Employee’s “Alternative Facts” Can’t Overcome Summary Judgment for Employer

As the week begins with new lexicon coming out of our nation’s capital, a recent federal court of appeals ruling reminds us that, in most situations, it’s the employer’s assessment of the facts, not the employee’s “alternative facts,” that matter when deciding the appropriate punishment for employee performance or misconduct issues.  And, perhaps more importantly, the ruling reminds us that the mere fact an employee has a disability, or has requested or taken FMLA leave, does not act as a “get out of jail” card for such performance or misconduct issues.

In DeWitt v. Southwestern Bell Telephone Company, 2017 U.S. App. Lexis 843 (10th Cir. Jan. 18, 2017), the plaintiff was a customer service representative who has Type I diabetes and is insulin dependent.  Throughout her employment, the plaintiff had on occasion taken FMLA leave related to her diabetic condition.  Already on a “last chance” agreement from a previous performance incident, the plaintiff hung up on customers on at least two separate occasions during a single shift.  The plaintiff denied having any recollection of doing so, claiming to have had a diabetes-related low blood sugar experience at the time of the calls.  In ultimately concluding that the plaintiff’s actions were intentional, and thereby warranted discharge, the decision maker considered a variety of factors, including but not limited to the fact that hanging up on a customer was difficult to do through mere inadvertence; there was no evidence other than the plaintiff’s unsupported assertion that she had in fact experienced a low blood sugar episode; and the plaintiff did not report having any type of medical issue until after she became aware of the likelihood of further discipline or discharge.  Following her discharge, the plaintiff filed suit under the ADA and FMLA.  The district court granted summary judgment to the company and the plaintiff appealed.

In affirming summary judgment for the employer, the Tenth Circuit reiterated that, absent evidence to the contrary, an employer’s good faith, honest belief that the employee engaged in misconduct suffices to overcome a claim of discrimination or retaliation, even if the employer ultimately is proven to be mistaken or used what others might have concluded was a poor business decision.  Here, the plaintiff offered no such contrary evidence, as the witnesses she relied on were not decision makers and/or had no personal knowledge of any of the events that transpired.  Moreover, the plaintiff’s only purported ADA accommodation request was that the company overlook her misconduct in light of her alleged low blood sugar incident, a request that in fact was not reasonable.  As the Tenth Circuit noted, ADA accommodation requests are prospective in nature and an employer is not required to excuse past misconduct, even if the misconduct is the result of the employee’s disability.

Accordingly, although cautioned to tread wisely when an employee claims a disability or the use of FMLA leave is at play, employers need not let the employee’s version of the facts, or the mere pre-existence of a disability or previous use of FMLA leave, control what if any discipline may be imposed on the employee for poor performance or incidents of misconduct.

The Saga Continues: Recent Opt-Outs and Other Developments Relating to the Cook County Earned Sick Leave Act, Illinois Employee Sick Leave Act

The Village of Rosemont and the City of Oak Forest have become the latest suburban Cook County municipalities to join the Village of Barrington in opting out of the Cook County Earned Sick Leave Ordinance.  (They both passed ordinances either superseding or opting out of the Cook County Minimum Wage Ordinance.)  In rejecting the Cook County Ordinances, local officials claimed that the requirements put an increased burden on local businesses and negatively impacted their ability to compete with businesses outside of Cook County.  Stay tuned for further updates regarding whether additional suburban municipalities will follow suit (we expect Palatine may be the next municipality to opt-out) or if the County will pursue legal action regarding the enforceability of the municipal ordinances.  Read More

A Cautionary Tale: How Sudden Changes to Intermittent FMLA Can Cost You

A January 9 decision by the Seventh Circuit Court of Appeals serves as a vivid reminder that employers must tread with great caution when managing intermittent leave under the Family and Medical Leave Act. As the ruling in Wink v. Miller Compressing Company highlights, making abrupt changes in leave accommodations or providing misinformation about leave rights can have serious consequences.

Tracy Wink, a long-time Miller employee, had an autistic two-year-old son. In July 2011, the company granted Wink intermittent FMLA leave to take the child to medical appointments and therapy. Wink’s mother took care of the toddler three days a week while Wink was at work; for the remaining two days, Wink relied on daycare. But in February 2012, the child was expelled from daycare due to his autism-related aggressive behavior. To cover the childcare gap, Wink asked Miller to allow her to work from home two days a week so she could provide the needed care and work as time allowed. Miller agreed, with the proviso that, if Wink needed to take time off work intermittently during the workday to attend to her son, the time would be counted as intermittent FMLA.

This arrangement continued for almost five months until Miller, facing financial difficulties, terminated all work-from-home arrangements in the summer of 2012. On a Friday in July, Miller’s human resources officer instructed Miller that the change would take effect the following Monday.  Thereafter, Wink would be required to work on company premises eight hours a day, five days a week. Wink tearfully protested that it would be impossible to secure alternative care over the weekend. In response, the officer advised – falsely – that FMLA only covers leave for medical appointments and therapy. In fact, Wink was also entitled to take FMLA leave to provide care to her autistic child.

Wink went to the office that Monday and informed the human resources officer that she had been unable to find a caregiver. The reply was that the first time she did not work a full day at the office, the company would consider her a “voluntary quit.” Needing to attend to her son, Wink went home, never to return. She was terminated that same day.

Wink sued, alleging that Miller had both retaliated against her for asserting her right to FMLA leave and interfered with her FMLA rights. After a three-day trial, the jury found for Wink on her retaliation claim but not her claim of interference. Miller appealed the verdict. In an opinion written by Judge Posner, the Seventh Circuit affirmed, finding that the jury had reasonable grounds to find retaliation. Miller had allowed Wink to work from home without any issue for nearly five months and had no compelling reason to fire her. A jury could reasonably infer that Miller was angry because Wink had asked to stay home two days a week and to use intermittent FMLA leave on those two days when she needed time off to provide care for her child.

Miller also sought to overturn the imposition of liquidated damages, which doubled the actual damages award. Liquidated damages are awarded automatically unless the employer proves it acted in good faith. The Seventh Circuit ruled against Miller, persuaded that Miller’s “phony line” that FMLA could be used only for doctor’s appointments and therapy did not demonstrate good faith. As a final matter, the appellate court held that Wink’s failure to win her FMLA interference claim did not warrant reducing the amount of attorneys’ fees she could recover. FMLA retaliation and interference claims are very similar in nature, so that it made sense for Wink’s attorneys to play it safe and assert both. As the separate interference claim added only marginal cost, Wink was entitled to recover all of the fees she had incurred.

The Wink case is but one example of the treacherous waters an employer must navigate when making changes to special intermittent FMLA leave arrangements. The FMLA does not itself grant a right to work from home. But it is not uncommon for employers to allow employees serving as caregivers to use a combination of FMLA leave and telecommuting. When it comes to such arrangements, good communication is key. The terms and conditions should be expressly agreed to and well documented. And once in place, any change must be thoroughly substantiated and implemented with great care.

AARP Suffers a Setback in its Challenge to the EEOC’s Wellness Regulations

As previously discussed, AARP has filed suit against the EEOC and challenged the agency’s wellness regulations.  See http://www.disabilityleavelaw.com/2016/10/articles/ada/the-eeocs-2016-wellness-program-regulations-the-saga-continues/  On December 29, 2016, this challenge suffered a setback.  In the December 29, 2016 Memorandum Opinion, U.S. District Judge John D. Bates denied AARP’s request for preliminary injunction and held that the regulations would take effect on January 1, 2017.  The Court based this ruling on its determination that AARP members had failed to show that any potential disclosure of health information was likely to cause them irreparable harm. Furthermore, the members’ claim that they would be harmed by the higher premiums is an economic harm, which a member could recover through monetary damages, and does not constitute irreparable harm. As a result, the Court found that AARP had not established that its members would suffer irreparable harm if the rules took effect as planned.

The Court further found, based on the limited administrative record before it and the amount of deference owed to the EEOC, that AARP had failed to demonstrate that it was likely to succeed on the merits. However, the Court clearly stated that this determination was limited to the preliminary injunction analysis and that the Court was not “concluding that the agency has shown a substantial likelihood of success.” See Memorandum Opinion at 26. The Court acknowledged that a thorough review of the administrative record was necessary to determine the outcome of this case.

Finally, the Court found that the public interest weighed against an injunction because blocking the rules on the eve of the effective date would cause “considerable disruption” for employers who have been working to ensure that their wellness programs were compliant with the EEOC’s rules.

This ruling comes as a relief to most employers who have already drafted their wellness programs to comply with the EEOC’s rules under the American with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). For the time being, it is business as usual for employers with wellness programs. However, this issue is not resolved and employers should stay tuned for more.


Employee Cannot Maintain Collective Action for Employer’s Failure to Post FMLA Notice

We all know that the FMLA is fraught with pitfalls that can lead to costly mistakes. But a collective action for simply failing to post a notice?  On January 6, 2017 a U.S. District Court in Maryland rejected such an attempt.  In Antoine v. Amick Farms, LLC the plaintiffs claim that a class of employees were prejudiced by the company’s failure to post a notice of FMLA protections because they did not know they had the right to request or take protected FMLA leave.  The Court held that there is no private right of action by an individual based on an employer’s failure to post the general FMLA notice required by the regulations.  Only the Department of Labor (“DOL”) has the authority to enforce the posting requirement and seek penalties against the employer.  It is important to note, however, that the decision is limited to the general notice requirements of the FMLA, and not the individual notice requirements.

The FMLA requires two types of notice by employers. The “general” notice provision requires an employer to post a DOL approved notice summarizing the provisions of the FMLA and the rights provided to employees.  The regulations state that the DOL may issue a civil penalty against an employer who fails to meet the posting requirements.  The FMLA also requires that employers provide an “individual” notice to affected employees regarding their rights and responsibilities and whether an absence qualifies under the FMLA.  Failure to comply with the individual notice requirements may constitute an interference with the exercise of an employee’s FMLA rights and result in liability to the employee.

In addition to the collective action for failure to post the general notice, the plaintiffs in Antoine v. Amick Farms also brought claims for violation of the individual notice requirements which were not dismissed and will proceed through the litigation process.  This is a good reminder to check on your FMLA general notice postings and your process for providing individual notice.  Once an employer is aware that an employee is taking time off that is potentially FMLA-qualifying, the employer must, within five business days, notify the employee of his or her eligibility to take FMLA leave and the employee’s rights and responsibilities under the FMLA.  Individual notice requirements also include the requirement to notify the employee in writing whether the leave will be designated as FMLA leave and the specific amount of leave that will be counted against the employee’s FMLA leave entitlement.

Is it a New Leave Year?

As the clock struck midnight on December 31, 2016, employees across the United States were celebrating. While most were celebrating the coming of the New Year (or perhaps, more likely, good riddance to 2016), some employees were celebrating because January 1, 2017, brings with it a new allotment of FMLA leave days.  If your employees fall into the latter category, perhaps it is time to consider changing your FMLA policy and procedures.

Section 200 of the Department of Labor’s FMLA regulations provides that employers may select one of four options to establish the 12-month period to be uniformly applied to all employees taking FMLA leave. 29 C.F.R. § 825.200(b).  These four options are (1) the calendar year, (2) any fixed 12-month period (e.g., the employer’s fiscal year or the employee’s anniversary year), (3) the 12-month period measured forward from the first date the employee uses leave, or (4) the “rolling” 12-month period measured backward from the date the employee uses any FMLA leave.  The Regulations provide that employers may select any one of these four methods as long as the method is applied consistently and uniformly for all employees.  However, if you fail to designate one of these four options, then the Regulations obligate you to use the 12-month period method that is the most beneficial to the employee.  Now is the perfect time to check your FMLA policy language and forms to ensure that you have properly designated one of these options in writing.

In selecting a manner to determine the 12-month period, it is important to understand that all four options are not created equal. While the first three options, all of which rely upon a “fixed” leave year, are generally easier for employers to administer, these options also allow employees to “stack” leave.  For example, if your company has elected to calculate the 12-month period using the calendar year, then an employee who has been out of work on FMLA leave for the last 12 weeks of 2016 may be entitled to continue that leave for the first 12 weeks of 2017.  By “stacking” leave around the turn of the calendar year, that employee can potentially receive 24 straight weeks of FMLA leave.  In contrast to the first three options, the fourth option, also known as the “rolling” calendar year, eliminates the potential for the stacking of leave.  However, the constantly moving 12-month period under this method can create challenges when tracking leaves of absence.  In spite of the administrative challenges associated with using this method, most employers find that the benefits of using the “rolling” calendar method far outweigh those challenges.

The turn of the calendar year provides a great time to review your FMLA policies and procedures to make sure that they best meet your business needs. Should you determine that changes to your policies and procedures are necessary, it is important to keep in mind that you must give proper notice to your employees before any of those changes take effect, and at least 60 days notice is required if you change the method used to calculate the FMLA “12-month period.”  29 C.F.R. § 825.200(d)(1).  If you change the 12-month period, you must also ensure that the transition to a new calculation method takes place in such a way that employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.  Here’s wishing you a Happy New leave Year!

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

Counting FMLA-protected absences against an employee.

Accurately tracking or coding FMLA leave is important to know how much of the allotted 12 weeks has been used by an employee.  Proper tracking/coding becomes crucial when administering absence policies and programs. If an employer improperly tracks FMLA leave as non-FMLA time off, and then “counts” those absences when administering an absence management program, when giving an unsatisfactory performance review, or when terminating an employee, the result can be a FMLA lawsuit that can be very challenging to defend.

In Wahl v. Seacoast Banking Corp., Case No. 09-81382-CIV-MARRA (S.D. Fla. Mar. 9, 2011), an employee prevailed on her claim for FMLA interference when she was fired in part for absences related to her pregnancy. The employee notified the employer of her pregnancy, and took intermittent leave related to morning sickness and other pregnancy complications. The employer counted the instances of absences and tardiness against the employee in its decision to terminate her – it decided that her unsatisfactory attendance in the past coupled with these new absences warranted her termination. The court found that the absences in question were protected by the FMLA, and the employee’s initial notice of her pregnancy was sufficient to put the employer on notice that these types of absences would be FMLA-protected. The court decided that the employer’s use of these pregnancy-related absences in its decision to terminate employment was improper and constituted FMLA interference.  When the employer considered those absences in reaching its decision to fire the employee, it interfered with her right to take leave under the FMLA.  The court also found that the employer’s failure to properly designate the intermittent leave as FMLA was a violation of the statute.

Conversely, in Nobach v. Auto-Owners Inc., Civil Action No. 1:13-cv-1126 (W.D. Mich. Oct. 22, 2015), an employee claimed that her employer had counted her FMLA leave towards its decision to terminate her for absenteeism.  As the litigation developed, the employee admitted that for much of the absences that she alleged were improperly counted as non-FMLA, she was either mistaken or had failed to follow company policy for notifying the employer that the reason for leave was FMLA. The employer was further able to show that when all of the employee’s properly-designated FMLA leave was excluded from her absences, she still had enough non-FMLA absences that would have resulted in termination. The court granted summary judgment for the employer, finding that the termination was not in violation of the FMLA.

By improperly tracking FMLA leave time, an employer increases its risk of facing FMLA claims.  Employers should carefully analyze the administration of their absenteeism policies for any “weak points” in how FMLA time is tracked or coded, and revise the process as necessary to make sure that FMLA-protected absences are not counted against employees.  Employers should also carefully scrutinize every absence leading to discipline or termination of an employee, to make sure none of the absences do not qualify for FMLA protection. It is important to remember that if the employee provided enough information to put an employer on notice that the time off might be FMLA qualifying, then the employer’s FMLA obligations are triggered, as discussed in the November 8, 2016 post in this series.

Ohio Means Business: New Law Prohibits Cities and Counties From Enacting Paid Sick Leave, Predictive Scheduling, and Minimum Wage Laws


Imagine you operate multiple business locations in Columbus, Ohio where 3 counties comprise the city proper and as many as 11 counties comprise the larger Columbus Metropolitan Area. Now imagine that each of those counties adopts their own local ordinance requiring paid sick leave as well as advance notice (and extra pay) to employees before you can change their work schedule. Perhaps a few of the counties also enact an increased minimum wage of $15 an hour –much like the proposal to increase the minimum wage that was supposed to be voted upon in Cleveland in May of 2017. Would you want to continue to do business in Columbus or would you curtail your growth in that city and look for a more employer friendly home for your future business locations? Read More

Saying Goodbye to 2016 – It’s Been Quite the Year!

2016 has come to an end and it’s been busy year for disability leave management issues. The year has seen a variety of new developments, including issuance of additional guidance from administrative agencies, new leave and benefit related laws, and a slew of court opinions.  Here is a summary of some of the highlights from the year:

Administrative Guidance

In the spring of 2016, U.S. Equal Employment Opportunity Commission (“EEOC”) issued new rules for Employer Wellness Programs. These rules immediately became the subject of litigation.  The summer saw the issuance of enforcement guidance on the subject of retaliation, including retaliation against employees who request reasonable accommodations for a disability.  Finally, in November and December of 2016, the EEOC issued resource and guidance documents on the subjects of mental health disabilities in applicants and employees.

Sick Leave

On the subject of sick leave, Oregon became the newest state to adopt a state-wide sick leave law, joining California, Connecticut and Massachusetts. These states are soon to be joined by Vermont (January 1, 2017), Arizona (July 1, 2017) and Washington (January 1, 2018).  In addition, cities and counties across the country, from San Diego, California to Chicago, Illinois to Morristown, New Jersey enacted sick leave laws that either took effect or are expected to take effect in 2017.   Even the federal government adopted a sick leave requirement for government contractors that will apply to new solicitations and contracts beginning January 1, 2017.

While sick leaves laws continued to rise, some states have continued to enact legislation to prevent local agencies from adopting local sick leave laws. North Carolina and Arizona joined Alabama, Florida, Louisiana, and others in enacting preemptive legislation to avoid the patchwork issues that have cropped in states where individual cities have enacted individual ordinances.

Benefits for Those on Leave

Paid parental leave was a hot topic and is expected to only get hotter in 2017. New York adopted a paid family leave law that will provide employees with up to 12-weeks of wage replacement benefits.  The City of San Francisco adopted an ordinance providing wage replacement benefits for employees taking time off to bond with a new child.  And ending the year with bang, on December 26, 2016, Washington, D.C, enacted significant changes to its paid leave laws to provide employees with up to eight weeks of paid time off to bond with a new child, up to six weeks of paid time off to care for a sick relative and up to two weeks of paid time off when they are sick.

Notable Court Decisions

Not to be left behind, courts across the country issued decisions that will impact how employers respond to requests for accommodations from disabled employees and applicants.  The Eleventh Circuit Court of Appeals upheld a lower court decision that held that the Americans with Disabilities Act does not require that employers provide a disabled employee with a noncompetitive reassignment as an accommodation. The Eighth Circuit Court of Appeals held that an employee can establish causation for a disability discrimination claim if the employee can show that a discriminatory intent contributed in any way to an adverse employment action.  And courts in California further expanded disability related protections, finding that an employer’s denial of an accommodation to a nondisabled employee may serve as evidence of association discrimination under State and that an employee who was seeking medical treatment in connection with an asymptomatic tumor was potentially disabled.

2017 is just around the corner and is expected to be another exciting year in the area of disability leave management.  From all of us the disability leave management blog, we wish you a Happy New Year!

Eighth Circuit Leaves Open the Question of Whether a “Mixed-Motive” or “But-For” Causation Standard Should be Applied to Disability Discrimination Claims Under the ADA

On December 22, 2016, the United States Court of Appeals for the Eighth Circuit issued an opinion in the case of Oehmke v. Medtronic, Inc., Case No. 16-1052, affirming the district court’s grant of summary judgment in favor of the defendant/employer on plaintiff’s claims of disability discrimination and retaliation under the Americans with Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA).  In its opinion, the Eighth Circuit analyzed the plaintiff’s disability discrimination claim under a mixed-motive causation standard, meaning that the Court would allow the plaintiff’s claim to proceed if it found evidence that the adverse employment action was motivated by both permissible and impermissible factors.  In other words, under a mixed-motive analysis, if a discriminatory intent contributed in any way to the adverse employment action, a plaintiff can establish the causation element of a claim for disability discrimination.   Read More