4.5 Million Disability Discrimination Verdict Against Auto Dealer Who Failed to Investigate

FloridaA federal jury in Florida has awarded $4.5 million against an auto dealer for claims of disability discrimination under the Florida Civil Rights Act (FCRA). Axel v. Fields Motorcars of Florida, Inc., No. 8:15-cv-893-17JSS (M.D. Fla. Feb. 22, 2017). The verdict consisted of $680,000 in lost wages and benefits, $600,000 for emotional pain and mental anguish, and $3,220,220 in punitive damages. The jury found the employer discriminated against Michael Fields after he returned from a medical absence for treatment of kidney cancer. The jury rejected the plaintiff’s claims of age discrimination pursuant to the Age Discrimination in Employment Act.

Axel was employed by Fields Motorcars of Florida, Inc. for approximately 10 years. According to court records, he had not received any disciplinary or corrective action in that time. To the contrary, he had received awards for his performance. After Fields was diagnosed with kidney cancer, he underwent experimental treatment and was able to return to work where he was capable of performing all of his duties. Axel further claimed that he was on pace to have the most productive year at Fields. However, he was repeatedly passed up for promotions, and was demoted and terminated for failure to follow company policies and processes.

In its decision to terminate Axel, the employer relied upon a letter that dated back to the beginning of his employment, approximately 10 years earlier. A Vice President and General Manager claimed that Axel had forged a document that provided his son access to auto auctions without authorization. He performed no independent investigation and never spoke to Axel prior to his termination. Axel claimed that while he signed the letter, he had authorization to do so from management. There was no suggestion that Axel’s son improperly used his authority to purchase cars on behalf of Fields.

This case highlights the importance of thorough investigations by management prior terminations, especially with respect to employees with a protected status or disability and those who bring an internal complaint of discrimination. When a company lacks the expertise to conduct an investigation on its own and fails to enlist assistance, it can pay the price at trial.

Congress Proposes Adding Parental Bereavement Leave to FMLA

On March 16th, a bipartisan group of Representatives, which included Paul Gosar, Don Beyer, Martha McSally, Brad Schneider, Tom Suozzi and Barbara Comstock, introduced the Parental Bereavement Act of 2017, also known as the Sarah Grace-Farley-Kluger Act. See H.R. 1560.  This Act would add the “death of a child” as a covered life event under the Family Medical Leave Act (“FMLA”) and provide parents who are grieving the loss of a child with up to 12 weeks of unpaid leave to heal from the initial trauma of losing a child and then return to work.

Currently, the FMLA provides 12 weeks of unpaid leave for certain family events, such as the birth of a child, but not for the traumatic event of losing a child. Adding the death of a child as a covered event would give parents the security they need in knowing that they can take time to grieve and their job will be protected.

Similar bills have been introduced in Congress, but so far, none have been passed. However, as Congressman Gosar pointed out, “Expanding the FMLA to cover parents coping with the devastation of losing a child is beyond reasonable and should have been included when the legislation was originally passed.”

Fear of Failure – Terminating Employees with Extensive FMLA and non-FMLA Absences

It’s a scenario that frustrates many employers.  An employee with extensive intermittent FMLA absences, possibly including absences for different covered reasons, is also absent for many unspecified or unprotected reasons which lead to progressive discipline.  The employee’s absences eventually reach the point of warranting termination and the employee does not provide additional medical information to address the unprotected absences.  The employer is prepared to proceed with termination but is concerned about whether it did enough to track protected absences and communicate with the employee to avoid FMLA interference and retaliation claims.

Employers are in a much better position to defeat FMLA interference and retaliation claims with meticulous tracking of time off and communication with the employee regarding unexcused absences.  The U.S. Postal Service provided a recent example when the Court dismissed a former employee’s claim in Dulany v. U.S. Postal Service (N.D. OK March 14, 2017).  Ms. Dulany had approximately 49 intermittent FMLA absence to care for her mother.  She was also absent approximately 47 times due to her own FMLA covered health condition.  During the same time period, Ms. Dulany received multiple warnings for failure to report to work, arriving late and leaving early without following proper procedures.  Ms. Dulany then requested a leave for approximately a month and provided a note from her doctor but did not request FMLA.  The USPS sent her documents regarding the information she would need to submit for the FMLA to apply but she did not provide the requested information.

The Court dismissed Plaintiff’s FMLA claims because there was no evidence she was actually denied leave.  The USPS has a policy in place for employees to call in and report all FMLA absences.  The evidence showed that when Ms. Dulany utilized that system, the absences were tracked as FMLA.  Ms. Dulany claimed that her supervisor once said they did not have to honor her request for time off under the FMLA.  The employer’s records however reflected that the days at issue were in fact counted as FMLA and the Court disregarded the alleged comments by the supervisor.  Regarding the employee’s month long absence, she claimed that employees do not need to specifically mention FMLA to seek protection and she provided sufficient notice of her need for leave.  While Ms. Dulany was correct regarding her obligations under the FMLA, the USPS demonstrated that it took proper steps to provide her the required FMLA paperwork and Ms. Dulany failed to follow the employers’ usual leave policies and procedures in response.  Her submission of a doctor’s “note” was not sufficient to provide FMLA protection.

This case demonstrates the importance of thorough record keep relating to FMLA absences and related communications with the employee.  Despite the employee’s attempt to create a factual dispute with both the supervisor’s comments and the employer’s handling of the month long leave, the employer’s records demonstrated that it counted all reported FMLA absences as protected, that no unprotected absences were used against her, and that it met its obligation to provide the employee an opportunity to obtain FMLA coverage for the month long unprotected leave.

Employers Beware: Intermittent FMLA Absences Not Subject to “Proof of Need”

On January 27, 2017, the Eleventh Circuit Court of Appeals issued a decision that provides a cautionary tale to employers about seeking documentation from an employee on intermittent FMLA leave. In Diamond v. Hospice of Florida Keys, Inc., Case No. 15-15716 (11th Circuit, Jan. 27, 217), the Court held that an employer’s request for “proof of need” related to an employee’s intermittent absence was evidence of interference with the employee’s FMLA rights and thus precluded summary judgment for the employer.

Jill Diamond first applied for intermittent FMLA leave to care for her elderly parents in June 2013, and she took approved FMLA leave a number of times from June 2103 through February 2014. On March 20, 2014, Diamond learned that her mother was seriously ill and immediately submitted a request for FMLA leave to the Hospice.  Diamond missed scheduled workdays in late March and early April to care for her mother.  After Diamond returned to work, the Hospice sent her a memo requesting an updated certification and other documentation “to support the need for intermittent use of FMLA leave when a 30 day advance notice is not provided.”  When Diamond questioned the request for additional documentation, the Hospice stated that they needed “proof of need” such as documents from the hospital on the dates she was out or receipts for lodging, food, or gas from the town where her parents lived.  The Hospice also told Diamond that her continued unpaid time away from work was compromising the quality of care to their patients.  After Diamond provided an updated medical certification and the requested “proof of need” documents to the Hospice, her absences were approved as FMLA leave.  During the following month, the Hospice raised several concerns with Diamond’s job performance and ultimately terminated her employment based upon those performance concerns.

Diamond filed a lawsuit against the Hospice alleging interference and retaliation claims under the FMLA. In reversing the District Court’s award of summary judgment to the Hospice on the interference claim, the Eleventh Circuit ruled that the Hospice’s action had potentially discouraged Diamond from using FMLA leave.  In reaching this conclusion, the Court relied on the Hospice’s statement about Diamond’s absences compromising the quality of care and the request for “proof of need” documents.  With regard to the latter, the Court stated that since the type of documentation requested by the Hospice was unnecessary to determine whether Diamond actually needed leave to care for her parents, that request provided evidence that the Hospice was trying to make it difficult for Diamond to use FMLA leave.

Since the advent of the FMLA in 1993, employers have been challenged by intermittent leave more than any other aspect of the law. In an effort to curtail perceived abuse of intermittent leave, many employers are tempted to request that employees provide doctor’s notes or other documentation to justify each intermittent FMLA absence.  However, in addition to the cautionary tale of the Diamond case, employers must remember that the FMLA regulations (29 C.F.R. § 825.307(a)) specifically prohibit an employer from obtaining additional documentation from the health care provider once a complete and sufficient medical certification has been provided. See Oak Harbor Freight Lines, Inc. v. Antti (D. Oregon, Feb. 19, 2014).  In light of this court and regulatory guidance, employers who insist on requiring additional documentation to support each intermittent FMLA absence do so at great risk.

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 sixth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Inconsistently applying a return to work fitness-for-duty certification requirement.

When an employee takes FMLA leave for his or her own serious health condition, an employer may request a return-to-work fitness-for-duty certification confirming that the employee is able to resume work. The FMLA regulations state that if an employer has such a policy, it must be uniformly applied. This means that all similarly-situated employees, such as those in the same occupation or the same serious health condition, must submit a return-to-work fitness-for-duty certification before being permitted to return to work. Alternatively, an employer can require such a certification of all employees.  If an employer does not uniformly apply the return-to-work fitness-for-duty requirement, liability could result.

In Casagrande v. OhioHealth Corp., Case No.15-3292 (6th Cir. Dec 20, 2016), an employee claimed that his rights under the FMLA were violated because he was not reinstated for over two months after notifying his employer that he was ready to return to work. The lower court found that the employer was entitled to delay the employee’s reinstatement until the employee provided his return-to-work fitness-for-duty certification. The employee appealed, and the appellate court reversed the decision, because the lower court did not explore whether the employer’s return-to-work fitness-for-duty certification policy was applied uniformly. This fact needed to be more fully established, because even though the employee delayed in submitting his certification, he may not have been at fault for the delay if the employer had only required the certification from him and not from other similarly-situated employees. If the employer had not implemented the policy uniformly, then the request would be improper.

In Jones v. Gulf Coast Health Care of Del., LLC, Case No. 8:15-cv-702-T-24EAJ (M.D. Fla. Feb. 18, 2016), an employee wanted to return to work on light duty despite not providing a fitness-for-duty certification, and his employer denied the request. The employee claimed that his employer interfered with his rights under the FMLA by requiring him to present a fitness-for-duty certification in order to return to his job. The employee pointed to two co-workers who had been allowed to return to work as evidence that the employer had not applied its fitness-for-duty certification requirement in a consistent manner. The court found in favor of the employer, finding that the policy was, in fact, uniformly applied. The court ruled that because the co-workers held different positions than him, and also had different types of injuries than him, the employee could not point to them as comparators to show that the policy was not uniformly enforced. Additionally, the employer provided evidence that those co-workers did, in fact, provide fitness-for-duty certifications before returning to work.

Consistent application of an employer’s return-to-work fitness-for-duty certification policy is crucial. An employer should take special care to evaluate its FMLA return-to-work fitness-for-duty policy for uniformity, and consistently apply this return-to-work requirement. An important reminder – an employer must provide notice of the return-to-work fitness-for-duty certification requirement when the FMLA Designation Notice is issued.

What Am I Doing Wrong? Common FMLA Mistakes – the California Edition

California“What did I do wrong” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  Employers with operations in California need to worry about both the FMLA and the California Family Rights Act (CFRA).  This is the next in our monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration for California employees.

Not Using a CFRA Compliant Certification Form

When an employee requests FMLA leave, or when an employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, an employer must notify the employee of the employee’s eligibility to take FMLA leave and rights and responsibilities within 5 business days, absent extenuating circumstances. Often times, as part of this initial notification process, the employer may ask for additional information to ensure that the reason for leave is FMLA-qualifying.  In those instances, many employers will require that the employee submit a completed “Certification of Health Care Provider” form.

California employers should not use the “Certification of Health Care Provider” forms prepared by the U.S. Department of Labor (WH-380-E or WH-380-F) without amendment. The regulations implementing the CFRA prohibit employers from using a certification that requires the disclosure of the underlying diagnosis without consent of the patient.  As a result, asking question 4 on the DOL WH-380-E runs afoul of the CFRA regulations.  Employers with California operations are encouraged to either:  (1) remove any questions from medical certification forms that ask for medical facts, such as an employee’s diagnosis or details about the regimen of continuing treatment; or (2) use Fair Employment & Housing Council Certification of Health Care Provider form which can be found in the CFRA regulations.

House Legislation Seeks to Harmonize Wellness Programs with ADA and GINA

On March 2, 2017, in an attempt to clear the murky waters surrounding wellness programs, Rep. Virginia Foxx, chairwoman of the House Committee on Education and the Workforce, introduced the Preserving Employee Wellness Programs Act (the “Act’) (H.R. 1313). In an effort to protect wellness plans, the Act reaffirms existing law which permits employee wellness programs to be linked to financial incentives.

In introducing this legislation, Rep. Foxx recognized the importance of wellness programs to employers and employees. Wellness programs assist employers in containing health care related costs by having a healthier workforce and provides employees with financial incentives to live healthier lives. However, the issue of financial incentives, acquiescence to submit to medical examinations, and disclosure of family health histories has long been the subject of litigation between employers and the Equal Employment Opportunity Commission (“EEOC”).  These issues were further complicated by the EEOC’s regulations in May 2016 regarding wellness programs and the American with Disabilities Act and the Genetic Information Nondiscrimination Act.  These regulations are the subject of additional litigation. See AARP Suffers a Setback in its Challenge to the EEOC’s Wellness Regulations;  EEOC’s 2016 Wellness Program Regulations, The Saga Continues…

According to Rep. Foxx, this Act would bring “uniformity to the regulation of wellness programs and clarify that such programs are consistent with the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.” According to the Education and the Workforce Fact Sheet, the Act would “protect employee wellness plans by eliminating red tape, reassert congressional intent by encouraging the implementation of employee wellness programs, which in turn encourages lower heath care costs and promotes a healthy workforce.”

California Adopts Broad Gender-Neutral Bathroom Rules–Signage Rules Expand Beyond ADA Concerns

CaliforniaEffective March 1, California’s Equal Restroom Access Act (ERAA) will require some single-occupancy restrooms to have signs indicating they are gender-neutral.

Which Restrooms Does the ERAA Cover in California?

The ERAA applies to all single-occupancy restrooms in businesses, government buildings, and places of public accommodation. “Single-occupancy” is defined as a “toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”

What Does the ERAA Require?

In short, the ERAA requires single-occupancy restrooms to be identified as gender-neutral by signs. The signs must comply with Title 24 of the California Code of Regulations.

Read More

Court Labels Employer Post-Offer Medical Examination “Textbook Case” of ADA Regarded As Liability

When used lawfully, post-offer, pre-employment medical examinations can be a powerful tool. But a recent federal district court case demonstrates the importance of carefully implementing such programs.  In EEOC v. M.G.H. Family Health Center, Cause No. 1:15-CV-952 (E.D. Mich. 1/27/2017 ), the employer hired an employee and asked her to participate in a medical examination.  Although the medical provider did not have a job description, the results of the examination were normal.  Nonetheless, based on information in the employee’s medical file, which among other things indicated she was taking pain medication, the physician placed her on a “medical hold” and recommended that she undergo a functional capacity assessment.  The employer informed the employee of this for the first time after she had been working in the job without incident for two weeks.  The employer then terminated her employment before allowing her to complete the FCE based solely on the medical hold.

In granting summary judgment for the EEOC, the district court noted at least three things that the employer did wrong: (1) it did not engage in an individualized assessment; (2) it did not follow the recommendation of the physician to have the employee complete a functional capacity evaluation; and (3) it terminated the employee’s employment after  the employee had been performing the job for two weeks without incident and even though her own physician had submitted information indicating she was able to perform the job.

For employers who wish to use post-offer, pre-employment examinations, a few compliance-related points from EEOC Guidance and resources on this topic are of significance. First, as a best practice ensure job offers are communicated as conditional in nature if a post-offer, pre-hire examination will be used, and the employee should not start working until the process is complete.  Second, medical providers conducting any such examination should be providing the employer information regarding restrictions, if any, which will then form the basis for an interactive dialogue to explore reasonable accommodations. As a best practice, the medical provider should not be giving a thumbs up or thumbs down on applicants – employers should be making those decisions after an interactive process.


The “D” in the ADA Still Exists, Court of Appeals Reminds Us

In 2009, Congress passed the Americans With Disabilities Amendments Act (ADAAA), unquestionably expanding the definition of a disability under the ADA and, for all practical purposes in most cases, shifting the focus of disability lawsuits in federal court.  Specifically, prior to the ADAAA’s enactment employers routinely argued that the plaintiff-employee’s ADA claim failed right out of the gate because he or she could not establish the existence of a disability.  The ADAAA changed all of that, as through the amendments Congress made it clear that the initial hurdle of establishing a disability was no longer as onerous and that many medical conditions, such as cancer, should presumptively be treated as disabilities.  As a result, since the ADAAA’s enactment courts now commonly gloss over the disability-establishment analysis of an ADA claim and proceed directly to whether there is evidence of discrimination or whether a reasonable accommodation existed.

Not so fast, the Third Circuit Court of Appeals recently reminded us.  In Alston v. Park Pleasant, Inc., 2017 U.S. App. LEXIS 2668 (3rd Cir. Feb. 15, 2017), the plaintiff was diagnosed with breast cancer and less than a month later was discharged by her employer.  The plaintiff subsequently filed suit alleging, among other things, that she was fired because of her asserted disability, cancer.  The trial court dismissed all of her claims and she appealed.  In affirming the trial court’s decision, the Third Circuit Court of Appeals “agree[d] that cancer can — and generally will — be a qualifying disability under the ADA.”  However, the Court of Appeals cautioned, despite the more relaxed standard established by the amendments, the ADA still requires an individual assessment and further requires that a plaintiff demonstrate that one or more “major life activities” were substantially impaired by his or her alleged disability.  In this case, neither the plaintiff nor her attorney had alleged that her cancer had  limited any of her major life activities; on the contrary, they expressly asserted that her condition had not limited her in any way.  As a result, her ADA claim was properly dismissed.

Does the Third Circuit’s ruling signal a return to what employers might now wistfully consider the “glory days” of the ADA?  Unlikely.  In most circumstances, an individual with a diagnosis of cancer, or another disease that reduces auto-immune function and or that involves abnormal cell growth, is likely to experience symptoms that will impact one or more major life activities.  Still, when faced with, for example, a disability-based request for a reasonable accommodation, employers — preferably in consult with their employment counsel — should continue to perform a case-by-case assessment.