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Disability, Leave & Health Management Blog

Offering Practical Guidance to Employers

“Unclear” Testimony About Timing of Golf and Sex Limitations Revives ADA Claim

The ADA lesson from this case goes beyond limitations related to golf and sex.

The day after the plaintiff told his employer that he had scheduled his back surgery, the employer terminated him. The plaintiff sued, claiming that his termination violated the ADA. Based in part on the plaintiff’s deposition testimony that “his back problems only affected his ability to play golf and have sex,” the district court held that plaintiff had not established that he had a “disability” or was “regarded as” having a disability and granted summary judgment to the employer on the ADA claim.

Reversing that decision, the Eleventh Circuit  Court of Appeals held that the district court erred by relying on the plaintiff’s testimony about his golf and sex limitations because it was “unclear” whether this testimony referred to the plaintiff’s limitations before his operation or after his operation/termination.  Mazzeo v. Color Resolutions Int’l, LLC (11th Cir. March 31, 2014).  To establish a prima facie case of discrimination under the ADA, “a plaintiff must show that, at the time of the adverse employment action, he had a disability…,” the court said (emphasis added). “The questions that were posed to [the plaintiff] did not contain a specific time frame,” the court noted.

Unlike the deposition testimony, the ADA lesson here is clear: when evaluating the limitations caused by a plaintiff’s physical or mental impairment, the focus must be on the nature and extent of the limitations at the time of the adverse employment action.

ADA Claim Based on Inability to Sit Stands

An employee’s inability to sit for a prolonged period may be a disability under the ADA, according to the United States Court of Appeals for the Second Circuit. Parada v. Banco Industrial de Venezuela, C.A., et al (2nd Cir, March 25, 2014). Reversing a grant of summary judgment to the employer, the Court said that a categorical determination that an inability to sit for a period of time cannot be a disability is unwarranted.

Soon after starting her employment, the plaintiff, who had a largely sedentary job, fell and hurt her back severely enough that she could no longer sit for prolonged periods. Her medical reports stated that she could only sit for 10 or 15 minutes at a time. As a result, she stood for parts of the workday and iced her neck and back. She requested an ergonomic chair a number of times. Having not received any response to her request, she went on leave. Five months later, more than a month after her application for long term benefits was denied, the company terminated her employment. The plaintiff sued, claiming her employer had violated the ADA by ignoring her requests for a reasonable accommodation of her back injury and by terminating her employment.

The court noted that some district courts had mistakenly interpreted its holding in Colwell v.Suffolk County Police Department (2nd Cir 1998) to mean that the major life activity of sitting is substantially limiting only, as one court said, “if the plaintiff’s impairment precludes him from sitting at all, not if the plaintiff’s impairment merely makes it more difficult to sit.” Such a “categorical rule” would conflict with the ADA injunction to do a fact-specific inquiry to determine whether an impairment substantially limits a major life activity, the court said.


ADA: An Inadvertent Leave Law…..or Not?

While the FMLA is a leave law, the ADA is an “inadvertent leave law,” said EEOC Commissioner Chai Feldblum. Commissioner Feldblum, who was instrumental in the drafting and enactment of the original ADA and the ADAAA, spoke at the DMEC Compliance Conference in National Harbor, Md recently. During her comments, Commissioner Feldblum also said that leave is “always” a reasonable accommodation because it is “plausible” and is subject only to the employer’s undue hardship defense.

Commissioner Feldblum’s use of the term “inadvertent” is thought-provoking. “Inadvertent” generally means unintended or accidental. It is not at all clear how the original ADA became the leave law it aspires to be today. The Commissioner’s suggestion that additional job-protected leave is “always” reasonable because it is “plausible” should also concern employers. Neither the ADA nor the EEOC’s 1991 regulations implementing the ADA employment provisions suggest that granting job-protected leave beyond the length of the employer’s policy would always be a “reasonable accommodation” subject only to an undue hardship defense. To the contrary, the Interpretive Guidance accompanying the EEOC’s 1991 ADA regulations states that leave policies could not be attacked through disparate impact theory and that an employer “may, in appropriate circumstances, have to consider the provision of leave” to a disabled employee as a reasonable accommodation if it did not pose an undue hardship.

The Commission went a few steps further when it issued its 2002 guidance on reasonable accommodation and undue hardship under the ADA.  There, the EEOC said that “[p]ermitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability. An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees.”

Just a few lines later, the Guidance states that an employer may not apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period, but must consider whether granting additional leave is an undue hardship.

In recent years, the EEOC has pursued this position aggressively in litigation, consistently arguing that employers may not “automatically terminate” an individual with a disability pursuant to a fixed leave policy, even after lengthy leaves of absence and absent any real request for accommodation by the employee. We have posted about that effort.  The EEOC ‘s position has put the burden on employers to determine whether and how much additional leave is needed, without any clear guidance on when enough is enough.

Both the ADA and the EEOC regulations require employers to reasonably accommodate “the known physical or mental limitations of an otherwise qualified individual with a a disability” unless the employer can establish that it would be an undue hardship to do so. As one court noted, “[w] hen a period of leave from a job may appropriately be considered an accommodation that enables an employee to perform that job presents a troublesome problem, partly because of the oxymoronic anomaly it harbors….”. “Not working is not a means to perform the job’s essential functions,” observed another.

So perhaps, the ADA is not an “inadvertent” leave law at all, but a non-leave law, seeking legitimacy as a leave law, unintentionally, accidentally or otherwise. Thus far, numerous courts have recognized that the ADA provides some measure of leave as an accommodation, but few have grappled with that oxymoronic anomaly.

The EEOC has been working on guidance on leave as a reasonable accommodation for several years. During the DMEC conference, Commissioner Feldblum said it was up to the Chair of the EEOC to determine when to “move” that Guidance. In earlier posts, I have noted that waiting for that guidance is like waiting for Godot. In this election year, I suspect we will not be seeing this guidance anytime soon. Until then, employers will be left to grapple with the question of when leave is a reasonable accommodation that allows an individual with a disability to perform the essential functions of his or her job.



Giving Notice of “Unqualified” Leave Insufficient to Trigger FMLA Protections

Thanks to our colleague Susan E. Groff for this post:

While the principle seems straightforward, the Eleventh Circuit confirmed in Patrick Hurley v. Kent of Naples, Inc., et al.ss (11th Cir. March 20, 2014) that an employee must request FMLA-qualifying leave to garner the law’s protections. Requesting “potentially qualifying leave” is not enough.

The Eleventh Circuit vacated a lower court’s $1 million judgment in favor of a former employee of a Florida-based security company who claimed he was terminated because he sought leave to help improve his depression. The Court found the employee’s request didn’t qualify for protection under the FMLA because it was not for a period of “incapacity,” i.e., an “inability to work, attend school or perform other regular daily activities due to the serious health condition.”

The employee had sent an email to his CEO, listing eleven weeks of vacation for the following two years. When the CEO denied the request, the employee responded that health professionals had told him that his need to take vacation time “is no longer optional.”

Not mentioned in the email was that the employee had been suffering from depression and anxiety which had produced panic attacks. The employee admitted that he did not request leave because he was incapacitated and that he was not unable to work.

The Eleventh Circuit held that the FMLA does not extend protection to any leave that is medically beneficial merely because an employee has a chronic health condition. “Giving an employer notice of unqualified leave does not trigger the FMLA’s protection,” Judge Cox of the Eleventh Circuit wrote. “Otherwise, the FMLA would apply to every leave request.”


To Designate or Not to Designate FMLA Leave, That is the Question

From the beginning of FMLA-time in 1993, the U.S. Department of Labor FMLA regulations have required employers to designate leave as FMLA leave “[w]hen the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason.” 29 CFR § 825.300(d). The DOL’s injunction seemed mandatory and many an employer has rejected an employee’s request to “save” FMLA leave for some later planned event.

But a recent decision of the United States Court of Appeals for the Ninth Circuit has cast doubt on the mandatory-ness of that injunction. In Escriba v. Foster Poultry Farms, Inc. (9th Cir., February 25, 2014), the plaintiff had asked for two weeks of vacation to visit her sick father in Guatemala, an apparent FMLA-qualifying reason. Having taken FMLA leaves on 15 occasions, the plaintiff was not an FMLA-neophyte. She reiterated that she wanted two weeks of vacation and did not need additional, unpaid time to care for her father. When she did not return to work at the end of her vacation, and was absent for three days, the defendant terminated her employment.

The plaintiff responded by arguing that the employer interfered with her FMLA rights by not designating her time off as FMLA leave because, despite her prior disavowals, it was required to do so. The court rejected the plaintiff’s argument, citing the DOL regulation which states that “in all cases, if it is necessary to have more information about whether FMLA leave is being sought by the employee,” the employer should make further inquiry. (emphasis added). Based on its interpretation of that regulation, the Court concluded that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

This case raises the very practical question of how an employer should respond the next time an employee seeks time off for an FMLA-qualifying reason, but requests not to use FMLA. To designate or not to designate FMLA leave will be the question.

While this decision applies within the Ninth Circuit’s jurisdiction, it is uncertain whether other appeals courts will follow suit. The ramifications of this decision are significant. For employers that require employees to substitute paid leave for unpaid FMLA leave, giving the employee the option of substituting effectively guts the substitution requirement. Only time will tell whether this case trumps the 20 year FMLA requirement that an employer designate leave as FMLA when it has information that the reason for the leave is covered by the FMLA, or whether the case is an outlier.

“Trust, But Verify” Approach to Confirming Employee Need for FMLA Intermittent Leave Rejected

“Trust, but verify,” the Russian proverb used often by former President Ronald Reagan, suggests an approach many employers would welcome when it comes to employee use of intermittent leave under the FMLA. Sure, the employee said he was taking intermittent leave pursuant to his FMLA certification. But can an employer verify that the absence was due to the FMLA-qualifying condition by requiring a doctor’s note for each absence. Trust, but verify, the use of FMLA intermittent leave. I can feel the excitement mounting among the employer community.

Trust you may, verify you may not, a federal court held recently. The court found unlawful an employer’s requirement that employees who have been approved for intermittent FMLA leave submit a short note from a medical provider for each absence, stating briefly that the employee’s absence was related to the FMLA-qualifying condition for which intermittent leave was granted. Oak Harbor Freight lines, Inc. v. Antti (D.OR., February 19, 2014). “[T]he [FMLA] statute and regulations ‘show an intent to limit medical verification to certification and recertification,” the court explained (citation omitted). By requiring a doctor’s note for each absence, the employer “is in effect treating each absence as a separate period of FMLA leave and requiring employees to reestablish eligibility for each absence,” the court added.

The court noted that if the employer’s policy was limited to requiring an employee who took intermittent leave to attend a medical appointment to produce a note verifying attendance at the appointment, that “would make much more sense.” While the court did not specifically approve this “appointment” approach, it is possible that you may be able to “trust, but verify” attendance at medical appointments.



Court Silences Horn in ADA Accommodation Case

Yet another plaintiff has sought to minimize her doctor’s restrictions and once again a court has held that an employee is bound by those restrictions. Horn v. Knight Facilities Management, Inc. (6th Cir. February 25, 2014). We posted last year about two cases where the plaintiffs sought unsuccessfully to discredit the medical opinion of their health care providers.

In Horn, the plaintiff, a janitor, developed a sensitivity to the cleaning chemicals used at work. After taking time off, and then limiting exposure to the chemicals to two hours per day, and ventilating the area, Horn still reacted adversely to the cleaning chemicals. After these numerous unsuccessful efforts, Horn’s health care provider wrote “no exposure to cleaning solutions.” When the employer determined that it did not have any work for Horn within this restriction, it terminated her. Horn argued that her health care provider’s “no exposure” restriction “was not as rigid as expressed in [the] final restriction” and that the employer would have known that she could “occasionally handle cleaning solutions and/or wear a respirator” had they engaged in the interactive dialogue in good faith. The court rejected Horn’s argument that her employer did not engage in the interactive dialogue appropriately and affirmed summary judgment for Horn’s employer.


DOJ Strikes Landmark Consent Decree in Web, Mobile Access Case

Thanks to our colleagues Joseph Lynett and Jamerson Allen for this post:

The Department of Justice (DOJ) has announced that it has entered into a landmark consent decree resolving its first lawsuit brought under the Americans with Disabilities Act centered on the accessibility of corporate websites and mobile applications. Under the decree in National Federation of the Blind, et al. and United States v. HRB Digital LLC, et al., H&R Block agreed to make its website, tax filing utility, and mobile applications conform to the Web Content Accessibility Guidelines (WCAG) 2.0 to the Level AA Success Criteria. The company also agreed to pay damages to the two named plaintiffs totally $45,000 and pay a civil penalty to the DOJ in the amount of $55,000. It further agreed to take steps to maintain the accessibility of www.hrblock.com and its mobile apps with WCAG 2.0 AA, including adopting a policy, training employees and ensuring accountability, conducting regular automated and user testing, and regular reporting to the named plaintiffs and DOJ.

Website accessibility is the next cutting edge issue under Title III of the ADA. Regulations are expected from the DOJ providing requirements to make websites accessible to disabled users. The resolution of this lawsuit is another indication that the DOJ will adopt the WCAG 2.0 Level AA Success Criteria (which recommend alternatives, such as providing keyboard functionality) as the standard to achieve website and mobile application accessibility in compliance with Title III of the ADA. Companies offering services to the public should not wait for the DOJ’s regulations to ensure the appropriate accessibility of their websites and apps. The prudent preventive step is to audit them now and address any accessibility issues.



Obesity, Like a Neon Green Mohawk Hairdo, Not an Impairment under ADA

Rejecting an obese plaintiff’s claim that her employer “regarded” her weight as a physical impairment, a federal district court said that her obesity is no more an impairment that any other physical characteristic, such as, for example, an individual’s neon green mohawk.  Powell v. Gentiva Health Services, Inc. (S.D. AL, February 12, 2014). The court held that both being overweight and having neon green mohawk may be viewed as “undesirable” physical characteristics but are not impairments under the ADA. The court granted summary judgment to the employer on the plaintiff’s ADA claims.

The plaintiff solicited new accounts and promoted hospice referrals for her employer, a provider of hospice services.  She was 5′ 3″ and weighed approximately 230 pounds.  She said that her being overweight was not due to any underlying medical condition, did not contribute to any other medical condition, and did not interfere with her ability to perform her job or care for herself.

Attendance is Essential Function under ADA for PICC Nurse


Whenever a court holds that coming to work is an essential function of an on-site job, it is worthy noting given what seems to be frequent challenges to this common sense principle. In Mecca v. Florida Health Services Center, Inc. (M.D. FL, February 3, 2014). the court held that coming to work is an essential function of a “PICC” nurse. The nurse’s primary responsibility was to insert intravenous catheters through a patient’s vein until its tip rests next to the patient’s heart.

The plaintiff had panic attacks and anxiety and was granted leave numerous times. As an accommodation, he sought to be able “to go home or be absent from work if he was experiencing episodic flare-ups of depression and anxiety/panic making it difficult to function.” The court noted that “a request to arrive at work at any time, without reprimand, is not a reasonable accommodation because it would change the essential functions of a job that requires punctual attendance.”

The court also noted that “indefinite and indeterminable leave is not a reasonable accommodation…[because] [a]n employer does not have to wait indefinitely for an employee’s medical condition to be corrected, especially when it is uncertain whether the condition will improve.” The plaintiff had not provided “any estimate as to when or if his condition will improve.” Because no accommodation would enable the plaintiff to have punctual attendance, he was not a qualified individual with a disability. The court granted the employer’s motion for summary judgment.

We have posted about other decisions concerning attendance as an essential function. See here and here. Employers who believe “regular and predictable attendance” is an essential function of a position(s) should communicate that requirement to employees at every opportunity.