Thanks to our colleague Samantha Sherwood Bononno for this post
A plaintiff’s failure to accommodate claim under the ADA may proceed even though the plaintiff did not follow the employer’s accommodation request procedures, according to a Virginia federal district court. Martin v. Yokohama Tire Corporation (W.D.Va. November 12, 2013).
The plaintiff, a diabetic, alleged that his requests for time off for doctors’ appointments and when he was ill were denied. The employer denied that the plaintiff ever requested an accommodation, noting that the employee handbook requires anyone requesting an accommodation to go to Human Resources and the plaintiff admitted he did not go to Human Resources.
The court rejected the employer’s argument, noting that the fact that the employer had unilaterally changed plaintiff’s shift to a weekend shift so he could attend doctor’s appointments was sufficient evidence for a jury to find that the employer knew of and had acknowledged the plaintiff’s need for some accommodation. The court also noted that a jury could find that this unilaterally-imposed accommodation was not effective because there was evidence that it actually made the plaintiff’s condition worse.
This case establishes that an employer cannot rely on an employee’s failure to follow its accommodation request procedures as a reason to deny the accommodation if it knew of the need for an accommodation through other means. Further, although an employer need not grant the employee’s preferred accommodation, unilaterally imposed accommodations may not suffice.
A former employee’s ADA claim that he was terminated unlawfully pursuant to a “Maximum Medical Leave of Absence Termination Policy” –an “inflexible blanket policy,” he called it –-was rejected because he was unable to return to his job at the end of his leave, did not request a transfer to a job he could perform, and did not apply for a leave extension before his leave had expired. Cash v. Siegel-Robert, Inc. (6th Cir. December 3, 2013). The court affirmed summary judgment for the employer.
The employer’s leave policy said that an employee who is unable to perform the essential functions of his position, with or without accommodation, or another position the employer may offer, would be “automatically terminated” after six months of leave. The policy added that an employee may request an extension of leave but that such request must be made before termination would be effective. With an extension request, the employee must provide medical documentation ”demonstrating that the employee will be able to return to work, with or without reasonable accommodation, on a date certain within a reasonable time after termination would otherwise take effect.”
When the plaintiff brought the company his return to work paperwork, the company told him it had terminated him three days earlier, when his six month leave had expired.
After the lawsuit was filed, the employer adopted a new policy of sending a certified letter to an employee who is nearing the end of a medical leave of absence, noting the date the leave will expire and instructions for requesting an extension if needed. The company argued that evidence of this “subsequent remedial measure” should not be admissible. Since the court granted summary judgment to the employer, it did not address this issue.
Even if kidney stones were a disability under the ADA, an employer did not violate the ADA by not providing the plaintiff’s requested accommodations of “flexibility in her schedule” and a reduced work load for an indefinite period of time, according to a federal district court in Utah. Whitmeyer v. R & O Construction, Inc. (C.D. UT, October 23, 2013).
In finding these requests to be unreasonable, the court quoted the oft-cited axiom that “a regular and reliable level of attendance is a necessary element of most jobs.” Granting the plaintiff the requested schedule flexibility would not “guarantee” regular or reliable attendance, the court said.
The court dismissed the plaintiff’s request for a lighter workload with similar dispatch. This request was unreasonable because an employer need not remove essential functions of a position and the lighter work load “would shift her work onto other employees for an indefinite period of time.” We have posted previously about the importance of evaluating the impact of an employee’s requested accommodation on other employees.
As for whether having kidney stones is a disability, the court observed that one court has held that it was not while another held that having kidney stones met “the minimum threshold” necessary to survive motion to dismiss.
Thanks to our colleague Patricia Anderson Pryor for this post
Can an employer be liable for retaliation under the Rehabilitation Act when it denies a non-disabled pregnant employee’s request to work from home? In Wonasue v. University of Maryland Alumni Association (D. Md. November 22, 2013), the District Court of Maryland says it can when the denial is accompanied by a warning that the employee needs to commit herself to full time work.
The plaintiff, the executive manager of the Alumni Association, went to the emergency room because she was having “early sickness symptoms” associated with pregnancy. At the emergency room, she was diagnosed with hyperemesis, a severe form of morning sickness where excessive vomiting can cause dehydration and chemical imbalances. The emergency room doctor released her to return to work without any restrictions.
When the employee returned to work, she asked if she could work some days from home or take a leave of absence. Her supervisor denied her request and refused to read the medical discharge papers that the employee offered her. The supervisor reminded the employee of the full time nature of her job duties and told her that she needed to think about what she wanted to do if she could not commit herself fully to her job.
Within days, the employee resigned and brought a variety of legal claims, including discrimination based on her disability—the severe morning sickness—and retaliation against her for requesting accommodations for her pregnancy. The court held that since the emergency room doctor released her to return to work without any restrictions, the plaintiff’s severe morning sickness was not a disability and, thus, she was not entitled to any accommodation.
Concerning the retaliation claim, the court determined that this statement that plaintiff needed to think about her future if she could not commit fully to her job could be construed as a verbal warning. This statement, when added to the denial of her request to work from home or take leave, “might well have dissuaded” a reasonable worker from making or supporting a discrimination charge. Based on this, the court allowed the employee’s retaliation claim to proceed even though the employee was not disabled and was not entitled to an accommodation at the time of her request.
Recall the incontinent court reporter who sought to keep her desk near a bathroom as an accommodation for her medical condition. We posted about her here and here.
Now comes a plaintiff with bladder disease who must use the restroom as often as every twenty minutes and sought the ability to do so as an accommodation.
Upon her return from a two week medical leave, plaintiff’s desk had been moved and her duties reassigned. Three days later, she was terminated. She claimed this was due to her disability, asserting that her supervisor would call her on her desk phone when she was in the restroom, would send a co-worker into the bathroom for her, and would “shake his head disapprovingly” when she returned to her desk. The supervisor denied doing so but admitted asking plaintiff about her whereabouts since she was away from her desk without explanation on several occasions.
Concerning her termination, plaintiff’s employer—the U.S. Department of Commerce (DOC) —argued that it had decided to terminate plaintiff before she went on leave but that she went on leave before that decision could be implemented. The DOC did not produce any documents to support its pre-leave decision argument. In denying summary judgment to the DOC, and in words every employer should heed, the court observed that “[i]n this age of connectivity, this lack of contemporaneous documentation is unusual for such a serious matter.” The court noted that while plaintiff had performance issues, a jury could find that the DOC “artificially inflated the severity of these deficiencies” as a pretext to terminate her due to her disability or her request for frequent bathroom breaks. Akerson v. Pritzker and U.S. Department of Commerce (D. Ma. November 4, 2013).
Allegations concerning an employer’s pre-FMLA leave comments were sufficient to plead an FMLA “discouraging” claim, according to a federal district court in New York. Bailey Stoler et al v. Institute For Integrative Nutrition and Joshua Rosenthal (S.D.N.Y. November 18, 2013). In this putative class action complaint, the plaintiffs alleged that defendants consider female employees’ potential to have children when making employment decisions.
The FMLA regulations prohibit an employer from discouraging an employee from taking FMLA leave. Doing so, according to the regs, is a form of FMLA interference. Few decisions discuss this “discouraging” theory.
In denying the motion to dismiss concerning discouragement, the court pointed to comments to one plaintiff prior to her leave “that she should consider her priorities in planning her leave and return to work” and that “her position might change when she returned.” The plaintiff also alleged that the employer told her while she was on leave that her position might change. “Taken in totality, it is plausible that such comments were designed to coerce [the employee] to leave her employment or to discourage [the employee] from using her leave,” according to the court.
The court also held that a request for “maternity leave” is a sufficient request for FMLA leave. The court also rejected the argument that the employee did not have the FMLA right to be restored to her former position because she extended her leave—with her employer’s permission—an additional two weeks beyond the 12 weeks of FMLA leave.
Among the plaintiffs’ allegations are that defendants created a “Maternity Projection” chart”, which “used each employee’s age, marital status, and maternal status to determine how soon the employee was likely to have a child.”
A federal district court in Indiana has rejected an employer’s argument that attendance is an essential function, citing two reasons for denying summary judgment: that the job description “is silent as to whether attendance is an essential function” and that the company has 22 “formal” leave of absence plans. EEOC v. AT&T Corp. (D. IN. November 20, 2013).
The message to employers concerning job descriptions is clear: each job description should state that regular and predictable attendance is an essential function of the job, assuming that is the case. That same message should be delivered regularly—in offer letters, orientation, work rules and performance evaluations.
The court’s reliance on the employer’s 22 leave plans presents a greater challenge. It creates a “Catch-22” for employers. The more generous an employer’s leave policies, the more likely attendance is not an essential job function, the argument goes. The fewer leave plans an employer has, the more likely attendance is an essential function. Public policy should encourage employers to grant leaves beyond what the law requires. In using a generous leave policy against an employer, the phrase “no good deed goes unpunished” comes to mind.
Perhaps we should take a lesson from the UK. Faced with a “three-decade-old body of law, featuring nine antidiscrimination laws” which some described as “outdated, fragmented, inconsistent, inadequate, inaccessible, and at times incomprehensible,” a research team in 2000 recommended a single equality act, according to a recent Vanderbilt Law Review article. That single equality act was enacted in 2010.
The adjectives used to describe the UK’s antidiscrimination law describe perfectly the patchwork of leave laws in the US. More than 450 federal, state and local laws give employees the right not to come to work for a variety of reasons. As I have written previously, the issue is not the social policy behind any of these laws. The issue is that they present a significant compliance challenge for employers, especially multistate employers.
Try to draft a single attendance policy that would meet the requirements of the federal FMLA, all of the state family and medical leave laws, the ADA, federal and state pregnancy leave laws, and all of the seven jurisdictions that have paid sick leave laws. The result would be a leave policy that goes on for dozens of pages, a challenge to digest and apply for even the heartiest policy wonk.
Being a realist, I do not anticipate the US would ever be able to reach a single model leave law incorporating both federal and state laws. But drafting a model state leave law may be possible. Reconciling the model leave law with federal law would remain a challenge, but a much more manageable one than we have today. And when companies consider where to move or expand, an enlightened state that has adopted the model leave law might just have an advantage,
"Approved." Due to an email containing that single word, the Eleventh Circuit Court of Appeals found itself addressing an FMLA issue that is somewhat of a paradox–whether to expand FMLA coverage to absences not covered by the FMLA…when an employer has approved FMLA leave for the uncovered absence. Put in a legal framework, the issue is whether there is a federal common law equitable estoppel cause of action that would prevent an employer from denying an employee’s eligibility for FMLA coverage even when there is no dispute that the reason for leave is not covered by the FMLA. Dawkins v. Fulton County Government (11th Cir. September 30, 2013).
It all began when the plaintiff sent her supervisor an email, requesting time off to assist her father who was dealing with his brother’s grave health condition. Leave for this reason is not covered by the FMLA. In her request, the employee had asked that the FMLA packet be sent to a particular address.
The supervisor promptly emailed a one-word response to the plaintiff’s request: Approved. When the employer rescinded the plaintiff’s temporary assignment because of her absences, she claimed it was in retaliation for taking FMLA leave. The employer argued that since the reason for leave was not covered by the FMLA, the plaintiff was not entitled to the FMLA’s protection.
The Eleventh Circuit held that even if a federal common law claim of equitable estoppel were to exist with regard to the FMLA, the plaintiff would not have such a claim because she did assert that she relied on any misrepresentation or that her reliance was both reasonable and to her detriment. The decision also notes the four circuits that have recognized such a cause of action—the Second, Fifth, Sixth and Eighth—while four other circuits—First, Seventh, Ninth and Tenth Circuits—have considered the issue but have not decided whether such a cause of action exists.
Denying a school district summary judgment on the plaintiff’s ADA claim, a court held that plaintiff’s anxiety and depression, “likely stemming from her concerns about possibly getting fired,” may be a disability under the ADA. Huiner v. Arlington School District, (D.SD, Sept. 26, 2013).
The plaintiff, a teacher, had been placed on a performance improvement plan. Her failure to successfully complete the plan could lead to the nonrenewal of her contract, effectively the termination of her employment. As a result of being placed on the plan, plaintiff claimed that she was unable to “maintain her nutritional needs,” was having difficulty caring for her children and had sleep pattern deficits.
Noting the ADAAA’s “relaxed standards” for determining what is a disability, the court rejected the school district’s argument that plaintiff had not produced evidence that her anxiety substantially limits one of her major life activities.