legalanswerbooks.com douglas g. griffin, esq legalanswerbooks.com employment law game ada edition

LEGALANSWERBOOKS.COM

Douglas G. Griffin, ESQ

LegalAnswerBooks.com EMPLOYMENT LAW GAME

ADAEdition

Which of the following conditions constitute a “disability” under the ADA?

LegalAnswerBooks.com

A. An employee who submits a diagnosis of cancer.

B. An impairment that substantially impacts only eating.

C. An employee with an impairment which substantially limits a major life activity but the impact is not “severe.”

D. An employee who is disabled only when failing to take prescription medication that controls the condition.

Which of the following conditions constitute a “disability” under the ADA?


What is considered a disability in regards to the Americans with Disabilities Act?

In general. Disability means, with respect to an individual—

a. A physical or mental impairment that substantially limits one or more of

the major life activities of such individual;

b. A record of such an impairment; or

c. Being regarded as having such an impairment.

42 U.S.C.A. § 12102; 29 C.F.R. 1630.2

Correct Answer: B. An impairment that substantially impacts only eating.


How did the Americans with Disability Act Amendments Act of 2008 modify the previous analytical framework for determining whether an impairment constitutes a “disability?” The ADAAA clarified Congress's intent with respect to the term “disability” in three major ways. First, the law makes clear that eating is a major life activity under the Act.

Correct Answer: C. An employee with an impairment which substantially limits a major life activity but the impact is not “severe.”


How did the Americans with Disability Act Amendments Act of 2008 modify the previous analytical framework for determining whether an impairment constitutes a “disability?” The ADAAA clarified Congress's intent with respect to the term “disability” in three major ways. . . . Second, the ADAAA states that the standard articulated in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)-that “substantially limits” means “prevents or severely restricts”- created an inappropriately high level of limitation necessary to obtain coverage under the ADA.

Incorrect Answer: A. An employee who submits a diagnosis of cancer.


Is proof of a medical diagnosis alone sufficient to establish a disability?

No. The existence of a medical condition alone is insufficient to satisfy the ADA. It is well-established that a particular diagnosis, no matter how severe (or severe-sounding to the layperson), standing alone, is not sufficient to establish ‘disability.’ Rather, the inquiry as to disability is to be made on a case-by-case basis. The ADA requires evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial; An employee cannot rely on “the name or diagnosis of the impairment”; rather, he must show “the effect of that impairment on” him.

Incorrect Answer: D. An employee who is disabled only when failing to take prescription medication that controls the condition.


How did the Americans with Disability Act Amendments Act of 2008 modify the previous analytical framework for determining whether an impairment constitutes a “disability?” The ADAAA clarified Congress's intent with respect to the term “disability” in three major ways. . . . Third, the ADAAA rejects the requirement enunciated in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) that whether an impairment substantially limits a major life activity is to be determined with reference to mitigating measures. The ADAAA makes explicit that the “substantially limits” inquiry must be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, or appliances; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

Which of the following disabled individuals may be entitled to protections of the ADA?


A. A person who is able to perform the essential functions of a job, but lacks educational pre-requisites.

B. A person who is only a threat to himself.

C. A current alcoholic.

D. A current illegal drug user

What is meant by a “qualified individual with a disability” under the Americans with Disabilities Act?

The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.

Is a person a person that poses a direct threat to the health or safety of self/or others a qualified individual with a disability?

Generally, not. An employer may require, as a qualification standard, that an individual not pose a direct threat to the health or safety of himself/herself or others. Like any other qualification standard, such a standard must apply to all applicants or employees and not just to individuals with disabilities. If, however, an individual poses a direct threat as a result of a disability, the employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level. If no accommodation exists that would either eliminate or reduce the risk, the employer may refuse to hire an applicant or may discharge an employee who poses a direct threat.

Correct Answer: C. A current alcoholic.


Can alcoholism qualify as a disability under the ADA? Yes. Alcoholism may qualify as a disability if it “substantially limits one or more major life activities.” 42 U.S.C. § 12102(1). A substantial limitation is a limitation that renders an individual unable to perform a major life activity or that significantly restricts an individual in performing a major life activity. 29 C.F.R. § 1630.2(j). Major life activities can include caring for oneself, sleeping, walking and working. 42 U.S.C. § 12102(2). However, an employee’s discrimination and failure-to-accommodate claims will fail if an employer takes adverse employment action because the employee came to work under the influence of alcohol.

Incorrect Answer: A. A person who is able to perform the essential functions of a job, but lacks educational pre- requisites.


What must an employee prove to establish that she is a “qualified individual with a disability” for purposes of a reasonable accommodation claim? The protections of the ADA extend only to “qualified individuals” with a disability. When determining whether a person is a “qualified individual” under the ADA, courts undertake a two-part inquiry and consider whether, at the time of the termination decision, the employee: 1) satisfies the employer's legitimate selection criterion for the job; and 2) is capable of performing the job's “essential functions” with or without reasonable accommodation from an employer. This latter element requires that she was able to still perform at a “meets” expectation level.

Incorrect Answer: B. A person who is only a threat to himself.


Is a person who poses a direct threat to self a “Qualified Individual with a Disability?” No. An employer is permitted to require that an individual not pose a direct threat of harm to his or her own safety or health. If performing the particular functions of a job would result in a high probability of substantial harm to the individual, the employer could reject or discharge the individual unless a reasonable accommodation that would not cause an undue hardship would avert the harm.

Incorrect Answer: D. A current illegal drug user


Is a person currently engaging in illegal drug use a “Qualified Individual with a Disability?” No. The terms disability and qualified individual with a disability do not include individuals currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

Is a former drug user a “Qualified Individual with a Disability?”


Yes. The terms disability and qualified individual with a disability include an individual who:

A. Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs; or

B. Is participating in a supervised rehabilitation program and is no longer engaging in such use; or

C. Is erroneously regarded as engaging in such use, but is not engaging in such use.

Is a person protected as a former drug user as soon as he ceases drug use and enters treatment?


No. Section 12114(b) “applies only to individuals who have been drug-free for a significant period of time.” Neither does the analysis change based on an employee's candor with his employer about his addiction: Self-reporting “does not propel [a plaintiff] into the safe harbor's protection simply because he had entered a rehabilitation program before the adverse employment action was taken.” To the contrary, a “significant period of recovery” is required for an employee to qualify for the safe harbor, regardless of how his addiction is discovered.

What process should generally be used to establish a reasonable accommodation?


A. The employee must request an accommodation when the need is not obvious.

B. The employer must offer accommodation when the need is obvious.

C. The employer and employee must both discuss the requirements for a reasonable accommodation.

D. The accommodation offered must be “best” accommodation possible.

Correct Answer A. The employee must request an accommodation when the need is not obvious.


What is the employee’s duty to request a reasonable accommodation? The “predicate requirement” triggering the interactive process designed to identify an appropriate accommodation is the employee's request for the accommodation. A mere assertion that an accommodation is needed is insufficient; and the employee must inform the employer of the accommodation needed.

Correct Answer - B. The employer must offer accommodation when the need is obvious.


What is the exception to the general rule that a request for an accommodation is a prerequisite to the duty to accommodate? A request for accommodation is not a prerequisite to liability for failure to accommodate where the disability is obvious or otherwise known to the employer without notice from the employee. The notice requirement is rooted in common sense.

Correct Answer - C. The employer and employee must both discuss the requirements for a reasonable accommodation.


What communication is generally required of both the employee and employee relating to an employee’s need for reasonable accommodation? Applicable regulations provide that in order “[t]o determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). Courts have held that “both parties have a duty to assist in the search for an appropriate reasonable accommodation and to act in good faith.”

Correct Answer - C. The employer and employee must both discuss the requirements for a reasonable accommodation.


Who has the burden of initially proposing an accommodation? The employee has the burden of proposing an initial accommodation, and the employer has the burden of showing how the accommodation would cause an undue hardship, but the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith. Of course, taking the extra step of proposing counter accommodations may be additional evidence of good faith. If an employer takes that step and offers a reasonable counter accommodation, the employee cannot demand a different accommodation. An employer has sufficiently acted in good faith when it readily meets with the employee, discusses any reasonable accommodations, and suggests other possible positions for the plaintiff.

Incorrect Answer - D. The accommodation offered must be “best” accommodation possible.


Is an employee entitled to demand a particular accommodation or the “best” accommodation?

No. An individual with a disability is not required to accept an accommodation. In addition, an accommodation need only be adequate to enable the individual to perform the essential functions of the relevant position. The accommodation does not have to be the “best” accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated.

What type of job restructuring may constitute a reasonable accommodation?


A. Hiring a full time assistant to support a disabled employee.

B. Creating a light-duty position.

C. Allowing the employee to telecommute or work from home.

D. An accommodation that would require other employees to work harder

Incorrect answer A. Hiring a full time assistant to support a disabled employee.


Must an employer hire a full time assistant to support a disabled employee as a reasonable accommodation? No. The ADA did not require an employer to permanently provide a disabled employee with fulltime technical support.

Incorrect answer - B. Creating a light-duty position.


Must an employer restructure a disabled employee’s position to make it part-time or perform light duty?

No. The ADA imposes no duty to restructure a disabled employee’s position to make it part-time or perform light duty.

Incorrect answer - C. To telecommute or work from home..


Is an employer required to allow an employee to work at home or remote location as a reasonable accommodation? As a general matter, working at home or remote location is not a reasonable accommodation; but, whether a request for an at-home accommodation is reasonable must be made on a case-by-case basis.

Incorrect answer - D. An accommodation that would require other employees to work harder


Is a job restructuring which requires other employees to work harder reasonable?

No. An accommodation that would require other employees to work harder is unreasonable.

What type of job reassignments may constitute a reasonable accommodation?


1. Creating a new a new job for the purpose of reassigning an employee to that job.2. Reassigning a disabled employee to a position that would constitute a

promotion. 3. Reassigning a disabled employee in a manner that would contravene the

seniority provisions of the employer's collective bargaining agreement. 4. Allowing the disabled employee to “bump” or displace a non-disable employee.

Correct Answer: None of the Above


What are some of the recognized exceptions to an employer’s duty to reassign an employee? 1. It is not reasonable to require an employer to create a new job for the purpose of

reassigning an employee to that job.2. The ADA does not require the employer to reassign a disabled employee to a

position that would constitute a promotion. 3. The ADA does not require an employer to reassign a disabled employee in a

manner that would contravene the employer's collective bargaining agreement. 4. The job to which a disabled employee seeks reassignment must be vacant.

Which PRE-EMPLOYMENT medical examinations and disability related inquiries are permitted under the Americans with Disabilities Act?


A. A medical examination for obviously disabled candidates, but only after making an offer of employment.

B. Asking only an applicant with a known or obvious disability to describe or demonstrate how, with or without reasonable accommodation, the applicant would perform the essential functions of the job.

C. A post-offer medical examination, but which is also conditioned on routine non- medical check (such as undergoing background and reference checks).

D. Asking how often the individual will require leave for treatment or use leave as a result of known or obvious disability.

What are considered prohibited medical examinations and inquiries under the Americans with Disabilities Act?Act?


A. Pre-employment examination or inquiry. Except as permitted by § 1630.14, it is unlawful for a covered entity to conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability.

B. Examination or inquiry of employees. Except as permitted by § 1630.14, it is unlawful for a covered entity to require a medical examination of an employee or to make inquiries as to whether an employee is an individual with a disability or as to the nature or severity of such disability.

Correct Answer B. Asking only an applicant with a known or obvious disability to describe or demonstrate how, with or without reasonable accommodation. Act?


May an employer ask an applicant with a known or obvious disability to describe or demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions, when other non-disabled applicants are not asked the same questions?

Yes, if the nature of the disability may prevent the performance of job functions. Such a request may be made of an applicant whose known disability may interfere with or prevent the performance of a job-related function, whether or not the employer routinely makes such a request of all applicants in the job category. On the other hand, if the known disability of an applicant will not interfere with or prevent the performance of a job-related function, the employer may only request a description or demonstration by the applicant if it routinely makes such a request of all applicants in the same job category. So, for example, it would not be permitted for an employer to request that an applicant with one leg demonstrate his ability to assemble small parts while seated at a table, if the employer does not routinely request that all applicants provide such a demonstration.

Incorrect Answer A. A medical examination for obviously disabled candidates only after making an offer of employment.


Which pre-employment medical examinations and inquiries are specifically permitted under the Americans with Disabilities Act?

A covered entity may require a medical examination after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability. Such medical examinations do not have to be job-related and consistent with business necessity.

Incorrect Answer: C. A post-offer medical examination, but which is also conditioned on routine non- medical check (such as undergoing background and reference checks).


Does an offer contingent on the applicant’s successfully completing the medical component of the hiring process AND non-medical conditions such as undergoing background checks comply with the ADA? No. The ADA prohibits medical examinations and inquiries until after the employer has made a “real” job offer to an applicant. See 42 U.S.C. § 12112(d) (1999). A job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer. To issue a “real” offer under the ADA, an employer must have either completed all non-medical components of its application process or be able to demonstrate that it could not reasonably have done so before issuing the offer.

Incorrect Answer D. Asking how often the individual will require leave for treatment or use leave as a result of known or obvious disability.


May an employer ask how often the individual will require leave for treatment or use leave as a result of incapacitation because of the disability? No. The employer is prohibited from asking how often the individual will require leave for treatment or use leave as a result of incapacitation because of the disability. However, the employer may state the attendance requirements of the job and inquire whether the applicant can meet them.

What medical examinations and inquiries of current employees are permitted under the Americans with Disabilities Act?


A. A medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity.

B. A medical examination required to determine the nature and extent of a reasonable accommodation.

C. Requiring an employee who has made threats in the workplace to get a fitness-for-duty exam prior to returning to work.

D. A teacher who has not made threats but who has engaged disturbing behavior to get a fitness-for-duty exam.

Correct Answers A and B. A medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity; or required to determine the nature and extent of a reasonable accommodation.


What medical examinations and inquiries of current employees are permitted under the Americans with Disabilities Act? A covered entity may require a medical examination (and/or inquiry) of an employee that:

1. Is job-related and consistent with business necessity;

2. Inquiries into the ability of an employee to perform job-related functions;

3. Is necessary as part of the reasonable accommodation process; and/or

4. If such physicals or monitoring are required by medical standards or requirements established by Federal, State, or local law.

Correct Answer C. Requiring an employee who has made threats in the workplace to get a fitness-for-duty exam prior to returning to work.


May an employer require an employee who has made threats in the workplace to get a fitness-for-duty exam prior to returning to work? Yes. Where an employer reasonably perceives based on objective facts, such as the making of threats, that an employee is even mildly paranoid, hostile, or oppositional, a fitness for duty examination is job related and consistent with business necessity. The ADA does not, indeed cannot, require an employer to forgo a fitness for duty examination to wait until a perceived threat becomes real or questionable behavior results in injuries.

Maybe Correct Answer D. A teacher who has not made threats but who has engaged disturbing behavior to get a fitness-for-duty exam.


May an employer require a safety sensitive employee who has engaged in disturbing behavior to get a fitness-for-duty exam?

Yes. Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims. This is especially true in professions like law enforcement where employees are responsible for the care and safety of others. The question here is whether teachers are “safety-sensitive.”

LEGAL ANSWER BOOKS

Douglas G. Griffin

LegalAnswerBooks.com EMPLOYMENT LAW

GAMEFMLA

Edition

What is the purpose of The Family and Medical Leave Act?


The Family and Medical Leave Act of 1993 allows “eligible” employees of a covered employer to take job-protected, unpaid leave for up to a total of 12 workweeks in any 12 months because of:

1. For birth of a son or daughter, and to care for the newborn child; 2. For placement with the employee of a son or daughter for adoption or

foster care;3. To care for the employee's spouse, son, daughter, or parent with a serious

health condition;4. Because of a serious health condition that makes the employee unable to

perform the functions of the employee's job;5. Because of any qualifying exigency arising out of the fact that the

employee's spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation; and

6. To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member.

Which of the following employees would be eligible for FMLA leave?


A. A psc teacher with only 10 months of service after returning from a two year personal leave.

B. A psc teacher who has worked only 1,100 hours for the district.

C. A long-term bus driver who will have worked 1250 hours in the 12 months before the FMLA leave will start, but not in the fiscal year that the district uses to determine the amount of leave entitlement.

D. A long-term, full-time speech pathologist who contracts exclusively with the district.

Which employees are eligible for FMLA leave?


An “eligible employee” is an employee of a covered employer who:

1. Has been employed by the employer for at least 12 months, and2. Has been employed for at least 1,250 hours of service during the 12-month

period immediately preceding the commencement of the leave, and3. Is employed at a worksite where 50 or more employees are employed by the

employer within 75 miles of that worksite.

How is the “12-month period” in which the 12 weeks of leave entitlement occurs determined?


An employer is permitted to choose any one of the following methods for determining the “12-month period” in which the 12 weeks of leave entitlement occurs:

1. The calendar year;2. Any fixed 12-month “leave year,” such as a fiscal year, a year required by

State law, or a year starting on an employee's “anniversary” date;3. The 12-month period measured forward from the date any employee's first

FMLA leave under paragraph (a) begins; or,4. A “rolling” 12-month period measured backward from the date an

employee uses any FMLA leave as described in paragraph (a).

Correct Answer A. A psc teacher with only 10 months of service after returning from a two year personal leave.


Must the 12 months of employment be consecutive? The 12 months an employee must have been employed by the employer need not be consecutive months, provided employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months.

Correct Answer B. A psc teacher who has worked only 1,100 clock hours for the district.


Must school districts consider work of teacher at home beyond the official duty day in determining whether a teacher has worked 1250 hours in the last twelve months? Yes. An employer of “full-time teachers ... of an elementary or secondary school system ... who often work outside the classroom or at their homes” must show that such employees “did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave.” 29 C.F.R. § 825.110(c)(3). The burden of proof is squarely on the District to prove that a teacher did not work 1,250 hours in the year preceding his leave.

Correct Answer C. A long-term bus driver who will have worked 1250 hours in the 12 months before the FMLA leave will start, but not in the fiscal year that the district uses to determine the amount of leave entitlement.


What twelve-month period must be used to determine whether the employee has worked at least 1,250 hours in the past 12 months?

The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be “FMLA leave.”

Possibly Correct Answer D. A long-term, full-time speech pathologist who contracts exclusively with the district.


What tests do the courts apply to determine whether a person is an “employee” under the FMLA, as opposed to an uncovered independent contractor? The courts apply a hybrid test in determining whether plaintiff is an “employee.” Under the hybrid test, the term “employee” is construed in light of general common-law concepts, taking into account the economic realities of the situation. Under the economic reality test, courts evaluate whether the alleged employer: (1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records. However, a party need not establish each element in every case.

When is an eligible employee entitled to FMLA because of the employee’s own serious health condition?


A. Absence which is prompted by pain or other bouts of anxiety, without treatment or inpatient care.

B. Where the leave would be generally beneficial, but is neither for a specific period of incapacity, nor for treatment for such incapacity.

C. For leave to get substance abuse treatment.

D. Cosmetic Treatment.

Correct Answer C. For leave to get substance abuse treatment.


Does FMLA apply to leave for substance abuse? Substance abuse may be a serious health condition. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.

Treatment for substance abuse does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment.

Incorrect Answer A. Absence which is prompted by pain or other bouts of anxiety, without treatment or inpatient care.


Does absence which is prompted by pain or other bouts of anxiety, without treatment or inpatient care, qualify for FMLA?

No. The Act defines a “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). An employee must also show that his health prevented him from performing the duties of his position.

Incorrect Answer A. Absence which is prompted by pain or other bouts of anxiety, without treatment or inpatient care.


When does an incapacity qualify because of “continuing treatment?”

When a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

1. Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist;

2. 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;

The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity

Incorrect Answer B. Where the leave would be generally beneficial, but is neither for a specific period of incapacity, nor for treatment for such incapacity.


Does FMLA apply to any leave that would be medically beneficial for a chronic health condition?

No. Although the FMLA protects leave “[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee,” 29 U.S.C. § 2612(a)(1)(D), and one type of “serious health condition” is a “chronic health condition,” 29 C.F.R. § 825.115, the FMLA does not extend its potent protection to any leave that is medically beneficial leave simply because the employee has a chronic health condition.

Incorrect Answer D. Cosmetic Treatment.


Does FMLA apply to leave for cosmetic treatment?

Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not “serious health conditions” unless inpatient hospital care is required or unless complications develop.

When is an eligible employee entitled to FMLA to care for a family member?


A. Only when other family members are not available to care for the parent or family member with a serious health condition.

B. To care for a mother-in-law with a serious health condition.

C. When the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.

D. Caring for grandchildren while a child recovers.

Probably Correct Answer C. When the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.


Must an employee have some level of involvement with a family member’s medical care in order to qualify for FMLA leave? The answer varies by circuit. A pair of Ninth Circuit cases hold that “caring for a family member with a serious health condition ‘involves some level of participation in ongoing treatment of that condition.” For example that circuit held a wife may not properly claim that caring for her husband would itself be protected leave if the pair traveled for reasons unrelated to medical treatment of her husband's illnesses. The Seventh Circuit, however, has concluded that, so long as the employee attends to a family member's basic medical, hygienic, or nutritional needs, that employee is caring for the family member, even if that care is not part of ongoing treatment of the condition.

Probably Correct Answer D. Caring for grandchildren while a child recovers


Does a combination of assistance to one's son or daughter, plus care of grandchildren that could take a load off the daughter's mind and feet, counts as “care” under the Act? Yes. Care includes psychological as well as physical assistance to a covered family member. Assistance to other members of the family can give a son or daughter a mental boost. A person who knows that her family is well looked-after has an important resource in trying to recover from a medical challenge. As a result, caring for her daughter, plus helping care for her daughter's children is a qualifying event.

Incorrect Answer A. Only when other family members are not available to care for the parent or family member with a serious health condition.


Is eligibility for leave impacted by the fact that other siblings or family members are available to care for the parent or family member with a serious health condition? No. The FMLA regulations expressly state that “[t]he employee need not be the only individual or family member available to care for the family member.” 29 C.F.R. § 825.124(b)

Incorrect Answer B. To care for a mother-in-law with a serious health condition.


What are the parameters for FMLA leave to care for a parent? An eligible employee is entitled to FMLA leave if needed to care for the employee's parent with a serious health condition. The term “parent” means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter. Care for parents-in-law is not covered by the FMLA.

What additional reinstatement rights must an employer grant to an employee under the FMLA upon return from an FMLA leave?


A. The same position even if it has been filled.

B. A brief extension of the leave if the employee is expected to be able to return within a short time after the exhaustion of FMLA leave.

C. Reasonable Accommodations to enable the returning employee to perform the essential functions of the job.

D. Return to light duty.

Incorrect Answer A. The same position even if it has been filled


What is an employee’s right to reinstatement after FMLA leave? On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced.

Incorrect Answer A. The same position even if it has been filled


What is meant by equivalent position? An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority, as follows:

1. The employee must be reinstated to the same or a geographically proximate worksite;

2. The employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule; and

3. The employee must have the same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and non-discretionary payments.

Incorrect Answer B. A brief extension of the leave if the employee is expected to be able to return within a short time after the exhaustion of FMLA leave.


May an employer refuse to reinstate an employee when the employee is unable to return until after all FMLA leave has already been exhausted? Yes. An employee is not entitled to reinstatement under the FMLA if he is unable to return to work until after the expiration of his leave.

Incorrect Answer C. Reasonable Accommodations to enable the returning employee to perform the essential functions of the job.


Does an employer have a duty under the FMLA to make accommodations for an employee to allow the employee to return to the same position? No. The FMLA does not require an employer to provide a reasonable accommodation to an employee to facilitate his return to the same or equivalent position at the conclusion of his medical leave. In order for an employee to demonstrate entitlement to restoration, the employee must have been able to perform the essential functions of the job without accommodation at the time he sought restoration.

Incorrect Answer D. Return to light duty.


Does the FMLA require an employer to lower its performance standards to accommodate a reinstated employee? No. The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave. For example, an employer is not required to grant a returning employee “light duty,” but an employer can’t require an employee who is taking intermittent leave to meet full time production requirements.

Under what circumstances must an employer allow an employee take intermittent or reduced FMLA leave?


A. Following birth or placement of a child. B. Because of one's own serious health condition, C. To care for a parent, son, or daughter with a serious health condition. D. To care for a covered service member with a serious injury or illness

Correct Answers B, C, D.


What are qualifying reasons for intermittent leave or leave on a reduced leave schedule?

For intermittent leave or leave on a reduced leave schedule taken because of one's own serious health condition, to care for a parent, son, or daughter with a serious health condition, or to care for a covered service member with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule.

Incorrect Answer A. Following birth or placement of a child.


Are eligible employees entitled to intermittent and reduced schedule leave after birth or placement of a child? No. An eligible employee may use intermittent or reduced schedule leave after the birth or placement for adoption or foster care to be with a healthy newborn child only if the employer agrees.

What type of notice must an employee give in order to be eligible for FMLA leave?


A. When the need for FMLA leave is foreseeable, at least 30 days in advance. B. When the need for FMLA leave is foreseeable fewer than 30 days in advance, as soon as practicable under the particular facts and circumstances. C. Notice complying with customary call-in procedures. D. A request for FMLA leave.

Correct Answer A. When the need for FMLA leave is foreseeable, at least 30 days in advance.


What are the employee notice requirements for foreseeable FMLA leave? An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of the employee or of a family member, or the planned medical treatment for a serious injury or illness of a covered service member.

Correct Answer B. When the need for FMLA leave is foreseeable fewer than 30 days in advance, as soon as practicable under the particular facts and circumstances.


What are the employee notice requirements for FMLA leave not forseeable 30 days in advance? If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. For example, an employee's health condition may require leave to commence earlier than anticipated before the birth of a child. Similarly, little opportunity for notice may be given before placement for adoption. For foreseeable leave due to a qualifying exigency notice must be provided as soon as practicable, regardless of how far in advance such leave is foreseeable.

Correct Answer C. Notice complying with customary call-in procedures.


May an employee on FMLA be compelled to comply with an employer’s customary notice and procedural requirements? Yes. An employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. An employee may be required by an employer's policy to contact a specific individual. Where an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

Incorrect Answer D. A specific request for FMLA leave.


Can constructive notice to employer satisfy an employee’s notice obligation? Yes. Either an employee's inability to communicate his illness to his employer or clear abnormalities in the employee's behavior may constitute constructive notice of a serious health condition. It is enough under the FMLA if the employer knows of the employee's need for leave; the employee need not mention the statute or demand its benefits. “Unusual behavior” alone can be enough to notify a reasonable employer that an employee suffered from a serious health condition.

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