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Disability, Leave & Health Management Blog

Offering Practical Guidance to Employers

“Dire Consequences” for Non-Participants Lead to Dire Consequences for Wellness Program under ADA, Claims EEOC Lawsuit

After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, the EEOC has brought a second lawsuit just six weeks after its first, alleging that the employer’s wellness program was not “voluntary” due to the “dire consequences” to non- participants. Because the program was involuntary, the disability related inquiries and medical examinations within the program violated the ADA, according to the EEOC’s press release about the lawsuit. EEOC v. Flambeau, Inc. (W.D.WI, filed October 1, 2014).

Under the defendant’s wellness program, employees who participated in biometric testing and completed a “health risk assessment” paid 25% of the medical insurance premium while those who declined to participate in the program needed to pay 100% of the premium and faced unspecified discipline for not attending the testing, according to the press release.

In its first wellness lawsuit, the EEOC also alleged that non-participants were required to pay 100% of the insurance premium, a penalty the EEOC described as “steep” and “enormous.” EEOC v. Orion Energy Systems, E.D. WI, filed August 20, 2014). See our post about that case here.

Some 94% of employers with over 200 workers and 63 percent of employers with fewer employees have a wellness program, notes the EEOC’s press release. The EEOC regulations and Interpretive and Enforcement Guidance permit employers to conduct medical examinations as part of a voluntary wellness program. For many years, the EEOC’s position has been that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.”  Just last year, the EEOC reiterated that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the award from non-participants constitutes a penalty, thus rendering the program involuntary.” By filing these two lawsuits, the EEOC has taken a very definitive position that any penalty it determines to be “steep,” or “enormous” or have “dire consequences” for non-participants would make an otherwise voluntary program involuntary. Earlier this year, the EEOC said that it plans to issue guidance this year concerning the amount of a reward/penalty allowed for a program to be “voluntary.”


New Jersey Considers Putting Kibosh on Local Leave Laws

Thanks to our colleague Luke P. Breslin for this post.

The New Jersey Assembly is considering a bill that would put the kibosh on local government efforts to require private employers to provide employees with paid sick leave.  This proposed legislation is a response to the fact that six New Jersey municipalities have enacted a “patchwork” of paid sick leave laws within the past year, while others are poised to do so. Numerous states have already passed “kibosh” laws, including Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Tennessee and Wisconsin.

Assembly Bill No. 3702 would prohibit counties, municipalities, or other political subdivisions of the State of New Jersey, or boards, commissions, departments, or agencies of any of these entities, from adopting any ordinance, rule or regulation requiring private employers to provide paid sick leave to their employees.  The bill does not propose such restraints on local or regional school districts.

The statement supporting the bill states that allowing leave laws to be adopted on a local level would lead to “patchwork regulation and place additional burdens on employers, stifling economic growth and job creation.”  Further, the bill would “make the State more economically competitive by providing greater consistency and predictability in employment rules.”

The six New Jersey municipalities which have enacted paid sick leave laws are Jersey City, Newark, East Orange, Irvington, Passaic, and Paterson. Montclair and Trenton appear poised to enact similar legislation soon.

Earlier this year, a state-wide paid sick leave law was proposed in the New Jersey Assembly; however, this bill appears to have stalled in the Assembly Labor Committee. California and Connecticut are the only two states requiring employers to provide paid sick leave.

Given what appears to be overwhelming support for paid sick leave laws in New Jersey’s largest cities, whether New Jersey will pass this bill and join the ranks of “kibosh states” is unclear. Nevertheless, it adds to the debate about whether paid sick leave laws should continue to be enacted on a piecemeal, patchwork-type basis, or whether they should be enacted on a broader, more uniform basis.

Mega-Patchwork of Paid Sick Leave Laws Here and Growing!

Eighteen months ago, we posted about the developing patchwork of state and local paid sick leave (PSL) laws.  I urged readers to squint a bit out over the leave-and-attendance law horizon to see this patchwork taking shape. Eighteen months later, there’s no need to squint. The patchwork is very visible, and growing.

Eighteen months ago, Connecticut was the only state with a PSL law. California recently became the second state (for more information on that law, see here).   The New Jersey Assembly will be considering PSL law this month; Massachusetts voters will have a referendum on a PSL law in November.

Eighteen months ago, there were four municipalities with PSL laws (San Francisco, Seattle, Portland, OR and District of Columbia). Now there are eleven. Added were San Diego, Eugene, OR, Newark, Jersey City, Passaic, East Orange, and Paterson, NJ), Numerous other municipalities—including more in New Jersey—are considering PSL laws.

As we have noted repeatedly, the patchwork challenge has nothing to do with the social question of whether there should or should not be paid sick days. The challenge is the proliferation of leave and attendance laws and how they interact with each other. For example, does the time off under paid sick day laws run concurrent with time off under these other leave-and-attendance laws or is it “stacked” on top of those laws?

With 50 states and more than 39,000 municipalities in the United States, this patchwork is destined to grow and, if the current pace continues, to grow rapidly. .

Ford Motor ADA Telecommuting Case Still Running

A few months ago, I posted my fourth and what I then called my “final” blog on the Sixth Circuit’s significant ADA decision in EEOC v. Ford Motor Company.  I had never posted four blogs about a decision. But that “final” blog has turned out not to be “final” because on August 29, 2014, a majority of the judges on the Sixth Circuit voted to rehear the case en banc. The Court’s Order vacates the previous opinion by a panel of the Sixth Circuit and restores the case to the appeals docket.  Not only is this the fifth blog about the case, but there is at least one more to come when the Sixth Circuit issues its en banc decision.

Why is this case so important? Some of the reasons include:

  • Because it deals with the nature and scope of the telecommuting accommodation, i.e., working at home.  The individual on whose behalf this case was brought sought to work at home up to four days per week.  See blog post here.
  • Because the Sixth Circuit, in a 1997 decision, said that it would be an “unusual” case for an employee seeking to telecommute as a reasonable accommodation to survive summary judgment, but in the panel decision earlier this year, said that “given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.”  Whether such an accommodation is “extraordinary” or not is important to employers.
  • Because it deals with the employer’s role in deciding whether physical presence at work is an essential job function. The panel decision noted that due to the advance of technology, the workplace can no longer be assumed to mean the employer’s physical location, and “that the ‘workplace’ is anywhere that an employee can perform her job duties.”
  • hereBecause the Supreme Court of the United States in US Airways v. Barnett adopted a two-step analysis to determine whether an accommodation is reasonable and the panel decision does not discuss this analytical framework. The two steps are: that an employee must prove that a requested accommodation is reasonable “in the run of cases” by showing that the accommodation is “reasonable on its face” or, if it is not, that “special circumstances” make the accommodation reasonable in the specific situation (the first step).  If the plaintiff meets this burden, the employer may argue that the proposed accommodation poses an undue hardship on its operation (the second step). The panel decision did not address whether working from home up to four days weekly is “reasonable in the run of cases” or that special circumstances make it so in this case.  See blog post here.
  • Because there is a question about the applicability of the “no good deed goes unpunished” axiom to accommodation requests. Does the fact that an employer allows some employees to telecommute under other circumstances (e.g., defined days) mean the employer must allow others to telecommute in other, less defined circumstances (e.g., up to four days weekly). See blog post here.

And so ends this fifth Ford post. Looking forward to the en banc decision and the sixth post.

“Significant Evidence of Untruthfulness” During FMLA Leave Gives Employer “Honest Belief” to Terminate Plaintiff

Thanks to our colleague Alison Jacobs Wice for this post

Add another FMLA victory for an employer who terminated a plaintiff based on its “honest belief” that the plaintiff was misusing FMLA leave.  The U.S. Court of Appeals for the 10th Circuit affirmed summary judgment for the employer on the plaintiff’s FMLA interference claim. Dalpiaz v. Carbon County Utah (10th Cir. July 25, 2014).

Following a motor vehicle accident, the plaintiff, a benefits administrator, went on leave. Despite her employer’s repeated requests that she submit the FMLA health care certification, the plaintiff finally produced it, some two months after the employer’s first request.  Following her block of leave, she returned to modified work, working two hours daily, twice per week.

While the plaintiff was on leave and while on modified duty, her co-workers and some  community members reported that she was engaging in activities that seemed inconsistent with her reported injuries and limitations: “playing football with her children, working in her yard, and assisting her children with costume changes and other tasks at lengthy dance rehearsals and recitals.” Numerous employees submitted written statements concerning their observations of plaintiff’s activities.

Based on these reports, the employer directed the plaintiff to undergo an independent medical exam (IME) to confirm that she had been entitled to FMLA. After repeated requests, plaintiff reported that she was unable to schedule the IME because it required a doctor’s referral. The employer terminated her employment.

Rejecting the plaintiff’s FMLA interference claim, the Tenth Circuit held that an “indirect link” between the reason for termination and FMLA is not enough to sustain such a claim. Although the subject matter of the paperwork plaintiff failed to timely return and the IME she failed to take concerned FMLA, it was the failures on which the employer based its action, not the content of the notices and request, the court noted. Responding to the plaintiff’s arguments that some of the witness reports were untrue, the court said:

What is important is not the absolute truth regarding Plaintiff’s state of health, but rather whether the [employer] terminated her because it sincerely, even if mistakenly, believed she had abused her sick leave and demonstrated significant evidence of untruthfulness. And on this record, there is no evidence to suggest the county fabricated these or any of the other reasons given for Plaintiff’s termination in order to justify an attempt to interfere with Plaintiff’s FMLA leave.

We have posted about numerous decisions in which the employer prevailed based on its “honest belief” that the plaintiff was misusing FMLA leave. See posts concerning the bride who took FMLA on her wedding day; the nurse who vacationed in Cancun; the lineman at Octoberfest; and the floater at Pulaski Day.

Among the lessons for employers from these cases is that the “honest belief” defense is powerful and that employers should investigate thoroughly to develop evidence to support that defense.

Wellness Program with “Steep” Penalty Violates the ADA, Claims EEOC Lawsuit

The EEOC has sued an employer because the penalty to employees for not participating in its wellness program was so steep that it made the “voluntary” program involuntary.  EEOC v. Orion Energy Systems, E.D. WI, filed August 20, 2014). Because the program was involuntary, the disability related questions employees were asked violated the ADA, according to the EEOC’s Complaint. The EEOC also alleged that the employer terminated the lone employee who declined to participate in the program because of her objections to it.  This is the first lawsuit brought by the EEOC challenging the substance of an employer’s wellness program.

According to the Complaint, the Company paid 100% of the health insurance premium for employees who participated in its wellness program and paid nothing toward the premium of any employee who did not participate, leaving the employee to pay 100% of the premium. In its press release announcing the lawsuit, the EEOC described the penalty for employees who do not participate as “steep” and “enormous.”

According to the Complaint, participants in the employer’s wellness program completed a Health Risk Assessment (HRA), which included having blood work done.  The “fitness” component of the program involved completing a medical history questionnaire and then using the Company’s range of motion machines.  The Complaint also alleges that there was a $50 “penalty” for not participating in the fitness component.

The EEOC regulations and Interpretive and Enforcement Guidance, permit employers to conduct medical examinations, which can include obtaining medical histories, as part of a voluntary  wellness program. For many years, the EEOC’s position has been that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.”  Just last year, the EEOC reiterated that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the award from non-participants constitutes a penalty, thus rendering the program involuntary.”  Obviously, in this case, the EEOC has taken a very definitive position that any penalty it determines to be “steep” and “enormous” would make an otherwise voluntary program involuntary. Earlier this year, the EEOC said that it plans to issue guidance this year concerning the amount of a reward/penalty allowed for a program to be “voluntary.”

Add San Diego to the Growing List of Paid Sick Leave Jurisdictions

San Diego has become the tenth jurisdiction requiring employers to provide employees with paid sick leave. On August 18, 2014, the San Diego City Council overrode the mayor’s veto of the Earned Sick Leave and Minimum Wage Ordinance. The earned sick leave provisions of the ordinance are effective on April 1, 2015.

Employees who work at least two hours in one or more calendar weeks within the geographic boundaries of San Diego accrue sick leave at the rate of one hour for every thirty hours worked within San Diego, without a cap.  Employees begin to accrue sick leave at the outset of employment or on April 1, 2015, whichever is later, and can begin using accrued sick leave on the ninetieth calendar day of employment or April 1, 2015, whichever is later.

An employee may use earned sick time for the employee’s medical treatment and “other medical reasons”; providing care or assistance to a family member with an illness, injury or medical condition; when the employee’s workplace or the school of the employee’s child is closed due to a public health emergency; or for “safe time,” which is time off to engage in defined activities relating to domestic violence, sexual assault or stalking.

An employer may limit an employee’s use of earned sick leave to forty hours in a benefit year. Unused sick leave must be carried over to the following year.  An employer may set a reasonable minimum increment for the use of earned sick leave, not to exceed two hours.

The ordinance  prohibits an employer from requiring an employee, as a condition of using earned sick leave, to search for or find a replacement worker to cover the hours during which such employee is using earned sick leave.

For foreseeable leave, an employer can require up to seven days notice. For unforeseeable leave, an employee must give as much notice as is practicable.  An employer must post a notice informing employees of their rights to earned sick leave and must also give employees upon hire information concerning earned sick time and—here is a unique tweak—notice of the “[e]mployer’s name, address, and telephone number.”

Meanwhile, the California Senate Appropriates Committee recently approved the Healthy Workplaces, Healthy Families Act of 2014, which would guarantee California workers three days of paid sick leave annually.

ADA Accommodation Process “Not a Verbal Game of Tag”

“The accommodation process is not a verbal game of tag in which the last person to say something wins,” according to the dissenting judge in a case that focused on which party was responsible for the breakdown of that process. Ward v. McDonald, Secretary U.S. Department of Veterans Affairs (D.C. Cir. August 12, 2014).

The plaintiff, an attorney advisor at the Board of Veterans Appeals (BVA), worked 8 to 10 hour days, reading case files and drafting opinions. In April, 2007, she asked to work from home full time due to a medical condition that required lengthy daily treatments and prevented her from sitting at a desk for long periods.  She provided physicians letters to support her request. Between April and June, 2007, the BVA representatives met with her to discuss her request and asked for additional medical information, which the plaintiff provided. In June, when her supervisors asked for more information, the plaintiff resigned. Two months after the plaintiff’s resignation, the BVA sent her a letter granting her requested accommodation.

The plaintiff sued the BVA, alleging that it violated the Rehabilitation Act, which incorporates ADA standards, by failing to provide her a reasonable accommodation and constructively terminating her because the failure to accommodate her disability left her with no choice but to resign.

While accommodation process cases often focus on when the plaintiff “started it” by requesting an accommodation, this case focused on “who ended” the process and was responsible for its breakdown.

The appellate court affirmed summary judgment for the BVA, explaining that the plaintiff “is the author of her misfortune—she and BVA parted ways not because the BVA discriminated or retaliated against her based on her disability but because she acted precipitately” by resigning. The court held that the accommodation process broke down due to plaintiff’s “sudden resignation,” which cut short “the BVA’s continuing good-faith dialogue”

Distinguishing the accommodation process from a game of tag, the dissent noted that the fact that BVA was the last party to engage in the process does not mean the BVA “wins.” The dissent said that a jury could find that the BVA needlessly prolonged the accommodation process and forced the plaintiff to “ [run] a gauntlet of intrusive and entirely unnecessary questioning” and have her “certify to a litany of irrelevancies.”

While the defendant here succeeded in establishing that the employee was responsible for the breakdown of the accommodation process, employers should not reach this conclusion lightly. Other cases note that employers are typically more sophisticated than employees, have more resources available to them and, as a result, more is expected of them in the accommodation process.


Denying Receipt of FMLA Notices May be Enough to Survive Summary Judgment

Thanks to our colleague Samantha Sherwood Bononno for this post.

An employee’s denial of receipt of mailed FMLA notices can create an issue of fact for the jury, allowing FMLA claims to survive summary judgment, the Third Circuit held last week. Lupyan v. Corinthian Colleges, Inc., (3rd Cir. August 5, 2014).

The district court had previously granted summary judgment to Corinthian on Lupyan’s FMLA interference and retaliation claims, applying the “mailbox rule”, which presumes that a properly sent letter has been received by the addressee.

Plaintiff Lupyan was on short-term disability leave in December 2007.  Corinthian alleged that it sent her FMLA paperwork, notifying her that her leave was designated as FMLA leave. When Lupyan notified Corinthian that she was able to return to work in April 2008, Corinthian told her that her employment was being terminated due to low student enrollment and because she failed to return to work upon the expiration of her 12 weeks of FMLA leave. Lupyan claimed that this was the first time she learned that her leave had been designated as FMLA leave.

The Third Circuit reversed the district court, holding that Lupyan’s denial of receipt of the FMLA notice was enough to rebut the mailbox rule presumption. The court noted that Corinthian had no evidence to establish that Lupyan received the letter since it had not been sent registered or certified mail, requesting a return receipt, “or us[ing] any of the now common ways of assigning a tracking number to the letter.” The Court held that Corinthian’s self-serving affidavits confirming mailing of the notice were insufficient. Lupyan’s denial of receipt of the letter was enough to create a genuine issue of material fact that must be resolved by a jury.

This decision means employers need to take steps to follow up with employees when FMLA notices are ignored.  Employers can likely prevent this situation altogether simply by following up with a conversation, memorialized in a follow-up email or letter, confirming that the employee received the FMLA notice.

Dog Bites Plaintiff; Barker FMLA Decision Bites Employer

The plaintiff’s dog bit her, leading to a hospital stay, complications and absence from work for more than two weeks. After the plaintiff failed to produce the FMLA Certification from her health care provider to support her absences, her employer terminated her.  Finding that there were issues to be resolved by a jury concerning whether the employer’s request for certification was proper, and whether it was “practicable” for the plaintiff to provide the certification in time, the court denied the employer’s motion for summary judgment. Barker v. Genesys Pho, LLC (E.D. MI, Juy 24, 2014). The certification lessons discussed in the case are worth revisiting.

Section 825.305 of the FMLA Regulations is the starting point. Subsection (b) requires the employee to provide the requested certification within 15 calendar days after the employer’s request “unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts…” Many employers view the 15 days as a hard-and-fast rule without considering the “impracticable” exception.

In Barker, the court held that a jury may find that it was impracticable for the plaintiff to submit the certification within 15 days because she was unable to pick up the certification from her doctor because of her medical condition; her husband had just started a new job and could not take time off to pick up the certification; her daughter had just had a baby; and the doctor refused to fax the certification because he did not want to take responsibility for its delivery.   “Practicable” may be in the eye of the beholder.

Concerning whether the certification was proper, Subsection (d) states that “[a]t the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.” The court held that a jury should decide whether the employer advised the employee that she would be terminated if her health care provider’s certification was not received within 15 days.  Some companies prefer language softer than “you will be terminated,” but the regulation may require very direct language.