New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case

On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints.

Matthew Donlin (“Donlin”) worked as a general manager for Petco (the “Company”). During 2015, he began suffering “flare-ups” from his medical condition and ultimately took FMLA leave in February 2016.  In May, Donlin’s doctor cleared him to return to work, with certain limitations; however, the Company refused to let him return unless his doctor certified that he was 100% recovered.  Ultimately, Donlin’s employment with the Company was terminated after he failed to complete a reasonable accommodation package, which was a condition of his reinstatement.  Donlin subsequently filed suit against the Company alleging violations of the American with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”).

During the litigation, Donlin issued requests for production and interrogatories to the Company seeking: (1) contact information for “all persons involuntarily terminated from Petco’s employ due to a failure to return to work” after FMLA leave, including all termination documents for employees who failed to request an accommodation or to certify 100% recovery; (2) contact information for all persons who after January 1, 2014 complained that Petco interfered with or denied rights under the FMLA or ADA, including documents regarding any claim and Petco’s investigation of it; and (3) information and documents concerning FMLA and ADA complaints made to a governmental agency or in court.”

The Company objected to each request on the grounds that the information sought was not relevant or reasonably calculated to lead to discoverable evidence, and that the request was overly broad and unduly burdensome because it was not reasonably limited to relevant circumstances of the employee’s employment, geography, or decision maker.

It is a general rule that evidence regarding an employer’s treatment of other employees is relevant to the issues of the employer’s discriminatory intent, whether there is a pattern of retaliatory behavior, or the employer’s credibility in its assertion of legitimate motives. Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990).  Typically this rule permitting the discovery of other employees’ complaints is limited to those that are within the same “employing unit or work unit.” However, this geographic scope may be expanded when the plaintiff shows that “there were hiring or firing practices and procedures applicable to all employing units.” Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 653 (D. Kan. 2004).

In granting Donlin’s Motion to Compel, the Court found that because it appears that all Petco employees are subject to the same leave of absence policies, and decisions on granting leave were made by the corporate team that was not specifically located within Donlin’s “employing unit,” the employee was entitled to relevant company-wide documents. As a result, the Company was ordered to respond to the interrogatories and requests for production at issue, and pay Donlin’s attorneys fees and costs associated with filing the Motion to Compel.

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

Not properly considering treatment for substance abuse as FMLA-qualifying.

Substance abuse is a workplace issue that can quickly become complicated. Employers should keep in mind that substance abuse can be a serious health condition (SHC) under the FMLA if the requirements for a SHC are otherwise met (for an overview of those requirements, see our earlier post in this series discussing what constitutes a serious health condition).

FMLA leave may only be taken for substance abuse if the treatment is administered by a heath care provider, or by a provider of health care services on referral by a health care provider. FMLA leave is for treatment of the employee’s substance abuse. An employer need not tolerate absences because of the employee’s use of the substance, which would not qualify for FMLA leave.  While an employer may not take action against an employee because the employee exercised FMLA rights, an employer can take employment action for substance abuse if the employer has an established policy, applied in nondiscriminatory manner that has been communicated to all employees and which provides under certain circumstances an employee may be terminated for substance abuse.

In Green v. Baptist Hospital, Case No. 3:15cv124 (D. Fla. Nov. 28, 2016), an employee alleged that his employer interfered with his right to take FMLA when he was fired. The employee took 3 weeks of FMLA for substance abuse treatment, and about two weeks later relapsed. Plaintiff was a “no call/no show” from work for five days, and he was fired on the sixth consecutive day of unexcused absence for his “no call/no shows.”  The court decided that the employer properly terminated the employee, who testified that he was absent because he was “probably just getting high.” The court found that the employer acted properly by allowing the employee to previously take FMLA leave to receive treatment, and the employer was entitled to terminate the employee for the “no call/no show” behavior because no FMLA protection existed for the situation where an employee was absent due to his substance use.

In Holloway v. D.C. Government, Case No. 09-512 (D.D.C.  Dec. 30, 2013), the court denied an employer’s motion for summary judgment of an employee’s FMLA interference claim. The employee entered a long-term substance abuse treatment program, and informed his employer of his need to take FMLA leave for successful completion of the program. However, the employer failed to respond to the employee’s leave request and ultimately terminated the employee after the employee did not report to work. The court decided that the employee had provided his supervisor with adequate notice of his desire to take FMLA leave to attend a substance abuse program, a valid use of FMLA.

Employers must balance goals of a safe and healthy work environment with the understanding that substance abuse can be a serious health condition that might require FMLA leave. Employers should keep in mind that an employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

Seventh Circuit Clarifies ADA is Not a Leave Statute

On September 20, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a significant opinion for employers in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017), holding that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  The Seventh Circuit joins the Tenth Circuit in rejecting the EEOC’s position that an extended leave of absence may be required as a reasonable accommodation under the ADA.  In Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014), former Tenth Circuit Judge Neil Gorsuch (now a Supreme Court Justice) found that the plaintiff’s request for a leave of absence beyond the six months provided by the defendant’s leave policies was not a reasonable accommodation under the ADA.

To read more about this important decision, click here.

The Severson decision is a huge win for employers in the Seventh Circuit.  Stay tuned to find out if Severson will file a petition for review with the U.S. Supreme Court.  However, if he does, it is safe to assume that he has at least one foe (Justice Gorsuch) waiting to weigh in.

Governor Brown Has Another Opportunity to Expand Parental Leave to Small Businesses in California

The New Parent Leave Act has made it to Governor Jerry Brown’s desk awaiting his signature or veto. This bill would mean significant expansion of parental leave for small employers in California. It is uncertain whether Governor Brown will sign the bill into law after vetoing a similar bill almost a year ago. Read More

Employers Should Engage In the Interactive Process Even If They Believe the Employee Is Not Qualified.

Diligent and well informed employers know that it is the best practice to engage in an individualized assessment of a requested accommodation. Sometimes an employer may be tempted to refuse to discuss an accommodation because it doesn’t believe that the request is reasonable or because the employee is not “qualified.” It should resist the temptation.

A recent Maryland case drove home this point.  In Van Rossum v. Baltimore County, Maryland, the Plaintiff was a community health inspector in Baltimore County who alleged that she started experiencing a variety of symptoms in May 2009, including severe pain, reduced vision, numbness, and “brain fog,” all of which she attributed to the presence of mold and fungus in the courthouse where her office was located. After her department moved to the fourth floor in a new building her symptoms worsened which she attributed to poor ventilation. The County refused her request to change offices from the fourth floor and she felt forced to retire early. She claimed constructive discharge, a failure to accommodate, discrimination and retaliation for seeking an accommodation.

Because the County did not even attempt to engage in the interactive process, at trial it could only argue that Van Rossum was not entitled to a reasonable accommodation because she was not qualified. It based its argument on the fact that after she quit, Van Rossum received Social Security Disability Insurance (“SSDI”) which was based on a determination that she was unable to work. There were two problems with this. First, Van Rossum did not apply for SSDI until after her termination and so the County could not have based its failure to engage in the interactive process on that basis. Second, pursuant to Cleveland v. Policy Management Systems Corp., the fact that an employee receives SSDI is not conclusive of the qualification issue under the ADA. In Cleveland, the U.S. Supreme Court held that receipt of such benefits does not necessarily conflict with an ADA claim and it is possible for an employee to provide a sufficient explanation for any apparent contradiction i.e. that she could have done the job with a reasonable accommodation.

The court, following Cleveland, allowed Van Rossum to try and explain the apparent contradiction. She explained to the jury that she was unable to work only because the County denied her accommodation and forced her to return to work in a place that made her sick. She testified that she could perform the essential functions of her job when accommodated and would have been able to do so if they had let her switch offices. It was only after the denial of the accommodation that her health deteriorated because she had to work on the fourth floor. The jury agreed with Van Rossum.

Had the County engaged in the interactive process with Van Rossum it may have been able to offer an accommodation that would have been reasonable even if it wasn’t the one Van Rossum preferred. Alternatively, it may have been able to show that there was no reasonable accommodation available. By failing to engage at all, the County handicapped itself at trial.

Leaving Defenses On The Table In Drafting Employee Handbooks And Posting Notices

While off-the-shelf employee handbooks can be cost-efficient in the short-term, sometimes they leave important employer defenses on the table.  This is particularly true for state-specific defenses.  For example, while most Michigan employers know it is best to include a reporting procedure for harassment in their employee handbook, many do not know that Michigan’s Persons with Disabilities Civil Rights Act can provide a statutory defense to failure to accommodate claims, if key language is included in the handbook or a posted workplace notice.

Under Section 210(18) of Michigan’s Persons with Disabilities Civil Rights Act, an employee or applicant with a disability may allege a failure to accommodate claim only if the individual notifies the employer in writing of the need for accommodation within 182 days after the date the individual knew or reasonably should have known that an accommodation was needed.  However, for this restriction on Michigan failure to accommodate claims to apply, the employer must post notices or use “other appropriate means” to provide all employees and job applicants with notice of the time limit and the requirement of a writing (See MCL 37.1210(19)).

Including required language in an employer handbook or policy can go a long way to safeguarding this defense.  Additionally, the Michigan Department of Civil Rights (MDCR) has also decided to assist employers this year in that the most recent version of Michigan’s Discrimination Law poster includes a note to employees and applicants with disabilities regarding the 182-day time limit and required writing.  This version of Michigan’s poster is not required because a business does not have to include the information in its anti-discrimination posting.  However, as the MDCR’s website states, “[w]hether the notice is included in this poster or not, a business that fails to provide adequate notice to its employees may waive the ability to use the time limit as a defense.”

This example emphasizes why it is important for employers to have an attorney review employee handbooks, and keep up to date with posters that are either required or recommended under state and federal law.  For multi-state employers, it is particularly important to review handbooks and policies for compliance with the laws of every state in which they have employees.  As an aside, however, note that for compliance with the Americans with Disabilities Act and employee relations, an employer should still engage in the interactive process with any employee who needs an accommodation, even if the employee did not comply with the required procedure.  The example above only creates a defense under Michigan law, as this blog post suggests.

ADA Compliance Challenges: Navigating the Over-accommodation Conundrum

Make no mistake about it: ADA compliance can be challenging.  This is especially true when it comes to providing reasonable accommodation.  Not uncommonly, managers wanting to do the right thing actually provide more than the law requires.  Although well-intentioned, this practice often leads to conflict if more generous accommodations are later scaled back. Thankfully, a recent decision by the Eleventh Circuit Court of Appeals supports the notion that employers should not be penalized for going beyond their legal obligations.

Paul Boyle joined the City of Pell City in March 2001 as a Heavy Equipment Operator in the Street Department.  An on-the-job injury that same year left him disabled, and he could no longer perform the duties of his position. The Street Department Superintendent initially accommodated Boyle by letting him do office work.  In 2005, Boyle and the Superintendent reached a written agreement, under which Boyle would perform the duties of the Street Department Foreman for two years, but at his prior Heavy Equipment Operator pay rate. During this time, the actual Foreman voluntarily worked as a mechanic but retained his Foreman title and pay.

As it turned out, this arrangement continued unchanged until June 2012, when the Superintendent retired.  The new Superintendent promptly removed Boyle from the Foreman position and assigned him to work inventory, over Boyle’s protests that the physical demands of the inventory job made it difficult for him to work.  When Boyle asked to be returned to the Foreman position, the Superintendent insisted that since the original Foreman retained the Foreman title and pay, he – not Boyle – should perform the duties of the job.

Boyle ultimately took disability retirement. He then filed suit, claiming among other matters that the City had violated the Rehabilitation Act because the Superintendent’s refusal to return him to the Foreman position denied him a reasonable accommodation.  The district court granted summary judgment for the City.

The appellate court affirmed, holding that Boyle had failed to identify any reasonable accommodation the City could have provided.  Like the Americans with Disabilities Act (ADA), the Rehabilitation Act does not require an employer to create a new position for a disabled employee or to reassign the employee to another job if no vacant position is available.  Boyle presented no evidence that the Foreman position was ever vacant during the time he performed Foreman duties.  The City was not obligated to create a second Foreman position.  Nor did it have any responsibility to “bump” the actual Foreman from the job to generate a vacancy for Boyle, or to promote Boyle as an accommodation for his disability.

Most importantly, the mere fact that the City had accommodated Boyle for years by allowing him to perform Foreman duties did not, in the Eleventh Circuit’s opinion, mean his removal from those duties was a failure to accommodate.  This accommodation was not required by law.  Therefore, removing it would not run afoul of the Rehabilitation Act’s accommodation requirements.

Sometimes good deeds do go unpunished.

Can I Get Some Clarification on That Certification? Maybe Not … Differences Between FMLA and CFRA

Under the Family and Medical Leave Act (“FMLA”), an employer is permitted to contact an employee’s healthcare provider, with the employee’s permission, to clarify a medical certification submitted in support of the employee’s request for a leave of absence. Under the FMLA, “clarify” means to understand the handwriting on the certification or the meaning of a healthcare provider’s response contained in the certification.  “Clarify” does not mean obtaining a better understanding of a vague, ambiguous, or incomplete certification.  For that, an employee must sign an employer’s written notice of the “deficiency” and allow the employee at least seven calendar days to cure any deficiency.  Moreover, an employer may not ask the healthcare provider for any information beyond that which is on the certification form.

California law is far more restrictive and does not allow an employer to contact an employee’s healthcare provider to “clarify” a certification for a leave of absence under the California Family Rights Act (“CFRA”). Therefore, when presented with a medical certification for a leave of absence when an FMLA and CFRA leave run concurrently, the CFRA’s less permissive rules apply and an employer should not contact the employee’s healthcare provider for “clarification” of the certification. An employer may, however, ask employees to cure deficiencies in certifications and insist upon receiving a complete and sufficient medical certification.

Do Employers Have to Accommodate Pregnant Employees?

Massachusetts says yes!

An amendment to the Massachusetts Fair Employment Practices Act requires employers to accommodate pregnant workers.

According to the law, some accommodations that may be necessary for pregnant workers, include:

  • more frequent or longer breaks;
  • time off;
  • acquisition or modification of equipment or seating;
  • temporary transfers;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; or
  • a modified work schedule.

The amendment goes into effect April 1, 2018 (less than 9 months away).  Massachusetts is not the first state to expressly expand this protection to pregnant workers (and likely will not be the last).  Click here to read more about this Massachusetts law.

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