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Is Diabetes Covered Under Fmla

Wage And Hour Division (whd)

Wage And Hour Division (whd)

FMLA-87 Dear Name*: This is in response to two letters from your office asking a number of questions regarding the definition of the term "serious health condition" under the Family and Medical Leave Act of 1993 (FMLA). I regret that, due to the volume of inquiries and other work associated with administering FMLA, we were not able to respond earlier. Before answering your specific questions, it may be helpful to first examine the pertinent sections of the FMLA and its implementing regulations, 29 CFR Part 825, and explain their underlying rationale. Under FMLA, “eligible employees” may take leave for, among other reasons, their own serious health conditions that make them unable to perform the essential functions of their position, or to care for immediate family members (i.e., spouse, child, or parent) with serious health conditions. Section 101(11) of FMLA defines serious health condition as "an illness, injury, impairment, or physical or mental condition that involves: inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.” Under the express statutory language, any absence involving inpatient care qualifies as a serious health condition. A more difficult task, however, has been to define those illnesses that would qualify as serious health conditions because they involved "continuing treatment by a health care provider." The legislative history states that the meaning of serious health condition "is broad and intended to cover various types of physical and mental conditions" and "is intended to cover conditions or illnesses that affect an employee's health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery." Sim Continue reading >>

Diabetic Can Sue Under Ada

Diabetic Can Sue Under Ada

One of HR’s biggest questions about disability accommodations: What conditions are covered under the ADA? Here’s some guidance from a recent court decision. An employee was diagnosed with type 2 diabetes. He was required to take several insulin shots daily, use other medication and strictly regulate his diet. He could still perform most of his duties. However, his job required him to be called on as a “borrowed hand” when field crews needed extra assistance. That involved working long shifts outside and traveling to other locations, often overnight. The employee’s doctor told him he could no longer perform field work, because it would make it difficult to treat his condition. In 23 years of employment before his diagnosis, the employee had been used as a borrowed hand about a dozen times. He told his boss about the new restriction and asked to be exempt from those duties. The company’s response: He could either apply for a new job within the company or take early retirement. He did neither — instead, he sued, claiming he was disabled and the company should have changed his job duties to accommodate him. The company’s defense was twofold: First, the employee’s diabetes wasn’t a serious-enough condition to be considered a disability. And second, field work was an essential function of his job that couldn’t be eliminated. Could the employer get the case thrown out? No. The court disagreed with the company on both counts. The judge ruled that his strict diet and medical regimen were significant enough to “substantially limit” several major life activities, as defined by the Americans with Disabilities Act. Also, the court decided field work was not an essential function of the employee’s job. He’d only been called on to perform those duties an Continue reading >>

Legal E-bulletin - April 2012

Legal E-bulletin - April 2012

The Equal Employment Opportunity Commission’s (EEOC) records of pregnancy discrimination-based charges reflect significant increased charges since 1997 rising from 3977 charges in 1997 to 5797 last year in 2011.1 It seems clear that pregnancy-based discrimination is a serious and growing concern. This e-bulletin will explore pregnancy-related discrimination against women in the workplace, an examination of the laws protecting them, and the relationship between pregnancy and protections of people with disabilities under the ADA. PREGNANCY DISCRIMINATION TODAY: Over the past few months, the issue of discrimination against women who are pregnant or who have recently experienced childbirth has garnered a great deal of national attention. A high profile case out of Houston, Texas in February of 2012 resulted in the dismissal of a lawsuit of a woman who charged that she was fired based on her request that she be granted adequate breaks and privacy during her workday in order to use a breast milk pump.2 An op-ed in the New York Times the previous month (January 2012) titled “Pregnant, and Pushed Out of a Job,”3 garnered a great deal of attention in employment law and women’s rights blogs. It profiled cases of women fired from their jobs where simple workplace accommodations such as a few extra bathroom breaks or a temporary reassignment of tasks requiring lifting or climbing could have allowed continued employment, and proposed that laws requiring reasonable workplace accommodations are essential to protecting basic civil rights for women at work. That same month, and more relevant to disability civil rights concerns, a provocative article by law school professor Jeannette Cox was presented at a national academic conference that made the case that perhaps pregnancy sho Continue reading >>

Protect Yourself With Intermittent Leave

Protect Yourself With Intermittent Leave

FMLA intermittent leave is a tool we can use to protect ourselves. Teamster warehouse jobs are grueling, the hours can be long, and management can be unreasonable. Fortunately, a federal law provides working Teamsters with some protection if we know how to exercise our rights. The Family and Medical Leave Act (FMLA) allows covered employees to take up to 12 weeks time off each year—either for a serious medical condition, or to care for an immediate family member. You don’t have to take this leave all at once or in a continuous manner. If you have a chronic condition, you can take FMLA as you need it—one day at a time, or even a few hours in day. This is called “intermittent leave.” Medical conditions for which you are entitled to take intermittent leave include: chronic neck, back, knee, and shoulder injuries asthma diabetes migraine headaches and many more You can also take intermittent leave to care for a family member suffering from a serious health condition. That includes your parents, spouse, and children. How to Get Covered You can qualify for leave in advance by obtaining a report from a healthcare provider describing your condition and the likelihood that you will need medical leaves on an intermittent basis. Ask your employer for its FMLA medical certification form, ask your provider (doctor, psychiatrist, chiropractor, etc.) to fill it out, and submit it to the medical or human relation department. To qualify for family leave, ask your family member’s healthcare provider to fill out an FMLA certification indicating your relative’s medical condition and the likelihood that you will be needed to provide care for him or her on an intermittent basis. Once you’ve turned those forms in, you’re eligible to start taking intermittent leave when you n Continue reading >>

Fmla Lawyers | Leave Of Absence

Fmla Lawyers | Leave Of Absence

Sometimes employees need to take a leaves of absence for unforeseen circumstances. This could be an illness or other ailment that prevents the employee from working. Under FMLA law, qualified employees are given a certain amount of days off to either take care of their own illness/condition or to take care of a family member’s illness/condition. The employer must hold open that job position for the employees return. If the employer retaliates against you for taking a leave, you can hire a FMLA lawyer and fight back. Read on to learn more about your rights. This page covers the following: FMLA Laws That You Should Know Defining a Serious Medical Condition Covered Employers and Employees Is a Leave of Absence Under FMLA Paid? What is the Difference Between FMLA and CFRA? Violations by Employers What Happens if You Lose Your Job When You Take Leave? FMLA Laws That You Should Know Work and family are the two main concerns. FMLA was enacted to help employees balance work life with the unexpected events of family life that are medical-related. FMLA covered employers are forced to provide their employees with unpaid time off for reasons that are covered in this act. Below are the general allowances of FMLA: Employees can take up to a total of 12 weeks of unpaid leave, within a 12-month period for these events: Childbirth Taking care of a newborn baby that is under 1-year old Taking care of a new foster child or adopted child, within 1 year of the new placement Taking care of a spouse, child, or parent who has a serious medical condition “Parents” under FMLA does not cover in-laws. This means that an employee would not be able to take time off to care for a mother-in-law Caring for the employees’ own health, when he/she has a serious health condition that disables her/h Continue reading >>

2 Leave Rights Under Fmla And Ada

2 Leave Rights Under Fmla And Ada

W W W . H R T I P S . O R G 1A D V A N C I N G T H E W O R L D O F W O R K w w w . h r t i p s . o r g Introduction The following discussion will provide a basic overview of employee and employ- er rights involving leave under both the Family and Medical Leave Act of 1993 (FMLA) and Title I of the Americans with Disabilities Act of 1990 (ADA). The discussion will then focus on the areas where the two laws intersect, providing both overlapping and distinctive protections and obligations. Overview of ADA Leave Protections Title I of the ADA, which is enforced by the U.S. Equal Employment Opportu- nity Commission (EEOC), protects qualified individuals with disabilities from discrimination on the basis of disability.1 Under the ADA, employers are re- quired to provide necessary reasonable accommodations unless doing so would impose an undue hardship on the employer. A “reasonable accommodation†is a change in the workplace that enables an employee to perform the essential func- tions of his/her job. Leave is one form of reasonable accommodation in that it enables an employee to take time off from work, take care of whatever required the leave, and return to work and to the performance of the job’s essential functions. In some cases, leave on a short term, long term, or even hourly basis, will be the only effective accommodation.2 In other situations, leave may be an effective accommodation, 1 The EEOC’s ADA regulations are set forth at 29 C.F.R. Part 1630. 2 A modification or adjustment satisfies the reasonable accommodation obligation if it is "ef- fective." Leave may be the only effective accommodation where the employee needs time off to obtain medical treatment, recuperate from an illness or an episodic manifestation of a disability, repair a whe Continue reading >>

Fmla Intermittent Leave Abuse: 7 Ways To Curb It Now!

Fmla Intermittent Leave Abuse: 7 Ways To Curb It Now!

The DOL wants your suggestions to improve FLMA by Feb. 2, but you can curb intermittent leave abuse now. Here are 7 ways to do it. What are you doing between now and Feb 2? How about using some of that time to suggest changes to the federal Family and Medical Leave Act (FMLA). FMLA allows workers to take up to 12 weeks of unpaid (but benefits continued) leave each year of their employment to care for their own or a family member’s serious health condition or to bond with a new child. Employers have complained about certain aspects of the law for years. A key complaint has involved FMLA’s intermittent leave provision, which lets workers take just a few hours or even a few minutes off, often without prior notice. “The law is used by people with attendance problems,” says Michael Eastman of the U.S. Chamber of Commerce. “You have an employee with chronic tardiness … who says it’s for a health condition.” Others have pointed out that claimed health problems are especially prevalent on Mondays and Fridays. And a survey by HR publisher B21 showed that 47% of employers surveyed felt unjustified intermittent leave posed at least “somewhat of a problem” for their operations. Now the Department of Labor is contemplating changes in the law, with a Feb. 2 deadline for comment. In the past, business leaders have asked that the law not cover illnesses of less than 10 days’ duration, or that the somewhat vague definition of “serious health problem” be better spelled out, among other changes. The rules and procedure for adding your comments are listed here. Meanwhile, say FMLA experts, there are several steps you can take now to curb intermittent leave abuse. –Have a doctor certify all FMLA leave for medical reasons. You’re entitled to ask for a second or Continue reading >>

Workplace Rights

Workplace Rights

I was recently asked to speak to my Dallas/Ft. Worth insulin pump support group about our rights in the workplace as people with diabetes (or caregivers of people with diabetes). I'm not a legal expert, but I am always an advocate for people with diabetes. I've seen firsthand what it's like to deal with colleagues or supervisors who don't understand what we need in order to effectively juggle a job and a temperamental chronic condition. Thanks to the American Diabetes Association's pages on discrimination and the Department of Labor's site on FMLA, as well as the helpful advice of an FMLA leave administrator, I'd like to relay what I've learned. I have tried to summarize, but I highly recommend searching these sites for more thorough information and additional resources. Discrimination Unlawful discrimination could be considered any of the following: Failure to hire or promote you to a position on the basis of diabetes Termination on the basis of diabetes Failure to provide reasonable accommodations for your diabetes Disclosure You do not have to disclose your diabetes during the hiring process. You do not have to disclose your A1c or any of your medical history to your employer. After a job offer is extended to you, if your field is among those requiring medical exemptions (emergency services, commercial driving, etc), you may be asked to submit a waiver, undergo an exam, and be subject to specific blood sugar targets during the performance of your work. The only position for which a person with diabetes may not apply is first-class commercial pilot. In the United States, you may, however, obtain a third-class pilot's license. Your employer may not disclose to others that you have diabetes. Hypoglycemia You cannot be fired for having hypoglycemia on the job without you Continue reading >>

What Is A Serious Health Condition Under The Fmla?

What Is A Serious Health Condition Under The Fmla?

Under the federal Family and Medical Leave Act (FMLA), eligible employees have the right to take time off to care for a family member with a serious health condition or to recuperate from their own serious health condition, among other things. (For information on other circumstances in which you might be entitled to time off under the FMLA, see Taking Family and Medical Leave.) Colds and other minor health concerns don't typically qualify for FMLA leave; the law is intended to provide time off only for more serious ailments. As you'll see, however, the rules about what does and does not qualify as a serious health condition can get a bit complicated. What's a Serious Health Condition? The FMLA divides serious health conditions for which FMLA leave may be taken into these six categories: inpatient care incapacity for more than three days with continuing treatment by a health care provider incapacity relating to pregnancy or prenatal care chronic serious health conditions permanent or long-term incapacity, and certain conditions requiring multiple treatments. Find out everything you need to know about the FMLA with Nolo's book The Essential Guide to Family & Medical Leave. Inpatient Care A condition that requires inpatient care -- in other words, an overnight stay -- at a hospital, hospice, or residential care facility qualifies as a serious health condition covered by the FMLA. An employee is entitled to FMLA leave for the time spent receiving inpatient care and for any period of incapacity or subsequent treatment connected to that inpatient care. Incapacity for More Than Three Days Plus Continuing Treatment Someone who is incapacitated (unable to work, attend school, or perform other regular daily activities) for more than three days also has a serious health condition, Continue reading >>

Type 2 Diabetes And Your Workplace Rights

Type 2 Diabetes And Your Workplace Rights

Living with type 2 diabetes is hard enough. But what if your condition affects your work or the way people treat you there? Learn about your employment rights as someone with diabetes. Diabetes is considered a disability under the Americans with Disabilities Act (ADA). This law applies to any employer in the United States that has 15 employees or more. It also applies to: labor organizations joint labor-management committees employment agencies all state and local government employers If you’re employed by or applying for a job with one of these organizations, the ADA protects you from discrimination. An employer can’t refuse to hire you based solely on your diabetes. In fact, you don’t even have a legal obligation to tell a prospective employer about your condition. Once you’ve been hired, the ADA also requires your employer to provide reasonable accommodations. These include changes to your workplace or routine that can help you to manage your condition. You may also be protected under the Rehabilitation Act if you’re federally employed. Depending on where you live, additional state laws may cover smaller employers or offer broader protections. In most cases, an employer can’t use your diabetes as a reason: not to hire you not to promote you to fire you The only exception is if your condition poses a direct threat to your health or safety or those of others. For example, do you frequently experience hypoglycemic episodes that could interfere with your duties? These episodes might incapacitate you while you’re operating heavy machinery. This could put your life at risk. In this case, an employer has the right not to hire you for a role that requires you to operate that machinery. Once you’ve received a job offer, you’re subject to the same medical req Continue reading >>

What Counts As A Serious Health Condition Under The Fmla?

What Counts As A Serious Health Condition Under The Fmla?

The Family and Medical Leave Act (FMLA) allows eligible employees to take time off work for a "serious health condition" as defined in the act. If you have a disability under the Americans with Disabilities Act (ADA), you might assume that it automatically counts as a serious health condition for which you can take FMLA leave. But even though the terms seem pretty similar, they are not identical. Not every disability counts as a serious health condition under the FMLA, and not every serious health condition is a disability. Below, we explain how the Family Medical Leave Act defines a serious health condition. (Learn about the basics of FMLA leave and whether you're eligible in our article Your Right to FMLA Leave.) There are six specific categories of serious health conditions under the Family and Medical Leave Act (described below), mostly involving some form of incapacity (the inability to work or perform other daily activities). Unless your disability is incapacitating in some way, it won’t qualify you for FMLA leave. And that makes sense. If you are capable of doing your job and taking care of daily tasks, you won’t need time off work because of your disability. Permanent or Long-Term Conditions If you are under the supervision of a health care provider for a condition that makes you unable to work for a long time, or permanently, you have a serious health condition under the FMLA. This category can include cancer, Alzheimer’s disease, terminal illnesses, and advanced amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease). Even if you are not in treatment for your condition, you may use the FMLA to take time off work as you need it. Chronic Health Conditions You may take FMLA leave for a chronic serious health condition, like epilepsy, diabetes, depress Continue reading >>

3 More Diabetes Anti-discrimination Laws

3 More Diabetes Anti-discrimination Laws

The Americans With Disabilities Act is not the only game in town when it comes to protecting people with diabetes. In our recent series on what the law says about diabetes workplace discrimination we’ve been focusing on the protections offered by the Americans with Disabilities Act. However, there are several other laws which also cover workplace discrimination and diabetes, especially when it comes to complications with the condition: 1. The federal Family and Medical Leave Act of 1993 (FMLA) requires employers to provide up to 12 weeks of unpaid leave in a 12-month interval to receive medical treatment and mend from illness, or for an employee to care for a sick family member. Although FMLA doesn’t require it, some employers offer salary continuation or weekly base pay on a reduced rate. 2. Many persons with diabetes fall into the protected age range of 40 or older under the federal Age Discrimination in Employment Act of 1967, which prohibits an employer from making hiring, job reassignment, or termination decisions on the basis of age. 3. Many employee retirement plans provide for a disability benefit if the disability results in the end of one’s ability to work, or the need to withdraw employee contributions and employer-matching funds in a 401(k) plan early without penalty. The Employee Retirement Income Security Act of 1974 (ERISA) not only governs retirement plans, but employer-sponsored short-term and long-term disability benefit plans and certain health insurance plans. Although not specific to diabetes, ERISA prohibits employers from excluding participation in employer-sponsored benefit plans based upon disability-related discrimination. The same definitions of disability in the federal Rehabilitation Act of 1973 and the Americans with Disabilities Act Continue reading >>

January 22, 2013

January 22, 2013

FMLA TO CARE FOR ADULT CHILDREN – A HELPFUL INTERPRETATION? The FMLA requires employers with 50 or more employees to grant up to 12 weeks of leave for, among other things, time off that is needed to care for an adult son or daughter over the age of 18 who is “incapable of self-care because of a disability.†Ever since the Americans with Disabilities Act ("ADA") was amended back in 2008 to broaden the definition of disability, there has been some question of how the ADA’s definitions affect the FMLA. On January 14, 2013, the U.S. Department of Labor Wage and Hour Division issued an Administrator’s Interpretation clarifying an employee’s entitlement to leave under the FMLA for adult children. INTERPRETATION AND GUIDANCE Recognizing that employers should broadly construe the definition of what qualifies as a disability, the Administrator in her Interpretation provides the following clarifications and guidance: Time of onset doesn't matter. The timing of the onset of the adult child’s disability does not matter. The disability could arise after1. the child reaches the age of majority. Duration of the impairment doesn't matter. Reiterating the broad definition of disability under the ADA, the Administrator restates2. that there is 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 still be substantially limiting within the meaning of the ADA. Needed assistance in three or more daily living activities. In addition to suffering from a disability, in order for the employee to3. qualify for FMLA leave, the adult child must require “active assistance or supervision to provide daily self-care in three or more of the ‘activities Continue reading >>

5 Things You Should Know About The Family Medical Leave Act

5 Things You Should Know About The Family Medical Leave Act

People with diabetes may need to take time away from work to address a short term medical crises related to diabetes. Individuals may also need time off to care for other family medical issues. Also, relatives of people with diabetes may need to take time off from work to cope with the medical conditions brought on by their relative who has diabetes. The Family Medical Leave Act (FMLA) provides employees with the right to take time off in these and similar situations. In 1993 the US Congress promulgated the FMLA to give employees more flexibility to balance work and personal family obligations. The FMLA guarantees time off of up to twelve weeks. Depending on the employer this time could be paid, unpaid or a combination of paid and unpaid. The type of leave taken depends on the reasons for the leave and company policies. There are also eligibility criteria and medical certification guidelines. In January 2009 revisions to the FMLA took effect. These amendments increased the amount of time when a member of the military is the disabled party and made it harder for others to claim FMLA. The FMLA provides eligible workers with up to twelve weeks of leave to meet family responsibilities for any of the following reasons:1) for the birth and care of the newborn child of an employee, 2) for placement with the employee of a child for adoption or foster care, or 3) to care for an immediate family member (spouse, child, or parent) with a serious health condition. The FMLA also allows employees to take leave for their own serious health conditions. When an employee takes leave under FMLA the employer must give the employee their job back or give the employee another job with equivalent pay and benefits. In general, to be eligible an employee must have worked for an employer for at l Continue reading >>

Accommodation And Compliance Series: Leave As An Accommodation

Accommodation And Compliance Series: Leave As An Accommodation

Introduction JAN's Accommodation and Compliance Series is designed to help employers determine effective accommodations and comply with Title I of the Americans with Disabilities Act (ADA). Each publication in the series addresses a specific medical condition and provides information about the condition, ADA information, accommodation ideas, and resources for additional information. The Accommodation and Compliance Series is a starting point in the accommodation process and may not address every situation. Accommodations should be made on a case by case basis, considering each employee's individual limitations and accommodation needs. Employers are encouraged to contact JAN to discuss specific situations in more detail. Information about Leave as an Accommodation One of the more confusing reasonable accommodation issues that employers have to handle under the ADA is permitting the use of accrued paid leave, or providing unpaid leave, when an employee's disability necessitates it. The concept can be difficult to grasp because it does not align with the idea of providing an accommodation that keeps an employee on-the-job. However, the goal in allowing the use of leave time as a reasonable accommodation is to provide job-protected time in order to enable a qualified employee with a disability to manage his or her medical impairment and ultimately remain in the workforce. Leave may be requested as a reasonable accommodation for a number of disability-related reasons. Some of the most common reasons include: To attend medical appointments related to an episodic or chronic medical impairment (e.g., diabetes, bipolar disorder, asthma, etc.) To obtain medical treatment (e.g., chemotherapy, physical therapy, surgery, mental health counseling, in-patient substance abuse treatment Continue reading >>

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