The Americans with Disabilities Act (the “ADA”), the Family and Medical Leave Act (the “FMLA”), the New York State and City Human Rights Acts, the Connecticut Family and Medical Leave Act, and state Workers’ Compensation Acts have various rules regarding accommodations and leave that interact in complex ways. It is often difficult for employers to manage their obligations under these statutes, because they appear to conflict in several key areas, such as medical inquiries and examinations, leave entitlement, light duty assignments, and return to work requirements. Moreover, due to precedent-setting court cases and actions by Congress and administrative agencies, the law in these areas often changes. A brief description of these statutes, highlighting some of the troublesome areas of implementation and intersection, follows.
The ADA prohibits private employers1 with 15 or more employees from “discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.“2 It does not preempt existing state or federal law that is consistent with the ADA. Thus, a single violation may subject a covered employer to actions under the ADA and other federal and state statutes such as the FMLA, the Connecticut FMLA statute, other states’ leave laws or state Workers’ Compensation Acts.
The ADA protects any “qualified individual with a disability.“ A “qualified individual with a disability” is anyone with a disability who, with or without reasonable accommodation, can perform the “essential functions” of the employment position held or desired.3An individual who poses a “direct threat” to the health or safety of others is not a “qualified individual.” An employer may exclude from the workforce an employee, even one with a disability, who poses a direct threat to the health or safety of others. Prior to refusing to hire an applicant or requiring the disease-afflicted employee to stay home, the employer should obtain an opinion from a qualified physician that the disease-afflicted employee poses a threat to other employees in the workplace. Employers should avoid stereotypical reactions based on fear or assumptions. The Equal Employment Opportunity Commission (“EEOC”) regulations interpreting the “direct threat” defense require that the employer’s actions be based on an “individualized assessment of the individual’s present ability to safely perform the essential functions of the job.”4 This assessment must be based on “reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”5
b. Definition of Disability
The term “disability” means: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment.6 An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.7
If an individual does not currently have an impairment that substantially limits one or more major life activities, that individual may still be disabled under the ADA if he or she has a “record of such an impairment.” To establish a “record of impairment” it is not enough for an individual to show that he or she has written documentation of the history of an impairment. The individual must also show that the impairment substantially limits one or more major life activities.
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.8 However, an individual shall not be “regarded as having an impairment” if the impairment is transitory (actual or expected duration of six months or less) or minor.9
The definition of disability in the Act must be construed in favor of broad coverage of individuals under the Act.
i. Physical or Mental Impairment
The first step in the ADA inquiry is to determine whether an individual has a physical or mental impairment. A “physical or mental impairment” is defined in the EEOC regulations as “(1) [a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) [a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”10 These categories do not include physical characteristics such as, height, weight, pregnancy, or predisposition to illness or disease.11 Similarly, advanced age is not in itself an impairment, although various medical conditions commonly associated with advanced age, such as osteoporosis or arthritis, would constitute impairments.12 Current drug and alcohol abuse are specifically excluded from the definition of disability under the ADA, although a person who is currently participating in a supervised drug rehabilitation program and is no longer engaging in such use may be disabled.13 The Supreme Court has upheld an employer’s unwritten policy of terminating employees for illegal drug use.14
Short-term illnesses such as the flu or common cold are not physical impairments.
ii. Major Life Activities
The next step after finding that a plaintiff has an “impairment” is to determine whether the impairment substantially limits a “major life activity.” Major life activities are defined by the ADA as including, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.15 A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system; normal cell growth; digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.16
iii. Substantial Limitations
The third and final step in the determination of whether an applicant or employee is disabled is the question of whether the asserted impairment “substantially limits” the asserted major life activity. “Substantially limited” was formerly defined by the EEOC to mean “(i) [u]nable to perform a major life activity that the average person in the general population can perform; or (ii) [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.”17 However, in 2008, Congress passed, and the President signed into law, the ADA Amendments Act, which specifically rejected the EEOC’s definition of “substantially limits” as expressing too high a standard, and stated the expectation that the EEOC “will revise that portion of its current regulations that defines the term ‘substantially limits’ as ‘significantly restricted,’ to be consistent with this Act.”18 As of this writing, the EEOC has not yet propounded revised regulations for “substantially limits.”
The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, except for the mitigating measures of ordinary eyeglasses or contact lenses.19 An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.20 An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.21
c. Essential Functions of an Employment Position
“Essential functions” are defined in the EEOC regulations as the fundamental, non-marginal duties of the employment position either held or desired by a disabled individual.22 A job function may be considered essential if: “(i) . . . the reason the position exists is to perform that function; (ii) . . . [there is a] limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) [t]he function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.”23 The employer may consider various factors as evidence that a particular function of a job is essential. “[C]onsideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”24
Under the ADA, employers must make “reasonable accommodations“ to the known disabilities of a qualified applicant or employee.25 The term reasonable accommodation means (1) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or (2) modifications or adjustments to the work environment that enable a qualified individual with a disability to perform the essential functions of that position; or (3) modifications or adjustments that enable the employee to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities.26 Reasonable accommodation may include, but is not limited to: making existing facilities readily accessible to individuals with disabilities; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters.27 Reasonable accommodation may also include permitting the use of accrued paid leave or providing additional unpaid leave or intermittent leave.28 To determine the appropriate reasonable accommodation, it may be necessary for the employer to initiate an informal, interactive process with the employee in need of the accommodation.29
None of the following are considered reasonable accommodations and therefore are employers are not required:
to eliminate a primary job responsibility;
to lower production standards that are applied to all employees, though it may have to provide reasonable accommodation to enable an employee with a disability to meet them;
to provide personal use items, such as a prosthetic limb, a wheelchair, eyeglasses, hearing aids or similar devices; or
to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.
The Equal Employment Opportunity Commission’s guidelines entitled “Small Business and Reasonable Accommodations“ are attached as Appendix U.30 It is recommended that an employer have a written policy regarding reasonable accommodations for employees with disabilities. A sample policy is provided as Appendix V.
Under the ADA, employers must make reasonable accommodation to an employee’s disability. An accommodation is not reasonable if it would cause undue hardship on the employer. The term “undue hardship” means a significant difficulty or expense, when considered in light of the nature and cost of the accommodation, taking into account tax credits or deductions, and/or outside funding; the financial resources of the facility, the number of persons employed at the facility, and on the covered entity and the effect on expenses and resources; the type of operation; and the impact of the accommodation on the facility and the ability of other employees to perform their duties.31 The larger the employer, the greater the effort and expense that may be required to accommodate an employee with a disability.32 In 2002, the United States Supreme Court held that it is typically unreasonable to require an employer to provide an accommodation that conflicts with an established seniority system.33
An employer may be required to provide a leave of absence as a reasonable accommodation under the ADA, and an employee is entitled to return to the identical position unless holding the job open would create an undue hardship for the employer.34 A request to return to work can only be denied if the employee is unable to perform the job either with or without accommodation.
The length of the leave required under the ADA is not at all certain and there are conflicting authorities on whether excessive absenteeism related to a disability requires accommodation. An indefinite leave of absence may be unreasonable and may constitute an undue hardship for an employer under the ADA.35 In addition, excessive absenteeism may preclude an employee’s status as “otherwise qualified“ to perform the essential functions of the job.
The EEOC guidelines prohibit an employer from applying a “no-fault” leave policy under which employees are automatically terminated after they have been on leave for a certain period of time.36 Rather, if an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that an alternate effective accommodation is available or that granting additional leave would cause an undue hardship. However, the EEOC’s guidelines are in direct contradiction to the decision of the Sixth Circuit in Gantt v. Wilson Sporting Goods Co.37 That court determined that a uniformly applied one-year leave policy does not violate the ADA and a no-fault policy should not itself be considered an ADA violation.
An employer may request medical documentation directly related to a request for leave, because the employee is claiming inability to work, and the employer is permitted to ask current employees whether they are able to perform the
essential functions of their jobs.38
Employers may require employees returning from leave to subject themselves
to full medical examinations if such medical examinations are “job-related and
consistent with business necessity.”39
Many employers maintain a policy requiring employees to be 100 percent fit before they return to work. Such a rigid policy may be difficult to reconcile with the right to return to work under the ADA. A 100 percent fit policy would not necessarily violate the ADA if the policy’s application were restricted to situations where the employee was unfit to perform the essential functions of the job with or without accommodation. However, such a policy would be unlawful where fitness for the position could be achieved through accommodation, or where the fitness related only to nonessential functions of the job.
In addition to the ADA, the New York State Human Rights Law (“NYSHRL“) protects employees with disabilities. Like the ADA, the NYSHRL, which applies generally to employers with four or more employees, prohibits discrimination based on mental and physical disability.
The state law provides a broader definition of disability than the ADA insofar as the NYSHRL prohibits discrimination on the basis of “predisposing genetic characteristics.”40 Moreover, a disability under NYSHRL is a condition that either (1) prevents the exercise of a normal bodily function, or (2) is demonstrable by medically accepted clinical or laboratory diagnostic techniques. In other words, any medically diagnosable impairment is a disability under the NYSHRL. As a result, New York employers may be faced with additional situations where they may be required to consider accommodations for employees.
Under the NYSHRL, the term “reasonable accommodation“ means actions taken which permit an employee to perform his duties at an acceptable level. An employer may still hire the “most qualified“ person, although there may be an applicant with a disability who meets minimum job qualifications.
An employer is required to advise its employees on a regular basis as to their rights with regard to reasonable accommodation of disability, and to the procedures to be followed in requesting accommodations. A sample policy regarding reasonable accommodations for employees with disabilities is included here as Appendix V.
The New York City Human Rights Law (“NYCHRL”) prohibits discrimination on the basis of a disability. The law broadly defines disability to include “any physical, medical, mental, or psychological impairment, or a history or record of such impairment.”41 Like the NYSHRL, the city law does not require proof of a substantial limitation on a major life activity, or proof that the impairment prevents the exercise of a normal bodily function. Moreover, New York City employers are required to make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job provided that the disability is known or should have been known by the employer.42 The NYCHRL does not cover association discrimination.43
In Connecticut, employers are prohibited from discriminating against any individual because of the individual’s disability.44 Connecticut law defines the term “[p]hysically disabled” as “refer [ring] to any individual who has any chronic physical handicap, infirmity or impairment.”45 Thus, there is no requirement that the disability limit or substantially limit a major life activity. Connecticut law does not provide a cause of action for perceived physical disability discrimination. Federal precedent is otherwise generally followed in enforcing this statute.
The Family and Medical Leave Act (“FMLA”)46 requires private employers with 50 or more employees (including both full- and part-time employees) to provide up to 12 weeks (in the case of leave to care for an injured servicemember, 26 weeks) of unpaid family and medical leave in any 12-month period to eligible employees. Covered employers47 are required to maintain an employee’s health coverage during a qualified FMLA leave and to reinstate the employee to the same or equivalent job once the leave has ended. A notice approved by the Secretary of Labor explaining rights and responsibilities under the FMLA must be posted (see Appendix C) and, if the employer has an employee handbook, specific FMLA information must be included.48 The U.S. Department of Labor has provided model forms for use in complying with FMLA, which are available on the Internet.49
An employee is eligible to take FMLA leave if that employee:
has been employed by the employer for at least 12 months (52 weeks). The 12 months need not be consecutive, but employment preceding a break in service of seven years or more (except where such break was for military service in the National Guard or Reserve) need not be counted in the 12 months.
has been employed for at least 1,250 hours of service during the twelve-month period preceding the commencement of the leave. An employee returning from fulfilling his or her National Guard or Reserve military obligation must be credited with the hours of service that would have been performed but for the period of military service, in determining whether the employee worked the 1,250 hours of service.50
is employed at a work site of the covered employer that has at least 50 employees working within a 75-mile radius of that work site.51
FMLA leave may be granted to both male and female employees for the following reasons:
birth and care of a newborn child, or the placement in the home of adopted or foster children, legal wards, stepchildren and other children for whom the employee requesting leave stands in the place of a parent.
care of a spouse, child or parent who has a “serious health condition.“
employee’s own “serious health condition“ that renders him or her incapable of performing job duties.
because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent, who is a covered military member, has been notified of an impending call or order to active duty in support of a contingency operation.52
to care for a covered servicemember with a serious injury or illness incurred in the line of duty on active duty if the employee is the spouse, son, daughter, parent or next of kin of the covered servicemember.53
Serious Health Condition. Under the FMLA regulations, a serious health condition is defined as an illness, injury, impairment or physical or mental condition that involves:
(1) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or incapacity relating to the same condition, that also involves:
(a) Treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances (i.e., circumstances beyond the employee’s control) exist, by a health care provider, a nurse under direct supervision of a health care provider, or by a provider of health care services under orders of a health care provider; or
(b) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
(c) The requirements above for treatment by a health care provider mean an in-person visit to a health care provider. The first (or only) visit must take place within seven days of the first day of incapacity.
(2) Any period of incapacity due to pregnancy or for prenatal care.
(3) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(a) Requires periodic visits (at least twice a year) for treatment by a health care provider, or by a nurse under the supervision of a health care provider;
(b) Continues over an extended period of time (including recurring episodes); and
(c) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(4) Any period of incapacity for permanent conditions for which treatment may not be effective, such as Alzheimer’s.
(5) Any period of absence to receive multiple treatments (and recovery therefrom) for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of such treatment, such as dialysis or chemotherapy.54
Qualifying Exigency. The term “qualifying exigency” includes:
Leave to address issues arising out of short-notice deployment (seven or fewer calendar days prior to date of deployment). Leave for this purpose may be taken for a period of seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty in support of a contingency operation
Leave for military events and related activities, including family support or assistance programs.
Leave to arrange for alterative childcare or provide childcare on an urgent, immediate need basis and for school activities arising from the active duty or call to active duty status.
Leave to make financial and legal arrangements arising from the active duty or call to active duty status.
Leave to attend counseling for oneself, for the covered military member, or for the child of the covered military member arising from the active duty or call to active duty status.
Leave to spend time with a covered military member who is on short-term, temporary, rest and recuperation leave (up to five days for each instance).
Leave for post-deployment activities.
Leave for other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave qualifies as an exigency and agree to the timing and duration of such leave.55
To Care For. The term “to care for” the family member or covered servicemember encompasses physical and mental conditions, and includes providing psychological comfort and reassurance. It includes situations where the employee may be needed to substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home.56
Serious Injury or Illness. A “serious injury or illness” is an injury incurred in the line of duty on active duty for which the covered servicemember is undergoing medical treatment, recuperation or therapy; or is otherwise in outpatient status; or is on the temporary disability retired list.
Prior to granting an employee FMLA leave for the care of a spouse, child or parent with a “serious health condition,“ the employer may require that the employee produce written certification from a health care provider stating: the date when the serious health condition commenced; the probable duration of the condition; the nature of the condition; and a statement that the employee is needed to care for the immediate family member, including an estimate of the amount of time that such employee will be needed.57 The Department of Labor has provided a Certification of Health Care Provider form, available on the Internet.58 Although the use of this form is not required, employers may not seek any additional information regarding the employee’s health condition beyond that permitted by this form.58 The employer may also request re-certification of an ongoing condition every six months in conjunction with an absence.60
Under the FMLA, eligible employees must request leave at least 30 days in advance or as soon as “practicable“ under the circumstances.61
(1) Amount of Leave (Other Than For Care of Covered Servicemember)
Except in the case of leave to care for covered servicemember with a serious injury or illness, eligible employees are entitled to a total of 12 workweeks of FMLA leave during any 12-month period.62 This leave may be taken intermittently unless the leave is for the birth or placement of a child, although even then the employer may agree to such an arrangement.63 A husband and wife who are eligible for FMLA leave and are employed by the same employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for the birth of a child, to care for the child after birth, or for placement for adoption or foster care; or for the care of a parent with a serious health condition.64
An employer may require an employee requesting intermittent leave based on planned medical treatment or recovery from a serious health condition to transfer temporarily to an available alternative position for which the employee is qualified and that better accommodates recurring periods of leave than does the employee’s regular position.65 The new position must provide equal pay and benefits as the original position, but it need not have equivalent or even similar duties.66
(2) Amount of Leave to Care for Covered Servicemember
Eligible employees are entitled to a total of 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness.67 The employer must determine the “single 12-month period” by measuring forward from the date an employee’s first FMLA leave to care for the covered servicemember begins, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons.68 During the “single 12-month period” the FMLA leave entitlement is limited to a combined total of 26 workweeks for any qualifying reason. The leave entitlement is applied on a per-covered-servicemember, per-injury basis such that an eligible employee may be entitled to take more than one period of 26 workweeks of leave, except that no more than 26 workweeks of leave for any and all FMLA purposes may be taken within any “single 12-month period.”69 A husband and wife who are eligible for FMLA leave and are employed by the same employer may be limited to a combined total of 26 weeks of leave to care for a covered servicemember within a single 12-month period.70
(3) Substitution of Paid Leave Time
An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer’s policy that apply to other employees for the use of such leave. Moreover, if an employee is taking FMLA leave for either (1) the birth or placement of a new child, (2) to care for a seriously ill family member, or (3) a qualifying exigency, the employer may require substitution of any accrued paid leave for the unpaid leave benefit under the FMLA. 71
(4) Compensation and Medical Coverage During FMLA Leave
The FMLA does not require employers to pay employees during an FMLA leave, unless the employer otherwise provides a paid leave of absence benefit. 72 Employers must maintain an employee’s group health insurance coverage for the duration of a qualified FMLA leave at the level and under the conditions that the coverage would have been provided if the employee were not on leave.73 Any premiums that had been paid by the employee prior to the FMLA leave must continue to be paid by the employee during the leave, and the employer’s obligation to maintain health insurance coverage ceases if the employee’s premium payment is more than 30 days late.74
Any employee who takes a qualified FMLA leave is entitled, upon return from such leave, to be reinstated to the same or an “equivalent“ position with the same seniority rights and benefits the employee had when the leave commenced.75 An equivalent position is one that has the same pay, benefits and working conditions (including privileges, perquisites and status) as the position held by the employee prior to taking the FMLA leave.76
Employees who are poor performers may be terminated, regardless of FMLA leave status. If an employee would have been terminated regardless of the FMLA leave, then the employee may be terminated before, during or after such leave.77 Termination would be consistent with the “employment at will“ doctrine, discussed in Chapter II, but might nevertheless result in prolonged and expensive litigation. Consult legal counsel before terminating an employee who has requested or is on FMLA leave.
The FMLA does not supersede any provision of state or local law that provides greater family or medical leave rights than those provided by the FMLA, but it does supersede any such law that provides less generous benefits.78 The FMLA does not preclude employers from implementing more generous leave policies,79 but an employer cannot adopt any policy or plan which does not provide the benefits required by the FMLA.
The FMLA and the ADA intersect if an employee has both a “disability“ within the meaning of the ADA, and a “serious health condition“ under the FMLA. Because each statute requires different criteria for protection, an employer will have obligations under both the FMLA and the ADA. These statutes may conflict or overlap, and lack of coverage under one statute may not translate into lack of liability under the other. See Chapter XI, Section D.
While it does not have a separate statute that governs medical leave issues, New York provides greater protection for adoptive parents who wish to take leaves of absence. than the FMLA does. This law provides that if a public or private employer permits its employees to take a leave of absence upon the birth of the employee’s child, an adoptive parent must be entitled to the same leave on the same terms and conditions at the time of adoption or at the time of an adoption petition. An adoptive parent is not entitled to this leave, however, after the adoptive child reaches the minimum age for attendance in public school.80 Parents adopting a “hard to place or handicapped child” are entitled to more extensive rights.
If an employee suffers from non-work related injuries, he or she may be eligible for paid disability leave under the New York Disability law. Depending on the nature of the injury or illness, that employee may also be eligible for leave under the Family and Medical Leave Act (“FMLA”), or qualify as disabled under the ADA, state or city law.
The Disability Benefits Law (“DBL”) provides partial income replacement (about one-half an employee’s weekly salary up to a statutory maximum),81 to workers who are temporarily disabled from an injury or disease that does not arise out of and in the course of employment. The DBL also covers individuals who lose their unemployment insurance benefits as a result of becoming disabled while they are unemployed.
Unlike the Workers’ Compensation law, discussed below, where benefits are paid entirely by the employer, employers under the DBL are permitted to require their employees to contribute to the cost of providing benefits. Employees may be required to contribute through payroll deduction one-half of one percent of their weekly wages, up to a maximum amount that is set by law. Employers must contribute the cost of providing benefits in excess of the amounts collected from its employees. The employer contributions are also used to defray administrative costs associated with providing disability benefits. Generally, the amount of employer contributions will vary each year to reflect the amounts necessary to pay benefits for the year.
The Connecticut Family and Medical Leave Act (“CFMLA”) is similar to the FMLA. However, it differs in material areas. For example, the Act applies to employers with 75 or more employees and employees who worked at least 1,000 hours during the 12-month period prior to the leave are eligible.82 In addition, covered employees are entitled to a total of 16 weeks of unpaid leave within any 24-month period,83 as opposed to the FMLA’s entitlement of 12 weeks in any 12‑month period. Where the leave qualifies as FMLA leave, it runs concurrently with CFMLA leave.84
The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) governs the rights of civilian employees taking leave for federal military service.85 The purposes of USERRA are to encourage non-career service in the military, to minimize disruptions to the lives of employees who serve in the military, and to eradicate discrimination based on military service.86 USERRA is an expansion of its predecessor statute, the Veterans’ Reemployment Rights Act (“VRRA”). USERRA affords an employee who is returning from military service certain “reemployment rights and benefits and other employment benefits.”87
2. Important Concepts Under USERRA
For purposes of USERRA, “benefit” is defined broadly to include “any advantage, profit, privilege, gain, status, account, or interest that accrues by reason of an . . . employer policy, plan or practice.”88 However, this definition specifically excludes “wages or salary for work performed.”89 Additionally, military or uniformed service encompasses the Armed Forces, the Army National Guard, the Air National Guard, the commissioned corps of the Public Health Service, and any other category designated by the President in time of war or national emergency.90 USERRA applies whether an employee is participating in active military duty, inactive duty training or full-time National Guard duty, and whether the employee serves voluntarily or involuntarily.91 USERRA also applies to all employers, regardless of size, and to virtually all employees.92 An “employee” includes any person who is a citizen, national, or permanent resident alien of the United States.93 Employers are required to grant employees leaves for periods of military service, generally up to five years.94
3. Reemployment Rights.
USERRA requires an employer to promptly reemploy, with reinstatement of benefits, an employee upon completion of his or her military service. The employee must first satisfy the following criteria, however, prior to reemployment under USERRA:
(1) The employee, or an appropriate officer of the uniformed service, must give advance written or verbal notice of his or her service obligations to his or her employer, unless doing so is impossible, unreasonable or otherwise precluded by operational necessity;
(2) The cumulative length of the employee’s military leave, in addition to all previous military leaves with that employer, may not exceed five years, unless the employee’s initial period of obligation lasts greater than five years or the employee’s service is extended by operational directive;
(3) The employee may not be dishonorably discharged or discharged on other than honorable grounds;
(4) The employee must report back to work or submit an application for reemployment at the completion of his or her military service within the statutory time frame, as determined by the length of the employee’s military service.95
An employee returning from military leave who fails to return to work or apply for reemployment within the required time period does not automatically lose his or her entitlement to rights and benefits under USERRA. Rather, the employee is subject to the employer’s rules regarding absences from work..96
a. Employee’s Responsibility to Provide Documentation of Service.
If an employer asks, an employee must provide documentation proving that the employee’s application for reemployment is timely, the employee has not exceeded his or her maximum service time and the employee was not dishonorably discharged or discharged on other than honorable grounds.97 An employer may not delay or attempt to avoid reemploying an employee by demanding documents that either do not exist or are not readily available to the employee. If, however, documents become available that establish that a reemployed employee does not meet USERRA’s criteria, an employer may terminate the employee.98
b. Returning Employees’ Employment Rights.
USERRA reflects the “escalator” principle. That is, when an employee returns to work after military leave, the employee steps onto the seniority “escalator” at the point the employee would have occupied if he or she had remained continuously employed by the employer. USERRA requires reemploying employees in either the same or equivalent positions or positions of greater seniority.
4. Changed Circumstances.
Even if an employee returning from military duty satisfies all of his or her obligations under USERRA, an employer is not unconditionally required to reemploy the employee. USERRA provides three instances in which an employer may refuse to reemploy an employee returning from military duty. In all of these instances, the employer bears the burden of proving the existence of the qualifying facts.99 An employer need not reemploy a returning employee who satisfies all of his or her obligations under USERRA in the following instances:
(i) The employer’s circumstances have changed such that reemploying a returning employee is impossible or unreasonable;
(ii) The employer would suffer undue hardship through accommodating or training a returning employee; or
(iii) The employee’s employment was for a brief, nonrecurring period not reasonably expected to continue indefinitely or for a significant period.100
Undue hardship is defined in part as “significant difficulty or expense” when considered in light of the employer’s overall financial and logistical resources and the nature and cost of the action required by USERRA.101
5. Compensation and Benefits.
While on military leave, an employee is generally treated as being on an unpaid leave of absence. However, an employee is entitled to non-seniority benefits to the extent other employees on non-military leave are entitled to them.102 Upon return from military leave, an employee is entitled to any seniority-based benefits as if the employee was continuously employed.103
Employers are neither required to nor prohibited from paying employees on military leave, although an employee may, at his or her discretion, apply his or her accrued leave toward the absence.104 An employer cannot require an employee to apply his or her accrued leave toward military leave.105
An employee who is on military leave for more than 30 days may elect to continue employer-sponsored health coverage.106 If so, the employer can require the employee to pay up to 102 percent of the full premium under the health plan. The length of coverage is limited, however. An employee and his or her dependents can only enjoy an employer-sponsored health plan for the shorter of 24 months or the day after the date the employee fails to timely return to or apply for a position of employment.107 If an employee is on military leave for less than 31 days, the employer cannot require him or her to pay additional amounts for health care coverage.108 Upon an employee’s return from military service, an employer must reinstate the employee’s health insurance without a waiting period.109
An employer must treat a returning employee as if the employee was continuously employed for purposes of any employer-sponsored pension benefit plan.110 Thus, an employee does not forfeit any benefits accruing prior to his or her military leave, and an employee’s time devoted to military service must be credited for all pension plan purposes. When an employee returns from military service, his or her employer must fund the employee’s pension benefit plan as if the employee were continuously employed.111 However, an employer may delay making retroactive pension contributions for employees absent over 90 days until the employee satisfactorily documents his or her military service as required by 38 U.S.C. section 4312(f).
Additionally, an employee is allowed to fund his or her defined contribution plan to make up for any missed contributions due to military service. An employee is allowed three times the length of his or her service, up to a maximum of five years, during which he or she may make additional contributions.112
6. Prohibition on Discrimination and Acts of Reprisal.
USERRA mandates that employees “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer” on the basis of their affiliation with the uniformed services.113 Courts generally construe USERRA broadly in favor of its military beneficiaries. An employee must demonstrate that an employer used his or her military affiliation as a “motivating factor” in any adverse employment action taken against that employee.114 However, an employer has an affirmative defense if it can prove that it would have taken the same action notwithstanding the employee’s military affiliation.115
Likewise, USERRA prohibits employers from retaliating or taking any adverse employment action against an employee for enforcing a protection, testifying in a related proceeding, assisting in an investigation, or exercising a right under USERRA.116 A similar affirmative defense applies as well to retaliation claims if the employer can show that it would have taken the same action notwithstanding the employee’s enforcement action, testimony, statement or exercise of a right.117
For a certain period of time, an employer may only terminate employees who are reemployed after military leave for cause. The length of an employee’s military service determines the protection to which he or she is entitled. If the employee’s military service was less than 31 days, the employer is not restricted to firing only for cause. If, however, the employee’s military service lasted more than 30 days but less than 181 days, then an employer may only fire the employee for cause during the first 180 days of the employee’s reemployment.118 If the employee’s military service lasted in excess of 180 days, that period expands to one year.119
Workers’ Compensation benefits are governed by state law and differ from state to state. Workers’ Compensation statutes generally afford benefits to employees whose injuries are job-related, for income replacement and medical and rehabilitation expenses, regardless of whether the employer is at fault. Under most state laws, employees may be entitled to occupational medical disability leave, and employers may be obligated to grant leaves of absence to employees with job-related injuries for the period of disability. Typically, employees may obtain compensation for injuries as provided by the Act or self-insurance through employer-maintained insurance, while the employer is generally immune from suit by injured employees.
New York’s Workers’ Compensation Law requires employers to purchase Worker’s Compensation insurance to compensate employees for work-related injuries. Employers assume strict liability for employees’ on-the-job injuries and employees’ potential recovery is limited, as the employee cannot file a tort suit in court. Workers’ Compensation provides for weekly cash payments to cover benefits, typically payment of lost wages, medical expenses and vocational rehabilitation, without requiring proof of fault. It should be noted that employers may not refuse to hire, discharge or in any way retaliate against any individual or employee solely because an individual has filed for Workers’ Compensation. In New York, all employees are covered by Workers’ Compensation except persons engaged in a teaching or non-manual capacity for a religious, charitable or educational institution and minors engaged in casual work in a not-for-profit institution.
For useful pamphlets and general information regarding these programs, contact the Workers’ Compensation Board District Office.120 Although usually arranged through a broker as a single policy with an annual premium, Workers’ Compensation and disability insurance may also be obtained from New York State through the State Insurance Fund. The premiums are paid by the employer and are based on a formula derived from the size of the payroll, the number of employees covered and the type of work that they do. For information and descriptive pamphlets on subscribing to these policies, contact an insurance agent or the State Insurance Fund.
The Connecticut Workers’ Compensation Act provides that no qualified employer shall be “liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained.”121 Employees may obtain compensation for injuries as provided by the Act.122
While a leave under Workers’ Compensation will be unpaid leave, an employee may be entitled to receive medical and other insurance, and to accrue sick time, vacation time and seniority as if not on leave. In addition, an employee may be entitled to Workers’ Compensation payments during the leave, to reinstatement at the end of the leave period, or to a light duty assignment in lieu of extended leave. For example, under the Connecticut Workers’ Compensation Act, if “an employee has suffered a compensable injury which disables him from performing his customary or most recent work, his employer at the time of such injury shall transfer him to full-time work suitable to his physical condition where such work is available.“ 123
Because the ADA and the FMLA set forth different criteria for protection, an employer will have obligations under both statutes only if an employee has both a “disability” within the meaning of the ADA and a “serious health condition” within the meaning of the FMLA. For example, if an employer erroneously believes that a qualified individual has AIDS, this individual is protected under the ADA because the employee is “regarded as” having a covered disability; however, there may be no coverage under the FMLA because the employee does not actually have a “serious health condition.” On the other hand, an employee who has a mild hernia that does not substantially limit major life activities but nonetheless requires surgery will be protected under the FMLA because surgery will involve inpatient care, but will not be protected under the ADA because the employee does not have a “disability” as defined by the ADA.
The ADA prohibits an employer from inquiring, including through medical examinations, whether an employee is an individual with a disability and if so the nature of the disability, unless the inquiry is “job-related and consistent with business necessity“ (i.e., required for the assessment of the individual’s ability to do the job at issue).124 Information obtained by the employer must be maintained in separate, confidential, medical files.125 Under the FMLA, an employer may require medical certification that the leave is due to a serious health condition and also may require, as a condition to the restoration of employment, certification that the employee is fit to return to work. Such medical certifications must comply with the ADA requirement that the examination be job-related and consistent with business necessity.126
Under the ADA, employers are required to make “reasonable accommodation“ to the known physical or mental limitations of a qualified individual who is an applicant or employee, unless the employer demonstrates that the accommodations would impose an undue hardship (significant difficulty or expense) on the operation of the business.127 In contrast, under the FMLA, an employer must provide up to 12 weeks of leave (or 26 weeks for care of an injured servicemember) regardless of the magnitude of hardship imposed on the employer. The FMLA does require, however, that employees needing intermittent leave or leave on a reduced leave schedule attempt to schedule their leave so as not to disrupt the employer’s operations.128
Under the ADA, upon returning from leave, an employee is entitled to the position he held prior to leave unless the position is no longer vacant because it would have been an “undue hardship“ to hold it open.129 In contrast, under the FMLA, an employer does not have to establish “undue hardship“ in order to transfer an employee to an equivalent position (with equivalent benefits, pay and other terms and conditions of employment) instead of restoring the employee to the position held prior to leave.130 Consequently, an employee has greater reinstatement rights under the ADA than under the FMLA where reinstatement to the same job is not an undue hardship. However, the FMLA requires restoration to the same or equivalent job even if it would constitute an undue hardship.
The ADA does not require an employer to create a “light duty“ position, but does require an employer to reasonably accommodate (e.g., by removing marginal functions). If an employer already has a vacant “light duty“ position for which a disabled worker is qualified and no reasonable accommodation will allow the employee to remain in the regular job, it might be a reasonable accommodation to reassign the worker to that “light duty“ position.131
If the FMLA entitles an employee to leave, an employer may not, in lieu of medical leave, require an employee to take a “light duty“ position. However, the employer certainly may, but under the FMLA is not required to, offer “light duty“ assignments as an alternative.132 Time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement and the employee’s right to restoration is held in abeyance during the period of time the employee performs light duty.133
An employer may reassign an employee requesting FMLA leave intermittently or on a reduced leave schedule to another position better suited to accommodate that type of leave. Although the new position must offer pay and benefits equivalent to the employee’s previous position, the new position need not have equivalent duties. An employer may augment the pay and benefits of an existing alternative position (that typically is compensated at a lower rate) to meet the “equivalent pay and benefits“ requirement.
The employer’s right to reassign an employee to another position that better accommodates FMLA leave is limited by the need to comply with the ADA.134 For example, the ADA will require an employer to keep the ADA-protected individuals in their regular positions during periods of intermittent leave where such assignment does not pose an undue hardship for the employer.
Both the ADA and the FMLA may impact an employer’s attendance policies. An employer typically will be required to make an attendance policy accommodation for an employee with a disability in cases where the employer has notice and the accommodation is not likely to cause the employer undue hardship. For example, an extended leave of absence, which the employer normally knows about and by definition can plan around, usually will not cause undue hardship, even if such a leave would be an exception to the employer’ s normal rules. Thus, an employer may need to accommodate the individual requesting such a leave. The ADA does not require an employer to tolerate an employee’s excessive absenteeism or unsatisfactory attendance record, provided that it has reasonably accommodated the employee.
Under the FMLA, eligible employees are entitled to take up to 12 workweeks of unpaid leave per year, regardless of the employer’s attendance policy.135 In cases involving a serious health condition that befalls an employee or an employee’s family member (i.e., employee’s spouse, son, daughter or parent), an employee is allowed to take leave intermittently, in separate blocks of time.136 This intermittent leave can include leave periods from as short as the shortest period of time that the employer uses to account for other forms of leave, to several weeks.137 The FMLA also prohibits an employer from (1) using FMLA leave as a negative factor in considering an employee for discipline, promotion or other employment actions; or (2) counting FMLA leave under “no fault“ attendance policies. However, the FMLA does not require the employer to provide perfect attendance awards to employees who are absent on FMLA leave.138
Because the FMLA allows an employee to take intermittent leave in increments of one hour or even less, such leave can cause serious attendance problems. Although neither the FMLA nor the regulations provide clear guidance in situations involving a chronically absent or tardy employee, an employer’s ability or inability to discipline or terminate an employee in two areas is reasonably clear. First, an employee who is consistently late or absent due to an illness or ailing family member whose condition requires unforeseeable treatment may not be terminated or disciplined for FMLA-covered absences. Second, under the FMLA, an employer confronted with an employee who is consistently late or absent due to an illness or ailing family member whose condition is not serious and requires foreseeable treatment may deny the leave or may require the employee to transfer temporarily to an available alternative full-time or part-time position of equal pay and benefits for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. Such a transfer must also comply with the ADA and any applicable collective bargaining agreement.139
The ADA does not preempt any existing state law that is consistent with the ADA.140 Thus, a violation of the ADA may subject an employer to liability under state Workers’ Compensation statutes as well. Despite the possible dual liability, the fact that the ADA and Workers’ Compensation laws have divergent purposes and often require different types of proof may preclude an injured employee from recovering under both statutes. For example, an employer might be able to use a claim that an employee can perform the essential functions of a position to rebut a Workers’ Compensation claim. Conversely, an individual who claims permanent inability to perform any job functions due to an on-the job injury is not a qualified individual with a disability under the ADA.
The definition of a “disability“ under Workers’ Compensation laws differs from that under the ADA due to the different purposes of the statutes. For example, the ADA does not cover non-chronic impairments of short duration with no long-term or permanent impact or minor injuries, but does cover disabilities not caused by the job.141 In contrast, state Workers’ Compensation laws provide no benefits for disabilities not caused by the job, but generally provide benefits to employees not only for permanently disabling job-caused injuries but also for temporary ones. Therefore, an employee who breaks a leg on the job and cannot work for two months, but whose leg heals normally, would not be an individual with a disability under the ADA, but could receive Workers’ Compensation benefits.
The ADA preempts any conflicting provisions under state Workers’ Compensation law. For example, if an employer declines to assign an employee with a disability to a job that may give rise to a long-term risk of injury, in reliance on a state Workers’ Compensation statute that makes it liable for additional benefits if an injury occurs because the employer assigned the person to a position likely to jeopardize the person’s health or safety, or exacerbate an earlier Workers’ Compensation injury, the employer typically violates the ADA. However, Workers’ Compensation laws may permit or require an employer to exclude the individual with a disability from such a position. Because the ADA preempts these laws, an employer could not assert as a defense to a charge of discrimination that it failed to hire or reinstate an individual with a disability because doing so would violate a state Workers’ Compensation law that required exclusion of this individual.142
Under some state Workers’ Compensation laws, “exclusivity clauses“ bar individuals who have been compensated under the Workers’ Compensation system from pursuing other civil remedies. These clauses do not bar a claim under the ADA.143
The FMLA does not supersede any provision of state or local law that provides greater family or medical leave rights than those provided by the FMLA.144 Not all Workers’ Compensation absences are FMLA absences. For example, an employee who received treatment for a cut hand and did not return to work until the following day would be eligible for Workers’ Compensation leave. However, the employee would not be eligible for FMLA leave because the injury did not keep the employee out of work for more than three days, or require ongoing treatment. In certain circumstances, a Workers’ Compensation absence may run concurrently with a period of FMLA leave and may ultimately implicate the ADA. Either the employer or the employee may choose to have a Workers’ Compensation absence run concurrently with FMLA leave.145 If the Workers’ Compensation absence extends beyond 12 weeks, the FMLA no longer applies and the employer’s obligation to reinstate the employee and maintain medical benefits ceases.
In order to reduce Workers’ Compensation costs, many employers create “light duty“ positions that respond to the medical restrictions of workers recovering from job-related injuries. Such positions usually place few physical demands on an employee.146 Employers may require employees to accept such positions except where that action violates the ADA or FMLA as explained above.
Most Workers’ Compensation systems allow an employer to terminate Workers’ Compensation benefit payments if an employee refuses to accept a medically approved “light duty“ assignment, which offers similar pay and benefits. The ADA and FMLA do not bar such provisions.
Under the ADA an employer may not inquire of an employee whether the employee is an individual with a disability or the nature of any disability, unless the inquiry is job-related and consistent with business necessity. However, the ADA does not prohibit employers from obtaining information about pre-existing injuries after a conditional offer of employment but before the start of work, provided that the inquiry is made of all applicants in the job category. Employers should consider obtaining such information from all employees in certain job categories in order to limit liability for amounts to be paid under Workers’ Compensation if an employee’s pre-existing condition is exacerbated by a work-related injury. Such medical information must remain confidential although it can be submitted to second injury fund officials as required. Prior to making a conditional offer of employment, employers should not attempt to obtain from third parties, such as state Workers’ Compensation offices or others, information about an applicant’s prior occupational injuries or claims.
The medical certification is one of the most important mechanisms available to employers for curbing employee abuse related to all types of leaves of absence. Employers should insist in every case that an employee requesting leave due to his or her own medical condition provide appropriate medical certification in support of the leave request within 15 days of the request. The employer should inform the employee that failure to provide the certification will automatically result in a denial of the leave request. Employers should also uniformly require follow-up recertification at regular intervals during the leave period.
Any medical certification of the employee’s own condition should be narrowly tailored so as to be job-related and consistent with business necessity. To ensure that the physician performing the examination understands the employee’s job duties, the employer should provide a detailed job description. Employers should inform an employee at the time of the leave request, or at least no later than the start of the requested leave, about any requirement of fitness for duty certification upon return from leave.
An employer covered by the ADA should maintain and update comprehensive job descriptions that specify the “essential functions“ for each position. Those descriptions should include specific attendance standards and requirements as well as qualitative and quantitative performance standards. An employer who has designated attendance as an essential function in a job description may be in a stronger position to assert that an employee who is unable to meet attendance requirements is not qualified or that having to endure excessive absenteeism is not a reasonable accommodation.
Employers should carefully monitor offers of light duty assignment to injured employees. While an offer of light duty may limit an employer’s liability for wage replacement under Workers’ Compensation, an FMLA-eligible employee may refuse such an assignment, although that may mean forfeiture of wage replacement benefits during the leave. Employers who make Workers’ Compensation eligibility a prerequisite to entitlement for light duty may potentially violate the ADA by distinguishing between types of disabilities.
Employers should centralize and formalize their decisions respecting employees with a disability and decisions respecting leaves of absence in their main Human Resources office or in some high level policy-making body or committee. They should also maintain a documentation system for handling reasonable accommodation issues. This will allow an employer to monitor more easily and effectively the various, and at times conflicting, requirements of state and federal statutes.
1 42 U.S.C. § 12111(5)(A) defines an employer as a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
2 Id. at § 12112(a).
6 42 U.S.C. § 12102(1)
7 Id. at 42 U.S.C.§ 12102(4)(C).
8 Id. at § 12102(3)(A)
9 Id. at § 12102(3)(B).
10 29 C.F.R. § 1630.2(h).
15 42 U.S.C. § 12102(2)(A).
16 42 U.S.C. § 12102(B).
17 29 C.F.R. § 1630.2(j).
18 ADA Amendments Act of 2008, Sec. 2(b)(6).
19 42 U.S.C. § 12102(4)(E)(i), (ii).
20 42 U.S.C. § 12102(4)(C).
21 Id. at § 12102(4)(D).
22 29 C.F.R. § 1630.2(n)(1).
23 Id. at § 1630.2(n)(2).
24 42 U.S.C. § 12111(8).
25 42 U.S.C. § 12112(b)(5)(A).
26 29 C.F.R. § 1630.2(o).
28 42 U.S.C. § 12111(9)(A)(B).
29 29 C.F.R. § 1630.2(o)(3).
30 Available at http://www.eeoc.gov/facts/accommodation.html. See also the EEOC’s publication Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (hereinafter referred to as "EEOC Guidance"), http://www.eeoc.gov/policy/docs/accommodation.html.
31 29 C.F.R. § 1630.2(p).
32 EEOC Technical Assistance Manual § 3.9.
33 US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (A showing that a requested accommodation will conflict with the rules of an employer’s seniority system is ordinarily enough to show that such an accommodation is not reasonable as a matter of law).
34 See 42 U.S.C. §§ 12111(9)(B), 10(B).
35 See Wood v. Green, 323 F.3d 1309 (11th Cir. 2003).
36 See EEOC Guidance at 14.
37 Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1048 (6th Cir. 1998).
38 29 C.F.R. § 1630.14.
39 42 U.S.C. § 12112(d)(4)(A).
40 N.Y. Exec. Law § 296(1).
41 N.Y.C. Admin. Code § 8-102(16).
42 Id. at § 8-107(15).
43 Abdel-Khalek v. Ernst & Young, LL,, N.Y.L.J., Mar. 11, 1999, page 32, col. 5 (U.S. Dist. Ct. S.D.N.Y.).
44 Conn. Gen. Stat. § 46a-60.
45 Id. at § 46a-51(15).
46 29 U.S.C. §§ 2601 et seq.
47 A “covered employer” is any entity, individual or agency employing 50 or more employees for each working day in at least 20 calendar workweeks in the current or preceding calendar year. See id. at § 2611(4), 29 C.F.R. § 825.104.
48 29 C.F.R. § 825.300(a).
50 Id. at § 825.110(c).
51 29 C.F.R. § 825.110(a),(b).
52 A military operation qualifies as a contingency operation if it is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in hostilities against an enemy of the United States or an opposing military force; or results in the call or order to active duty of members of the uniformed services (i.e., retired Regular Armed Forces and retired Reserve, Ready Reserve, Selected Reserve, Individual Ready Reserve; National Guard; state military when called into service by federal authority); or any other provision of law during a war or during a national emergency declared by the President or Congress, so long as it is in support of a contingency operation. Id. at § 825.126(8)(b)(3). A covered military member includes reserve components of the Army National Guard, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard, Air Force Reserve and Coast Guard Reserve, or a retired member of the Regular Armed Forces or Reserve, but not members of the Regular Armed Forces. Id. at § 825.126(8)(b)(2)(i).
53 Id. at § 825.112. “Next of kin” of a covered servicemember means the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: Blood relatives who have been granted legal custody, brothers and sisters, grandparents, aunts and uncles, and first cousins. Id. at § 825.122(d). The employer may require the employee to provide reasonable documentation of family relationship. Id. at § 825.122(j). A “covered servicemember” includes a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty while on active duty. Id. at § 825.127.
54 Id. at § 825.115.
55 Id. at § 825.126.
56 Id. at § 825.124.
57 29 U.S.C. § 2613(a),(b).
59 29 C.F.R. § 825.306(b).
60 Id. at §§ 825.305(e), 825.308.
61 29 U.S.C. § 2612(e).
62 29 C.F.R. § 825.200.
63 Id. at § 825.202(a)-(c).
64 Id. at § 825.201(b).
65 Id. at § 825.204(a).
66 Id. at § 825.204(c). The transfer, however, may require compliance with the ADA. See id. at § 825.204(b).
67 Id. at § 825.200(f).
68 Id.; see also § 825.127(c).
69 Id. at § 825.127(c)(2).
70 Id. at § 825.127(d).
71 29 U.S.C. § 2612(d)(2)(A),(B); 29 C.F.R. § 825.207(a).
72 29 U.S.C. § 2614(c)(1).
73 Id. at § 2614(a)(2),(3).
74 29 C.F.R. §§ 825.209, 825.212.
75 29 U.S.C. §§ 2614(a)(1),(2),(3).
76 29 C.F.R. § 825.215(a).
77 Id. at § 825.216(a).
78 Id. at § 825.701(a).
79 Id. at § 825.700.
80N.Y. Lab. Law § 201-c(1).
81 N.Y. Work. Comp. Law § 204(2).
82 Conn. Gen. Stat. § 31-51kk(1),(4).
83 Id. at § 31-51ll(a).
84 Conn. Agencies Regs. § 31-35qq-40.
85 38 U.S.C. §§ 4301-4333.
86 Id. at § 4301(a)(1)-(2).
87 Id. at § 4312(a).
88 Id. at § 4303(2).
90 Id. at § 4303(16).
91 Id. at § 4303(13).
92 Id. at §§ 4303(3), 4303(4)(A), 4312(a).
93 Id. at § 4303(3).
94 Id. at § 4312(a)(2).
95 Id. at §§ 4304, 4313.
96 Id. at § 4312(e)(3).
97 38 U.S.C. § 4312(f).
99 38 U.S.C. § 4312(d).
100 Id. at § 4312(d).
101 Id. at § 4303(15).
102 Id. at § 4316(b).
103 Id. at § 4316(a).
104 Id. at § 4316(d).
106 Id. at § 4317(a).
107 Id. at § 4317(a).
109 Id. at § 4317(b).
110 Id. at §§ 4316(a), 4318.
111 Id. at § 4318(b).
112 Id. at § 4318(b).
113 Id. at § 4311.
114 Id. at § 4311(a), (c)(1).
115 Id. at § 4311(c)(1).
116 Id. at § 4311(b), (c)(2).
117 Id. at § 4311(c)(2).
118 Id. at § 4316(c)(2).
119 Id. at § 4316(c)(1).
120 Office locations are listed in Appendix D.
121 Conn. Gen. Stat. § 31-284(a).
122 Id. at § 231-284.
123 Id. at § 31-313.
124 29 C.F.R. §§ 1630.13, 1630.14.
125 Id. at § 1630.14(c)(1).
126 Id. at § 825.100(d).
127 42 U.S.C. § 12112(b)(5)(A).
128 29 C.F.R. § 825.117.
129 Id. at § 825.2(o)(2)(ii),(p)(2).
130 29 U.S.C. § 612(a)(1)(B).
131 EEOC Technical Assistance Manual § 9.4.
132 29 C.F.R. § 825.702(d).
134 Id. at § 825.204(b).
135 29 U.S.C. § 2612(a)(1).
136 Id. at § 2612(b)(2).
137 29 C.F.R. § 825.205(a).
138Id. at § 825.215.
139 29 C.F.R. § 825.204.
140 42 U.S.C. § 12201(b).
141 EEOC Technical Assistance Manual § 9.2.
142 Id. at § 9.6.
143 Id. at § 9.7.
144 29 C.F.R. § 825.701(a).
145 Id. at § 825.207(d)(2).
146 EEOC Technical
Assistance Manual § 9.4.