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Disability, Leave & Health Management Blog

Offering Practical Guidance to Employers

Massachusetts Earned Sick Time Law Update: Final Regulations Issued

Thanks to our colleague Jeffrey S. Brody for this post.

The Massachusetts Attorney General’s office has issued the long-awaited final regulations for the Massachusetts Earned Sick Time Law.   The final regulations are available from the AG’s website, at http://www.mass.gov/ago/doing-business-in-massachusetts/labor-laws-and-public-construction/earned-sick-time/.

Jackson Lewis will be discussing the final regulations in our complimentary webinar, “Navigating Massachusetts’ New Paid Sick Leave Law,” on June 24, 2015. To register for the webinar, go to: http://jacksonlewis.com/events/locations/view/2762.

Doctor’s Hope for Change Insufficient to Support ADA Accommodation Request

Medicine being an inexact science, doctors’ notes concerning an employee’s ability to work with a particular accommodation are often tinged with optimism yet hedged by a less than definitive prediction about the likelihood of success.   How much of a health care provider’s hope for change—some would say speculation or wishful thinking–must an employer accept when evaluating whether a requested accommodation will enable an employee to perform the essential functions of the position?

The Seventh Circuit’s recent decision in Stern v. St. Anthony’s Health Center (7th Cir. June 4, 2015) is a good place to start the analysis. There, the health care provider of a chief psychologist with memory loss said that “’it is possible that currently [the psychologist] would be more likely to be able to complete routine clinical duties’ by better note taking, completing documentation immediately” and eliminating or reducing certain duties. These steps would “likely” allow the doctor to compensate for his memory loss “more effectively.”

These “conclusory,” “speculative,” and “untested suggestions” and opinions were insufficient to create a factual issue about whether the plaintiff could perform the essential functions of his position with an accommodation, according to the court. It upheld a grant of summary judgment to the defendant on that issue.

In reaching its conclusion, the court revisited three of its prior decisions on this issue. The prediction about the employee’s ability to work with an accommodation was too speculative in two of them. In one, a doctor’s note state that “there was a good chance” that the plaintiff would be able to return to work with treatment.” This was “too conclusory and uninformative” to support a conclusion that more leave would have been successful, the court said. In the second case, the plaintiff’s evidence was that “she had hoped for enough improvement to return to work regularly after leave” but failed to produce “medical evidence regarding the effectiveness of the treatment.”  In the third case, the plaintiff’s evidence “suggest[ed] that a reasonable accommodation was readily available; [plaintiff] simply needed further medical testing and a prescription to control her narcolepsy.” The court held that that evidence was sufficient to create a question about whether the plaintiff could work with an accommodation.

Of course, there are many gradations between “just needs a prescription” on one end of the “hope for change” continuum and the speculative untested suggestions on the other.

New Jersey Lobbying Efforts Focused on Paid Sick Leave

In 2014, the introduction and passage of paid sick leave laws was one of the most popular issues among state and local legislatures around the United States.  There has been significant debate among employee and employer-interest groups regarding the efficacy of these laws.  It appears, based upon a report from the state Election Law Enforcement Commission, that this debate was similarly active among New Jersey lobbying groups.

In light of an apparent heightened interest among New Jersey municipalities in enacting paid sick leave laws (to date, nine have done so), the New Jersey Assembly and Senate introduced legislation in 2014 which would require employers to provide paid sick leave time to their employees.  If enacted, this law would preempt all previously enacted paid sick leave ordinances in New Jersey.  Since its introduction, it appears New Jersey lobbying groups have dug in their heels in support of their respective positions.

According to a recent report from a Rutgers University doctoral student interning at the state Election Law Enforcement Commission, this pending legislation was the most heavily lobbied bill in 2014.  The paid sick leave lobbying efforts exceeded efforts regarding, among other things, legislation regarding heroin/opiate abuse and legislation which would allow a terminally ill patient to end his or her life.

Similarly, following the passage of the paid sick leave ordinance in Trenton, a coalition of business groups filed a complaint challenging the constitutionality of the ordinance.  In April 2015, a New Jersey Superior Court Judge threw out this petition, landing a significant blow to employer-interest lobbying efforts on the municipal-level.

Nevertheless, based upon this interest and debate among lobbying groups in New Jersey, the questions of whether a paid sick leave law will be enacted on a state level is poised to be a hotly-contested issue as we move towards the 2016 elections, especially in light of questions surrounding Governor Chris Christie and his potential bid for the United States presidency.  Stay tuned.

Eight Hours to be an FMLA “Overnight” Success

How long must an employee be in the hospital to satisfy the “overnight stay” requirement of the FMLA?  “[F]or a substantial period of time from one calendar day to the next calendar day as measured by the individual’s time of admission and time of discharge,” according to the Third Circuit Court of Appeals.  Bonkowski v. Oberg Industries, Inc. (3rd Cir. May 22, 2015). At least eight hours would meet the “substantial period” requirement, the Court added.

The FMLA defines a “serious health condition” as an “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” Section 825.114 of the DOL’s regulations defines “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical care facility…”   “Overnight” is not defined in the law or regulations.

The plaintiff had arrived at the hospital shortly before midnight, was admitted to the hospital shortly after midnight and was discharged the evening of the same day he was admitted.

The district court held that an employee must be in the hospital from sunset on one day to sunrise the next to meet the “overnight stay” requirement. Since the plaintiff did not meet this test, he did not have an “overnight” stay, according to the district court. The Third Circuit rejected this approach because sunset-sunrise times vary through the year and by geographic location. The court noted that in Fairbanks, Alaska, the time from sunset to sunrise could vary from less than three hours to more than twenty hours, depending on the time of year. Nonetheless, the Court affirmed summary judgment for the employer because the plaintiff “did not stay in the hospital from one calendar day to the next calendar day as measured by his time of admission and time of discharge.”

The Court also rejected the “totality of the circumstances” approach, although the dissenting judge espoused this view. The dissent cited studies to establish that various factors affect the time of a hospital admission, including the wait time to see a physician, the day of the week the individual comes to the hospital and transportation issues that affect arrival time at the hospital.  The “totality” approach “offers a practical and more equitable inquiry into an employee’s hospital experience,” according to the dissent.

Ink Spilt, Views Split on Attendance as Essential Job Function under ADA

What better place to contemplate the ADA issue of whether coming to work is an essential function of a job than at the recent Disability Management Employer Coalition (DMEC) Compliance Conference, an annual three day seminar for those who toil in the depths of disability leave management and love every minute of it?

It all began with a discussion of EEOC v. Ford Motor Company, the Sixth Circuit en banc decision just a few weeks ago, rejecting the EEOC’s claim that Ford denied a resale buyer a reasonable accommodation by not letting her work from home up to four days per week.

“Is regular and predictable on-site job attendance an essential function (and a prerequisite to perform other essential functions) of [the] resale-buyer job? We hold that it is,” concluded the Sixth Circuit, or at least the eight judges in the majority opinion.  Observing that it was not the first court to conclude that regular and predictable attendance is an essential function, the court added: “We do not write on a clean slate. Much ink has been spilled establishing a general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’” (citations omitted).

The ink the EEOC spilt on that issue espouses precisely the opposite view. In its 2002 Guidance on Reasonable Accommodation and Undue Hardship under the ADA, in footnote 65, the EEOC said: “Certain courts have characterized attendance as an ‘essential function’… Attendance, however, is not an essential function as defined by the ADA because it is not one of ‘the fundamental job duties of the employment position’…. As the regulations make clear, essential functions are duties to be performed.” (citations omitted).

Speaking at the DMEC Conference, EEOC Commissioner Victoria A. Lipnic cited the EEOC’s official position in its 2002 Guidance, but noted that her personal opinion is that attendance is an essential function.

The 25th anniversary of the ADA is just weeks away. Enough ink has been spilt on the issue of whether showing up for work is an essential function of a job. Woody Allen observed that 80% of life is “showing up.” Shouldn’t the same be said for work?

EEOC Releases Proposed Rule on Workplace Wellness Programs

The EEOC today released for public comment its proposed rule to amend its regulations and interpretive guidance as they relate to wellness programs, including the size of incentives an employer may offer yet still have a “voluntary” wellness program under the ADA. For additional information concerning the proposed rule, click here.

Back to the Future on Paid Family Leave and Sick Days

Commenting on paid leave recently, U.S. Secretary of Labor Thomas E. Perez said:

We are on the cusp of huge breakthroughs on paid family leave and paid sick days. I believe that in 30 years, we will look back at this as the moment we began to turn the corner, when a sleeper issue finally began to awaken and when grass roots momentum began to gather steam and roll toward a broad national consensus.

No one can seriously doubt that we are on a cusp of expanding paid family leave and sick days. The number of jurisdictions with paid sick leave laws has more than doubled in a year; numerous states are focused on how to provide pay during family and medical leave.

Secretary Perez looks into his crystal ball and predicts that 30 years hence, we will look back to today as the moment when “we began to turn the corner” toward a national consensus on paid family leave and sick days. We are all familiar with the admonition that past results are not a guarantee of future performance. But based on the proliferation of leave laws in the past 30 years, I suspect that in the next 30 years, the compliance challenge for employers will grow exponentially and from the leave management perspective, employers will be longing for “the good old days.”

Thirty years ago, there were no federal leave laws and just a smattering of state leave laws, most relating to workers compensation and pregnancy. Since then, the federal government has passed the Family and Medical Leave Act and the ADA, the latter referred to by at least one EEOC Commissioner as an “inadvertent leave law.”  Beyond that, we have a stew of state and municipality leave laws. A dozen or so states have passed their own versions of family and medical leave laws, some of which are similar to the federal FMLA, others much less so, each with its own idiosyncrasies. Then we have 22 jurisdictions (3 states and 19 cities), and counting, that have enacted paid sick leave (PSL) laws.  There is no consistency in these laws: what employers are covered; what employees are eligible; what notice an employer must give or an employee must give. Also, it is unclear whether or how these PSL laws are integrated into the state and federal family and medical leave laws. There is a collection of other state and local leave laws dealing with family and medical issues, but you get the picture.  Add it all up, and the leave management challenge for a multi-state employer committed to compliance is daunting.

Can it get any more complicated? I have asked myself this many times.  Looking into my crystal ball, the answer is “absolutely.”  More leave laws with little or no consistency and no effort to integrate them into a coherent leave approach will make leave management more complicated, and that is what is likely to occur in the next 30 years. Perhaps the focus of leave laws for the next 30 years should be on uniformity and integration. Let’s look to the future for that direction.

Common Sense Trumps EEOC’s Position in ADA Telework Case

When I wrote last week that telework was “in the air” because we were anxiously awaiting the en banc Sixth Circuit decision in EEOC v. Ford Motor Company, little did I know that the decision was likely getting a final review before its release, which occurred on Friday.

Common sense trumps the EEOC’s position on telework, the Court said, in the most significant decision on the subject in the 25-year history of the ADA.  The EEOC had alleged that the company failed to provide a reseller with a reasonable accommodation by denying her request to work at home up to four days per week. The Sixth Circuit affirmed the district court’s grant of summary judgment to the company.  EEOC v. Ford Motor Company, 6th Cir. April 10, 2015).

“Much ink has been spilled establishing a general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise,’” the court said. “[M]ost jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation,” the court noted.

The court suggested that stepping back from the legal analysis provides perspective. “Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs.”  “[E]quipped with a 1400-or-so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult,” the court added.

The court said that its holding that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs,” is supported by “case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance.”

For background on the case and prior decisions, our previous blogs on this case are here, here, here and here.

ADA and GINA Guidance on Wellness Incentives on the Way!

The days of referring to the EEOC’s guidance on wellness incentives under the ADA and GINA as “long-awaited” may be coming to an end.   The EEOC announced that it has sent a Notice of Proposed Rulemaking (NPRM) on this issue to the Office of Management and Budget (OMB) for clearance.

The NPRM is not available for publication. A primary issue is the extent to which an employer can offer financial incentives to employees, their spouses and their dependents to participate in an employer’s wellness initiatives without running afoul of the ADA and GINA.  The EEOC’s perspective on allowable incentives got much attention recently when it sought to enjoin an employer from implementing its incentive program, which the employer contended complied with the wellness incentive rules in the Affordable Care Act (ACA). In that litigation, the EEOC declined to define the line between lawful and unlawful financial incentives but argued that the employer’s incentives were so large that participation in that program was not voluntary. The court denied the injunction.

In an apparent response to that litigation, in March 2015, a group of Republican Senators and Representatives introduced the Preserving Employee Wellness Programs Act (H.R. 1189 and S. 620) to harmonize the wellness program provisions in the ACA with potentially conflicting provisions in the ADA and GINA. Under those bills, a wellness program with incentives that comply with the ACA would be protected from attack under the ADA and GINA.

The EEOC’s NPRM may propose consistency with the ACA. The Kiplinger Letter (subscription service) reports that under the EEOC’s guidelines, “[f]or example, employers can discount health insurance premiums by up to 30% for employees who make lifestyle changes: Quitting cigarettes, exercising regularly, etc. Yet-to-be-defined steps will aim to prevent discrimination against disabled workers.”

After OMB approves the NPRM, the proposed rule will be published in the Federal Register for a 60-day public notice and comment period.  For additional information on this issue, click here.

Miles’ Law at Work in Telework Case Against the EEOC?

With telework as a reasonable accommodation under the ADA in the air as we await anxiously the Sixth Circuit’s en banc decision in EEOC v. Ford Motor Company, a recent decision concerning the EEOC’s failure to provide telework as a reasonable accommodation got my attention.  Miles’ law comes to mind.

Named for a chief of the Bureau of the Budget in the 1940’s, the “law” is based on Miles’ observation about an employee’s change in perspective when he went from a position charged with reviewing budgets to a position in an agency whose budgets were reviewed. “Where you stand depends on where you sit,” Miles observed.

In the recent case, the EEOC denied an EEOC employee’s request to telework as an accommodation for her medical condition.  The EEOC argued that it would be an undue hardship to grant the request because the plaintiff, a newly-hired analyst, “needed to be in the office to receive assignments and on-the-job training” and needed “to review onsite files that could not be accessed remotely.”  The plaintiff argued that there was no formal training for her position, that she had already been trained, and that she could have done her work remotely with technology and the assistance of others in the office. The court denied the EEOC’s motion for summary judgment on the telework claim, finding that there were factual issues about whether telework was a reasonable accommodation. Buie v. Jacqueline Berrien et al (D.D.C., March 27, 2015).

In the Ford Motor Company case, the EEOC challenged the company’s decision that it would be an undue hardship to allow a resale buyer to work at home for up to four days per week.  The company’s managers argued that the buyer’s being at work was essential “because face-to-face interactions facilitate group problem-solving.”

Which raises the obvious question: is the EEOC’s view of telework as a reasonable accommodation the same whether it is a plaintiff or a defendant?  Or, does the counsel table at which it sits determine where it stands?