FMLA, ADA and Other Laws you Need to Know

This article is the first in a two-part series on common federal regulations and best practices for compliance.

Many federal regulations, such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and others, aren’t one-size-fits-all.

In many cases, organizations are subject to certain regulations once they pass certain thresholds, such as the number of employees.

Some states also have regulations with different thresholds from their federal counterparts, and which regulations take precedence varies.

Here are the critical things to know.

Americans with Disabilities Act (ADA)

The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations.

The law requires an employer to provide reasonable accommodations to employees and job applicants with a disability, unless doing so would cause significant difficulty or expense for the employer. A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability:

• Apply for a job
• Perform the duties of a job
• Enjoy the benefits and privileges of employment

Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.

Employers don’t have to provide an accommodation if it would create an undue hardship. The law defines an undue hardship as an accommodation that is too difficult or too expensive, based on the size or financial resources of the employer. Carefully consider whether an accommodation is truly an undue hardship or a mere inconvenience; you should lean in and try to come up with a solution where possible.

ADA-Related State Laws

Many states also have related laws that cover smaller employers. For example, the Pennsylvania Human Relations Act (PHRA) applies to most private employers with only four workers, and the District of Columbia Human Rights Act covers most employers with just one worker. The New Jersey Law Against Discrimination (LAD) covers all public and private employers regardless of size. If an employer is covered by a state law and by the ADA, that employer must comply with each provision of all the applicable laws.

For instance, say a state law allows a public accommodation to charge a person with a disability for bringing a service animal. Or that same facility might charge for the sign language interpreter needed for someone hearing impaired. That portion of the state law is overridden by the federal law and would not be enforceable.

However, if a state law provides nondiscrimination requirements or remedies that are similar or additional to the ADA requirements, a person with a disability may use the state law in addition to the ADA.

Watch for This ADA Violation

Often, organizations forget that the ADA requires employers to provide reasonable accommodation to applicants during the application process to ensure equal access to available positions. Employers should tell applicants how to request a reasonable accommodation to apply or interview for a role.

Title VII (Civil Rights Act)

A provision of the Civil Rights Act of 1964, Title VII applies to employers with 15 or more employees.

The provision introduced the concept of protected classes with regard to employment practices, such as those that have an adverse impact on women, people of color, or older employees.

Title VII established the basis for two types of unlawful practices: disparate impact and disparate treatment. It also created the Equal Employment Opportunity Commission (EEOC) to investigate Title VII complaints.

In action, Title VII requires that all employees or applicants for employment be treated equally with respect to the bases protected by the statute. Practically speaking, this means that promotions, transfers, assignments, and other job-related benefits and conditions of employment should be based on merit. When interviewing a candidate for employment, for example, hiring managers should not consider a “foreign-sounding” last name or whether a female employee might be recently married or thinking about having children.

Title VII-Related State Laws

Some states and cities extend the federal laws with additional protected categories and other restrictions.

As noted in the section above, New Jersey’s LAD applies to all employers (except federal employers), regardless of size.

The LAD prohibits unlawful employment discrimination based on an individual’s:

• Affectional or sexual orientation
• Age
• Ancestry
• Atypical hereditary cellular or blood trait
• Color
• Creed
• Familial status
• Gender identity and expression
• Genetic information
• Liability for military service
• Marital/Civil union status
• Mental or physical disability (including perceived disability, and AIDS and HIV status)
• National origin
• Nationality
• Race
• Religion
• Domestic partnership status
• Sex (including pregnancy)

This coverage is significantly broader than the federal regulations.

Watch for This Title VII Violation

Many employers assume that temporary employees don’t count towards the federal threshold of a minimum of 15 employees. The EEOC and courts have considered “joint employer” status if you are providing direction and supervision. Temporary employees have been able to file a claim and win.

ADEA

The Age Discrimination in Employment Act (ADEA) is a federal law that protects workers and job applicants age 40 and over from age-based discrimination in all aspects of employment: hiring, job assignments, training, promotion, compensation, benefits, termination, or any other privileges, terms, or conditions of employment.

The ADEA does not apply to elected officials, independent contractors, or military personnel. The law does apply to:

• Employers with at least 20 employees
• Employment agencies
• The federal government
• State and local government (though remedies are often limited)
• Labor organizations with at least 25 members

There are some exceptions to the act, such as bona fide operational qualification that are reasonably necessary to business operations. Some examples would include:

• The hiring of firefighters or police officers by state and local governments
• Mandatory retirements of employees 65 or older who have been in executive positions for at least two years
• Mandatory retirement of tenured employees of institutions of higher education at 70
• Discharge or discipline for just cause

ADEA-Related State Laws

Every state has a law that prohibits age discrimination in employment. Most state laws apply to employers with fewer than 20 employees, and they often provide stronger protection for older workers than federal law. The time limits for filing complaints and the procedures for resolving them differ from state to state and from the federal ADEA.

For example, there is no minimum number of employees in New Jersey to file a claim under state law, while Pennsylvania and New York both require a minimum of four employees to file a claim under state law.

Watch for This ADEA Violation

Many job applications make the mistake of asking for graduation dates, often as a request for information on degrees earned and years attended. This can lead to a finding of discrimination on the basis of age under the ADEA unless the employee’s graduation date has a bearing on qualification for the position. By asking for the graduation date, the hiring manager can guess the age of the applicant.

FMLA

The Family and Medical Leave Act (FMLA) provides job-protected, unpaid leave to employees who need to be absent for qualifying medical, new-child bonding, or military-related reasons. FMLA applies to private employers with 50 or more employees, all public agencies, and all elementary or secondary schools.

Employees are eligible if they have been employed for 12 months, have worked 1,250 hours in the last 12 months for the current employer, and work at a location with 50 or more employees within 75 miles.

An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. A military caregiver is eligible to take a total of 26 weeks of leave.

Leave can be taken for the following reasons:

• To bond with a new child (birth, adoption, or foster placement)
• For an employee’s own serious health condition
• To care for a covered family member with a serious health condition
• For a qualifying exigency related to covered active military duty
• To provide care to an injured covered service member

FMLA and COVID-19

Does an absence related to COVID-19 qualify under the FMLA? Not necessarily.

If COVID-19 does not satisfy the regulatory definition of a “serious health condition,” employers should not count the absence against the employee’s 12 weeks of FMLA leave.  For example, if an employee is required to stay home but is asymptomatic, that leave may not qualify under the FMLA. However, a mild case of COVID-19 may qualify under the following circumstances:

• If the employee suffers more than three calendar—not work—days of incapacity, and requires two treatments by a healthcare provider
• If the employee suffers more than three calendar—not work—days of incapacity, and requires one treatment by a healthcare professional, plus continuing treatment (including prescription medication) under the supervision of a healthcare provider

FMLA-Related State Laws

New Jersey also has the New Jersey Family Leave Act (FLA), which applies to employers with 50 or more employees. An FLA-eligible employee is one who has worked 1,000 hours or more (including overtime) during the preceding 12 months. Hours for which the employee was paid workers’ compensation benefits may be included in the 1,000 hours to establish eligibility. At the employer’s option, other types of paid leave may also be counted toward FLA eligibility.

Unlike the FMLA, the FLA does not allow an employee to take leave for his or her own serious medical condition, but it may be taken for the following:

• The birth or adoption of a child, within a year after the birth or adoption placement
• The serious health condition of a family member (child, parent, spouse, or partner) of the employee

Compliance Challenges

Many employers may not be familiar with all of the requirements of various federal, state, and city discrimination-related laws. Often, employers are not aware of records retention requirements, how to manage and investigate complaints (especially during exit interviews), and other requirements.

The Lindenberger Group has helped organizations in virtually every industry become and remain compliant with all applicable regulations, especially as they grow. For more information or to discuss your HR needs, please contact us at 609-730-1049 or send us an email.

In Part 2, we’ll highlight best practices for your organization and human resources team when you reach certain thresholds, as well as tips on reducing liability and avoiding penalties.