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Disability, Leave & Health Management Blog

Offering Practical Guidance to Employers

Add San Diego to the Growing List of Paid Sick Leave Jurisdictions

San Diego has become the tenth jurisdiction requiring employers to provide employees with paid sick leave. On August 18, 2014, the San Diego City Council overrode the mayor’s veto of the Earned Sick Leave and Minimum Wage Ordinance. The earned sick leave provisions of the ordinance are effective on April 1, 2015.

Employees who work at least two hours in one or more calendar weeks within the geographic boundaries of San Diego accrue sick leave at the rate of one hour for every thirty hours worked within San Diego, without a cap.  Employees begin to accrue sick leave at the outset of employment or on April 1, 2015, whichever is later, and can begin using accrued sick leave on the ninetieth calendar day of employment or April 1, 2015, whichever is later.

An employee may use earned sick time for the employee’s medical treatment and “other medical reasons”; providing care or assistance to a family member with an illness, injury or medical condition; when the employee’s workplace or the school of the employee’s child is closed due to a public health emergency; or for “safe time,” which is time off to engage in defined activities relating to domestic violence, sexual assault or stalking.

An employer may limit an employee’s use of earned sick leave to forty hours in a benefit year. Unused sick leave must be carried over to the following year.  An employer may set a reasonable minimum increment for the use of earned sick leave, not to exceed two hours.

The ordinance  prohibits an employer from requiring an employee, as a condition of using earned sick leave, to search for or find a replacement worker to cover the hours during which such employee is using earned sick leave.

For foreseeable leave, an employer can require up to seven days notice. For unforeseeable leave, an employee must give as much notice as is practicable.  An employer must post a notice informing employees of their rights to earned sick leave and must also give employees upon hire information concerning earned sick time and—here is a unique tweak—notice of the “[e]mployer’s name, address, and telephone number.”

Meanwhile, the California Senate Appropriates Committee recently approved the Healthy Workplaces, Healthy Families Act of 2014, which would guarantee California workers three days of paid sick leave annually.

ADA Accommodation Process “Not a Verbal Game of Tag”

“The accommodation process is not a verbal game of tag in which the last person to say something wins,” according to the dissenting judge in a case that focused on which party was responsible for the breakdown of that process. Ward v. McDonald, Secretary U.S. Department of Veterans Affairs (D.C. Cir. August 12, 2014).

The plaintiff, an attorney advisor at the Board of Veterans Appeals (BVA), worked 8 to 10 hour days, reading case files and drafting opinions. In April, 2007, she asked to work from home full time due to a medical condition that required lengthy daily treatments and prevented her from sitting at a desk for long periods.  She provided physicians letters to support her request. Between April and June, 2007, the BVA representatives met with her to discuss her request and asked for additional medical information, which the plaintiff provided. In June, when her supervisors asked for more information, the plaintiff resigned. Two months after the plaintiff’s resignation, the BVA sent her a letter granting her requested accommodation.

The plaintiff sued the BVA, alleging that it violated the Rehabilitation Act, which incorporates ADA standards, by failing to provide her a reasonable accommodation and constructively terminating her because the failure to accommodate her disability left her with no choice but to resign.

While accommodation process cases often focus on when the plaintiff “started it” by requesting an accommodation, this case focused on “who ended” the process and was responsible for its breakdown.

The appellate court affirmed summary judgment for the BVA, explaining that the plaintiff “is the author of her misfortune—she and BVA parted ways not because the BVA discriminated or retaliated against her based on her disability but because she acted precipitately” by resigning. The court held that the accommodation process broke down due to plaintiff’s “sudden resignation,” which cut short “the BVA’s continuing good-faith dialogue”

Distinguishing the accommodation process from a game of tag, the dissent noted that the fact that BVA was the last party to engage in the process does not mean the BVA “wins.” The dissent said that a jury could find that the BVA needlessly prolonged the accommodation process and forced the plaintiff to “ [run] a gauntlet of intrusive and entirely unnecessary questioning” and have her “certify to a litany of irrelevancies.”

While the defendant here succeeded in establishing that the employee was responsible for the breakdown of the accommodation process, employers should not reach this conclusion lightly. Other cases note that employers are typically more sophisticated than employees, have more resources available to them and, as a result, more is expected of them in the accommodation process.


Denying Receipt of FMLA Notices May be Enough to Survive Summary Judgment

Thanks to our colleague Samantha Sherwood Bononno for this post.

An employee’s denial of receipt of mailed FMLA notices can create an issue of fact for the jury, allowing FMLA claims to survive summary judgment, the Third Circuit held last week. Lupyan v. Corinthian Colleges, Inc., (3rd Cir. August 5, 2014).

The district court had previously granted summary judgment to Corinthian on Lupyan’s FMLA interference and retaliation claims, applying the “mailbox rule”, which presumes that a properly sent letter has been received by the addressee.

Plaintiff Lupyan was on short-term disability leave in December 2007.  Corinthian alleged that it sent her FMLA paperwork, notifying her that her leave was designated as FMLA leave. When Lupyan notified Corinthian that she was able to return to work in April 2008, Corinthian told her that her employment was being terminated due to low student enrollment and because she failed to return to work upon the expiration of her 12 weeks of FMLA leave. Lupyan claimed that this was the first time she learned that her leave had been designated as FMLA leave.

The Third Circuit reversed the district court, holding that Lupyan’s denial of receipt of the FMLA notice was enough to rebut the mailbox rule presumption. The court noted that Corinthian had no evidence to establish that Lupyan received the letter since it had not been sent registered or certified mail, requesting a return receipt, “or us[ing] any of the now common ways of assigning a tracking number to the letter.” The Court held that Corinthian’s self-serving affidavits confirming mailing of the notice were insufficient. Lupyan’s denial of receipt of the letter was enough to create a genuine issue of material fact that must be resolved by a jury.

This decision means employers need to take steps to follow up with employees when FMLA notices are ignored.  Employers can likely prevent this situation altogether simply by following up with a conversation, memorialized in a follow-up email or letter, confirming that the employee received the FMLA notice.

Dog Bites Plaintiff; Barker FMLA Decision Bites Employer

The plaintiff’s dog bit her, leading to a hospital stay, complications and absence from work for more than two weeks. After the plaintiff failed to produce the FMLA Certification from her health care provider to support her absences, her employer terminated her.  Finding that there were issues to be resolved by a jury concerning whether the employer’s request for certification was proper, and whether it was “practicable” for the plaintiff to provide the certification in time, the court denied the employer’s motion for summary judgment. Barker v. Genesys Pho, LLC (E.D. MI, Juy 24, 2014). The certification lessons discussed in the case are worth revisiting.

Section 825.305 of the FMLA Regulations is the starting point. Subsection (b) requires the employee to provide the requested certification within 15 calendar days after the employer’s request “unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts…” Many employers view the 15 days as a hard-and-fast rule without considering the “impracticable” exception.

In Barker, the court held that a jury may find that it was impracticable for the plaintiff to submit the certification within 15 days because she was unable to pick up the certification from her doctor because of her medical condition; her husband had just started a new job and could not take time off to pick up the certification; her daughter had just had a baby; and the doctor refused to fax the certification because he did not want to take responsibility for its delivery.   “Practicable” may be in the eye of the beholder.

Concerning whether the certification was proper, Subsection (d) states that “[a]t the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.” The court held that a jury should decide whether the employer advised the employee that she would be terminated if her health care provider’s certification was not received within 15 days.  Some companies prefer language softer than “you will be terminated,” but the regulation may require very direct language.

Eugene, Oregon Becomes Ninth Patch in Paid Sick Leave Patchwork

Eugene, OR enacted its “Ordinance Concerning Sick Leave” on July 29, 2014, making it the ninth jurisdiction to have a paid sick leave law. The other eight are San Francisco, Seattle, Portland, OR, New York City, Newark and Jersey City, New Jersey, Connecticut and the District of Columbia.  Massachusetts voters will decide in November whether to approve a Paid Sick Days Initiative.

The Eugene Ordinance is effective July 1, 2015. Its structure and substance have many similarities to some of the other laws.  Beginning the later of an employee’s first day of employment or July 1, 2015, employees begin to accrue an hour of paid sick leave for every 30 hours of paid work done in Eugene, to a maximum accrual of 40 hours in a year. Employees may carry over unused time to the following year but an employer is not required to allow employees to use more than 40 hours of sick leave in a year. An employee may begin to use accrued sick time after 90 days of employment.  The Ordinance contains the usual list of reasons an employee may use accrued sick leave: diagnosis, care or treatment of the employee or employee’s family for illness, injury or health condition including preventative medical care; reasons related to domestic violence, harassment, sexual assault or stalking; and other reasons that may be adopted in the administrative rules for the Ordinance. An employer need not pay an employee for unused sick leave upon termination.

The Ordinance also has a few less common provisions.  Employees whose work location is not in Eugene but who work in Eugene from time to time accrue paid sick leave during the time working in Eugene. Once an employee has worked 240 hours in Eugene in a year, the employee is eligible to accrue and use paid sick time that year and every subsequent year that he works in Eugene.  The Ordinance also prohibits an employer from requiring an employee to find a replacement worker for his or shift as a condition for the employee’s use of sick leave.

The City Manager is directed to adopt administrative rules on a number of topics, including provisions “to ensure that employers may establish and enforce reasonable policies for employees in order to maintain workplace productivity and prevent possible abuse.”

As we have said previously, the challenge created by this patchwork of paid sick leave laws has nothing to do with the social question of whether there should or should not be paid sick days. The challenge is the proliferation of leave and attendance laws and how they interact with each other. Does the time off under paid sick day laws run concurrent with  time off under these other leave-and-attendance laws or is it “stacked” on top of those laws? The Eugene Ordinance does not have any provision that addresses this integration issue.


Ebola in the News

The Ebola virus, first diagnosed almost 40 years ago, for which there is no vaccine and up to a 90% fatality rate, is very much in the news. In the most recent outbreak, since March 2014, the Centers for Disease Control reports about 887 suspected deaths and more than 1600 confirmed cases. The CDC has issued a Level 3 travel advisory for Sierra Leone, Guinea, and Liberia, meaning travelers should avoid all non-essential travel to these areas. This is the highest level advisory issued by the CDC.

Two infected patients lie in an Atlanta hospital having been transported there from Liberia. A few others in the United States have walked into hospitals, asking to be tested.

Whenever there is an outbreak of a deadly disease, the “worst case scenario” makes its way into the discussion. When world health organizations are concerned, and governments are concerned, employers are concerned, and so are their employees.

Should employers allow employees to continue to travel to affected areas? Should employees returning from affected areas be permitted to return to work until the incubation period has ended?  May an employer ask them about their medical exposures while in the affected areas? What if an employee refuses to travel to an affected area? What can employers communicate to employees about possible exposure to communicable disease?

The medical and legal issues have few clear answers, and with a 90% fatality rate, one does not want to make the wrong judgment. As we watch this medical issue unfold, employer judgments should be driven by the facts, as reported by the CDC and World Health Organization. Stay tuned as we watch this issue develop as well.

ADA, FMLA and Section 503 Violations to Be Considered in Award of Federal Contracts

A contractor’s violations of 14 federal statutes (and equivalent state statutes) must be taken into account by contracting agencies when considering contract awards, according to an Executive Order signed by President Obama on July 31, 2014. The ADA, FMLA and Section 503 of the Rehabilitation Act are among the 14 listed statutes.  For additional information about the Executive Order from our Affirmative Action and OFCCP Defense Practice Group, click here.

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.