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DOL guidance may increase FMLA requests for care of adult children

BY Allen Smith

As a result of a U.S. Department of Labor administrator’s interpretation (No. 2013-1) of the Family and Medical Leave Act (FMLA) on Jan. 14, employers can expect more requests from employees seeking protection under the act to care for adult children unable to care for themselves. As employees become more familiar with this right, expanded by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), employers still should remember what isn’t a disability, such as a pregnancy without complications.

FMLA leave is available to care for a son or daughter with a serious health condition who is under 18 or at least 18 and incapable of self-care because of a disability. The administrator’s letter explains the four-part test for determining if an eligible employee of a covered employer may take FMLA leave to care for an adult child with a disability.

ADAAA Disability

First, the adult child must have an ADA disability as defined by the ADAAA, the Labor Department noted.

“The ADAAA made a number of significant changes that broadened the scope of this definition under the ADA,” the administrator’s interpretation states.

For example, an impairment that is episodic or in remission is a disability if, when active, the impairment would substantially limit a major life activity. “Thus, cancer in remission or a condition with episodic periods of illness, such as multiple sclerosis, asthma, epilepsy, diabetes, lupus or post-traumatic stress disorder, would still be considered a disability even when the symptoms of the condition are not currently manifesting,” the department said. “There is also no minimum duration required for an impairment to be a disability. … The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of the ADA.”

In addition, the Equal Employment Opportunity Commission (EEOC) has interpreted the ADAAA broadly. The Labor Department noted that under EEOC guidance, “Some impairments will virtually always qualify as disabilities because, by their very nature, they substantially limit at least one major life activity.” Impairments that “should easily be concluded” to be ADA disabilities include deafness, blindness, intellectual disability, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, human immunodeficiency virus infection, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.

But the definition of ADA disability wasn’t turned completely upside down by the ADAAA. Pregnancy still isn’t a disability, so parents of adults who are pregnant generally don’t have a right to FMLA leave to care for them.

There are exceptions even to this rule, though. Complications from pregnancy may be covered disabilities. As the administrator’s interpretation points out, “While pregnancy itself is not a disability under the ADA, pregnancy-related impairments, such as gestational diabetes, may be disabilities within the meaning of the ADA if they substantially limit a major life activity.”

Incapable of self-care

Second, for an employee to qualify for FMLA leave to care for an adult child with a disability, the adult child must be incapable of self-care because of his or her disability, the Labor Department stated.

FMLA regulations define “incapable of self-care” as meaning the son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living,’ ” it added.

The department explained that activities of daily living include caring for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using a post office. These lists are illustrative, not exhaustive.

Serious health condition

Third, the adult child must have a serious health condition under the FMLA. This is the easiest of the four prongs to meet, since, as the Labor Department stated, “For practical purposes, many impairments will satisfy both the ADAAA’s expanded definition of ‘disability’ and the definition of ‘serious health condition,’ even though the statutory tests are different.”

Despite the ADA’s expanded definition of “disability” under the ADAAA and the FMLA’s use of the word “serious,” it is easier to meet the FMLA’s threshold for a condition to be a covered “serious health condition” than it is to show an ADA disability.

As the department noted in frequently asked questions on FMLA leave to care for an adult child: “The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The FMLA regulations provide objective tests to determine whether a particular condition is a serious health condition under the FMLA. Common serious health conditions include conditions requiring an overnight stay in a hospital or other medical care facility; conditions that cause the employee or the employee’s spouse, son or daughter, or parent to be incapacitated for more than three consecutive calendar days and that require ongoing medical treatments (e.g., two in-person visits to a health care provider, or one visit with follow-up care such as prescription medication); chronic conditions that cause occasional periods of incapacity and that require treatment by a health care provider at least twice a year; and incapacity due to pregnancy.”

Incapacity due to pregnancy, for example, is not covered by the ADA but is covered by the FMLA.

Needed to care

Finally, the parent must be needed to care for the adult son or daughter because of the serious health condition. The parent may be needed if the adult child cannot care for his or her own basic medical, hygienic or nutritional needs or safety, or is unable to transport himself or herself to the doctor. Labor noted that “needed to care” also includes “psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.”

Clarifications

To clear up confusion among employers, the Labor Department emphasized in the administrator’s interpretation that “An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced.”

It also stated that parents of adult children who have been wounded in military service may take FMLA leave beyond that provided under the law’s special military-caregiver leave provision. That provision allows a parent (in addition to a spouse, son, daughter or next of kin) of a covered service member who sustained a serious injury or illness to take up to 26 workweeks of FMLA leave in a single 12-month period for each injury or illness.

The administrator’s interpretation does not apply to an employee’s entitlement to take FMLA military family leave for a son or daughter (in addition to a spouse or parent) for qualifying exigencies arising out of his or her active duty. “Unlike the FMLA’s general definition of ‘son or daughter,’ the definitions applicable to the FMLA’s military family leave provisions are not restricted by age,” the department explained.

The administrator’s interpretation concluded, “The ADAAA’s expanded definition of the term ‘disability’ will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities provided that such adult children are incapable of self-care due to their disability and their parents are needed to care for them due to their serious health condition.”

Allen Smith, J.D., is manager, workplace law content, for SHRM.

©2013 SHRM. All rights reserved.

Have HR-related questions and concerns? Get access to essential forms, policies and guides, plus a live call center, at ToolkitHR.com, powered by HCN and the Society for Human Resource Management (SHRM).

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Severe flu season raises questions for HR

BY Bill Leonard

The 2012-13 flu season has hit early and hard. The severity of the flu outbreak has left many employers pondering if their organizations’ health and attendance policies are helping or hampering their efforts to keep the flu from spreading.

“Just listening to the HR executives that I work with on a daily basis, there seems to be a lot of confusion [as to] how to handle the flu outbreak right now,” said John A. Challenger, chief executive officer of Chicago-based outplacement firm Challenger Gray and Christmas. “Many of the incentives and policies that businesses have to encourage and reward good attendance can be counterproductive when you have a severe flu outbreak like this year.”

Some employers have implemented policies that reward employees for a number of days without an absence or offer employees banks of paid leave that don’t differentiate between sick, vacation or personal days.

“Having a bank of paid leave probably makes good sense when an employer creates the policy and can certainly cut costs,” Challenger said. “But some people have told me that they come to work sick because they want to save their time off for vacation or for long weekends. So my advice to HR people is to examine your company’s attendance policy and determine if it encourages or discourages employees from taking time off when they are sick. I believe this year’s flu season is making more employers think about these policies more carefully.”

Early start to flu season

The season began nearly a month earlier than usual when dozens of flu cases in several states were reported in late November and early December 2012. The number of reported cases during the last five weeks of 2012 was more in line with the number seen during the peak of typical flu season, which normally runs from mid-January until mid-February or early March, according to officials with the Centers for Disease Control (CDC) in Atlanta.

In addition, the influenza outbreak appears to be one of the most severe in the past 10 years. The CDC reported on Jan. 11, 2012, that 24 states and New York City have a high level of flu-like illnesses. In addition, the CDC reported that 47 states were experiencing widespread influenza activity. The state of New York and the city of Boston have declared medical states of emergency to deal with the outbreak.

“The bottom line — it’s flu season. Most of the country is seeing or has seen a lot of flu and this may continue for a number of weeks,” said Dr. Tom Frieden, director of the CDC, during a recent media briefing. “During the past decades, we have seen an average of about 12 consecutive weeks, or three months of influenza cases being elevated. As we often say, the only thing predictable about flu is that it’s unpredictable.”

As with any flu season, people who should stay home sick will instead head for work. Strong work ethics and traditions of working under any condition may be the reasons some people choose to go to work sick, but there are many others who simply can’t afford a day without pay. According to the U.S. Bureau of Labor Statistics (BLS), nearly 41.7 million workers — approximately one-third of the U.S. work force — do not have paid sick leave.

While the BLS data show that nearly 80% of full-time employees do have paid sick leave, only 25% of part-time workers are offered paid sick days. Self-employed workers and most contract workers do not have paid-leave benefits.

For employers scrambling to keep their workplaces healthy, the CDC provides a guideline for preventing the flu on its website. Items 1 and 2 on the CDC list are “avoid close contact” and “stay at home when you are sick.” Both those suggestions are hard to avoid if someone feels that he or she needs to be at work.

“It’s part of the economic situation right now, because many people may think their job is on the line if they miss a day of work,” said Challenger. “I think employers need to address these fears and communicate the importance that people stay home if they’re sick.”

Lost productivity

The impact of a severe flu season on the economy can be costly. A study released in 2012 by Walgreens found that 100 million workdays and approximately $7 billion in wages were lost during the 2010-2011 flu season. Students throughout the country lost 32 million school days, the study found. Another report by the CDC estimates that a typical flu season costs U.S. employers $10.4 billion in hospitalization and outpatient costs. These estimated costs don’t take into account losses in productivity that occur when employees report to work sick and spread the illness to co-workers.

“You can expect the numbers in lost work days and wages to be possibly more elevated this year because the flu season started earlier and seems to be more intense than previous years,” said Jim Cohn, a spokesperson for Walgreens. “What we are seeing is a significant number of flu cases at Walgreens’ in-store clinics and at the employer-based health clinics.”

Walgreens has partnered with 370 employers throughout the U.S. to operate worksite health clinics. Cohn says the activity related to the flu or flu-like symptoms at these clinics is higher than it was during the past three or four years.

“Every flu season is different and unpredictable, but this year we’re seeing some elevated numbers, and demand for flu vaccine is much higher than previous years,” Cohn said. “We’ve experienced some spot shortages, but our pharmacies have been able to adjust quickly and get the vaccine to where it’s needed.”

Paying for or subsidizing the cost of flu shots is of the best benefits employers can provide during flu season, according to sources for this article. At a minimum, employers should encourage their employees to get a flu shot and possibly provide time off so workers can visit a doctor’s office or local clinic to get the vaccine.

Help workers stay home if sick

Employers should actively encourage their employees to take time off if they are sick. For many jobs, telecommuting is now a viable option, so any employer that doesn’t have a telecommuting policy in place is behind the time, according to Challenger. Businesses that use a lot of temporary and contract workers should also consider what attendance policies are in place for these employees because they could easily spread the flu if they feel compelled to come to work.

Unfortunately, many of the jobs that don’t provide paid time off tend to be in the retail or food service sectors, which means employees who come to work sick are exposing customers to illness.

“Businesses can get hit hard because not only do employees get sick, but their customers do, too,” Challenger said. “And do businesses really want to run the risk of losing customers that way?”

Attitudes about missing work due to illness are starting to shift some, sources say. Many employers are beginning to ask the right questions about how they can support employees when they are sick or have a sick child, Challenger says. In addition, employers have begun providing items like hand sanitizer, latex gloves and in some cases surgical masks to employees who ask for them.

“Right now, what’s happening is definitely reactive to the current situation, but employers are responding to employee demands to feel more secure and healthy at work,” Challenger said. “But I think we are really on the edge of sea change, and employers are definitely moving toward creating an atmosphere and culture that encourages employees to take time off work if they are sick, and that’s a good thing.”

Bill Leonard is senior writer for SHRM.

©2013 SHRM. All rights reserved.

Have HR-related questions and concerns? Get access to essential forms, policies and guides, plus a live call center, at ToolkitHR.com, powered by HCN and the Society for Human Resource Management (SHRM).

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New-home sales slip 7.3%

BY Ken Clark

Sales of new single-family homes in December slipped 7.3% to a seasonally adjusted annual rate of 369,000, according to data released Friday morning by the U.S. Census Bureau and the Department of Housing and Urban Development. 

The month-to-month decline follows by one week a buoyant report that showed a double-digit percent increase in residential construction. Compared with a year ago, new home sales increased 8.8%. 

The median sales price of new houses sold in December 2012 was $248,900, up from $245,600 in November. The average sales price was $304,000, up from $289,900 in November. 

The seasonally adjusted estimate of new houses for sale at the end of December was 151,000. This represents a supply of 4.9 months at the current sales rate.

An estimated 367,000 new homes were sold in 2012. This is 19.9% above the 2011 figure of 306,000. 

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