AGE DISCRIMINATION

Age Discrimination in Employment Act (ADEA)

Public Safety Exemption:

The federal Age Discrimination in Employment Act (ADEA) permanently exempts fire fighters, emergency medical personnel, and police officers from the federal ban on age limits and employment. The new law authorizes state and local governments to establish mandatory retirement ages of at least 55, as well as maximum hiring ages. It is also retroactive to January 1, 1994, to cover municipalities whose age limits became illegal when the ADEA took affect for public safety personnel.

Application of the ADEA to Public Safety Agencies:

Any state or local government may have a maximum entry age limit for public safety officers. Any state or local government that did not have a mandatory retirement age during the previous ADEA Public Safety Exemption (1986-93) may establish one - except that the retirement age may not be lower than 55 (which is the federal government’s mandatory retirement age for fire fighters).

Any state or local government that did have a mandatory retirement age during the previous exemption may continue to use that age limit—regardless of whether or not it is below age 55. If such a jurisdiction wants to change their retirement age, the new retirement age could not be lower than 55.

Effective Date:

Provisions of the act affecting public safety agencies that utilized age limits during the previous exemption are effective retroactive to January 1, 1994. All other provisions are effective on the date of enactment.

Development of Wellness Guidelines and Job Performance Tests:

As part of the legislation, Congress authorized the National Institute for Occupational Safety and Health (NIOSH) to address job fitness tests and fire department wellness/fitness programs.

• Two years after the date of enactment, NIOSH will issue guidelines on the use of wellness programs.
• Three years after the date of enactment, NIOSH will publish the results of a study into job performance fitness tests. The study will examine whether such tests are valid, safe and in full compliance with civil rights laws.
• Four years after the date of enactment, NIOSH will issue guidelines on the use of job performance fitness tests.

However, Congress never appropriated any funds to initiate and complete these programs and the timeframes were never met.

Exception to the Exemption Test:

As part of the legislation, Congress authorized the National Institute for Occupational Safety and Health (NIOSH) to identify a valid job performance test that individuals could use to seek exemption to the mandatory retirement age.

• Following publication of the guidelines on the use of job performance fitness tests, NIOSH shall identify one or more job performance fitness tests that meet the criteria described in their study.
• Following such NIOSH identification of valid, job performance tests, any public safety agency that wishes to utilize a mandatory retirement age must provide public safety officers who attain the retirement age the opportunity to demonstrate their fitness to continue performing their duties by passing the NIOSH-approved test. The test will be given on an annual basis to any public safety officer above the mandatory retirement age.

Again, Congress never appropriated funds to address the job performance exemption issue. Therefore, tests have not been developed that would allow individuals to seek exemption to their jurisdiction’s mandatory retirement age.

FAMILY MEDICAL LEAVE ACT (FMLA)

The U.S. Department of Labor's Employment Standards Administration, Wage and Hour Division, administers and enforces the Family and Medical Leave Act (FMLA) for all private, state and local government employees, and some federal employees. Most federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management or the Congress.

FMLA became effective on August 5, 1993, for most employers. If a collective bargaining agreement (CBA) was in effect on that date, FMLA became effective on the expiration date of the CBA or February 5, 1994, whichever was earlier. FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. The employer may elect to use the calendar year, a fixed 12-month leave or fiscal year, or a 12-month period prior to or after the commencement of leave as the 12-month period.

The law contains provisions on employer coverage; employee eligibility for the law's benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave. The law also requires employers to keep certain records.

EMPLOYER COVERAGE

FMLA applies to all:

public agencies, including state, local and federal employers, local education agencies (schools), and

private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce — including joint employers and successors of covered employers.

EMPLOYEE ELIGIBILITY

To be eligible for FMLA benefits, an employee must:

work for a covered employer;

have worked for the employer for a total of 12 months;

have worked at least 1,250 hours over the previous 12 months; and

work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

* See special rules for returning reservists under USERRA.

LEAVE ENTITLEMENT

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

for the birth and care of the newborn child of the employee;

for placement with the employee of a son or daughter for adoption or foster care;

to care for an immediate family member (spouse, child, or parent) with a serious health condition; or

to take medical leave when the employee is unable to work because of a serious health condition.

Spouses employed by the same employer are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition. Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.

Under some circumstances, employees may take FMLA leave intermittently — which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.

If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval.

FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.

Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.

The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave, based on information from the employee.

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:

any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or

Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:

(1) A health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:

treatment two or more times by or under the supervision of a health care provider; or

one treatment by a health care provider with a continuing regimen of treatment; or

(2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or

(3) A chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence; or

(4) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or

(5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).

"Health care provider" means:

doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or

podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or

nurse practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their practice, as defined under state law; or

Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or

Any health care provider recognized by the employer or the employer's group health plan benefits manager.

MAINTENANCE OF HEALTH BENEFITS

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.

In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

JOB RESTORATION

Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave;

notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;

offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and

make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.

NOTICE AND CERTIFICATION

Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.

Employers may also require employees to provide:

medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;

second or third medical opinions (at the employer's expense) and periodic recertification; and

periodic reports during FMLA leave regarding the employee's status and intent to return to work.

When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.

Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense.

Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.

UNLAWFUL ACTS

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.

ENFORCEMENT

The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.

OTHER PROVISIONS

Special rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when intermittent leave is needed or the leave is required near the end of a school term.

Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the "salary basis" requirements for FLSA's exemption extends only to "eligible" employees' use of leave required by FMLA.

The FMLA does not affect any other federal or state law which prohibits discrimination, nor supersede any state or local law which provides greater family or medical leave protection. Nor does it affect an employer's obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.

FURTHER INFORMATION

The final rule implementing FMLA is contained in the January 6, 1995, Federal Register. For more information, please contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor.

GARRITY RIGHTS

Fifth Amendment Applies to Interrogations of Public Employees

Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. For example, in Garrity v. New Jersey , the Supreme Court held that statements obtained in the course of an investigatory interview under threat of termination from public employment could not be used as evidence against the employee in subsequent criminal proceedings. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying work-related charge.
To ensure that your Garrity Rights are protected, you should ask the following questions:

1. If I refuse to talk, can I be disciplined for the refusal?
2. Can that discipline include termination from employment?
3. Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?

If you are asked to provide a written statement regarding the subject of the interview, the following statement should be included in your report:

“It is my understanding that this report is made for internal administrative purposes only. This report is made by me after being ordered to do so by my supervisor. It is my understanding that refusing to provide this report could result in my being disciplined for insubordination up to and including termination of employment. This report is made pursuant to that order and the potential discipline that could result for failing to provide this report.”

LINE OF DUTY DEATH BENEFITS

The Public Safety Officers Benefits Act, (42 USC 3796, Public Law 94-430) became law on September 29, 1976. The legislation provided for a $50,000 death benefit for fire fighters (paid and volunteer) and law enforcement officers that died in the line-of-duty (emergency or non-emergency) from a traumatic injury. On December 15, 2003 the Act was amended to cover deaths from heart attack and stroke occurring in the line-of-duty. The Act does not cover deaths resulting from occupational illness or pulmonary disease unless a traumatic injury is a substantial factor to the death.