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Disability, Leave & Health Management Blog

Offering Practical Guidance to Employers

Inflexible Leave Policies under the ADA since Hwang

Since 2009, the EEOC has sued numerous employers who have terminated employees pursuant to an inflexible leave policy, a policy that provides a defined amount of leave and results in an employee’s termination once the employee exhausts that leave.  The EEOC argues that such policies are unlawful because they do not allow for additional leave to be provided as a reasonable accommodation.

And then along came Hwang.  Hwang had used all of the six months of leave under her employer’s inflexible leave policy. When her request for additional leave was denied, she sued, arguing that her employer needed to provide additional leave as a reasonable accommodation. The Tenth Circuit held that the very policy decried as blatantly unlawful by the EEOC was fair, lawful and actually protects employees with disabilities.  Hwang v. Kansas State University (10th Cir. May 29, 2014). “After all,” the court said, “reasonable accommodations … are all about enabling employees to work, not to not work.” (Emphasis added). See our Hwang post here.

What has happened since Hwang? One month after Hwang, on June 30, 2014, according to an EEOC press release, Princeton Health Care System settled an inflexible leave policy lawsuit brought by the EEOC by paying $1.35 million. The System also agreed, among other things, not to adopt an inflexible leave policy, i.e., that type of policy found lawful in Hwang.  PCHS had provided its employees up to 12 weeks of leave, the maximum amount provided by the FMLA, according to the EEOC.  The EEOC’s press release also notes that employers have paid more than $34 million to resolve lawsuits the EEOC has brought concerning leave and attendance policies.

More recently, on July 10, 2014, the EEOC sued Dialysis Clinic, Inc. for terminating a nurse who had exhausted her employer’s inflexible leave policy (four months of leave). EEOC v. Dialysis Clinic, Inc. (E.D.CA). At the time of termination, according to the EEOC press release, the employee had been “cleared by her doctor to return to work without restrictions in less than two months.”

The apparent conflict between Hwang and the EEOC’s view that inflexible leave policies are indefensible exacerbates the challenge facing employers in search of the answer to the most vexing ADA question–how much job-protected leave must an employer provide under the ADA?  More than three years have passed since the EEOC held a public hearing on leave as a reasonable accommodation under the ADA and suggested it might issue guidance on the topic. We posted previously that waiting for that guidance is like waiting for Beckett’s Godot, where those waiting come to the realization at the end of each day that he is not coming today, he might come tomorrow.  Employers continue to wait. In the words of Beckett’s Estragon, “such is life.”

EEOC Issues Controversial Pregnancy Discrimination Guidance

Thanks to colleagues Virginia Mixon Swindell and Kristin Bauer for this post.

In a controversial move, the EEOC yesterday issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a “Q&A” document about the guidance and a Fact Sheet for Small Businesses.  Two Commissioners, Constance S. Barker and Victoria A. Lipnic, filed statements expressing their dissent from the Commission’s adoption of the Guidance. Both noted that the substance of the Guidance overstepped existing legal precedents and was a dramatic departure from existing law and EEOC Guidance on the Pregnancy Disability Act (PDA). Both criticized the agency for not making the Guidance available for public review and comment before it was brought to the Commissioners for a vote, noting that the move signaled a lack of transparency.

The Guidance is the first comprehensive update of the EEOC’s position on discrimination against pregnant workers since  1983.  This Guidance supersedes the earlier guidance and addresses the application to pregnant employees of laws passed in the past 30 years, such as  the Americans with Disabilities Act (ADA) in 1990, the Family and Medical Leave Act (FMLA) in 1993 and the ADA Amendments Act (ADAAA) in 2008.

The Guidance has four parts: Part One discusses the prohibitions of the PDA; Part Two discusses the application of the ADAAA’s accommodation and non-discrimination requirements and the definition of disability to pregnancy-related impairments; Part Three discusses other legal requirements affecting pregnant workers, including the FMLA; and Part Four describes “Best Practices” for employers. The more controversial provisions include the EEOC’s position that (1) an employer policy of providing light duty only to employees with on the job injuries violates the PDA (a position which dissenting Commissioner Lipnic noted has not been adopted by any federal circuit court); (2) an employer health insurance plan must cover prescription contraceptives on the same basis as prescription medications that prevent medical conditions other than pregnancy; (3) an employer must provide accommodations to an employee with a normal and otherwise healthy pregnancy; and (4) certain employer related inquiries related to employer comments or discussions regarding an employee’s pregnancy or potential pregnancy are indicative of discrimination.

In Part Four, the Guidance provides a litany  of “Best Practices” which the EEOC concedes “go beyond federal non-discrimination requirements,” but are suggestions to potentially “decrease complaints of unlawful discrimination and enhance employee productivity.”   These suggestions include implementing a strong policy against pregnancy discrimination, training managers, responding to complaints promptly and effectively, evaluating restrictive leave policies for any disproportionate impact on pregnant workers, consulting with pregnant workers to develop a plan for covering job duties during anticipated absences, and explicitly stating that reasonable accommodation procedures are available to employees with pregnancy-related impairments. As the dissenters noted, much of the Guidance seems to impose requirements on employers that are not supported by the language of the PDA and/or the ADAAA, and, in some cases, contradict court decisions.

Employers should review their pregnancy, discrimination, leave and disability accommodation-related policies and practices in light of the Guidance. Stay tuned. More to come on this controversial Guidance.

Also, please see our Benefits Law Adviser for an analysis of the EEOC Guidance provisions related to contraception coverage in health plans.

What is Your State’s Grade on Family Friendly Laws?

Seventeen states failed. California, of course, came in first, followed by Connecticut, Hawaii, New Jersey and the District of Columbia. The survey was done by the National Partnership of Women & Families, a group which, in its own words, has “fought for every major policy advance that has helped women and families.” It reviewed state laws that provide benefits beyond federal law to help expecting and new parents take leave during pregnancy and soon after the arrival of a new child. The laws they reviewed included state laws: that provide greater job protection or pay to parents than is provided by the FMLA; that provide “mothers disability leave to prepare for and recover from pregnancy and childbirth”; that require “employer-provided sick, vacation or personal leave to be available for workers to care for a new child or an ill spouse or partner”; that provide reasonable accommodation of physical limitations to pregnant employees; and that provide greater protection than federal law to new mothers to breastfeed newborns.

The survey gave a varying number of points for each of the criteria and awarded each state a letter grade based on its points. California, with 140 points, received the highest grade, an A-. Connecticut (120 pts), Hawaii (110), New Jersey (100) and the District of Columbia (95) were awarded a B+. States with zero points were awarded an “F.” States on this list were: Alabama, Arizona, Delaware, Georgia, Idaho, Kansas, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and Wyoming.

Paid Sick Leave: Connecticut Tweaks and Newark Speaks

The Connecticut Paid Sick Leave Law has been tweaked in three respects: (1) to allow employers to determine the 50-employee applicability threshold in the same manner as under the state’s Family and Medical Leave Act, i.e., by determining whether the employer has at least 50 employees on its payroll for the week containing October 1; (2) to allow accrual of paid sick leave hours on any annual basis, not just a calendar year, and (3) to add one additional job title—radiologic technologists—to the list of “service worker” titles that are eligible for paid sick leave. The law adopting the tweaks— An Act Creating Parity between Paid Sick Leave Benefits and Other Employer-Provided Benefits (Public Act 14-128)—is effective January 1, 2015.

Newark, N,J. whose  Paid Sick Leave Ordinance became effective on June 21, 2014, has issued FAQs about the ordinance. There are 24 FAQs–a dozen directed to employers and a dozen directed to employees. The FAQs address a myriad of questions on topics such as employee eligibility, accrual of paid sick leave, employer notice obligations, appropriate uses of paid sick leave and the law’s integration with collective bargaining agreements.

Also on the paid sick leave issue, the Massachusetts Secretary of State announced last week that voters in November will be asked whether to approve a mandatory earned sick time law. If the issue passes, Massachusetts would become the second state and ninth jurisdiction to adopt a paid sick time law.

EEOC Settles Another Inflexible Leave Policy Lawsuit

Less than one month after the Tenth Circuit Court of Appeals held that an employer policy that limits the amount of leave time any employee may take was fair, lawful and protects disabled employees, an employer sued by the EEOC for having such a policy has agreed to pay $1.35 million and “undertake significant remedial measures” to settle the litigation. The settlement prohibits the employer from adopting the type of policy found lawful by the Tenth Circuit in Hwang v. Kansas State University. Our post about Hwang is here.

In the lawsuit, the EEOC had alleged that Princeton Health Care System (PHCS) provided its employees up to 12 weeks of leave, the maximum allowed under the FMLA. In Hwang, the employer provided a maximum leave of 26 weeks.  The Hwang court stated that such a policy “can serve to protect rather than threaten the rights of the disabled by ensuring  disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.”  Such policies provide the same positive benefits as a seniority system in that they create and fulfill employee expectations of fair, uniform treatment, introduce an element of due process and limit potential unfairness in personnel decisions, the Hwang court added.

There has already been much litigation concerning inflexible leave policies and there will likely be much more.  The EEOC’s press release about the PHCS settlement notes that employers have already paid more than $34 million to resolve lawsuits the EEOC has brought concerning leave and attendance policies. Whether a leave limits policy violates the ADA, as the EEOC contends, or is lawful, as the Hwang court held, is the type of issue that could very well wend its way to the Supreme Court.

Who Cares? An Employee Who Cares for her Daughter and Grandchildren Cares under the FMLA

An employee may take leave under the FMLA to care for a child with a serious health condition, even a child 18 years of age or older who is incapable of self-care due to a disability.  But an employee may not normally take FMLA leave to care for a grandchild.  A recent decision by the Seventh Circuit Court of Appeals has opened the door for an employee to take leave to care for grandchildren as long as the employee also spends time caring for his or her child. Gienapp v. Harbor Crest and Myra Chattic (7th Cir. June 24, 2014).

The plaintiff took FMLA leave to care for her daughter, who was undergoing treatment for thyroid cancer. A month into the plaintiff’s leave, her employer filled her position and, when plaintiff, sought to return to work near the end of her 12 weeks of leave, her employer told her she no longer had a job.

One of the employer’s arguments responding to the FMLA lawsuit was that the plaintiff was not entitled to FMLA leave because she did not “care for” her daughter but, rather, cared for her daughter’s children “reducing the burden on those who were caring for” the daughter.  Noting that the employer had conceded that the employee had cared for the daughter at least for some time, the court framed the issue as follows: “whether a combination of assistance to one’s daughter, plus care of grandchildren that could take a load off the daughter’s mind and feet, counts as ‘care’ under the [FMLA].”

“To this the answer must be yes,” said the court, noting that the “FMLA does not treat care of grandchildren as disqualifying, if the employee also cares for an eligible relative such as a daughter.” The court suggested that caring of the grandchildren may have given plaintiff “a mental boost” and that “[a] person who knows that her family is well looked-after has an important resource in trying to recover from a medical challenge.”

Given the court’s comment that “taking a load off the daughter’s mind and feet” by caring for the daughter’s children is “caring for” the daughter, it is unclear just how much time an employee must care for the adult child during this combination child/grandchild leave for it to qualify under the FMLA.

EEOC Letter Finds GINA and ADA Issues in Fit-for-Duty Medical Examination Form

A local government entity’s request for employee family medical history as part of an annual fitness-for-duty medical exam “clearly violates Title II of GINA,” according to an informal discussion letter from the EEOC Office of Legal Counsel (OLC). The government entity is not identified in the letter.

The question on the medical history form was one every doctor asks of new patients: “Have you or any of your immediate family (father, mother, sister and/or brother) ever had” followed by a list of medical conditions. The OLC noted that while GINA has six exceptions that allow covered entities to request, require, or purchase genetic information, none of these allow an employer or an employer’s health care provider to ask for family medical history as part of an employment-related medical exam.

The OLC also had ADA concerns with the breadth of two questions on the form: (1) “[i]n the past five years, have you been hospitalized overnight for any reason?”; and (2) “[i]n the past twelve months, have you seen a doctor for anything other than routine checkups?”

Noting that while annual fitness-for-duty examinations are allowed for employees in positions affecting public safety, the OLC said that the medical inquiries “must be narrowly tailored to address specific job-related concerns.” This is the same view espoused by the EEOC in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA (Question 18). The two questions above  “will likely result” in the employee’s “revealing far more information than is necessary to address specific job-related concerns,” said the OLC.

Not long ago, the OLC issued a similar letter after reviewing a reasonable accommodation policy, an accommodation request form to be filled out by an employee, and a health care provider questionnaire. As we noted in our post then, the OLC found shortcomings in each of the documents.  Obviously, employers have complete control over their forms and can have strong influence over the forms used by their healthcare providers for employment-related examinations. The general rule concerning employment documentation applies: good documentation is helpful, neutral documentation won’t hurt, and forms with unlawful inquiries not only present a compliance issue but can be harmful in employment litigation amd must be avoided.


New Supervisory “Broom” Unlawfully Sweeps Away ADA Accommodation

The issue seems to occur regularly and a recent call for advice prompts me to address it. A supervisor accommodates an employee’s work limitation caused by a medical impairment and life goes on….until a new manager begins and ends the accommodation. 

A federal district court in Illinois addressed a very similar situation In Isbell v. John Crane, Inc. (N.D. IL, March 21, 2014), the plaintiff had been diagnosed with Adult Attention Deficit Disorder and Bipolar Disorder.  Her morning medications “did not kick in until several hours after she awoke,” according to the court. Although her regular shift began at 8:30 a.m., plaintiff began reporting to work at 10 a.m. Her supervisor did not object so long as plaintiff completed her projects on time. Plaintiff’s doctor stated in a note that she “would greatly benefit from a flexible work schedule to accommodate her challenge with focus and attention.”

After reporting to work at 10 a.m. for about two and half years, her supervisor, in response to his new supervisor’s “heightened emphasis on attendance,” established uniform work hours for everyone, including the plaintiff.  Even with a 30 minute grace period, the plaintiff was reporting late and accruing points under the employer’s attendance policy and  was eventually terminated under that policy. 

In granting the plaintiff’s motion for summary judgment on the reasonable accommodation claim, the court stated that “[n]o real reason has been proffered by Crane as to why a new management broom…should be entitled to start by subjecting [plaintiff] to a one-size-fits all timing sweep.” The court noted that the issue was not whether allowing plaintiff to report to work late was a reasonable accommodation but whether “it was reasonable for Crane to withdraw that existing accommodation” and whether continuing that accommodation created an undue hardship for Crane.

This case suggests that the orientation of a new supervisor or manager should include a review of the accommodations being provided in his or her department and that none should be discontinued without considering the ADA implications.  

Reasonable Accommodations Enable Employees to Work, “Not to Not Work”

The recent Tenth Circuit decision in Hwang v. Kansas State University upholding the employer’s inflexible leave policy causes one to ponder the logic of leave as an accommodation under the ADA in a broader sense. When contemplating such issue, the “oxymoronic anomaly” relating to this issue comes to the fore. Just what is this anomaly?

Start with the words of the amended ADA. An employer discriminates on the basis of disability by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.…” A qualified individual is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (Emphasis added) “Can perform” is in the present tense.

But how can an individual who has been on leave because he or she cannot perform the essential functions of the job, with or without an accommodation, has exhausted all of the leave available under the employer’s policy, and is seeking additional leave because he or she still cannot perform those functions, be a “qualified individual” with a disability, i.e. one who can perform those functions?

Others have recognized this anomaly. “When 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…,” observed one judge. “Not working is not a means to perform the job’s essential functions,” observed another.

In rejecting the plaintiff’s claim that she was entitled to more leave than allowed under her employer’s policy as a reasonable accommodation, the Hwang court echoed the same concept: reasonable accommodations “are all about enabling employees to work, not to not work.”

Inflexible Leave Policy is Fair, Lawful and Protects Disabled Employees, Says Tenth Circuit

Reports of the demise of inflexible leave policies—leave policies that result in termination if the employee is unable to return to work after a fixed amount of leave – are premature.

The EEOC has sued numerous employers, alleging that their “inflexible leave policies” were unlawful because they did not take into account the possibility of the employer’s providing additional leave as a reasonable accommodation. Those employers have agreed to pay, literally, millions of dollars to settle those cases. We have posted about those settlements. See here.

But now, the U.S. Court of Appeals for the Tenth Circuit has not only rejected the idea that inflexible leave policies are inherently discriminatory, but has gone even further and has recognized that such policies “can serve to protect…the rights of the disabled” by ensuring fair and uniform treatment. Hwang v. Kansas State University (10th Cir. May 29, 2014). The court’s decision may very well be a “tipping point” in ADA inflexible leave law litigation.

Hwang had been granted six months of medical leave under the employer’s inflexible leave policy. When her request for additional leave was denied, she sued under the Rehabilitation Act, a law very similar to the ADA, which prohibits recipients of federal funding from discriminating on the basis of disability. Citing EEOC guidance, she claimed that the inflexible leave policy was inherently discriminatory and that her employer needed to provide her additional leave as a reasonable accommodation. The district court granted the employer’s motion to dismiss her complaint. The Tenth Circuit affirmed that decision.

While most decisions begin with a recitation of the procedural history of the case and the facts, the Tenth Circuit got right to the point. It framed the issue in the opening sentence: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act?”

And then immediately answered its question: “Unsurprisingly, the answer is almost always no.” By adding ““unsurprisingly,” the court suggests that not only is “no” the right answer but it is not even a close question.

The Hwang case is replete with quotable quotes supporting the legality and business justification of inflexible leave policies.  The court said that it “perhaps goes without saying that an employee who isn’t capable of working for [six months] isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations–typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work.”  It is “difficult to conceive how an employee’s absence for six months…could be consistent with discharging the essential functions of most any job in the national economy today,” the court added.

The court also said that an inflexible leave policy “can serve to protect rather than threaten the rights of the disabled by ensuring  disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.”  The court noted that such policies provide the same positive benefits as a seniority system in that they create and fulfill employee expectations of fair, uniform treatment, introduce an element of due process and limit potential unfairness in personnel decisions.

The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work, the court observed. It does not “turn employers into safety net providers for those who cannot work.”

There will be more to come on this very significant decision.