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48 ADEA applies to any employer with 20 or more employ- ered locations. The FMLA allows eligible employees438 to ees, including state and local governments, although take up to 12 workweeks of unpaid, job-protected leave states may not be sued for money damages under in a 12-month period when the employee is unable to ADEA.431ADEA is enforced by the EEOC. work because of a serious health condition.439 Under The Supreme Court has recognized the existence of some circumstances, the employee may take leave on a 440 disparate-impact claims under the ADEA, but with sub- reduced leave schedule or intermittently. If an em- stantially narrower coverage than under Title VII be- ployee's leave is protected under the FMLA, the leave cause the Wards Cove analysis remains applicable to cannot be denied, health benefits must be maintained, ADEA cases and the ADEA permits otherwise prohib- and the employee's job is protected.441 It is the em- ited actions where differentiation between the plaintiffs ployer's responsibility to determine whether requested and other employees is based on reasonable factors leave qualifies as FMLA leave, based only on informa- other than age.432 Moreover, the burden of establishing 442 tion provided by the employee. The Fifth Circuit has a prima facie case of disparate impact under ADEA may held that to be covered under the FMLA due to a seri- remain substantial.433 ous health condition, the employee must establish that he is incapacitated, at least temporarily.443 D. Family and Medical Leave The FMLA is intended to help employees balance `public agency,' as defined in section 203(x) of this title." 29 work and family obligations. The Act is intended to pro- U.S.C. 2611(4), http://frwebgate.access.gpo.gov/cgi- vide eligible employees with a measure of job security bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& when they attend to specified family and medical obli- start=4599194&SIZE=7087&TYPE=PDF; "Public agencies are gations, while accommodating the legitimate interests covered employers without regard to the number of employees 434 of employers. One of those obligations is dealing with employed." 29 C.F.R. 825.104Covered employer, the employee's own "serious health condition," as that www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.104.htm. 438 term is defined under the statute, when such condition To be eligible, an employee must have worked for the makes the employee unable to perform the functions of employer for a total of 12 months, worked at least 1,250 hours the employee's job. An impairment may qualify as a in the previous 12 months, and worked at a location where at least 50 employees are employed within 75 mi. 29 U.S.C. serious health condition under the FMLA without 2611(2), http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi? qualifying as a disability under the ADA.435 The FMLA ACTION=RETRIEVE&FILE=$$xa$$busc29.wais&start=4599 is enforced by the Department of Labor (DOL).436 194&SIZE=7087&TYPE=PDF; 29 C.F.R. 825.110Eligible The FMLA applies to all private, state, and local employee, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR government employees of covered employers437 at cov- 825.110.htm. 439 A serious health condition is an "illness, injury, impair- 431 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, ment or physical or mental condition that involves--(A) inpa- 145 L. Ed. 2d 522 (2000). tient care in a hospital, hospice, or residential medical care 432 Smith v. City of Jackson, 544 U.S. 228, 125 S. Ct. 1536, facility; or (B) continuing treatment by a health care provider." 161 L. Ed. 2d 410 (2005). 29 U.S.C. 2611(11), http://frwebgate.access.gpo.gov/cgi- 433 Donald J. Spero, Smith v. City of Jackson: Does It Really bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& Open New Opportunities for ADEA Plaintiffs to Recover Under start=4599194&SIZE=7087&TYPE=PDF. The terms "inpatient a Disparate Impact Theory?, 36 U. OF MEM. L. REV. 183 (2005). care," "continuing treatment," and "serious health condition" 434 29 U.S.C. 2601(b), Purposes, are further defined under DOL regulations. 29 C.F.R. 825.114 http://frwebgate.access.gpo.gov/cgi- Inpatient Care, bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.114.htm; start=4594087&SIZE=4802&TYPE=PDF. Leave is protected 29 C.F.R. 825.115Continuing Treatment, for several reasons. 29 U.S.C. 2612(a)(1), Entitlement to www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.115.htm; leave, http://frwebgate.access.gpo.gov/cgi- 29 C.F.R. 825.113Serious Health Condition, bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.113.htm. 440 start=4606287&SIZE=7085&TYPE=PDF; 29 C.F.R. 825.112 29 U.S.C. 2612(b), Leave taken intermittently or on re- Qualifying reasons for leave, general rule, duced leave schedule, http://frwebgate.access.gpo.gov/cgi- www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.112.htm. bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& Only leave due to the employee's own health condition, that is start=4606287&SIZE=7085&TYPE=PDF; 29 C.F.R. 825.202 leave relevant to physical ability testing, is discussed in this Intermittent leave or reduced leave schedule, report. www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.202.htm. 435 EEOC, the Family and Medical Leave Act, the Americans Breaks for diabetic individuals to eat to maintain their blood with Disabilities Act, and Title VII of the Civil Rights Act of sugar have been held to be intermittent breaks under the 1964, Question 8, www.eeoc.gov/policy/docs/fmlaada.html. FMLA. Collins v. U.S. Playing Card Co., 466 F. Supp. 2d 954 436 (S.D. Ohio 2006). U.S. Department of Labor, Wage and Hour Division, Fact 441 Sheet No. 28: The Family and Medical Leave Act of 1993, 29 C.F.R. 825.100, www.dol.gov/whd/regs/compliance/whdfs28.pdf. www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.100.htm. 442 437 "Any person engaged in commerce or in any industry or 29 C.F.R. 825.301, activity affecting commerce, who employs 50 or more employ- www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.301.htm. 443 ees for each working day during each of 20 or more calendar Mauder v. Metro. Transit Auth. of Harris County, Tex., workweeks in the current or preceding calendar year" and "any 446 F.3d 574 (5th Cir. 2006).

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49 Employers may require employees to submit medical under the FMLA must comply with the ADA, that is, be certification supporting the request for leave under the job related and consistent with business necessity.451 Act,444 and an employee's failure to provide requested The Seventh Circuit has held that a collective bargain- supporting information specified under the FMLA is a ing agreement may impose stricter return-to-work re- basis for finding the employee was not entitled to strictions than those otherwise incorporated into the 445 FMLA leave. However, if the employee's medical cer- FMLA.452 tification meets FMLA requirements, the employer may An employee returning from FMLA leave is not enti- not deny leave based on agency requirements that are tled to restoration under the FMLA if the employee is more restrictive than the requirements of the FMLA.446 unable to perform an essential function of the position Employers may require return-to-work certifications because of a physical condition.453 Therefore, although that are related to the medical condition for which the the DOL regulation does not directly address physical employee took leave, subject to any valid state or local ability testing, such testing should be allowed provided law or collective bargaining agreements governing re- that it is job related and consistent with business ne- turn to work.447 The certification requirement must be cessity. This FMLA issue does not affect any obligations uniformly applied, that is, every one in the same occu- the employer may have under such circumstances un- 454 pation with the same medical condition must meet the der the ADA, however. same requirements. The FMLA does not authorize an The Supreme Court has held that states are subject employer to require a fitness-for-duty examination for to suit for violations of the FMLA, ruling that the an employee to return to work from FMLA leave. More- FMLA constitutionally abrogates states' immunity from over, the FMLA "does not authorize an employer to suit.455 make an independent assessment of the employee's Takeaway: An employer may require all employees medical condition. Instead, the employer should deter- returning from FMLA to provide a return-to-work certi- mine whether the provided information demonstrates fication attesting to the fact that the condition that re- that the diagnosed condition is a serious health condi- quired leave no longer prevents the employee from per- 448 tion within the meaning of the FMLA." forming essential functions of the job, provided that Medical testing can be required following FMLA such requirement is uniformly applied. An employer leave only if the employer can establish that the testing should be able to require physical ability testing of an would have been required absent the medical leave.449 employee returning from FMLA leave if there is an ob- Testing may be required because of questions about the jective reason to believe, based on the employee's condi- employee's ability to perform essential functions of the tion upon return, that the employee may have some job, independent of the fact of having taken leave.450 difficulty in performing essential functions of the job. Any such medical testing performed following leave Such testing may not be required merely because the employee is returning from FMLA leave. 444 29 U.S.C. 2614(a)(4), http://frwebgate.access.gpo.gov/cgi- 451 29 C.F.R. 825.312Fitness-for-duty certification, bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.312.htm. start=4617929&SIZE=7059&TYPE=PDF; 29 C.F.R. 825.306 For a discussion of one approach to developing a return-to-duty Content of medical certification for leave taken because of an protocol for a physically demanding job, see Craig B. Clinton, employee's own serious health condition or the serious health Developing a Return to Duty Procedure Following an Extended condition of a family member, Medical Leave, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.306.htm; www.usfa.dhs.gov/pdf/efop/efo43353.pdf (accessed Nov. 16, 29 C.F.R. 825.307Authentication and clarification of medical 2009). certification for leave taken because of an employee's own seri- 452 Harrell v. United States Postal Serv., 445 F.3d 913, 927 ous health condition or the serious health condition of a family (7th Cir. 2006) (holding that requiring employee to comply with member; second and third opinions, www.dol.gov/dol/allcfr/ return-to-work provisions in employee handbook incorporated Title_29/Part_825/29CFR825.307.htm. 445 into collective bargaining agreement--provide medical docu- Mauder v. Metro. Transit Auth. of Harris County, Tex., mentation outlining nature and treatment of illness or injury, 446 F.3d 574 (5th Cir. 2006). inclusive dates employee was unable to work, and any medi- 446 Albert v. Runyon, 6 F. Supp. 2d 57, 67 (D. Mass. 1998). cines taken--did not violate FMLA). More restrictive state or local laws or collective bargaining 453 29 C.F.R. 825.216Limitations on an employee's right agreement provisions do justify more stringent standards than to reinstatement, subsection (c), those of the FMLA. Id. www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.216.htm. 447 However, rights afforded under the FMLA cannot be di- 454 29 C.F.R. 825.216Limitations on an employee's right minished by collective bargaining agreements. 29 U.S.C. to reinstatement, subsection (c), 2652, http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.216.htm. =RETRIEVE&FILE=$$xa$$busc29.wais&start=4656175&SIZ 455 Nev. Dep't of Human Resources v. Hibbs, 538 U.S. 721, E=1603&TYPE=PDF. 448 740, 123 S. Ct. 1972, 1984, 155 L. Ed. 2d 953, 971 (2003). See Runyon, 6 F. Supp. 2d at 64. Gina M. Kulig, Constitutional Law--The Family and Medical 449 Id. at 65. Leave Act: Abrogation of States' Immunity from Suit--Nevada 450 Id. at 6669 (D. Mass. 1998). See Silver, supra note 12, at Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), 641. 38 SUFFOLK U. L. REV. 231 (2004).