Asking Enough But Not Too Much: Medical Certifications for Leaves of Absence Under the FMLA and CFRA

The FMLA and CFRA both permit an employer to require an employee requesting a leave of absence to provide a medical certification, but these laws differ with respect to the information and employer can request about the reasons for an employee’s requested leave.

Under the FMLA, an employer is permitted to obtain the following information in a medical certification:

  • The name, contact information, and type of medical practice or specialization of the employee’s healthcare provider;
  • The approximate date on which the employee’s serious health condition commenced and the probable duration of the serious health condition;
  • A description of “appropriate medical facts” regarding the serious health condition adequate to support the need for leave (including information such as symptoms, diagnoses, hospitalizations, treatment regimens, and whether any medications have been prescribed);
  • Information sufficient to show the employee cannot perform the essential functions of the job, as well as information regarding work restrictions (where the requested leave is for the employee’s own serious health condition);
  • Information to establish the medical need for leave, as well as an estimate of the dates and duration of medical treatments or periods of incapacity necessitating leave (where the employee requests an intermittent or reduced-schedule leave for the employee’s own serious health condition);
  • A statement that leave is medically necessary to care for a family member (where intermittent or reduced-schedule leave is sought for an employee to care for a family member).

The rules under the CFRA with respect to information an employer can seek in a certification for an employee’s requested leave are narrower:

  • With regard to a request for leave for the employee’s own serious health condition, an employer only may require a certification to include the date on which the serious health condition began, the probable duration of the condition, and a statement that due to the employee’s serious health condition, the employee cannot perform the functions of his or her position.
  • Where an employee requests a CFRA leave to care for a family member, an employer is only allowed to require that a certification provide the date on which the serious health condition began, the probable duration of the condition, an estimate of the amount of time the healthcare provider thinks the employee will need to provide care to the family member, and a statement that the serious health condition warrants a family member’s provision of care.
  • In contrast to the FMLA, the CFRA does not allow an employer to require – and, in fact, expressly prohibits an employer from seeking – information that identifies the serious health condition necessitating the leave. An employer therefore cannot require a certification to include information about the symptoms, diagnoses, or other specific information behind a requested CFRA leave. 

Where, as is often the case, a CFRA leave runs concurrently with an FMLA leave, it is incumbent on employers to adhere to the stricter provisions of the CFRA. When requiring certifications for employee leaves of absence, it is thus important for California employers to be mindful of these differences between federal and state law.

The Layers of the Paid Sick Leave Law in Montgomery County, Maryland

On October 1, 2016, Montgomery County’s Earned Sick and Safe Leave law became effective.  This law allows all employees, with few exceptions, that work in Montgomery County, Maryland, to accrue paid and/or unpaid sick and safe leave, depending on the size of their employer, to use for their own illness, an illness of a family member and (originally) five other specific reasons.  Since its passage the Montgomery County Council has amended the law once and is considering a further amendment.

Amendment Effective November 2016

Effective November 9, 2016, the Montgomery County Council amended the law to allow eligible employees to use earned sick and safe leave for parental purposes.  Specifically, the amendment allows earned sick and safe leave to be used for “the birth of a child or the placement of a child with the employee for adoption or foster care” and “to care for a newborn, newly adopted, or newly placed child within one year of birth, adoption or placement.”  These two additional reasons for leave bring the total number of permitted uses of earned leave under the law to nine specified reasons.

Such an amendment to paid sick leave laws, which essentially turn the laws into paid family leave laws, could begin trending in the counties, cities and states that have passed their own sick leave laws.

Potential Future Amendment

The Montgomery County Council is also considering an amendment, introduced in 2016, which would exempt certain seasonal employees from the law completely and also require that employees paid on a commission-only basis earn only unpaid sick leave.

Under this potential amendment, seasonal employees would not be eligible to earn sick and safe leave if they work less than 120 days per year for an amusement or recreational employer that operates for less than 120 days per year in the County. The introduction included with a version of the bill explains that under the current law, which allows employers to prohibit the use of earned sick and safe leave in the first 90 days of employment, “a summer camp counselor employed for an 8-week camp season will never be able to use the earned sick and safe leave earned during the 8-week season unless the individual is rehired within 9 months,”—which is typically not the case.  Therefore, a total exemption for this type of seasonal employee makes sense given the current law’s parallel practical effect.

The current law also requires that an employee who uses earned sick and safe leave be paid “at the same rate and with the same benefits as the employee normally earns.”  Commission-only employees are not paid a base rate and the commissions they earn fluctuate according to their work, so calculating a “normally earned rate” would be challenging.  To reconcile this payment requirement in the current law against the realities of commission-only sales employees, under this amendment, commission-only employees would earn only unpaid sick and safe leave.

This potential amendment has not yet been voted into law leading to the question—how should commission-only employees in Montgomery County be paid when using earned sick and safe leave now?

“You Can’t Fire Me, I Just Came Back From FMLA Leave.”

Contrary to apparent popular belief, employees who have recently taken leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons unrelated to their FMLA leave.  Establishing a non-retaliatory termination in these circumstances can be challenging, however.  The timing of the termination alone can “look” retaliatory, and even a well thought out and justified termination might be viewed differently by a court.

The Eleventh Circuit Court of Appeals recently addressed this scenario in Jones v. Gulf Coast Health Care of Delaware, LLC, Case No. 16-111142 (April 19, 2017).  After exhausting his 12 weeks of FMLA leave for shoulder surgery, Mr. Jones was unable to return to work and was granted an additional month of non-FMLA leave.  During his extended leave – according to pictures he posted on Facebook – Mr. Jones spent a day at a local theme park and went to the beach while visiting his family for three days in the Caribbean. On his first day back at work, Mr. Jones was confronted about the Facebook posts and placed on suspension.  A few days later he was terminated for FMLA fraud and abuse.  He eventually brought suit for FMLA interference (failure to restore him to work) and FMLA retaliation (termination).  The trial court granted summary judgment for the company on both claims.

On appeal, the Eleventh Circuit saw the facts differently and reversed the summary judgment for the employer on the FMLA retaliation claim. The court found that Mr. Jones had presented sufficient evidence to create a factual dispute over whether the offered termination reasons  were inconsistent and, therefore, pretextual. This finding was partially due to the close timing between Mr. Jones’ FMLA leave and his termination.  The court also pointed to evidence casting doubt on the company’s purported reasons for termination.  Mr. Jones claimed he was told he was being fired for abusing FMLA leave based on his Facebook “vacation” posts.  During the lawsuit the company asserted additional reasons for terminating Mr. Jones, including violating social media policies by posting vacation photos which created an employee morale issue.  The social media policies allegedly violated by Mr. Jones, however, did not prohibit any of the activities for which he was fired.  The court also found the evidence of Mr. Jones abusing medical leave by going on vacation for a few days “was murky at best.”

The Jones case highlights the challenges employers may face when an employee is terminated shortly after using FMLA leave.  Such close timing may result in an inference that the termination was because of FMLA usage.  Employers can be better prepared to overcome this inference by providing an accurate summary of the termination reason to the employee and consistently standing by that reason going forward.  The offered termination reason should also be substantiated and adequately documented at the time of the termination.  If the termination is based on a policy violation, for example, the policy should be reviewed to confirm that the employee’s conduct actually violated the policy as written.

When terminating for suspected dishonesty or FMLA/medical leave abuse, employers should also be careful when relying on social media posts and general assumptions that spending a day at the beach is inconsistent with an employee’s medical restrictions. As compared to an employee with a lifting or walking restriction, Mr. Jones’ post-shoulder surgery restrictions may not have been glaringly inconsistent with his leisure activities.  Properly investigating concerns about dishonesty or FMLA abuse, including offering employees an opportunity to explain away their behavior, can be critical in defending cases later on.

Interviewing an Individual with a Visible Disability: From the Employer’s Perspective

In a recent Q&A on the “Ask a Manager” blog, an individual wrote in to say that she had a genetic disorder requiring the use of a cane for walking and ring braces for finger stability. Although she had been public about her condition with friends and family, both in person and through social media, she was concerned that a job interviewer might view her ring braces as a form of costume jewelry inappropriate for an interview setting and, presumably, hold that against her. She did not believe that removing the ring braces for the interview was the best approach, both because they would be necessary in the performance of the job(s) for which she would be applying and because she felt that doing so “erased” her disability when she otherwise had embraced it as part of her life. So, the individual wanted to know whether, and if so what, she should preemptively say about the finger braces at the beginning of an interview. “Ask a Manager” suggested that she preface the interview by mentioning that the braces “aren’t evidence of unusual taste in jewelry – they’re supports for finger stability.”  Under the ADA, an applicant in the interview setting may, but is not obligated to, notify a prospective employer of her disability – unless, for example, an accommodation will be needed for the interview process itself. But what are the prospective employer’s options in this situation?

            Let’s put aside for the moment the possibility that the prospective employer may already be aware of this individual’s condition, given that she is “out” about it on Facebook. Under the EEOC’s ADA guidelines, while generally an employer may not ask an applicant whether she has a disability or will need a reasonable accommodation to perform a job, under circumstances where “[a]n employer might know that an applicant has a disability because it is obvious or she has voluntarily revealed the existence of one . . . and it is reasonable to question whether the disability might pose difficulties for the individual in performing a specific job task, then the employer may ask whether she would need reasonable accommodation to perform that task.” [EEOC ADA Guidelines for Job Applicants].

            In the above scenario, the individual is walking into the interview with the use of a cane, a visible sign of a potential disability. Thus, even without the finger braces in the picture, the interviewer may inquire about the individual’s ability for prolonged walking/standing/ stepping/etc. – if those types of tasks are a regular part of the job(s) in question. This, of course, presents a perfect opportunity for the applicant to address not only how, if at all, any accommodation will be needed for mobility issues, but also to mention the purpose of the ring braces and whether any form of accommodation (beyond the mere wearing of the braces) would be needed for her finger stability issues, without the potential clumsiness of bringing it up preemptively. If, however, the job(s) in question would not reasonably implicate the potential need for a mobility accommodation (e.g. sedentary desk jobs), then the interviewer should not make any reference to the cane, the applicant’s condition requiring the use of a cane or any other comments suggesting that the interviewer regards the individual as having a disability. Under such circumstances, a “head in the sand” approach is the recommended course of action, unless and until the applicant – or subsequently the employee – raises the need for an accommodation.

High School Teacher is Determined to not be Disabled After She Accepts Another Teaching Position

Sharon Walker (“Walker”), a high school business teacher, brought suit against the Pulaski County Special School District (“PCSSD”) claiming that she had been discriminated against and retaliated against because of her disability in violation of the American with Disabilities Act (“ADA”). PCSSD filed a motion for summary judgment, and on May 1, 2017, it was granted by the U.S. District Court for the Eastern District of Arkansas.

Walker originally taught economics and business law courses at the high school, but in 2014 she was assigned to also teach an alternative learning environment (ALE) class. Walker immediately filed a grievance with PCSSD asserting that the ALE assignment would result in a heavy workload.  According to Walker’s Complaint, this workload caused her to suffer severe depression, anxiety, and obsessive-compulsive disorder.  As a result of her condition, Walker took leave in December 2014 and did not return to teaching for the remainder of the 2014-15 school year.

For the 2015-16 school year, PCSSD assigned Walker to teach a “double block” Algebra I class. On June 10, 2015 Walker’s clinical psychologist sent a letter to PCSSD stating that the “double block” Algebra I classes would be too stressful for Walker and recommended that PCSSD accommodate Walker by assigning her to a Business Education class.  In response to this letter, PCSSD offered Walker a position teaching all business courses at a separate high school, which was part of the PCSSD school district, but slated to detach in the following school year.  Walker refused the offer.  She claimed that not knowing for sure that she would have a position for the following school year was too stressful, even though PCSSD only issued one-year employee contracts.  Walker unsuccessfully applied for three other PCSSD teaching positions for the 2015-16 year.

On August 13, 2015, PCSSD sent Walker a letter informing her that if she wasn’t released to return to work on September 3, 2015, or if PCSSD did not hear from her, it would be assumed that she resigned. Walker did not return to PCSSD, instead she accepted employment as a special education teacher with another school district and brought her case against PCSSD.

The threshold inquiry in disability discrimination cases is whether the claimant has a disability within the meaning of the ADA. “Disability” under the ADA is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual…” 42 U.S.C. §12102(2).  Working is considered a major life activity. 29 C.F.R. §1630.2(i).  Consequently, a substantial limitation on the major life activity of working means that an individual must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes.” 29 C.F.R. §1630.2(j)(3)(i).

After reviewing the facts, the Court found that Walker has not shown that she was disabled for purposes of her ADA failure to accommodate and unlawful discharge claims because there was no evidence that she was substantially limited in her ability to work. This determination was based on the fact that Walker had been offered two teaching positions, which she had rejected, and, at the time of the decision, she was gainfully employed as a special education teacher in another school district.  Furthermore, the Court found that there was no evidence that PCSSD failed to offer her a reasonable accommodation because it offered her the business teacher position in the different high school.  PCSSD was not obligated to provide the accommodation requested or preferred by Walker.

When Is Reassignment to an Intermittent Position Required as an ADA Accommodation?

The Americans with Disabilities Act (“ADA”) generally requires employers to provide reasonable accommodation to disabled employees so that they can perform the essential duties of their jobs. This is not news. But what if no feasible accommodation can be identified in an employee’s existing position? Employers are often uncertain about whether they must offer reassignment to an alternative light duty position when there is no present need for the work but the same light duty was offered to others in the past. Last month’s federal appellate decision in Audette v. Town of Plymouth offers reassuring guidance.

Michelle Audette worked for the Town of Plymouth as a police patrol officer. Following an ankle injury in 2010, her doctors imposed significant limitations on her physical movement that prevented her from returning to active patrol duties. Despite her limitations, Audette continues to be employed as a patrol officer. The Police Department has regularly accommodated Audette by allowing her to work light-duty shifts as a station officer, a sedentary job in which she staffs the front desk at the police station. Whenever the doctor’s limitations preclude work as a station officer, Audette is granted paid injury leave.

In 2013, Audette had surgery. While on leave, she learned that another injured officer had been assigned to help catch up on a data reporting backlog for the National Incident-Based Reporting System (“NIBRS”). Audette made a written request that she be given the same assignment as a “reasonable accommodation.” Unbeknownst to Audette, however, the position had closed three days before, and the officer had transferred to station officer duties. The Department thus responded that the only light duty assignment available was as station officer. Audette resumed work as a station officer but later filed suit, alleging that the Town of Plymouth had failed to provide reasonable accommodation by denying her a transfer to a clerical position maintaining NIBRS data. The trial court granted summary judgment for the employer, and the First Circuit Court of Appeals affirmed.

The court explained that to be entitled to a transfer, an employee must show both that she can perform the essential functions of the desired position and that there is an actual vacancy. Audette offered evidence that the NIBRS assignment had been granted at least twice to other injured officers and that the Police Department at times fell considerably behind in logging data. But the appellate court rejected her contention that this created an obligation to grant Audette’s request for reassignment. In the court’s view, an occasional need was not proof of any vacancy that Audette could have filled at the time she made her request. An employer has no obligation to re-open a position that no longer exists.

The case is good news for employers worried about embarking on a slippery slope by offering special light duty assignments that have a limited lifespan. It serves as an important reminder, however, to be consistent and maintain solid documentation of when vacancies close and why. In Audette’s case, the court expressly noted that no other officer has been assigned to the NIBRS duties since 2013. Had the Police Department opened the assignment selectively to some officers but not others, the outcome may well have been different.

Restraining Unruly Children as an Essential Job Element: Expected in Secondary Schools but Not at a Youth Detention Center? A Cautionary Tale in the ADA Reasonable Accommodation Arena

In a recent blog post, I discussed the fact that under the reasonable accommodation provisions of the ADA, employers generally are not required to provide their employees with a stress-free work environment or one that possesses a “just right” amount of stress, which I referred to as a Goldilocks work environment (Read More). But what if the job, albeit not one universally considered to be particularly dangerous (such as a police officer or fireman), nevertheless involves exposure to potentially physically harmful situations? Must the employer provide a reasonable accommodation that eliminates such exposure? Two recent cases, reaching opposite conclusions to this question, address critical distinctions in the analysis: First, who decided that the potentially harmful exposure is an essential element of the job, the employer or the employee? Second, if the employer made that determination, how clearly is that element set forth in the job description or other documentation?

In both cases, the job element in question was the ability to confront, and if necessary physically restrain, children. In Grant v. County of Erie, Case No. 1:12-cv-00651-LGF (W.D.N.Y. 5/18/17), the plaintiff was a Youth Detention Worker (YDW) at the Erie County, New York youth detention center, where juvenile delinquents ages 8 to 18 were housed. As a YDW, the plaintiff was required to transport residents within the facility and to escort residents to off-site locations such as family court appearances. On two occasions in the mid- to late 2000’s, the plaintiff injured her hand while restraining a child. Following the second incident, the plaintiff was placed on workers’ compensation leave and ultimately was discharged after exhausting the maximum leave allowed under County policy. The plaintiff subsequently filed suit alleging, among other things, a claim of failure to accommodate and disability-based discriminatory discharge under the ADA. With respect to these claims, the plaintiff asserted that the County could have allowed her to remain on leave until she was physically released to work without any restriction on her ability to restrain detention center residents and/or could have removed any such resident-restraining duties from her job. The County responded that restraining residents at the youth center unquestionably was an essential function of the YDW job and that allowing the plaintiff to remain on leave for what was at the time an indefinite period was not reasonable.

Meanwhile, in Brown v. Milwaukee Board of School Directors, 2017 U.S. App. Lexis 7958 (7th Cir. May 4, 2017), the plaintiff was an assistant vice principal in the Milwaukee public school system who badly injured a knee while restraining a student.  After the plaintiff underwent knee replacement surgery, her treating physician stated that the plaintiff “should not be in the vicinity of potentially unruly students” and added that this restriction was permanent, or would last for at least a few years. The plaintiff remained on leave for several years while attempting to locate a job within her restriction but all except one such available position placed her in proximity to “potentially unruly” students (as all students are, the Court of Appeals noted) and the remaining position would have been a promotion, something not required by the ADA. Eventually, the plaintiff’s leave expired and she was discharged. She brought suit against the school system, alleging that they failed to reasonably accommodate her by placing her in one of the available positions that she identified while on leave.

Now, one might assume – and Erie County certainly agrees – that working directly with the residents of a juvenile detention center necessarily and routinely involves physical confrontations between the residents, or between a resident and staff members, that require restraining the resident(s). On the other hand, one might also assume that while physical restraint of secondary schoolchildren happens on occasion, it is not an essential duty of the administrative staff at a school. Nevertheless (and notwithstanding the author’s personal recollection of what appeared to be the primary duty of the assistant vice principal at his high school), the opposite conclusion was reached in these cases. Why?

In Grant, the employer contended that an essential element of the YDW job involved physical restraint of the children, yet its own job description made no mention of this responsibility. Moreover, the plaintiff presented evidence that YDWs were required to obtain assistance in all cases when restraint of a resident was necessary and such assistance typically arrived within a matter of seconds, thereby alleviating her of any individual restraint responsibility. Furthermore, she asserted, she had never been attacked by a resident, having been injured on both occasions when assisting other YDWs with take-downs. Perhaps most telling, the County had reasonably accommodated another YDW for one- to two-month periods by assigning her light duty that did not require restraint of residents. As a result, the trial court denied the employer’s summary judgment motion on this claims. On the other hand, in Brown the plaintiff and her treating physician, not the employer, repeatedly insisted that she was incapable of performing her job due to the inability to be near “potentially unruly” children; the school system merely abided by her contention when it rejected every proposed accommodation as not satisfying the plaintiff’s work restriction. Thus, the Court of Appeals upheld the district court’s grant of summary judgment to the employer.

These cases exemplify important points when undertaking an ADA reasonable accommodation analysis. First, if an employee insists that he or she cannot perform an essential function of his or her job due to a work restriction he or she has put forth, the employer should consider whether it can accommodate that restriction, even if it may not necessarily agree that the job function at issue is essential. In doing so, the employer eliminates any subsequent argument that it refused a proposed accommodation on the grounds that the job duty was non-essential, should a court conclude otherwise (or at least conclude that a question of fact exists as to the essentiality of the duty). On the other hand, if the employer asserts that a particular job function is essential, it should ensure that the function is clearly delineated as such, preferably in a thorough job description. As in all cases where a reasonable accommodation request is at issue, employers are encouraged to thoroughly examine and respond to the request, preferably with the guidance of human resources professionals and/or legal counsel.

Is Crying at Work Sufficient Notice of an FMLA Covered Condition?

It is well established that an employee need not specifically request leave under the Family and Medical Leave Act (“FMLA”) in order to benefit from the Act’s protections.  Rather, the law requires the employer to take action to notify an employee of FMLA rights when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason or that the employee may need such leave.  The difficulty facing employers is when to initiate the FMLA process based on observations of the employee’s condition or behavior.  In a recent decision out of the Northern District of Illinois, the Court held that an employee sufficiently stated a claim for interference under the FMLA because the employer was on notice of a serious health condition when she became “extremely distraught and began crying regularly and uncontrollably at work.”

In Valdivia v. Township High School District 214, a secretary claimed her coworkers made derogatory remarks about Hispanic students and their families.  She allegedly complained but nothing was done.  After expressing concern over whether she could continue working while in frequent distress, she was allegedly told that she needed to decide whether she wanted to continue working or resign.  The employee reportedly also told the principal that she was overwhelmed, not sleeping, not eating, and losing weight but she was again given the option of working or resigning.  Ultimately the employee resigned for medical reasons.

In addition to claiming a hostile work environment, the employee claimed that the school interfered with her FMLA rights by failing to provide her notice that she had the right to take job protected leave.  The Court noted that the FMLA notice requirement for employees is “not demanding.”  In fact, it may be possible that the employee is not even aware he/she is suffering from a serious health condition.  In these cases, “clear abnormalities in in the employee’s behavior may constitute constructive notice of a serious health condition.”  The school argued that it was not reasonable to be held accountable for knowledge of the employee’s health condition when she was not even aware of it.  The employee was diagnosed with depression after her termination.  The Court dismissed that argument and noted that uncharacteristic or unusual conduct at work may itself provide adequate notice of a serious health condition.

Employers often struggle with how to address situations involving changes in an employee’s condition or conduct.  Failure to address the situation as one that is potentially covered by the FMLA or even the ADA could result in a violation of the employee’s rights under those laws.  On the other hand, treating an employee as if they have a serious health condition could result in a claim that the employee was improperly regarded as disabled or, in the event of a later adverse employment action, retaliated against for having the health condition.  As demonstrated by this decision, Courts and the Department of Labor tend to give employees the benefit of the doubt with respect to notice of an FMLA condition and employers must be cautious about failing to react in these situations.

What Am I Doing Wrong?? Common FMLA Mistakes.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly seeking FMLA recertification when there is a change in circumstances. 

Generally, an employer may request recertification if an employee requests an extension of FMLA leave, if circumstances described by 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. An employer should notify the employee of the need for recertification, and ask the employee to provide the supporting certification within 15 calendar days. Failing to properly request a recertification when a change in circumstances occurs can result in a claim of FLMA interference.

In Hansen v. Fincantieri Marine Group, LLC, Case No. 13-3391 (7th Cir. Aug 18, 2014), an employee’s doctor estimated the frequency and duration of the employee’s medical flare-ups to be 4 episodes every 6 months, each lasting between 2 and 5 days. When the employee exceeded this estimate, the employer sent the recertification request directly to the doctor without informing the employee of the need for recertification. The recertification completed by the healthcare provider contained what the employer believed to be “errors” and the employer refused to accept the recertification. The employer then counted all absences that exceeded the original estimate against the attendance policy, which resulted in the employee’s termination.

The court took issue with the fact that the employer never gave the employee notice of the need for recertification, and instead sent the certification directly to the doctor. Because the employer did not properly seek recertification, the court considered the employer to have not sought recertification at all. The court found in favor of the employee, stating that an employer needs to seek proper recertification when an employee’s circumstances change; it is not entitled to simply add up what it sees as additional absences, count them under its attendance policy, and terminate the employee.

In Smith v. City of Niles, Case No. 11-2394 (6th Cir. 2012), an employee alleged that the employer engaged in “certification harassment” – repeated requests for certifications that interfered with the employee’s FMLA rights. The employee’s original certification estimated that he would need FMLA leave 1 day every 3 months, but in a 5 month time period, he took 6 days. The employer requested recertification just shy of 6 months from the initial leave. The employer again requested recertification 4 months later, when the employee voiced limitations that were not addressed in his prior certification. The employee took issue with the fact that these multiple requests came within six months of each other. The employer argued that the proximal recertification requests were proper because the employee’s circumstances had changed. The court found that the employer’s recertification requests fell squarely within the rule on changed circumstances, in favor of the employer.

Without careful attention to specific reasons for recertification and the proper process to request recertification, an employer can run afoul of the FMLA. An employer should carefully analyze each request for recertification to be sure it falls within the permissible reasons to request FMLA recertification, and follow the proper process to request recertification.



Businesses Face Conflicting State and Federal Accessibility Requirements


Many states and localities have their own distinct accessibility laws and regulations for businesses. Often these are not analogous to the ADA.  For instance, businesses operating in New York must use the disability access symbol designated by the state, but the U.S. Access Board (which sets standards of accessibility for federal agencies and drafts the ADA Accessibility Guidelines that the Department of Justice (DOJ) incorporated into its ADA Title III regulations) recently issued guidance that makes it more difficult to argue the state Accessibility Icon is an “equivalent facilitation” under the ADA.

Under New York law, usage of the “Accessible Icon” (an attempt to portray a more dynamic, active and positive figure) is mandated in new construction and alterations installed or replaced after November 22, 2014, where accessibility is required by law, not the more traditional, static figure displayed in the International Symbol of Access (ISA) in use for almost 50 years. Similar legislation recently passed in Connecticut.  On the other hand, Title III of the ADA and the Architectural Barriers Act (ABA) (which applies to public accommodations facilities and federally-funded facilities), as well as other state and local laws, still mandate usage of the ISA for accessible entrances, parking spaces, and bathrooms, among other things.  The conundrum for businesses subject to these conflicting laws: Display the ISA as the ADA requires?  Display the Accessible Icon, as some state or local laws require?  Display both?  This last option, of course, is the safest course.  However, downsides include possible increased costs, confusion, and perhaps unwanted aesthetics.

One possible solution: the New York business could display the Accessible Icon as required by state law, then rely on the “equivalent facilitation” language in Section 103 of the 2010 ADA Standards for Accessible Design. This provision authorizes “the use of designs, products, or technologies as alternatives to those prescribed, provided that they result in substantially equivalent or greater accessibility and usability.”  If the Accessible Icon were deemed such an equivalent facilitation, its use instead of the ISA would be permissible.  To date, no court or agency has ruled on this issue.

While the DOJ — the federal agency responsible for enforcing Title III of the ADA — has not issued any formal guidance, in April, the U.S. Access Board issued its own guidance (stating “the ISA must be used even where a state or local code or regulation specifies a different symbol.”  (Emphasis added.)  The Access Board also stated that the ISA has become a worldwide symbol “reflect[ing] considerable analysis by, and consensus of, an international collection of technical experts.”  The guidance further suggests that the ISA “promotes legibility, especially for people with low vision or cognitive disabilities.”  These were some of the Access Board’s rationales justifying its conclusion that businesses display the ISA where required by federal standards, even contradictory state or local requirements exist.  Like the ADA Standards for Accessible Design, the Architectural Barriers Act and the U.S. of Transportation’s ADA Standards, among others, also mandate use of the ISA.

Even though the Access Board does not address directly whether the Accessible Icon is an “equivalent facilitation” and defers to the courts, it is nonetheless problematic for businesses. In a lawsuit filed under the ADA against a business that elected to display the Accessible Icon, a court might defer to the Access Board’s guidance given the agency’s expertise in this area. Moreover, the burden is on the business to prove the Accessible Icon provides equivalent facilitation.

Clarification from the courts or DOJ would be welcomed. Meanwhile, businesses should seek appropriate guidance on navigating through this quagmire and perhaps even seek a waiver from local authorities of the Accessible Icon obligation where appropriate.