CA Revives Former DJ’s Disability and Leave Claims Against Univision Radio

CaliforniaWhat is a disability? And when are employers on notice to provide employees leave?  These were some of the questions raised in the California Court of Appeals (Second Appellate District) November 15, 2016 decision, Soria v. Univision Radio Los Angeles, Inc.

Sofia Soria, a former DJ at Univision Radio Los Angeles Inc. (“Univision”), filed suit against Univision, primarily alleging disability discrimination, failure to accommodate disability, failure to engage in the interactive process under the California Fair Employment and Housing Act (“FEHA”) and interference with California Family Rights Act (“CFRA”) rights. Soria was diagnosed with a potentially cancerous stomach tumor in late 2010. In late 2011, she allegedly gave multiple notices of her condition to Univision and missed some work due to medical appointments. In December 2011, after Soria allegedly told her supervisor that she may need surgery, she was terminated.

The lower court granted summary judgment in favor of Univision, but the California Court of Appeals (the “Court”) disagreed, finding there were factual disputes which the Court could not resolve. Some of the key disability and leave related findings include:

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Employee Seeking a Less Stressful Work Environment Denied ADA Protections

In a case addressing a challenging accommodation scenario faced by many employers, a Florida District Court held in Hargett v. Florida Atlantic University Board of Trustees that an employee seeking a less stressful environment and an end to hostile confrontations with her manager was not seeking a reasonable accommodation.  The employee suffered from epilepsy  with seizures brought on by high tension and stress.  She demanded as a reasonable accommodation that her supervisor cease his “hostile confrontations” with her.  She also requested that her employer provide her with “calm, fair, non-confrontational treatment.”

The Court noted that asking a supervisor to adopt a less overbearing management style is generally not a reasonable accommodation. While “specific stressors…may in some cases be legitimate targets of accommodation, an employee cannot immunize herself from stress and criticism in general.”  The employee failed to identify any specific stressors that her supervisor created and that her employer could address through the accommodation process.

When a request for accommodation is patently unreasonable, the employer may not have an obligation to investigate and engage in the interactive process.  That is also the case if the demand for accommodation lacks sufficient specificity.  While this decision was a good win for employers, it could be risky to ignore the interactive process altogether.  In situations involving employees seeking a less stressful work environment due to a medical condition, the employer should start by asking the employee to identify the specific stressors that are causing the medical issues and which the employee is seeking to have eliminated or modified.

Court Again Approves Safety-Based Medical Examination without Individualized Assessment

Does an employer violate the Americans with Disabilities Act (ADA) if it requires an entire class of employees to undergo a medical examination without assessing each class member’s individual characteristics? Filling a relative void in case law, the Eighth Circuit recently said no – at least where the employer has credible safety concerns and seeks to comply with federal regulations and guidelines. Read More

The EEOC Settles its “Direct Threat” Lawsuit Against Georgia Power Co. for $1.6 Million

According to the Consent Decree filed on November 15, 2016, Georgia Power Company (“Georgia Power”) has agreed to pay $1.6 million and to revise its seizure and drug and alcohol policies in order to settle the lawsuit brought by the EEOC which claimed that the utility company violated the Americans with Disabilities Act (“ADA”) when it fired, or refused to hire, employees with actual or perceived disabilities on the basis that it believed the individuals posed safety threats. However, according to the EEOC, these actions were taken without actually assessing the individual’s ability to perform the required tasks.

In 2013, the EEOC brought suit on behalf of 24 alleged discrimination victims (EEOC v. Georgia Power Company, Civil Action No. 1:13-cv-03225-AT) in the District Court for the Northern District of Georgia, Atlanta Division.  According to the EEOC, Georgia Power either refused to hire disabled individuals or barred some employees from returning to work after medical leave because it believed that they couldn’t safely do their jobs.  The EEOC claims that Georgia Power ignored the opinions of treating physicians that the individuals were able to perform their job functions, and instead automatically disqualified them without any individualized assessment.

Under the ADA, an employer can deny jobs to individuals with disabilities if it believes the workers pose a “direct threat,” which the ADA defines as “a significant risk” to the health or safety of others that can be eliminated by reasonable accommodation. The employer has the burden of proving that such a threat exists.

According to the EEOC, each of the individual plaintiffs were qualified individuals who were able to perform the job functions with or without reasonable accommodations. For example, plaintiff Harper was able to perform the essential functions of a paid intern, but Georgia Power rescinded the offer of employment after it learned that she was taking medication for a traumatic brain injury. Furthermore, in the case of plaintiffs Simmons, Allen, and Butler, each individual was cleared by a physician to return to work, but instead, their employment was terminated by Georgia Power. See Complaint, pg. 4. The EEOC asserted that each of these individuals were discriminated against because of their disability and that Georgia Power failed to provide any evidence that the individuals posed a “direct threat” to the safety of others.

Georgia Power denies that it violated the ADA, but has entered into the settlement to avoid additional litigation costs.

The take away from this settlement is to ensure that you, as employers, have conducted an individualized assessment for each individual prior to disqualifying them from being able to perform specific job functions.


California Supreme Court Asked to Consider Associational Disability Discrimination Case

CaliforniaOn October 7, 2016, Dependable Highway Express filed a petition asking the California Supreme Court to review a decision to allow a non-disabled employee to pursue his claim of association based disability discrimination.  The employee alleged that he was terminated from employment after he made complaints about changes to his work schedule which impacted his ability to be at home during his disabled son’s treatments.   At issue is an appellate court’s decision to reverse a grant of summary judgment given to an employer.  In deciding to allow the case to go forward, the appellate court found that a reasonable juror could find that the employee’s complaints, which were close in time to his termination, could be evidence of associational disability under the Fair Employment and Housing Act.  As we have reported previously, the California courts continue to grapple with whether a failure to accommodate a non-disabled employee can lead to liability for association discrimination. Under California’s Rules of Court, the California Supreme Court has until December 6, 2016 to decide if it will review the matter or give itself a 30-day extension of time to further consider review.   If the California Supreme Court takes no action by December 6, 2016, the petition for review will be deemed denied.  We are monitoring this case and will provide an update as more information becomes available. 


Seven States Pass New Marijuana Laws on Election Day

Election Day 2016 saw voters approve new marijuana laws in seven states. There are now a total of 28 states (plus the District of Columbia) with medical marijuana laws and 8 states (plus the District of Columbia) with recreational marijuana laws. Arizona’s proposed recreational marijuana law did not pass. Read the full article on Jackson Lewis’ website.

Arizona and Washington Join The PSL Patchwork

Arizona Healthy

On Election Day, voters in Arizona and Washington approved measures requiring employers in their respective states to provide paid sick leave and requiring employers to raise the minimum wage. They join the PSL states of California, Connecticut, Massachusetts, Oregon, and Vermont and an ever growing patchwork of cities and counties. Read More

Court Approves Three Year Consent Decree in Case Brought by the EEOC for Alleged Violations of GINA

Although the EEOC rarely files suit seeking to redress violations of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), on October 31, 2016, the United States District Court for the Eastern District of New York entered a three year consent decree against a New York home health agency in a class action brought by the EEOC which alleged violations of Title II of the Act.  In Equal Employment Opportunity Commission v. BNV Home Care Agency, Inc., Case No. 14-cv-5441 (E.D.N.Y. Oct. 31, 2016), the EEOC alleged that the defendant, a home health agency, maintained a policy of unlawfully requesting genetic information from a class of applicants and employees.  The EEOC alleged that the home health agency violated GINA when it asked applicants and employees to provide family medical history on the company’s “Employee Health Assessment” form.  Specifically, applicants and employees, including home health aides, were asked to identify whether they or any family members had experienced any of a list of 29 medical conditions including diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy or cancer.  The company claimed that it requested the information from applicants and employees for the protection of its patients.

Although the Court did not rule on the merits of the case, it approved a three year consent decree entered into between the EEOC and the home health agency which mandated injunctive relief, training, posting and distribution of notice regarding resolution of the lawsuit, ongoing reporting and compliance obligations, and the payment of $125,000 to a class of affected applicants and employees.  Read More

What Am I Doing Wrong?? Common FMLA Mistakes.

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the second in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not recognizing employee notice of the need for FMLA leave.

Recognizing an employee’s notice of the need for FMLA leave can be tricky.  When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, the employer’s FMLA obligations are triggered.  An employee does not have to specifically state, “I need FMLA leave.”  Failure to recognize when an employee might need FMLA leave could result in a claim of FMLA interference.

In a recent case, the court refused to grant an employer’s motion for summary judgment because whether the employee provided adequate notice of the need for continuing FMLA leave was a question of fact to be decided by the jury.  In Francisco v. Southwestern Bell Telephone Co., Civil Action No. H-14-3178 (S.D. Tex. July 25, 2016), an employee needed continued FMLA leave after the employee’s short-term disability benefits ended. While on FMLA leave, the employee had temporarily relocated from Texas to Florida to care for his ill father. Although the employee failed to communicate with his supervisors locally, two facts were key to the court’s decision: (1) the employee updated his contact information while on leave with the company’s corporate office, and (2) prior to the deadline to submit a certification, the employee communicated to the company’s benefits department that he was attempting to comply with the medical certification requirements for additional leave but was unable to do so within the 15-day time frame because his doctor was out of the office due to a medical emergency.  Although the employer argued that the employee did not provide adequate notice because the employee did not communicate with his local management, the court determined that the above two facts created an issue of fact as to whether the employee provided adequate notice his continuing need for FMLA leave.

In Guernsey v. City of Lafayette, No. 4:13-cv-00086 (N.D. Ind. Aug. 12, 2016), the court decided that an employee failed to put the employer on sufficient notice of his potential need for FMLA leave.  The court explained that an employee’s notice obligation is satisfied so long as the employee provides information sufficient to show that the employee likely has a FMLA-qualifying condition.  The employee alleged that the employer know of his chronic pain and absence related to pain for years, but he gave his employer only limited information about his absences.  Doctor notes submitted by the employee did not address the nature of the medical issues, but merely indicated that the employee was “ill,” “seen” by a doctor, and/or should be “excused” from work.  The employee also refused to provide more information about his absences in response to his supervisor’s request.  The employee’s doctor also informed the employer that the employee could return to work to “full activity without limitations.”  Finally, for the last absence leading to termination, the employee simply told his supervisor that his back was “bothering” him.  The court determined that this information, together, did not suggest that the employee’s health condition might be serious or that FMLA otherwise could be applicable.

Case law on this issue is particularly fact specific, and employers should keep in mind that “notice” of an employee’s need for leave can arise under unique fact patterns.  Sufficient notice is also an important topic to include when training managers and supervisors on the FMLA.  Supervisors are often the first individuals within the company to learn of an employee’s potential need for leave, and they should be trained on what could constitute an employee’s notice of the need for FMLA leave, and to promptly follow up with Human Resources, so that the company can meet its FMLA obligations.

FMLA Leave Not a Bridge to European Vacation

On October 31, 2016, the Fourth Circuit Court of Appeals issued a decision that confirmed an employer’s right to take adverse employment action against an employee who fraudulently uses FMLA leave. In Sharif v. United Airlines, Inc., Case No. 15-1747 (4th Cir., Oct. 31, 2016), the Court upheld United Airlines decision to discharge Masoud Sharif for fraudulently using FMLA leave, finding that “[t]o hold otherwise would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons.”

Sharif and his wife, both employees of United, took a scheduled vacation to South Africa and Italy from March 16 through April 4, 2016. While Sharif’s spouse was able to use approved vacation for the entire time period, Sharif was unable to obtain approved time off for his scheduled shift on March 30.  On the morning of March 30 (at 1:00 a.m. Eastern Standard Time), Sharif called United and requested intermittent FMLA leave pursuant to a certification already in place for his anxiety disorder.  The following day, Sharif and his wife traveled from South Africa to Italy where their vacation continued.  After United noticed that Sharif had used FMLA leave for the only shift that he was scheduled to work in the middle of a lengthy vacation, an investigation was conducted into his use of FMLA leave.  When United questioned Sharif about his absence on March 30, he initially denied being scheduled to work that day and then provided a constantly shifting story about suffering a panic attack after not being able to secure a seat on a flight back to the United States.  However, Sharif was unable to provide any evidence to United of his attempts to secure a flight home for his scheduled shift on March 30.  After United notified Sharif of its intent to terminate his employment for fraudulent use of FMLA leave and dishonesty during the investigation, Sharif decided to retire and then filed suit against United alleging retaliation for his use of FMLA leave.

In rejecting Sharif’s claims under the FMLA, the Fourth Circuit relied on the Department of Labor’s pronouncement that an employee who fraudulently obtains FMLA leave is not protected by the FMLA’s provisions related to reinstatement and benefits protection. 29 C.F.R. § 825.216(d).  Importantly, the Court stated that “[w]hile a company may not deny valid requests for leave, and an employer cannot use allegations of dishonesty as a pretext for subsequent retaliation, it is equally important to prevent the FMLA from being abused.”

One important takeaway from this case for employers relates to investigations of FMLA abuse. Here, Sharif argued that United failed to conduct an adequate investigation of the alleged fraud before taking adverse action.  However, in rejecting that claim, the Fourth Circuit held that United had made a “reasonably informed and considered decision” before terminating Sharif.  Based upon this decision, employers who conduct a thorough investigation before taking adverse action against an employee suspected of leave abuse should be better suited to defend against subsequent claims of FMLA retaliation.