Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

Sometimes a case makes you wonder. Bruce Casanova, a former American Airlines baggage handler, told the jury he lied to American and feigned forgetfulness in an “Article 29F” investigation of his work related injury, and refused to provide a written statement concerning the circumstances of his injury as required by the collective bargaining agreement, according to the Seventh Circuit in Casanova v. American Airlines, Inc.  Nonetheless, the jury awarded him more than $1 million, including $724,000 for punitive damages, on his argument that American terminated him in retaliation for his anticipated workers compensation claim. Which led the Seventh Circuit to wonder: “How could a jury return a verdict in Casanova’s favor, and award more than $1 million, when his discharge is amply supported by undisputed facts?”

The answer, according to the Seventh Circuit, is that “the trial was hijacked by plaintiff’s counsel and used to protest the Article 29F procedure.” The plaintiff focused the jury on the issue of whether American “should order surveillance of employees who claim to be injured, and whether employers should use such surveillance as the basis of interrogation,” according to the Court. “This case never should have reached a jury,” it held, and set aside the jury’s verdict.

The Court noted that “American has a zero-tolerance policy for material lies by its workers [and that] Casanova has not identified any other worker who behaved in a similar fashion at and after an Article 29F hearing and was not fired.” The Court continued: “Indeed, it is almost impossible to conceive that any employee who conducted himself in this fashion would not be fired, by American Airlines or any other employer that wants to maintain the respect and obedience of its labor force.” The Court added that Casanova did not provide any evidence that American’s explanation for his termination was a pretext for unlawful retaliation.

This was the second Seventh Circuit case within three weeks to uphold an employer’s ability to use surveillance to test the bona fides of a workers compensation claim. In the earlier case, Gacek v. American Airlines, Inc., another former baggage handler sued American Airlines for retaliatory discharge in violation of the state workers compensation law. American had hired a detective agency “to check up on” the plaintiff-injured worker, who had called out sick during the December holiday season. American terminated the plaintiff’s employment after his explanations for his absences were “in tension” with the observations of the detectives. The Seventh Circuit affirmed summary judgment for American.

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Recall the incontinent court reporter, hired as a control room specialist, a position compatible with her medical condition, but whose job changed when the chief judge decided to evenly distribute the workload, and required all court reporters to rotate through all courtrooms. In ADA parlance, the court changed the essential functions of the court reporter’s job. The court reporter did not claim that the court’s decision to reorganize had anything to do with her disability. When she rejected the accommodations offered her, the court terminated her employment, The Seventh Circuit affirmed summary judgment for the employer, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court.” The Seventh Circuit rejected her “circular” argument that was qualified because she was qualified for her previous job, which did not require rotating.

An employer’s ability to change the essential functions of an employee’s job “seems like a pretty big loophole [in the ADA],” according to the Workplace Prof Blog, commenting on this same case in a piece entitled "Reorganizing Away the Duty of Reasonable Accommodation." . The Prof opines that “[a]fter the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!”

So is the employer’s right to reorganize and change employees’ essential functions for reasons unrelated to any employee’s disability a “loophole” in the ADA? Webster defines “loophole” as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” I vote “no” because the ADA was never intended to limit an employer’s ability to reorganize its operation for reasons unrelated to an employee’s disability. Despite this, the Workplace Prof Blog notes that “there seems something troubling” about the Seventh Circuit’s “endorsement of what is in effect, if not intent, an end run around the duty of accommodation.” “Something troubling” about an employer’s exercising a right for legitimate non-discriminatory reasons which affects all employees in the job description? A fundamental principle underlying our anti-discrimination laws is that employers must make decisions based on legitimate non-discriminatory reasons. To hold otherwise would require Webster to revise the definition of “discrimination.”

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The EEOC’s challenge to “inflexible” leave policies continued this week, as the agency announced that it had sued Princeton HealthCare System for failing to reasonably accommodate employees who needed medical leave. According to the EEOC press release, Princeton HealthCare "fires employees" who are not qualified for FMLA leave and refuses to grant leave beyond the 12 weeks allowed by the FMLA. The EEOC stated that Princeton HealthCare does not grant exceptions to these policies for qualified individuals with a disability who need additional leave as a reasonable accommodation. The release states that more than a dozen Princeton HealthCare employees with disabilities who requested a leave of absence as a reasonable accommodation were denied leave and fired. The case has been filed in the U.S. District Court for the District Court of New Jersey.

The Princeton HealthCare case is the latest in a growing line of cases the EEOC has brought in which the agency claims the employer has had an inflexible leave policy in violation of the ADA. In 2009, the EEOC brought a class action suit against an international package delivery company, claiming the company violated the ADA by rejecting requests for medical leave extensions beyond its 12-month leave policy.  Also in 2009, the EEOC settled a lawsuit in which the agency alleged that a national retailer was inflexible in its administration of leave policies for employees with work-related injuries.  The retailer paid $6.2 million (a “record-setting” amount, according to the EEOC) as part of a consent decree.

We have cautioned employers about the risks of having a “leave limits” policy in our Special Report on Excusing Absences as a Reasonable Accommodation under the ADA. Employers with a leave limits policy which does not allow for additional leave for disabled employees as a reasonable accommodation, bear the risk of being the subject of the next EEOC press release.  

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As part of its celebration of the 20^th anniversary of the ADA, the EEOC issued a report entitled "Twenty Years of ADA Enforcement, Twenty Significant Cases," sort of the top twenty ADA cases brought by the agency. Much can be gleaned from this ten page document and we may revisit it a few times.

First, jurors have awarded large punitive damage verdicts. Six jury verdicts are in the top twenty list. In EEOC v. CEC Entertainment, the jury awarded $13 million in punitive damages to an individual with "intellectual disabilities" who was fired from his janitor’s position at a restaurant. In EEOC v. Echostar, the jury awarded $8 million in punitive damages to a blind employee denied employment as a customer service representative. And in EEOC v. E.I. DuPont De Nemours & Co., the jury awarded $1 million to a discharged lab clerk with a spine and disc disease. In each case, the punitive damage awards were reduced to the ADA’s statutory damage caps.

Next observation: employers have been reluctant to litigate these cases. Fourteen of the top twenty cases were either resolved with a consent decree or settled for amounts that ranged from $78,000 to $6.2 million. So in 70% of these cases (admittedly, a list self-selected by the EEOC), employers preferred, for whatever reason, to pay money rather than present their cases to juries. Was it litigaphobia--a fear of litigation--that led to these resolutions? Or fear of the possibility of a lottery-size punitive damage award (see paragraph above)? Or something else?

What lessons can be learned from this top twenty analysis? They include that plaintiffs in ADA cases can be sympathetic and that jurors have meted out significant punishment to employers found to have discriminated against an individual with a disability. It reinforces the need for an employer to put itself in the best position to get a case dismissed prior to trial, especially in states with disability discrimination laws that do not cap punitive damages. An employer unable to have the case dismissed prior to trial must have a good story to present to the jury to refute the disability discrimination claim.

One last point about the top twenty list: the number one listed case is the "landmark" lawsuit alleging a national retailer had an "inflexible" leave limits policy which did not allow for reasonable accommodation. The consent decree involved a payment of $6.2 million, an amount which the EEOC described as a "the largest monetary recovery" in an ADA lawsuit. We wrote previously about the EEOC’s challenges to "inflexible" leave policies. (See Leave as a Reasonable Accommodation under the ADA)

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Does an employer’s duty to reasonably accommodate an employee’s disability include the duty to alleviate commuting challenges caused by the disability? Two courts of appeals recently held that it does unless to do so would be an undue hardship; both decisions reversed summary judgment for the employer on the ADA claims.

In both cases, the plaintiff had a vision impairment which did not interfere with her ability to perform her job. In Livingston v. Fred Meyer Stores, Inc., the plaintiff, a wine steward, could not walk or drive after dark due to her vision impairment. In 2005, the company granted her request for a modified work schedule during the fall and winter months to minimize her driving at night. When the company denied her same request for 2006, the plaintiff refused to work her scheduled shift and was terminated.

The Ninth Circuit held that the company had a duty to accommodate Livingston’s inability to finish her scheduled shift, even though her disability did not affect her ability to function as a wine steward. The court remanded the case to resolve the issue of whether Livingston’s vision impairment was a disability.

In Colwell v. Rite Aid Corp, the plaintiff told her supervisor that her partial blindness made it dangerous and difficult for her to drive at night. The company declined to schedule her on day shifts only, explaining that it “wouldn’t be fair” to other workers. After various efforts to change to day shifts, plaintiff resigned.

The Third Circuit held that employers may need to make reasonable shift changes to accommodate a disabled employee’s disability-related difficulties in getting to work. The court remanded the case to resolve the issue of whether accommodating Colwell’s shift needs would be an undue hardship.

These two decisions extend the length of an employer’s “duty to accommodate” day. That day may begin as early as the time an employee leaves home and may not end until the employee returns home. Is that the temporal extent of the duty? Or does it extend even further to disability-related issues at home related to preparing for work, or an employee’s getting to transportation from home?  For those answers, we will need to await further decisions, but at least according to these two decisions, an employer may find itself more involved in an employee’s commuting issues than it has been previously.

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Sitting in the Rose Garden on July 26, 1990, President G.W.Bush signed the Americans with Disabilities Act and, no doubt intending the historical analogy, declared it "the emancipation proclamation" for those with disabilities. To commemorate the ADA's 20th Anniversary, I am going to re-read my favorite ADA case, the Supreme Court's 2001 decision in PGA Tour, Inc. v. Casey Martin, for at least the 20th time.  You don't have to be a golf or ADA fanatic to appreciate the richness of this opinion.

The issue is stated simply: Due to a serious medical condition, PGA Tour Member Casey Martin needed to use a golf cart when competing, but PGA rules prohibited him from doing so. Martin claimed the PGA’s rule violated Title II of the ADA, which prohibits disability discrimination in public accommodations….and won.　

The Martin decision is special for so many reasons. What an incredible human interest story! Casey Martin had won 17 Oregon Golf Association junior events before he was 15 years old; was the Oregon state champ when a high school senior; was on the Stanford University golf team when it won the NCAA championship; and survived the grueling physical and mental tests to become a member of the PGA Tour. He did all of this despite having since birth, a degenerative circulatory disorder that obstructs blood flow from his right leg to his heart, which has atrophied his right leg. 　 Walking when playing caused him pain, fatigue and anxiety, and created a significant risk of hemorrhaging, developing blood clots, and fracturing his tibia so badly that an amputation might be required. How can you not root for this guy?　

It pits the very old against the very new, the golf traditions going back hundreds of years, beginning with the "Rules of Golf," first adopted by the Royal and Ancient Golf Club of Scotland in 1744, against modern-day notions of equality as encompassed in the ADA, enacted some 250 years after the Rules of Golf.　

It has celebrity appearances. Golf gods Arnold Palmer, Jack Nicklaus and Ken Venturi each testified that fatigue can be a critical factor in a tournament, especially on the last day, and that a competitor using　a cart might have an advantage over walkers.　

It refers to a rich variety of other celebrities, and what a collection it is: the New York Yankees, the American League, the designated hitter, Mary Queen of Scots, the Sopranos, Kurt Vonnegut, Harrison Bergeron, Kafka, Alice in Wonderland, Tiger Woods, Plato, John Q. Public, and George Orwell are all mentioned in the decision. Imagine a dinner party with that guest list!　

It has irony. If riding a cart creates such a competitive advantage, why do most senior tour members, who have the option to ride, walk?　

It raises legal-philosophical issues to ponder: Must a shoe store sell a single shoe to a one-legged person, or can the store insist that the buyer purchase a pair of shoes?

It’s disheartening. The decision cites the testimony of a physiology professor and expert on fatigue who determined that a golfer expends only about 500 calories walking an 18 hole round (about 5 miles), "nutritionally…less than a Big Mac." So much for golf as great exercise.

It has a Solomonic tone. Envision the nine black-robed justices pondering the essence of golf. Justice Souter, in his majority opinion, parses the game and concludes that its essence is shot-making and that walking is neither essential nor indispensable, but merely peripheral, rejecting the PGA’s argument that the walking rule’s purpose is "to inject the element of fatigue into the skill of shot-making." 　　

It has a Scalia dissent and, when it comes to disecting a majority opinion, Justice Scalia has no peers. At the outset, he notes mildly his conclusion: "[T]oday’s opinion exercises a benevolent compassion that the law does not place it within our power to impose." 　In short order, after a delightful romp through law and logic, he reaches this sarcastic crescendo:　

"If one assumes…that the PGA TOUR has some legal obligation to play classic, Platonic golf---and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power "[t]o regulate Commerce with foreign Nations, and among the several States,"…to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf." For lovers of sarcasm as a rhetorical device, it sends shivers down your spine.　

That is why PGA Tour v. Martin is my favorite ADA case of all time. And I commend it to you. Happy 20^th to the ADA!

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The ADA and FMLA collided in two cases recently and, whenever that occurs, accident reconstruction, so to speak, is in order. In Wisbey v. City of Lincoln, NE, emergency dispatcher Wisbey was granted intermittent FMLA leave for the "next 6 months or longer" because of depression and anxiety. Her FMLA paperwork prompted the City to question whether she could do her job at all. The City terminated Wisbey after a psychiatrist concluded that Wisbey was not fit for duty. The Eighth Circuit affirmed summary judgment for the City on Wisbey’s ADA and FMLA claims, but the significance of this case is in the court’s blending of FMLA and ADA concepts: 

• "the FMLA does not provide an employee ….with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implied that she is not qualified for a position where reliable attendance is a bona fide requirement (citation omitted);" 

• "Because Wisbey requested ‘intermittent leave’ for ‘six months or longer’ she did not have a right to FMLA leave."  

In Carmona v. Southwest Airlines Company, the ADA and FMLA collided once again. For seven years, Carmona, a flight attendant, was granted FMLA leave to excuse absences related to psoriatic arthritis. Since he did not work enough hours to renew his FMLA in 2005, his absences were unexcused and he was terminated for excessive absenteeism.

The Fifth Circuit rejected Southwest’s argument that Carmona was not a "qualified individual with a disability" under the ADA because he could not meet the essential function of regular attendance. and held that because Southwest "tolerated [Carmona’s] FMLA-approved absences for seven years," which permitted him to miss over half of each month without notice, regular attendance was not an essential function. The court said "if Southwest had denied Carmona’s request for intermittent FMLA leave [i.e., violated the FMLA], it might have had a strong argument that as a matter of law Carmona was not qualified to work as a flight attendant." Following this logic, regular attendance will not be an essential function of a job for anyone who has taken FMLA leave, since the employer tolerated that legally required leave.

The outcome of these two ADA-FMLA collisions? While Wisbey understates (if not misstates) the FMLA leave entitlement, Carmona punishes an employer in an ADA case for complying with the FMLA! The message from these two cases is clear: When your analysis brings you to the intersection of these two laws, proceed with extreme caution!

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Emerging technology clashes with ADA accessibility requirements, as the U.S. Department of Justice and U.S. Department of Education warn colleges and university about requiring classroom use of electronic readers. In an open letter to college and university presidents, the federal departments "express[ed] concern" that some electronic book readers "lack an accessible text-to-speech function," making them inaccessible to students who are blind or have low vision. The letter warns that requiring use of inaccessible readers is discrimination under the ADA and Rehabilitation Act unless disabled students are "provided accommodations or modifications that permit them to receive all the education benefits provided by the technology in an equally effective and equally integrated manner."

The letter comes soon after the DOJ entered into settlement agreements with numerous colleges and universities that participated in a pilot program to use Amazon’s Kindle DX in the classroom. In those agreements, the universities agreed not to require or recommend use of any dedicated electronic book reader unless it is fully accessible to individuals who are blind or have low vision, or the universities provide reasonable accommodation to enable student to acquire the same information, engage in the same interactions and enjoy the same services as sighted students with substantially equivalent ease of use.

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Reassigning an employee to a “vacant” position is a form of reasonable accommodation under the ADA. Determining whether a position is “vacant” is usually pretty easy, but not always, as illustrated by recent decisions by the Tenth and District of Columbia Circuit Courts of Appeals.

In Duvall v. Georgia Pacific, the plaintiff sought reassignment to a position occupied by temporary contract workers. Is a position filled by a temp “vacant”? The Tenth Circuit held that since the position filled by the temp was not available to a similarly situated, non-disabled employee, it was not “vacant” and was not available to the plaintiff.

Three weeks after Duvall, in McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, the D.C. Circuit relied more on Webster’s Dictionary and, without articulating the Duvall analysis, ended up in pretty much the same place. The plaintiff sought reassignment as the receptionist, claiming the position was vacant because a temp was filling in for the regular receptionist, who was on medical leave. The Court concluded that the regular receptionist “held, filled or occupied” (words from Webster’s) the receptionist position, so that it was not “vacant.” The Court’s discussion suggested that it also recognized that the employer had not made the receptionist position available generally. The Court said that the employer had not sought a replacement for the regular receptionist, had not posted a job listing, and had not “otherwise acted as though it considered the position vacant.”

According to the EEOC’s Guidance, a position is “vacant” if it is available when the employee asks for reasonable accommodation or a position that the employer knows will become available within a reasonable period of time.

Other issues can complicate an employer’s responsibility to consider reassignment to a vacant position as a reasonable accommodation, such as: Must an employer train the employee to be reassigned, or provide a period of familiarization? How long after the request for reassignment does the obligation to identify vacancies end? And of course, the significant issue that the Supreme Court had agreed to hear, and then dismissed as moot when the parties settled their dispute: whether a disabled employee seeking a vacant position as an accommodation, and who meets the minimum qualifications of the position  is entitled to it, i.e., receives a mandatory preference, or must compete with others for the position.

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We readily conceded that our recent post concerning the Hooters waitress placed on “weight probation” was “not your typical weight discrimination” case. Here is a more typical one, which also addresses whether an employer may consider the “worst case scenario,” so to speak, in determining whether an employee is a qualified individual with a disability.  In Wilkerson v. Shinseki, the employer’s doctor concluded that the plaintiff, a 338 pound boiler plant operator with “largely uncontrolled and uncontrollable diabetes” who worked at the Cheyenne Veteran Affairs Medical Center, failed his annual fitness exam based on the doctor’s concern about plaintiff’s ability to perform challenging physical tasks. His employer reassigned him to a housekeeping position, which paid $9 per hour less than the boiler operator position. 

In affirming summary judgment for the employer on the Rehabilitation Act claim, the Tenth Circuit Court of Appeals held the plaintiff was not a qualified individual with a disability, noting that the VA’s safety guidelines excluded those with uncontrolled or poorly controlled insulin-dependent diabetes from boiler plant operator positions and that an operator must be able to react instantly to any dangerous situation with some degree of physical agility, which might include climbing ladders and going up and down stairs quickly. The Court said that the plaintiff “would pose a danger to himself and others should he fall from a ladder” and also cited the testimony of plaintiff’s supervisor that if a boiler were to explode, “the force would bring down the entire building that houses them.”

The plaintiff minimized the dangers of his working as a boiler operator, noting that nearly all of his work was “light duty,“ that he climbed a ladder only occasionally, and had worked in this position for two years without incident.

The Court held that an employer can “set standards not only for the mundane work but also for the exceptional” and can consider the “potentially disastrous effects” if plaintiff cannot respond to that exceptional situation safely and efficiently, so long as the need to perform in an emergency is a “realistic component of the job.” This is especially so, the Court noted, where the physical safety of others may be at risk.

An employer seeking to ensure an employee can respond safely and efficiently to the exceptional situation with potentially disastrous effects should consider including such an explicit requirement in the job description. Challenges to such requirements are likely to come from individuals excluded from the position, whether due to a disability or any other reason. The Wilkerson case establishes that such requirements will be upheld so long as responding to the “worst case scenario,” so to speak, is a “realistic component” of the job.

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Sometimes it is unclear whether the employee is requesting leave that might be covered by the FMLA. This is not one of those situations. In Kobus v. The College of St. Scholastica, Inc., when the plaintiff told his supervisor in November 2006 that he would need to take time off for “stress and anxiety,” the supervisor gave him FMLA paperwork and told him he could apply for leave. The plaintiff put the papers in his drawer without reading them, and told his supervisor he “didn’t’ need any leave. Not just FMLA; any leave” because he thought he “could handle” matters.

A few weeks later, the employer disciplined plaintiff for excessive absenteeism. In January 2007, in response to the plaintiff’s comment that he would need “mental health leave,” the supervisor told him again about the FMLA and that he would need to have a doctor sign the paperwork. The employee responded that he did not have a doctor, and asked “is there any other way I can go.”

Later that afternoon, the supervisor told him “there was nothing available for [him],” and offered him two weeks’ severance pay if he resigned. The next day, he submitted a letter of resignation.

The Eight Circuit rejected the plaintiff’s claim that the College unlawfully denied him FMLA leave, holding that the plaintiff had “failed to adequately state an intent to take FMLA leave” and that “[w]hen an employee is made aware of the procedures necessary to obtain FMLA leave and chooses not to seek FMLA protection, the employer does not violate the FMLA by terminating the employee for excessive absenteeism.” The court rejected the plaintiff’s argument that the College’s FMLA policy was unclear because it said medical certification “may” be required, as opposed to “must be submitted.” 

The Eighth Circuit rejected the plaintiff’s ADA claim as well, holding that the plaintiff did not request an accommodation, and rejecting his reliance on the EEOC’s ADA Enforcement Guidance that a request for time off because an employee is “depressed and stressed” is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. “None of our prior ADA notice cases cited the Enforcement Guidance as controlling. We apply the requirement in the regulations that an employee must “inform the employer that an accommodation is needed.”

This case illustrates the benefits of having supervisors trained to recognize potential requests for FMLA leave. The supervisor’s twice offering the plaintiff FMLA leave made rejecting the FMLA claim almost a foregone conclusion. The Court’s unwillingness to follow the EEOC Enforcement Guidance is a reminder that the Guidance does not have the force of law and does not expand the scope of the ADA itself.  

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Cleaning mom’s flooded basement is not “caring for” mom under the FMLA, according to a Michigan federal district court. Because the three days of flood cleaning were not excused by the FMLA, the employer did not violate the FMLA by terminating plaintiff’s employment under its  absence policy, according to the court.

In Lane v. Pontiac Osteopathic Hospital, the plaintiff, who lived with his mother, had submitted an FMLA certification stating that his mother had diabetes, high blood pressure, weight loss and arthritis, and that he would need intermittent leave to provide her food and transport her to doctors’ appointments.  The company approved his leave request.

During the period covered by the certification, the company discharged the plaintiff under its absence policy. The plaintiff claimed the three flood cleaning days should be excused because his mother had hepatitis and the stagnant water was a “breeding ground” for the disease.

The court rejected the plaintiff’s argument, noting that flood cleaning was not encompassed by his FMLA paperwork, that he had not established that the basement had to be “immediately cleaned for her basic medical, hygienic or safety needs and that he had to do it because she could not,” and that he did not establish that his mother’s hepatitis was in danger of being aggravated if he did not clean the basement immediately.      

This decision indicates that the definition of “caring for” under the FMLA is not unlimited, though many courts have interpreted the phrase so broadly that employers often do not even explore the “caring” activities, let alone challenge them. Of particular interest is that the court seems to suggest that the potential harm to the family member if the care is not provided immediately, and whether the family member can do the “caring” activity his/her self are factors to consider in evaluating whether a particular “caring” is protected by the FMLA.

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Complying with the myriad of laws affecting medical leave continues to be a significant and growing challenge for employers. Making the decision whether and when to terminate an employee on medical leave is perhaps the most challenging, and carries significant risk. The EEOC’s recent challenges to “inflexible” leave policies--which resulted in a “record-setting” $6.2 million dollar settlement—heightens the risk for employers trying to manage this challenge through “leave limits” policies.

The “law” or “lore” requiring employers to accommodate employees by excusing absence has reshaped employer attendance and productivity expectations. Some say the law, as interpreted by the Equal Employment Opportunity Commission, goes too far and creates an elusive and unworkable standard for managing employee attendance and productivity. 

To put “law” and “lore” in perspective when analyzing and making these accommodation decisions, we are preparing a two part Special Report on excusing absence as a reasonable accommodation under the ADA. Part 1 deals with “blocks of leave.” Part 2 will deal with the unpredictable “day here, day there” absences. Part 2 will be sent automatically to all of our blog subscribers.

We look forward to your comments on Part 1. Please feel free to send them along.

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The U.S. Department of Labor issued today an Administrator's Interpretation of the FMLA Regulation defining "in loco parentis" relationships as part of the FMLA's definition of "son" or "daughter".  Is this "big news" and, if so, why?  

One could always argue that individuals standing 'in loco parentis" to a child covered under the FMLA could take FMLA leave for the birth or adoption of that child or to care for a child with a serious health condition.  So why is the DOL making such a big deal out of this and issuing a Press Release announcing this is a "win for all families no matter what they look like"?

As with most things FMLA, the devil (or should I say,"mischief") is in the details.  Under the guise of an "Administrator's Interpretation", the DOL arguably re-writes an important provision of Section 825.122(c)(3) of the FMLA Regulations that became effective on January 16, 2009.  Specifically, Section 825.122(c)(3) of the FMLA Regulations defines "in loco parentis" as including those "with day-to-day responsibilities to care for and financially support a child."  In today's Interpretation, the Administrator states, "the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child."  

So, according to the DOL Administrator, the word "and" should be interpreted to mean "or" in Section 825.122(c)(3) of the FMLA regulations.  Only time will tell if courts agree with such an interpretation. 

One other observation or nuance of the in loco parentis rule ... absent a further interpretation by the DOL, individuals taking FMLA leave because they stand in loco parentis to a child are not subject to the FMLA rule in Sections 825.120(a)(3) and 825.127(d) of the regulations limiting the amount of leave to a combined total of 12 weeks (or 26 weeks in the case of care for an injured servicemember) of FMLA leave; those limitations apply only to a "husband and wife" working for the same employer.  Thus, for example, an employee who is the biological parent of a child and a grandparent or same sex partner standing in loco parentis to that same child each would be entitled to take the full complement of 12 workweeks of FMLA leave upon the birth or placement of the child.  Again, this nuance is not new, however, it may prove to create additional mischief under the DOL's broader interpretation of in loco parentis. 

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Some call obesity the next smoking, meaning that now that employers have had a multi-faceted attack on reducing health costs related to smoking, they will move on to obesity.  The CDC reports that about 34% of U.S. adults are obese, while about 20% of adults smoke. The rate of obesity has been growing rapidly, while the number of smokers has been declining. The annual healthcare costs related to obesity exceed that of smoking.  This focus on obesity leads ineluctably to concerns of “weight discrimination.  

Michigan’s Elliot-Larson Civil Rights Act explicitly bans weight discrimination, but a recently filed case illustrates that weight discrimination does not necessarily have anything to do with obesity.

In Cassandra Marie Smith v. Hooters of Roseville, Inc. and Hooters of America, Ms. Smith alleged she was 5’8”, 145 pounds when Hooters hired her, but two years later, when she weighed 12 ½ pounds less, her employer advised her to join a gym “to lose weight and improve her looks so that she would fit better into the extra small-size uniform.” She alleges that she was placed on 30 day “weight probation” and was constructively discharged that same day “because she was unable to meet the Hooters’ discriminatory and illegal requirements of a ‘Hooters Girl’.” 

Ms. Smith alleges that no one had medical training or other information upon which to base a decision to place her on “weight probation,” that her weight was within the medically acceptable range, and that no one explained the proper fit of the uniform or the degree of “thinness” which would satisfy her employer.  

She claims that being told that she would lose her job because she was not the correct weight is “per se” weight discrimination and that the weight requirement for female employees is per se gender discrimination. She also claimed that her employer’s telling her co-workers that she had been placed on “weight probation” and “giving her an ultimatum to change her appearance and weight in an unrealistic manner,” among other things, intentionally caused her emotional distress,

The Smith case is an anomaly in that the handful of discrimination cases based on weight do not deal with a plaintiff “within range.” What Smith establishes is that weight discrimination and obesity discrimination are two different legal claims. 

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Citing research from the Centers for Disease Control and Prevention, on June 5, 2010, the New York Times reported that one in five women are obese when they become pregnant.  The article states "obesity might be contributing to record-high rates of Caesarean section and leading to more birth defects and deaths for mothers and babies." 

As well illustrated in the NYT piece, the impact on mothers and their families can be heart-wrenching.  But one back story may be the impact on health care costs.  These are pretty eye-opening statistics ... the kind that often prompt employers to expand their commitment to wellness programs.  

The pregnancy/obesity risk raises some interesting questions.  First, to effectively combat the risk, it would seem as though wellness efforts would need to target women of child-bearing age.  Such a program does not appear to raise risks under HIPAA or the Americans with Disabilities Act because the program would not be based on a factor related to health.   Rather, it would be based on a combination of age and gender. Would this distinction open the door to claims of age or gender discrimination?  

It might depend on how a program was structured.  Ideally, employers would provide "incentives" or "rewards" for women of child-bearing age if they maintained a healthy weight.  This would seem to dodge the gender discrimination issues that drove the Supreme Court's landmark decision in UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991).  In Johnson Controls, the Court held that Title VII, as amended by the Pregnancy Discrimination Act, forbids sex-specific fetal-protection policies.  But Johnson Controls involved a policy of refusing to employ all women, except those whose infertility was medically documented, in jobs creating potential serious health risks to any fetus carried by a female employee.  Wellness programs properly implemented would provide more favorable treatment to women in this category.

Something for employers to think about as they search for programs that address important social issues that also impact their bottom lines.

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When a law, such as the ADA, restricts an employer's rights to take reasonable, measured steps to promote workplace safety, it ought to be re-examined.  Years ago, Justice Souter observed that preventing employers from considering "risk to self," an ADA rule many disability rights advocates had sought, would have put the ADA at "loggerheads" with federal OSHA policy requiring employers to ensure the safety of  "each" and "every" worker.  Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 85 (2002).

I have always thought that to be the case with the EEOC's exceedingly narrow interpretation of the ADA rule that employee medical inquiries be "job-related and consistent with business necessity." As interpreted by the EEOC, that requirement invalidates employee medical evaluations or monitoring that are either: a) not grounded in individualized, fact-based concerns about an employee's ability to perform essential job functions safely and successfully; or b) required by federal law or regulation.  In its Enforcement Guidance on Disability-Related Inquiries and Medical Examination of Employees under the ADA, the EEOC says periodic testing and medical monitoring of employees would be permissible in positions affecting public safety; but the Guidance limits those positions to firefighters and those involved in law enforcement and security.  It also narrowly construes the permissible breadth of such evaluations.  In an informal opinion letter issued on September 10, 2004, the EEOC declined to apply the exception to off-shore oil workers. Recent events in the Gulf illustrate the dangerous nature of oil rig work, as well as the impact on public safety should operations go awry.  

The Labor and Employment Law Blog reports that a California federal district court granted summary judgment in May to a security officer terminated after he refused to complete a medical questionnaire.  The court found the employer's inquiries in the questionnaire were too broad to meet the ADA's standard of being "job-related and consistent with business necessity."  In thinking about the decision, I couldn't help but wonder whether a more narrowly tailored inquiry would be acceptable to the EEOC in most cases (perhaps in the case at hand, Scott v. Napolitano, a more narrowly-tailored questionnaire would have received EEOC approval because, as noted above, the EEOC seems to be okay with allowing narrowly-tailored monitoring of at least some security personnel).

It's time to give greater consideration to the very real safety risks employees face everyday, and the moral and financial hazards employers face if they do not have effective tools to address them.  The EEOC's presumption that  employers use employee medical information to discriminate is not as employee friendly as some might think.  Yes, some employers might misuse employee medical information but the ADA,  and state and local law, provide ample deterrence and remedies for doing so.  And the inability of employers to take reasonable, measured steps to proactively identify employee medical risks has its costs. Just ask yourself, what's a worse outcome for an employee --being the victim of disability discrimination (for which he/she has a remedy) or suffering a potentially career or life-ending workplace injury?  

I say it's in the vast majority of employees' interests to interpret this ADA provision more broadly -- to allow employers to verify an employee's physical or mental ability to perform essential job functions safely and hold them accountable if they misuse or abuse that right.  The EEOC has the ability to interpret the standard of "job-related and consistent with business necessity" broader than it has to date.  It's time to do so ... let's put an end to ADA-OSHA "loggerheads."   

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A no-fault attendance program is the epitome of equal treatment—the employer does not judge whether an absence is for a good or bad reason and gives all employees the same number of absences.

But then the FMLA came along and guaranteed eligible employees certain time off and prohibited an employer from interfering with that entitlement. Employers with no-fault programs responded with somewhat of an oxymoronic anomaly—everyone still gets the same number of absences but absences covered by the FMLA do not count.

As the Seventh Circuit’s recent decision in Bailey v. Pregis Innovative Packaging, Inc. illustrates, merely adding the FMLA exception does not insulate a policy from an FMLA challenge. Under Pregis’ policy, an employee received a point for each non-FMLA absence and the point was removed after 12 months of work. The plaintiff claimed that since FMLA leave is not included in calculating the 12 months of work, the policy retaliates against FMLA-leave takers because it takes longer for them to “wipe the slate clean” than it would take for a non-FMLA-leave takers.

The Seventh Circuit affirmed the district court’s rejection of the plaintiff’s argument. The FMLA states that taking leave “shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced” but the FMLA does not entitle an employee to the “accrual of any…employment benefits during any period of leave.” Judge Posner concluded that “wiping a point off the absenteeism slate” is “an employment benefit” but that it does not accrue until 12 months after an absence. “Absenteeism forgiveness,” like seniority, is a reward for working, he said. 

          All employers with no-fault attendance policies should heed the messages from this case---just excepting FMLA-covered absences from the policy does not insulate the policy from challenge, and any aspects of the policy that might be construed as adversely affecting FMLA-leave takers must be for the purpose of rewarding employees for their commitment to work, and not punishing employees for taking FMLA leave.

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The reminders of the FMLA challenges facing multi-state employers in complying with state leave laws are frequent and the risk grows regularly. This time, the challenge came from Connecticut. Connecticut’s Family and Medical Leave Act (CFMLA) applies to employers with 75 employees. Is that 75 employees in-state or nationwide?   

In 2001, the state Department of Labor, which enforces the law, held that only in-state employees are counted to determine whether an employer has 75 employees. On May 14, 2010, in Velez v. Patricia Mayfield, a Superior Court held that the DOL’s view was not reasonable, and that there are no geographic limitations in counting employees under the CFMLA. As a result, multi-state employers with less than 75 employees in Connecticut—those with even a single employee in Connecticut--but more than 75 total employees must comply with the CFMLA for its in-state employees. And compliance is not just a matter of adding “Connecticut” to your federal policy. CFEPA varies significantly from the federal FMLA. For example, it has different forms, different eligibility requirements, grants eligible employees 16 weeks of leave every 24 months, does not have a small worksite exception, does not recognize the “key employee” exception and prohibits consideration of CFMLA time in determining whether an employee is eligible for a bonus, to name just a few.

What’s a multi-state employer to do? To manage risk, constant vigilance and on-the-ground resources are required. Monitoring new state laws is not enough. The challenge here came from a Connecticut trial court. And there’s no way to predict where the next challenge will come from.

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As the ADA's 20th anniversary nears, let's revisit one of its lofty goals: to place a sweeping federal blanket over the patchwork of state and federal laws that protects individuals with disabilities.

A recent Second Circuit opinion leaves no doubt that the patchwork lives on  In Spiegel v. Schulmann, decided on May 6, 2010, a karate instructor claimed his employer fired him because he was obese due to a medical condition. According to the decision, he weighed 300 pounds and his employer told him that he was not be a good role model due to his weight.

The plaintiff sued for disability discrimination under the ADA, the New York State Human Rights  Law, and the New York City Human Rights Law.  The Second Circuit affirmed summary judgment for the employer on the ADA claim. The district court had held that even if obesity were an impairment under the ADA, plaintiff did not produce any evidence to suggest his obesity makes him “unable to perform a major life activity or significantly restricts the condition, manner or duration in which he can perform a major life activity.”  

The New York Human Rights Law protects those with conditions which prevent “the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques,“ a definition broader than the ADA’s. The Second Circuit affirmed summary judgment for the employer on the state claim, holding that weight is not a “disability” under that law unless the plaintiff produced evidence that he was medically incapable of meeting the employer’s weight requirements, which the plaintiff here did not produce.  

The New York City Human Rights Law’s definition of “disability” is even broader than the state’s, defining disability as “any physical, medical, mental or psychological impairment” of any system of the body. Since no state appellate court has decided whether obesity is a disability under the NYCHRL, the Second Circuit remanded the case to make this determination. 

One termination, three disability laws, three “disability” definitions and three different analyses…. sounds like the patchwork is alive and well. Employers assessing disability discrimination risk must consider all pieces of this patchwork to identify state and local laws offering broader protection than the ADA..

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