonable documentation of family relationships; however, a single statement will suffice.

The NDAA establishes a different calendar for military caregiver leave. Military caregiver leave begins with the first date of caregiver leave and ends 12 months later This differs from the regular FMLA year and if an employee takes military caregiver FMLA leave, the employer will have to track FMLA use under the two calendars. The DOL’s regulations state that “once an employee takes military caregiver leave and has begun to use that type of FMLA during the military FMLA year, he/she can take a maximum of 26 weeks of FMLA leave for any purpose during that 12 month period. If he/she takes non-military FMLA leave during the military FMLA year to take care of his/her own serious health condition that counts against the maximum 26 weeks of FMLA leave the service member is entitled to during that 12 month period.” The employer continues to count the service member’s FMLA leave against his or her entitlement as measured during the regular FMLA year as well. 29 C.F.R. § 825.127(c)(1).

The maximum of 26 weeks of caregiver leave may be taken in a single block, reduced leave schedule or intermittently during the employee’s military FMLA year. Military caregiver leave cannot be carried over from year to year; it runs during a single 12-month period. It is possible, however, for an eligible employee to take more than one military caregiver entitlement because this type of leave, according to the regulations, applies on a per-service-member, per-injury basis in a single 12-month period.

Dual employment in the case of spouses working for the same employer can result in further complications if they wish to take military caregiver FMLA leave. The employees may be limited to a combined total of 26 work weeks of leave during the single 12-month period if the leave is taken for the birth of a child or to care for a child after birth, for placement of a child for adoption or foster care or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered service member with a serious illness or injury. 29 C.F.R. § 825.127(d).

NDAA 2010 also expanded the definition of a “serious injury or illness” to include care for covered service members whose pre-existing injury or illness was aggravated in the line of duty (29 C.F.R. § 825.127(a)(1)) on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and is:

• A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member's office, grade, rank, or rating; or
• A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater and such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; or
• A physical or mental condition that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; or
• An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Previously, the law allowed military caregiver leave only for serious injury or illness incurred while on active duty that rendered the service member medically unfit to perform the duties of his office, grade, rank, or rating and for which he was undergoing medical treatment, recuperation, therapy, or outpatient treatment.

To account for the covered veterans, the new 2013 changes also expand the list of health care providers who are authorized to complete a certification for military caregiver leave, the information required on the certification forms, and the acceptable documentation employees may provide to substantiate the leave.

Employers may require certification of the need for caregiver and qualifying exigency leave using the DOL forms. The qualifying exigency form can be found at http://www.dol.gov/whd/forms/WH-384.pdf [68]. The certification for serious injury or illness of a covered service member form can be found at http://www.dol.gov/whd/forms/WH-385.pdf [69].

Employees seeking to use military caregiver leave must follow existing FMLA notice rules, including the requirement to work with employers to schedule leave without unduly disrupting operations.

A summary of the revised bill may be found at https://www.govtrack.us/congress/bills/111/hr2647/summary [70] or you can find the actual legislation at: http://www.justice.gov/crt/military/statute.htm [71] . Copies of the required USERRA posters can also be obtained from the U.S. Department of Labor at www.dol.gov/vets/programs/userra/poster.htm [72].

Additional information about the act may be obtained from the U.S. Department of Labor’s Veterans’ Employment and Training Service at 800-336-4590 or on the Internet at http://www.dol.gov/vets/index.htm [73] .  The Employer Support of the Guard and Reserve (ESGR), Veterans’ Employment and Trainings Service (VETS) and the National Veterans Training Institute (VTI) have developed an on-line introduction to the rules utilizing an e-Learning course entitled USERRA 101.  The course is free but individuals must register at: https://www.esgrevents.org/courses [74].

In Tennessee, you can contact the Region IV representatives of the Veterans’ Employment and Training Service for more information at the following locations:

Veterans’ Employment and Training Service
U.S. Department of Labor
P.O. Box 280656
Nashville, Tennessee 37228-0656
(615) 736-7680
(615) 741-1962
(615) 736-5037
Fax: (615) 741-4241

Veterans’ Employment and Training Service
U.S. Department of Labor
1309 Poplar Ave.
Memphis, Tennessee 38104-2006
(901) 543-7853
Fax: (901) 543-7882

Veterans’ Employment and Training Service
U.S. Department of Labor
350 Pageant Lane, Suite 406
Clarksville, Tennessee 37040
(931) 572-1688
Fax: (931) 648-5564

HIPAA
In 1996, HIPAA was passed to address concerns about discrimination based on a person’s health information. According to medscape.com, “HIPAA was the first step toward restricting the use of genetic information by limiting its use in setting insurance premiums and determining a person’s eligibility for health insurance coverage.” However, HIPAA did not prevent health insurers from charging a higher rate for a group by raising the premium when it learned that covered employees had a genetic disease or disorder. HIPAA did limit insurance companies from collecting genetic information, or requiring that a person take a genetic test before issuing health coverage. (Dale Halsey Lea, “The Genetic Information Nondiscrimination Act (GINA): What it Means for Your Patients and Families: Before GINA: The Need.”)

What is genetic discrimination?
Genetic discrimination is similar to other forms of discrimination - where people are treated unfairly because of their DNA (likelihood of getting certain diseases) or family history of a disease.

What does GINA consider family?
For purposes of GINA, consider any family members who are dependents of the primary individual (employee or applicant) as a result of marriage, birth adoption, or placement for adoption and through fourth-degree blood relatives. If the degree of blood is unknown, it is safest to assume they are protected under GINA.

Employment and GINA
Title II of GINA prohibits covered entities from improper use of genetic information in employment including the application process. Employers are prohibited from using individuals’ genetic information when making employment decisions such as: hiring, promotion, termination, or placement determinations. GINA sends the message that an employee or applicant’s genetic information is off limits and can in no way impact an employment decision.

The law was designed to help ease concerns and encourage people to pursue genetic testing without fear of discrimination or retaliation. Prior to GINA, many Americans were simply afraid to get a genetic test for fear that their insurance would be canceled or that the results would be released to their employer, who would use it against them in the workplace. More specifically, GINA prohibits employers and covered entities from:

• Using genetic information to make decisions regarding employment, hiring, promotion, terms or conditions of employment, privileges of employment, compensation, or termination.
• Segregating, classifying, or depriving an individual of employment opportunities on the basis of genetic information.
• Requesting requiring or purchasing genetic information on an individual or family member with rare exceptions.
• Failing or refusing to refer an individual for employment on the basis of genetic information nor can the covered entity attempt to cause an employer from discriminating against an individual on the basis of genetic information.
• Using genetic information in making decisions regarding admission to or employment in any program for apprenticeship or training and retraining, including on the job training.
• Excluding or expelling from membership, or otherwise discriminate against an individual because of genetic information.

Covered Genetic Information
According to EEOC, genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as family history and information about the manifestation of a disease or disorder that pertains to a person’s family members such as family medical history. Family history is included in the definition of genetic information because risk factors are often determined based on family history of diseases. Genetic information may also include a person’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using assisted reproductive methods. (eeoc.gov; http://www.eeoc.gov/laws/types/genetic.cfm [75])

Genetic tests typically look at an individual’s DNA/RNA. Genetic tests look for changes in a person’s genes or changes in the level of structure of key proteins coded by specific genes. Some types of genetic testing may be: gene tests, chromosomal tests, or biochemical tests.

Genetic tests can include, but may not be limited to:

• Gene tests look for signs of a disease or disorder in DNA or RNA taken from a person’s bodily fluids or tissues. The tests can look for changes in gene patterns or altered chemical bases, excess copies, activity level of genes, inactive genes, or missing genes.
• Chromosomal tests apply to the large DNA containing structures in the nucleus of the cell. Humans are supposed to have 23 pairs of chromosomes; 22 pairs of autosomes, and one pair of sex cell chromosomes. Chromosomal tests look at features of an individual’s chromosomes including structure, number, and arrangement. The tests may look for a chromosome missing, expanded, or being switched to a different chromosomal location. Karyotype’s and fluorescent in situ hybridization (FISH) analysis may be types of tests used for chromosomal purposes.
• Biochemical tests generally look at the amounts or activities of key proteins. These types of tests are commonly used in newborn screenings. The diagnosis of Phenylketonuria (PKU) is made by using a biochemical test.

Examples of Tests Covered by GINA: 

• BRCA1/BRCA2 or HNPCC mutilations for hereditary cancers
• Carrier screening for disorders such as cystic fibrosis and fragile X syndrome
• Newborn screenings for genetic conditions
• Classifications of genetic properties of tumors to help determine therapy

Genetic testing is generally used to:

• Diagnose a person who may have symptoms of a disease or illness.
• Determine if an individual is a carrier of a genetic disease. Some carriers will not get the disease, but may be able to pass the gene to children. Conversely, some carriers may get the disease but may not be able to pass the gene to children.
• Diagnose unborn fetuses with genetic conditions before birth.
• Screen newborns for genetic diseases or conditions.
• Indicate if a person is pre-disposed to or inherited disposition prior to a disease starting.
• Assist health care providers with determining the best course of treatment.

While genetic testing can be a stressor, it often provides a measure of relief because individuals no longer have to live with the uncertainty that comes with not knowing if they are gene positive. Additionally, it may allow for a longer, healthier life span due to experimental medical treatments, and healthy living behaviors that may lead a person to taking steps to lower his or her chance of developing a disease.

Predictive testing can show which individuals have a higher chance of developing a disease or condition before symptoms appear. This is commonly being used for breast cancer and diabetes. Predictive testing does not conclusively provide answers, but simply looks at genetic risk factors that make one more likely to inherit a disease.

On May 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC or the Commission) issued a final rule to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs. A notice of proposed rulemaking (NPRM) was previously issued on October 30, 2015. The final rule says employers may provide limited financial and other inducements (also called incentives) in exchange for an employee's spouse providing information about his or her current or past health status as part of a wellness program, whether or not the program is part of a group health plan.

The term "wellness program" generally refers to health promotion and disease prevention programs and activities offered to employees. Some wellness programs are part of an employer-sponsored group health plan, and other wellness programs are not tied to group health plans.

EEOC's GINA regulations say that "genetic information" includes, among other things, information about the "manifestation of a disease or disorder in family members of an individual." (The term "past or current health status" is used in these questions and answers, rather than the term "manifestation of disease or disorder.") Family members include certain blood relatives, like parents, grandparents, and children, but also include spouses and adopted children.

There is an exception to GINA's general prohibition against acquiring genetic information of applicants or employees where employers offer voluntary health or genetic services to employees or their family members. Some employers want to offer inducements for employees and their family members to answer questions about their health or to take medical examinations as part of a wellness program. This rule clarifies that an employer may offer a limited incentive for an employee's spouse to provide information about the spouse's current or past health status as part of a voluntary wellness program.

This rule applies only where a portion of the inducement offered within a wellness program is for an employee's spouse to answer questions about his or her current or past health status or to take a medical examination. GINA does not apply to inducements made available in exchange for an employee's spouse engaging in certain activities that do not require obtaining information about current or past health status, such as attending a weight loss or nutrition program or exercising a certain amount each week.

(Excerpted from: https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm [76])

Not Included
GINA does not include protection from genetic discrimination in life insurance, disability policies, or long-term care coverage. GINA does not cover an individual’s manifested disease or condition from which an individual is experiencing symptoms, has been diagnosed or for which the individual is being treated.

Where GINA Does Not Apply
GINA does not apply to members of the United States military, veterans receiving health care through the Veteran’s Administration, or to the Indian Health Service. GINA does not apply to Federal Employees Health Benefit Plans.

Interaction with State Laws
The federal law sets a minimum standard of protection that must be met. Some states may have additional laws granting them protection, and this federal law does not weaken the state laws.

Harassment
The law makes it clear that a covered entity may not discriminate on the basis of genetic information regarding any aspect of employment. Additionally, the law forbids harassment based on a person’s genetic information or the person’s family genetic information. Similar to other types of harassment, the law does not prohibit light hearted teasing or off-hand comments, or isolated incidents that are not serious in nature. Harassment is illegal when it is so severe and pervasive that it creates a hostile or offensive work environment or when the harassment results in adverse employment decisions. A harasser may be a colleague, supervisor, client, customer, or vendor.

Retaliation
Covered entities must be careful about retaliation in the workplace. GINA makes it illegal to retaliate against any applicant or employee for filing a charge of discrimination or participating in a discrimination investigation or lawsuit.

Labor Organizations
A labor organization may not exclude or expel from membership, or otherwise discriminate against a person because of genetic information.

It is generally unlawful for a covered entity to get genetic information. There are six exceptions to the law:

1. Inadvertent acquisitions do not violate GINA. This includes circumstances where a manager or supervisor overhears someone talking about an individual or family member’s illness.
2. Obtaining genetic information as part of health services such as wellness programs offered on a voluntary basis, if certain requirements are met.
3. Family medical history acquired in the course of Family Medical Leave Act (FMLA) administration or similar leave statutes pursuant to employer policy. However, the employer may not disclose the information.
4. Genetic information acquired through commercially and publicly available resources such as newspapers and the internet as long as the employer is not seeking the information out or pursuing sources from which they are likely to acquire genetic information.
5. Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of harmful substances in the workplace where monitoring is required by law or, under carefully defi ned conditions where the program is voluntary.
6. Genetic information may be acquired by employers who engage in DNA testing for public safety purposes or as a forensic lab for purposes of human remains identification, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination (i.e., police departments, FBI etc.).

Genetic information does not include information about gender or age. Routine tests such as cholesterol tests, liver function tests, CBC panels, and HIV tests are not covered.  HIV is not itself human DNA and measuring its presence does not constitute a genetic test under the law. Additional items not protected are: DNA analysis of infectious agents such as bacteria, viruses and fungi.

Per EEOC, an employer, employment agency, labor organization, or joint labor-management committee shall not be considered to be in violation of this title based on the use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition of an employee or member, including a manifested disease, disorder, or pathological condition that has or may have a genetic basis.

These provisions do not:

• Prohibit medical underwriting based on current health status.
• Mandate coverage for any medical tests or treatments.
• Subject employers to remedies and procedures that are any different from those in other civil rights laws such as Title VII.
• Apply to employers with fewer than 15 employees.
• Apply to members of the military.
• Cover an individual’s manifested disease or condition from which an individual. is experiencing symptoms; however, it does protect information about disease in an individual’s family members such as family history.
• Interfere with an employee’s ability to qualify for FMLA or similar leave statues.Hinder an employer-sponsored wellness program or other genetic services offered by an employer.
• Interfere with an employer’s ability to offer a safe and hazard free workplace.
• Preempt state law; therefore, some state’s discrimination laws provide greater protection.
• Prevent a health insurer from using information about an existing condition, even if that condition has a genetic basis (i.e., breast cancer diagnosis). The insurer may need family history to approve certain procedures and testing but the information cannot be used against the individual for purposes of rate increases or cancellations/reductions in coverage.
• Restrict the practice of medicine or the authority of healthcare professionals, whether or not they are affi liated with a health plan, issuer, or employer.

FMLA, ADA and Workers’ Compensation commonly intersect with GINA because employers frequently handle medical information in the course of administering FMLA, ADA and Workers’ Compensation.

When employers requests medical information in the course of administering ADA and FMLA, there is a potential to obtain information that could be protected by GINA, including genetic information such as: results of genetic tests for cancer genes, hereditary diseases, and other disorders.

Results of genetic information on family members are also protected under GINA. GINA protections include requests for genetic information by an employer about an employee or his family member as well as genetic information regarding a fetus or embryo. It also includes the manifestation of a disease or disorder of that may pertain to an employee or his family member. As a general rule when employers specifically ask for pertinent medical information for purposes of FMLA/ADA, the employer is acting in good faith for business and will likely fall under the GINA exception protection provision that will cover them in cases of inadvertent acquisition.

When using ADA/FMLA forms, or requesting medical information, be sure to provide a disclaimer stating you are not soliciting genetic test results from employees or their family members or any information that may not be applicable to the ADA/FMLA/Workers’ Compensation statutes. Under FMLA, if an employee is seeking leave to care for a family member an employer will have access to a family member’s health information that may be protected under GINA (family history of medical information specifi cally). This is a limited exception and only applies to an employee’s family member which may include family history information. So in this case, under FMLA; an employer could legally receive information on a family member’s medical history information. Note: This exception does not apply to the employee’s request for their own serious health condition.

The regulations make it clear that the employer is required to take certain steps to make sure employee medical requests do not seek genetic information.

GINA makes clear that if a covered entity acquires genetic information in response to a lawful request for medical information the acquisition of that medical information will not generally be considered a violation of GINA unless the individual directs the employer in writing or verbally not to request genetic information. In other words, the employer needs to explicitly state that genetic information on health care certification forms is not needed. Otherwise the employer may be creating a situation where it is likely to acquire genetic information under GINA, and this information may not be protected under the inadvertent acquisition clause. Regarding Workers’ Compensation, the EEOC states that “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition therefore it is not likely that an employer dealing with workers’ compensation injuries would need genetic information to assist in defense of a claim.

Employers have the right to ask applicants and employees to undergo job-related physical and mental evaluations to determine fitness for duty. At a health exam a physician will often ask about family history. While this is important for the health provider in making assessments and recommendations, this information does not need to be shared with employers and is not relevant to fit for duty exams. In fact, employers should state upfront that they do not want to receive any information that may be protected under GINA, unless otherwise lawfully allowed and applicable under a federal, state, or local law or in the course of voluntary wellness programs. It is not relevant to employers that an employee has a family history of breast cancer, genetic diseases, or diabetes.

What is relevant is whether the employee can perform the essential functions of the job either with or without accommodation. Employers should instruct health provider offices to not include family history or genetic information on the forms that are returned to the employer. In the event that the employer handles a large quantity of these medical forms, the employer should consider having someone, who is well versed in GINA, screen all forms when they come in to the employer prior to distribution to the appropriate department. This may apply to ADA, FMLA and other health forms as well.

Health Insurers
Health insurers may not require individuals to provide their genetic information or the genetic information of a family member to the insurer for eligibility, coverage, underwriting, or premium setting standards. Health insurers may not request or require that an individual or an individual’s family member undergo a genetic test.  

Research Exception
There is a research exception. For joint research activities covered by health insurers and other external research entities, a health insurer in either the group or individual market may request, but not require, in writing that an individual undergo a genetic test. The individual may voluntarily elect to participate in such a genetic test, but noncompliance must have no negative affect on the premium or enrollment status of the individual. Genetic information may only be used for research. Genetic information may not be used for underwriting purposes.

Confidentiality
An individual’s medical information must be maintained in separate files and be kept confidential. Genetic information may not be disclosed except at the individual’s written request or in response to a court order.  In addition an employer may be required to provide information to federal, state or local authorities.

Jane Doe, a senior accountant with Company X was fired after her employer learned she was the primary caregiver of a mother with Huntington’s disease. Huntington’s disease carries a 50 percent chance of developing the disease when one parent is gene positive. Because of her family history, Jane has a 50 percent chance of developing the disease. Shortly after she filed FMLA papers to care for her ill mother, Jane was terminated.

John Brow, a radiologist tech at Community Hospital was diagnosed with colon cancer and took leave from work to receive treatment and recover. When John returned to work, he was told he would have to undergo a medical examination. John was told that if he refused to submit to the examination he would be terminated. John later learned that his employer was administering genetic tests to employees without their consent to identify a possible genetic predisposition to cancers as a defense to workers’ compensation claims.

Sara Jones, a receptionist at a corporate headquarters for a sports company was undergoing genetic testing to see if she had a high risk of inheriting breast cancer, a disease which took her mother and aunt last year. Sara tested positive for a mutation in her genes showing she would likely inherit this form of cancer. Her employer then drastically increased her health insurance premiums in response to the genetic tests results.

Mitch Evans, a firefighter with the local fire department carries a gene for a rare syndrome that can cause sudden cardiac death. At open enrollment the following year Mitch switched group insurance companies. His new plan found out about the genetic syndrome and refused to cover him.

These are all examples of a covered entity acting in such a way that appears to be a violation of GINA.

Enforcement
GINA is enforced by several federal agencies. These agencies include: HHS, DOL, the Department of the Treasury (DOT), and EEOC. Corrective actions could potentially be taken, and financial penalties may apply for those who violate GINA.

(Primary source: http://www.dol.gov [77])

Q: Genetic information includes information about an individual’s genetic services and tests. What do these include?
Genetic services mean genetic tests, genetic counseling, or genetic education. Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, if the analysis detects genotypes, mutations, or chromosomal changes. A genetic test does not include an analysis of proteins or metabolites directly related to a manifested disease, disorder, or pathological condition. Therefore, some examples of genetic tests are tests to determine whether an individual has a BRCA1, BRCA2, or colorectal cancer genetic variant. In contrast, an HIV test, complete blood count, cholesterol test, liver function test, or test for the presence of alcohol or drugs is not a genetic test.

Q: Genetic information includes an individual’s genetic tests and information about the manifestation of a disease or disorder in an individual’s family member. A genetic test does not include an analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition. What is a manifested disease?
A manifested disease is a disease, disorder, or pathological condition for which an individual has been or could reasonably be diagnosed by a health care professional (with appropriate training and expertise in the fi eld of medicine involved). A disease is not manifested if a diagnosis is based principally on genetic information. For example, an individual whose genetic tests indicate a genetic variant associated with colorectal cancer and another that indicates an increased risk of developing cancer, but who has no signs or symptoms of disease and has not and could not reasonably be diagnosed with a disease does not have a manifested disease.

While plans and issuers are prohibited from adjusting group premiums or contributions based on genetic information, plans and issuers can increase the premium or contribution based on the manifested disease or disorder of an individual enrolled in the plan. This is becauseinformation about an individual’s manifested disease or disorder is not genetic information with respect to that individual.

Q: Can an individual’s doctor or other health care provider request that the individual undergo a genetic test?
Generally, yes. GINA prohibits a group health plan from requesting or requiring an individual or a family member of an individual undergo genetic tests. Nonetheless, under GINA, a health care professional who is providing health care services to an individual can request that an individual undergo a genetic test. A health care professional includes but is not limited to a physician, nurse, physician’s assistant, or technicians that provide health care services to patients. For example, if during the course of a routine physical exam, a physician learns that an individual has family medical history indicating a potential risk for Huntington’s disease, the physician can recommend that the individual undergo a related genetic test. This would not violate GINA. This would be true even if the doctor were employed by an HMO, so long as the physician was providing health care services to the individual for whom the genetic test was recommended.

Q: Can a health plan obtain the results of a genetic test to make a determination regarding payment of a claim for benefi ts under the plan?
Generally, yes. If a plan conditions payment for an item or service based on medical appropriateness and the medical appropriateness depends on the genetic makeup of the patient, then the plan is permitted to condition payment for the item or service on the outcome of a genetic test. The plan may also refuse payment in that situation if the patient does not undergo the genetic test. The plan may request only the minimum amount of information necessary to make a determination regarding payment.

Q: If a plan normally covers mammograms for participants and benefi ciaries starting at age 40, but covers them at age 30 for individuals with a high risk of breast cancer, may the plan require that an individual under 40 submit genetic test results or family medical history as evidence of high risk of breast cancer, in order to have a claim for a mammogram paid?
Generally, yes. Under GINA, a plan may request and use the results of a genetic test to make a determination regarding payment, as long as the plan requests only the minimum amount of information necessary. Plans may also request genetic information for the purpose of determining the medical appropriateness of a treatment or service. Because the medical appropriateness of the mammogram depends on the patient’s genetic makeup, the minimum amount of information necessary for determining payment of the claim may include the results of a genetic test or the individual’s family medical history.

Q: Can a plan request that a participant or beneficiary undergo a genetic test for research purposes?
Under GINA, a plan is permitted to request, but not to require, that a participant or beneficiary undergo a genetic test for research purposes if the following four requirements are met:

• The plan makes the request pursuant to research. (Research is defi ned in 45 CFR 46.102(d)). The research must comply with 45 CFR Part 46 or equivalent Federal regulations and any applicable State or local law or regulation for the protection of human subjects in research.
• The plan must make the request for the genetic test in writing and clearly indicate to each participant and benefi ciary that the request is voluntary and will have no effect on eligibility.
• No genetic information collected pursuant to this research exception can be used for underwriting purposes.
• The plan must complete a copy of the Notice of Research Exception under GINA and provide the notice to the address specified in the instructions.

Q: Can a plan require an individual to complete a health risk assessment (HRA) prior to or as part of the enrollment process for the plan?
GINA prohibits a plan from collecting genetic information (including family medical history) prior to or in connection with enrollment. Thus, under GINA, plans and issuers must ensure that any HRA conducted prior to or in connection with enrollment does not collect genetic information, including family medical history.

Under GINA, there is an exception for genetic information that is obtained incidental to the collection of other information, if 1) the genetic information that is obtained is not used for underwriting purposes and 2) if it is reasonable to anticipate that the collection will result in the plan receiving health information, the plan explicitly notifies the person providing the information that genetic information should not be provided. Therefore, a plan conducting an HRA prior to or in connection with enrollment, should ensure that the HRA explicitly states that genetic information should not be provided.

Q: Can a plan require that an individual complete a health risk assessment (HRA) that requests family medical history in order to receive a wellness program reward, such as a financial incentive, in return for the completion of the HRA?
GINA prohibits a plan from collecting genetic information (including family medical history) prior to or in connection with enrollment; or at any time for underwriting purposes. Because completing the HRA results in a reward, the request is for underwriting purposes and is prohibited. A plan may use an HRA that requests family medical history, if it is requested to be completed after and unrelated to enrollment and if there is no premium reduction or any other reward for completing the HRA.

A plan may offer a premium discount or other reward for completion of an HRA that does not request family medical history or other genetic information, such as information about any genetic tests the individual has undergone. The plan should ensure that the HRA explicitly states that genetic information should not be provided. This is because GINA provides an exception for genetic information that is obtained incidental to the collection of other information, if 1) the genetic information that is obtained is not used for underwriting purposes and 2) if in connection with any collection it is reasonable to anticipate that health information will be received, the collection explicitly states that genetic information should not be provided. Plans may use two separate HRAs; one that collects genetic information, such as family medical history, which is conducted after and unrelated to enrollment and is not tied to a reward, and another HRA that does not request genetic information, which can be tied to a reward. In addition, under GINA group health plans may also reward

1. Participation in an annual physical examination with a physician (or other health care professional) who is providing health care services to the individual, even if the physician may ask for family medical history as part of the examination
2. More favorable cost-sharing for preventive services, including genetic screening; and
3. Participation in certain disease management or prevention programs. The incentives to participate in such programs must also be available to individuals who qualify for the program but have not volunteered family medical history information through an HRA.

Q: Is there an exception to GINA for small plans?
No. There is no exception for very small health plans or those less than two participants.

Q: How many employees does an employer have to employ to be covered under GINA?
Employers who have 15 or more employees working for at least 20 or more calendar weeks in the current or preceding calendar year.

Q: Who is considered a covered family member under GINA?
Any person who is within a fourth-degree relation of the individual. The EEOC’s proposed regulations further define “family member” as a person who is or becomes related through marriage, birth,adoption, or placement for adoption.

Q: When can an employer, employment agency, labor organization or training program have access to genetic information?
When the information is publicly available or when the information is provided inadvertently as part of the person’s medical history or the medical history of a family member. Another possibility is when the person’s written authorization is obtained as part of an employer-sponsored genetic monitoring program concerning toxic substances in the workplace. In addition, when the employer offers health or genetic services, including services offered as part of a wellness program which includes the person’s written authorization. Lastly, where the employer operates as law enforcement and requires the person’s DNA for quality control purposes in the forensic lab or human remains identification settings.

For more information on GINA, visit http://www.eeoc.gov/laws/types/genetic.cfm [75].