POSTED BY SCOTT T. SILVERMAN ON MAY 1, 2013

In August 2011, Florida eliminated alternative options for paper and telephone filing for unemployment benefits and required all applications to be carried out online. The new rules also required that applicants complete a 45-question skills assessment and fill out other online-only forms.  But, according to the DOL, the program offered no alternatives for unemployed workers with disabilities that prevented them from using a computer. As a consequence of the adverse DOL determination, Florida has entered into voluntary compliance negotiations.

Private employers should take heed of this finding.  To the extent that on-line forms or tests are required as part of an application, employers must provide accommodations for disabled individuals to be able to complete the process.  A failure to do so may result in an ADA claim.

POSTED BY ARLENE KLINE ON JANUARY 24, 2013

The current compliance date for making swimming pools and spas ADA accessible is January 31, 2013, although the deadline could be further extended by the U.S. Department of Justice.  (DOJ has extended the compliance deadline on two occasions, but not for pools and spas constructed or altered on or after March 15, 2012). The requirements may include installing an independently usable pool lift in some circumstances.  Public accommodations should be aware of any state and local government codes requiring greater access than the federal requirements.  The risks of noncompliance include possible private lawsuits and DOJ investigations.

As background, DOJ published revised Regulations for Titles II and III of the ADA in the Federal Register on September 15, 2010.  The 2010 standards revised the ADA's rules for accessible design in places of public accommodation to assist in meeting the practical needs of persons with disabilities and to better align with other existing building and accessibility codes. Compliance with the 2010 standards was generally required by March 15, 2012 (except for auxiliary aides which had a stricter deadline for compliance). The 2010 Standards set minimum requirements – both scoping and technical -- for newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.  The regulation includes Appendix A to Part 36 - Standards for Accessible Design establishing minimum standards for ensuring accessibility when designing and constructing a new facility or altering an existing facility. 

POSTED BY KAREN M. BUESING ON SEPTEMBER 24, 2012

When she sued for FMLA interference and retaliation, the employer argued that her claims should be dismissed, because, as a matter of law, she did not satisfy the basic prerequisite for FMLA leave.  While the court agreed that her claim of interference with FMLA rights failed, because she had no actual FMLA right, her claim for retaliation survived – for that claim she only needed to show that she was treated adversely because she took FMLA leave. Actual entitlement to leave under the FMLA is not an element of the claim, the court said.

Employers should be careful in explaining their leave policies to employees and in calculating eligibility.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

On January 30, 2012, Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor is issuing a notice of proposed rulemaking to implement new statutory amendments to the Family and Medical Leave Act that would expand military family leave provisions and incorporate a special eligibility provision for airline flight crew employees.

The National Defense Authorization Act for Fiscal Year 2010 recent statutory amendments expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions. The amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country.

The Airline Flight Crew Technical Corrections Act established a special FMLA hours of service eligibility requirement for airline flight crew members, such as airline pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.

The major provisions of the NPRM include:

• the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• a flexible, three-part definition for serious injury or illness of a veteran;
• the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
• the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
• inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
• the addition of a special hours of service eligibility requirement for airline flight crew employees; and
• the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.