When the federal government asked 3,200 soldiers in the 56th Brigade Combat Team of the Texas National Guard to do security force missions throughout Iraq, families across the state had their lives upended, many for their second or third time. After receiving their orders, the National Guard brigade spent time training in Georgia then headed to the Mideast in November, just in time for Thanksgiving.

Before and after they left, family members of those officers had to adjust their lives from a two-parent household to a single-parent household. They had to take care of financial and legal issues that arose while their loved ones were away. But family members didn’t have a lot of options available to them to help them handle life alone.

Last year, Congress decided family members of those in the National Guard and Reserves probably did need more help to cope with the sudden and unplanned departures of their sons, daughters, spouses and parents. So lawmakers amended the Family Medical Leave Act to entitle those family members to up to a total of 12 weeks of job-protected leave. Family members of Reservists and Guardsmen can now request FMLA leave for any listed “qualified exigency,” as well as “any other additional event that may arise out of the covered military member’s active duty or call to active duty status provided the county agrees the leave shall qualify as an exigency and agree to both the timing and duration of such a leave,” according to a new FMLA policy drafted by the Texas Association of Counties in order to help members interpret and implement the changes.

“What this legislation does is allow family members of our brave men and women serving in the Guard and Reserve to use Family and Medical Leave Act time to see off, to see the deployment, or to see the members return when they come back, and to use that, importantly, to deal with economic issues and get the household economics in order,” said U.S. Rep. Jason Altmire [D-Penn] while testifying on the House Floor. Congress chose not to extend the benefit to Regular Armed Forces family members, since active duty and service abroad is part of their terms and conditions of employment.

The change was one of several made to the Family Medical Leave Act (FMLA) last year, when the U.S. Department of Labor was asked to review the act for clarity and function and Congress amended it to strengthen benefits for military families. As a result, county human resource directors are saying it’s time to re-train employees, department heads and elected officials on the law.

Generally speaking, the FMLA gives certain employees the ability to take up to a total of 12 weeks of unpaid leave from their jobs for three reasons: to recover from a serious health condition that affects the employee’s ability to perform his or her job; to care for a son, daughter, spouse or parent with a serious health condition; or to care for a new son or daughter, whether they are newborns, newly adopted or foster children. If employees qualify for FMLA leave and their requests fall under FMLA guidelines, employers must grant time off to those employees, and protect their jobs during their absence or until the employee has used up all 12 weeks of leave within a rolling 12-month period. Small employers are exempt.

In addition to allowing spouses, sons, daughters or parents of those in the National Guard and Reserves to use FMLA leave for military-related reasons, Congress also extended the amount of FMLA leave available to Armed Forces family members — from 12 weeks to 26 weeks — to be used to help care for any service member who is wounded or becomes ill in the line of duty. While all other FMLA protection extends only to the spouse, son, daughter or parent of a person with a serious medical condition, the military caregiver’s benefit extends to family members considered “next of kin,” such as a sibling. The unpaid leave can be used intermittently to care for military members suffering from a service-related mental or physical injury or ailment, such as a shattered limb, Post-Traumatic Stress Disorder and illnesses caused by biological or chemical warfare.

Grazioli, the Comal County HR director and a past president of the Texas Association of County HR Professionals, said the new military-related regulations could pose staffing challenges for some counties, especially in areas with high National Guard or Reserves recruitment levels. But counties are accustomed to accommodating employees who request FMLA leave for other reasons, and have had to make long-term accommodations for leave related to the Uniformed Services Employment and Reemployment Rights Act (USERRA) since 1994.

“This is something that we need to embrace,” Grazioli said, adding that military families need all the support they can get from their employers, especially if a loved one in the National Guard or Reserves has been suddenly called upon to serve their country in a war zone. “Some employees have a mindset where they feel they get too much (time off) already, but in this case, they never had enough. Especially when you are preparing for one of your loved ones to go to a war zone, and I hate to talk like this, but you may not see them come back again.”

Other changes to the FMLA focused on helping employers curb FMLA misuse or abuse, which was cited as a main concern of human resources professionals during the period of time the Department of Labor (DOL) spent reviewing the FMLA last year. Among other issues, employers and HR professionals had complained that employees abused the FMLA by giving inadequate notices for work absences — such as just not showing up for work. As a result, the FMLA now stipulates that employees must follow the employer’s customary call-in procedures for reporting an absence.

In addition, employers can now require employees to use all accrued paid time off — including compensatory time given in lieu of overtime pay — concurrently with their 12 weeks of FMLA leave. That means that if an employee requests a three-week leave, it is the county’s choice whether the employee must all their vacation days, sick days, comp time, or personal days first — in which case the employee would still have nine weeks of unpaid FMLA leave available for future use during that rolling 12-month period. However, the Department of Labor also clarified that an employee who is performing “light duty” work assignments is not using FMLA leave, and that time spent performing light duty tasks cannot count against an employee’s 12-week FMLA leave entitlement.

The new FMLA regulations also give employers more time to respond to employees who request FMLA leave. Employers must now respond to FMLA requests within five business days, instead of two. The Department of Labor provides a form, the WH-381, which employers can use to ensure that they obtain all the necessary information from an employee and are properly informing employees of their rights and responsibilities under FMLA. The form gives employees notice of whether they are eligible for FMLA leave, whether they are required to furnish medical certification of a health condition to obtain leave, and if the employer will require they use any paid time off concurrently with their FMLA leave. There is also a follow-up form, the WH-382, which gives the employer’s final decision regarding an employee’s request for FMLA leave.

The Department of Labor also updated its optional medical certification forms (labeled WH-380-E and WH-380-F), which help employers determine if an employee or a covered family member has a health condition that would qualify the employee for FMLA leave. For the first time, the FMLA gives employers the right to follow-up with the information provided on the certification forms, by contacting the person’s health care provider, said Diana Cecil, a human resources specialist with the Texas Association of Counties, adding that the ability to follow-up with doctors should help curb incidents of FMLA leave abuse or misuse. The Department of Labor also created certification forms for military FMLA leave requests, to use for qualifying exigencies (the WH-384 form) and caregiving (WH-385).

While the certification forms are optional, counties should have set policies in place regarding their usage, Cecil said. TAC’s updated FMLA policy is available for interested counties and helps further explain which events qualify as a military exigency, as well as how much FMLA leave can be taken per each exigency.

“You need to be consistent on how you do things and not pick and choose,” Cecil said.

The FMLA changes became effective Jan. 16. Counties with specific questions on the FMLA changes can contact TAC’s human resource specialists at (800) 456-5974.

Family Medical Leave Act Revisions:

• Allows next-of-kin family members up to 26 weeks of unpaid leave in a single 12-month period to care for covered service members who are wounded or become ill in the line of duty
• Allows qualified family members of those in the National Guard and Reserves who are called to active duty up to 12 weeks of unpaid leave for “qualified exigencies” related to the service member’s military activities
• Creates new forms and requirements regarding FMLA rights and responsibility notification
• Substantially improves the medical certification process

Employees also gained back significant protections via the Americans with Disabilities Act Amendments Act (ADAAA), which Congress passed last year after several courts gave rulings that lawmakers believed went against the original intent of the Americans with Disabilities Act. The amendments “disavow U.S. Supreme Court decisions that define covered disabilities more narrowly than Congress had intended when first passing the ADA in 1990,” according to the Disability Policy Consortium. The changes took effect Jan. 1; they did not affect ADA design and construction standards.

One change prohibits the consideration of “mitigating measures” — such as whether a person wears prosthesis or is on medication — in determining whether an individual has a disability. Previously, the Supreme Court had ruled that a person with an impairment who is able to take corrective measures is not protected by the ADA if the corrective measures keep the impairment from substantially limiting a major life activity. The ruling affected people with a variety of conditions, including epilepsy and diabetes, and kept them from gaining protected status. Under the new law, mitigating factors (except for eyeglasses and contact lenses) would have no bearing on a person’s protected status. Other examples of mitigating factors include assistive devices and auxiliary aids, according to the new law.

Another change widens those who are protected under the ADA to include persons who have episodic impairments, or whose impairments are in remission. The amendments also protect employees who are regarded by their employers as having a mental or physical impairment, whether or not that impairment limits a major life activity. However, persons with minor or transitory impairments — lasting six months or less — are not protected by the ADA.

Congress also amended several terms related to the definition of disability (“a mental or physical impairment that substantially limits one or more major life activities”):

• “Major life activities” now includes a non-exhaustive list of activities that were not previously recognized by the U.S. Equal Employment Opportunity Commission, including caring for oneself, performing manual tasks, reading, bending, communicating, concentrating, learning and thinking. The amendments also included a list of major bodily functions such as “functions of the immune system, normal cell growth, digestive bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions,” according to a notice published by the EEOC.
• Congress also expressively lowered the standard behind “substantially limits,” stating that previous court decisions had created an “inappropriately high level of limitation necessary to obtain coverage under the ADA.”
• Finally, Congress changed language within the ADA to prohibit discrimination on the “basis of disability” in the hopes of directing courts to focus less on the individual’s impairment and more on how the employer responded to the impairment. “It is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis,” states the amended act.

The two specific court cases addressed by the amendments dealt with hiring discrimination and reasonable accommodation request.

In Sutton v. United Airlines, two sisters with poor but correctable vision who applied to become commercial airline pilots sued United Airlines after the company rejected them on the basis of their vision. Courts held that the job applicants were not protected by the ADA because their vision was correctable, and that United Airlines had not regarded the applicants as disabled. While Congress determined that having ordinary eye glasses or contact lenses should not give someone ADA protection, lawmakers felt that companion cases to Sutton “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.”

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, an automotive assembly line worker sued her employer for not providing her with reasonable accommodations after she developed carpal tunnel syndrome. The woman said she was unable to grip tools or keep her arms extended above her shoulders for extended periods of time, though she was still able to care for herself and perform household chores. Lower courts disagreed on whether the woman’s carpal tunnel syndrome severely limited any major life activities, and on whether there was record of a limitation. Eventually, the Supreme Court ruled that the tasks the woman could not perform were not “of central importance to most people’s daily lives” and that she was not disabled under the ADA. Lawmakers responded by stating that the Supreme Court “interpreted the term ‘substantially limits’ to require a greater degree of limitation than was intended by Congress.”

While the changes help employees by re-stretching the scope of the ADA, that also means counties may be responding to more accommodation requests, said Cecil, with TAC. She added that counties should review their job descriptions, job qualification standards and reasonable accommodation procedures in order to avoid lawsuits.

“Since more applicants and employees may be covered by the ADA, counties will have to shift their focus to the reasonable accommodation — more specifically, on whether an individual is qualified to perform the essential job functions, with or without a reasonable accommodation — and not on how serious or limiting their mental or physical disability is,” Cecil said.

She added that it’s important to recognize that many things have not changed. The elements to establish an ADA claim — such as the availability of a reasonable accommodation and the presence of an undo hardship on the employee — remain the same. For a failure to accommodate charge, the employee must show that the employer had notice of the disability and notice of the potential need for accommodation. The employee must also show that they could have performed the essential functions of the position with a reasonable accommodation. For a discrimination claim, applicants or employees still must show that they are qualified to perform the essential functions of the position, with or without reasonable accommodation. They must also show they suffered an adverse employment action because of the disability and that there is a casual connection between the disability and the employment action, such as employer’s knowledge of the condition.

Grazioli, in Comal County, said his county doesn’t receive many requests for accommodations, but focuses its effort on having a “good faith negotiation” with employees whenever a request does arise. While he doesn’t believe the county will have to change any ADA-related policies due to the amendments — he said the county will continue to ask employees’ health care providers for information after receiving ADA accommodation requests, so that nobody gains undo or erroneous protections —he expects the changes to spur a greater number of requests. He said the county will look for reasonable accommodations as best it can. “If there is a Cadillac version — and an employee would probably want the Cadillac version — and a Yugo version, the employer can use the Yugo version.”

The “bottom line,” according to a legal brief published by Texas Business Today, is that “human resources departments, managers and supervisors will have to be vigilant in ensuring that all documents and language in employee files pertain only to work performance, so that they do not become the basis for disability lawsuits.”

More information on the ADA can be found online at www.ada.gov, or via the U.S. Equal Employment Opportunity Commission, online at www.eeoc.gov/ada.

Americans with Disabilities Act Amendments Act of 2008:

• Prohibits the consideration of mitigating factors, except for eyeglasses, when determining whether an individual has a disability
• Expands ADA protection to individuals with episodic impairments, or whose impairments are in remission
• Lowers the standard for how a disability limits a person’s “major life activities” and broadens the scope of major life activities to include reading, communicating and concentrating
• More fully explains the Congressional intent behind the original Americans with Disabilities Act